Darkinjung Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1136

Central Coast

Registered with the National Native Title Tribunal on the Native Title Register on 3 August 2018

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

Full text of the determination is available via the URL link above.

Background

On 15 June 2017, the applicant, 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 applicant, the Darkinjung Local Aboriginal Land Council (DLALC), held fee simple titles over the determination area and so was able to make this non-claimant application [2],[19].

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). 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 could 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 [2].

On 4 December 2017, an order was made that NTSCORP, being the State native title representative body, be joined as a respondent in the proceedings. 

Details of Judgment

The Attorney General of New South Wales and NTSCORP did not oppose DLALC's application for a determination that native title did not exist in the area. Both DLALC and the then Attorney General of New South Wales's submissions relied 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 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 [33], [44].

Justice Griffiths was satisfied that no native title existed because the procedural matters had occurred and there was no response to the public notice, and there were no previously approved or current native title applications over the area [48] .

Native title does not exist

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