Wagonga Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1113

Narooma

Registered with the National Native Title Tribunal on the Native Title Register.

Between: Wagonga Local Aboriginal Land Council (WLALC) (Applicant) and Attorney General of New South Wales, NTSCORP Ltd, Aileen Blackburn, Marilyn Pickalla Campbell, Gwenda Jarrett, William Campbell, Wally Stewart, John Brierly, Mark Tinelt, Dean Kelly, Cathy Thomas, Leslie Simon, Taressa Mongta and Paul McLeod (Respondents)

Judge: Jagot J

Determination

Justice Jagot found that there was no native title in the Isabel Street land, considering the arguments submitted about the seriousness of the consequences of a native title determination (a negative determination being the permanent negation of any native title rights and interests), the dislocating effects of European colonisation, and the evidence from both parties about the South Coast People's connection to the Isabel Street land in traditional law and custom.

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

Background

Ownership of the land in Isabel Street land had been transferred to the WLALC in 2006, as claimable Crown land under the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The transfer was subject to any native title rights and interests that existed in the Isabel Street land immediately prior to the transfer, under s 36(9) of the ALRA. According to s 42(1) of the ALRA, an Aboriginal Land Council must not deal with such land unless the land had been the subject of an approved court determination of native title.

Accordingly, the WLALC filed a non-claimant application, in March 2017, that no native title existed in the Isabel Street land under s 61(1) Native Title Act 1993 (Cth) (NTA).

Then, on 3 August 2017, the South Coast People made a native title claim over 1.68 million hectares of land on the south coast of New South Wales which included the Isabel Street Land, and together with NTSCORP, contested the WLALC non-claimant application.

Details of Judgment

The WLALC needed to show that, more likely than not, there is no native title in the Isabel Street land.

Notably, a representation made out of court about the existence or non-existence of native title is admissible as evidence under s 72 of the Evidence Act 1995 (Cth).

Applicant's evidence

The WLALC called evidence from a number of Aboriginal people who were among the members of the South Coast People's claim. They attested that, although all country is sacred to Aboriginal people, the Isabel Street land was not, or no longer was, culturally significant compared to other areas. This is taken in the context of white dispossession, Isabel Street being a built-up area, and the land in question being surrounded by development on all sides. Other local non-Aboriginal people that WLALC called stated that, although they could not know with certainty, they had never seen any Aboriginal activities conducted on the Isabel Street land.

Respondents' evidence

The Respondents called evidence from a number of Aboriginal people [216].  It was stated that the Isabel Street land was part of the South Coast area, that other people outside of the court proceedings had spoken of the Isabel Street land as being linked to cultural trails, and the reeds located there, becoming sparse elsewhere, were important for basket weaving.

Mr Alexander Chalmers, a solicitor with NTSCORP which is responsible for the South Coast People's claim, stated that the claim applicant represents a very large claim group but, because of the nature of traditional knowledge, the claim applicant cannot, and does not, hold knowledge about all the areas [272]. The principal solicitor of NTSCORP unexplained, as Mr Chalmers had done, that the process for registration of a native title claim requires that the claimants assert that they hold Native Title in all of the area subject to the application and that their case must have legal merit but NTSCORP, she said, did not have comprehensive evidence about traditional connection in each and every parcel across the area [280].

The South Coast People submitted that there has been no equivalent proceeding in which the Court has made a negative determination in relation to a non-claimant application, and given the serious consequences of native title determination, this case should be considered in the larger context of the overall claim for native title [342]. Further, the South Coast people's claim has been accepted as arguable and accordingly registered [342].

The South Coast People further submitted that many of WLALC's Aboriginal witnesses themselves asserted rights and interests in the Isabel Street land and having referred to evidence that Yuin people had the right to take and use resources on the Isabel Street land [343].

The Attorney General of NSW did not suggest that the case of either party was correct but pointed out that given one of the main objectives of the ALRA is to compensate Aboriginal people for dispossession from their traditional land, the claim should have preference and be determined before a decision is made in this case [349].

Judgment

Justice Jagot accepted all witness evidence as being honest and reliable [352]-[357].

His Honour acknowledged that the existence of native title does not depend on the land being of "significance" to Aboriginal people'. What is required under s 223 of the NTA, is that the claimants have a connection with the relevant land or waters under observed traditional laws and customs [358].

His Honour inferred that "when the Aboriginal witnesses were speaking of the "significance of the land to Aboriginal people they were in fact referring to the existence or otherwise of a traditional connection to the land [under traditional laws and customs]' [360]. 'Land was described as "sacred", "significant" or "important" because of continued traditional, physical and/or spiritual, connections to that land' [360].

His Honour also gave significant weight to the 'dislocating effects of European colonisation of the Narooma area' which 'gave rise to the circumstances by which the South Coast People, on the evidence, lost their traditional connections to some (but by no means all) lands in Narooma' [421].

Justice Jagot concluded that WLALC had proved that there is no native title in the Isabel Street land and that the negative native title should be made [242], [433].

Native title does not exist in the entire determination area.

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