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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