Deerubbin Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1506

The Hills Shire, Sydney.

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

Between:

Deerubbin Local Aboriginal Land Council (Applicant) 

and Attorney General of New South Wales (First Respondents) 

and NTSCORP LIMITED (Second Respondents)

Judge: Griffiths J. 

Determination

Native title does not exist in relation to the area of land and waters comprised in the entire determination area.

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

Background

Deerubbin Local Aboriginal Land Council (Deerubbin) made a non-claimant application for a determination of native title. Deerubbin sought a determination, under s 86G of the Native Title Act 1993 (Cth) (NTA), that native title does not exist in order to remove restrictions on its ability to deal with the land. The reason being, that s 42 of the Aboriginal Land Rights Act 1983 (NSW) prevents Deerubbin, as the Aboriginal Land Council in which the land is vested, from dealing freely with the land if it is subject to native title rights and interests. Section 36(9), further states that if native title is found to exist then the applicant would be subject to those native title rights and interests.

Details of Judgment

The application by Deerubbin was unopposed.

Griffiths J needed to answer two questions [21]:

1. That the formal requirements had been met in relation to the making of the application, and;
2. That no native title existed in the determination area.

The formal requirements had been met

Griffiths J initially dealt with an error in the public notices published by the National Native Title Tribunal (NNTT) about the parcel of land. The public notices incorrectly stated that the area of land was 178 square metres, rather than 0.178 square kilometres [6].

Subsections 66(1) and 66(3)(d) of the NTA require that the Registrar of the NNTT undertake a public notification process once an application for a determination of native title is made [16]. The formal requirements of this process are found in clause 6(5) and clause 4 of the Native Title (Notices) Determination 2011 (No. 1) (Cth) (NTD). 

Despite the incorrect statement about the size of the land, Griffiths J found that the notices published by the NNTT met the requirements of subsection 66(3)(d) and did not prevent the application from being granted [30]. This was because the incorrect description of the area was not one of the mandatory items listed in subsection 66(3)(d) of the NTA or cl 6(5) of the NTD [30]. The other information in the notice provided a 'clear description' as required by cl 4 of the NTD and was all correct [26]-[27].

All other formal requirements under the NTA had also been met [31]-[32].

Native title did not exist in the determination area

The approach taken to the determination of a non-claimant application is the same as that taken in relation to any other applicant. Therefore Griffith's J was required to determine whether the applicant discharged its burden of proof that no native title exists in the claim area [14].

Deerubbin was required to show that 'on the balance of probabilities' (it was more likely than not) that [34]:

1. Native title is not claimed by, or can not be proved by, a native title claimant; or
2. Native title has been extinguished by the Crown.

Griffiths J found that native title had been extinguished by a special lease granted in 1930 that included the whole of the determination area [38]. Division 2B of the NTA confirms that native title will be extinguished by past valid or validated acts defined as 'previous exclusive possession acts' (PEPAs) or 'previous non-exclusive possession acts' [40]. Griffiths J was satisfied that this special lease was a PEPA and therefore any native title in the determination area was extinguished by the grant of the special lease in 1930 [46]-[47].

As the formal requirements had been met and native title had been extinguished in the determination area native title was found not to exist in the determination area.

Native title does not exist.

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