Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 76

Central Coast

This determination relates to the areas in the Darkinjung #2, #3 and #4 applications:

• Darkinjung #2 covers�three plots of land in the suburb of�Kincumber. The area is approximately 6.7 hectares;
• �Darkinjung #3 covers�two areas, near Koala Crescent, in the suburb of Gosford.; and
• Darkinjung #4 covers 13 plots of land in the suburb of� Lake�Munmorah. The area is approximately 5.8 square kilometers.

The determination areas are within the jurisdiction�of the Central Coast Council.

For a detailed description of the area see the documents attached below under documents.

Registered with the National Native Title Tribunal on the Native Title Register on 5 February 2019.

Between:�Darkinjung Local Aboriginal Land Council�(Applicant) and�Attorney General of New South Wales��(First Respondent), NTSCORP Limited ( Second Respondent)

Judge: Griffiths J

Determination: Native title does not exist in the determination area.

Background

On 15 June 2017, the applicant,the�Darkinjung Local Aboriginal Land Council (DLALC),�filed four non-claimant applications for a determination that native title does not exist in relation to the land�under s 61(1) of the�Native Title Act 1993�(Cth). The DLALC is the registered propietor over most of the determination area and so was able to make these non-claimant applications�[1], [18].

Without a determination of native title, the DLALC were unable to freely deal with�the land due to the operation of�s 42 and s 36 of the�Aboriginal Land Rights Act 1983�(NSW) (ALRA)�[4]. Section�42 of the ALRA states that an Aboriginal Land Council can not 'deal with' the land until a determination has been made about the existence of native title rights and interests. Section 36(9)�of�ALRA�states that the applicant will lose their title to the land if there is a successful native title claim over the area. In order to remove these constraints, the DLALC sought a determination that native title did not exist over the land.�

Darkinjung #1 was determined on 3 August 2018 with the Court finding that native title did not exist in the land and waters of other areas over which the DLALC hold freehold title�(Darkinjung Local Aboriginal Land Council v Attorney General of New South Wales [2018] FCA 1136).

The present determination relates to the areas in the Darkinjung #2, #3 and #4 applications.

Details of the Judgment

The Attorney General of New South Wales did not oppose DLALC's application for a determination that native title did not exist in the area. Both DLALC and the the Attorney General of New South Wales submissions relied on the fact that in many cases a ruling could be made once the notice of the application had been made and no claim over native title had been asserted, as was the case in this instance [29], [30].

The Attorney General of New South Wales noted that in certain cases this approach is not taken�and the court might look instead�at positive evidence indicating that no native title is known to exist or�that the local representative body had resolved that there is no such interest [29].

In this manner, NTSCORP submitted that non-claimant applications such as these required evidence from local Aboriginal people. However, as there were no Aboriginal respondents, NTSCORP was not in a position to oppose the application [33].�

Justice Griffiths�agreed with the Attorney General and NTSCORP's submission regarding the potential importance of evidence from local Aboriginal people�but stated that such evidence�turns on the particular facts and circumstances of each case [41].

Justice Griffiths decided the case based on the principles in Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1713 (Worimi #2)�that "many non-claimant applications have been granted on the basis of proof of the formal requirements of the�NT Act�only,�in the absence of any detailed evidence about the existence or otherwise of native title" [53].

The court inferred from the lack of response to the public notices that no person believed native title existed in the area [44]�and that a determination that native title did not exist was appropriately made�since�the formal requirements of the NTA had been met [42].

Native title does not exist

Related Entries

Documents

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