Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067

North Parramatta

The determination area covers three lots of land (described as lots 1, 2 and 4) situated east of the Westmead Hospital and west of Church Street  It is within the jurisdiction of the City of Parramatta Council. For a detailed description of the area see the Extract from the National Native Title Register attached below in the documents tile. 

Registered with the National Native Title Tribunal. 

Between: Deerubbin 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

The Deerubbin Aboriginal Land Council (the Deerubbin ALC) holds freehold title over the three lots of land. The transfer of this land to the applicant was ordered on 12 December 2014 in the NSW Land and Environment Court [7]. 

On 5 September 2016, the Deerubbin ALC filed a non-claimant application for a court determination that native title does not exist in relation to the described lots of land 1, 2 and 4, under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) [1]. 

This determination is sought because the applicant is restricted in dealing with the land as a result of sections 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (the ALR) [2]. 

Restrictions imposed by sections 36(9) and 42

Section 36(9) states that any transfer of land to an ALC is subject to any native title rights and interests that existed prior to the transfer of the land. 

Section 42 requires that an ALC may not deal with land subject to native title rights and interests unless that land is subject to an approved determination of native title. 

Details of the Judgement

Formal requirements were met 

The Deerubbin ALC provided evidence that the formal notification requirements of s 66 of the NTA were met [36].

The notification period for the application was 16 November 2016 to 15 February 2017. On 2 November 2016, public notice was given in the Parramatta Advertiser and Koori Mail. During the notification period, no application for a determination of native title had been made [9]. 

The Court was satisfied that all formal or procedural requirements were met [47]. 

Native title did not exist in the determination area 

Neither the Attorney General of New South Wales nor NTSCORP (the state native title representative body) opposed the application and the Court made orders by consent of the parties that the proceeding be determined unopposed in relation to s 86G of the NTA [10]. 

The primary basis of this application and the issue to be determined was whether native title had been extinguished [21]. The legal requirement to be satisfied here is that previous acts of the Crown had extinguished native title.

The State of NSW had constructed and established public works (the Paramatta Gaol complex) in relation to lots 1 and 2 on or before 23 December 1996 [22-26]. The applicant submitted further that a wall was constructed on lot 4 in 1898 [29].

Deerubbin ALC submitted that because the determination area had been the subject of one or more of these previous exclusive possession acts this meant that native title was extinguished [21]. 

Apart from extinguishment, Deerubbin ALC submitted that no application of native title had been filed in respect of the area during the notification period [31]. They also submitted that even if it was, it is unlikely that native title would be recognised over the land [32]. This was because in the Darug Lower Portland claim it was established that it was "extremely unlikely" that those who previously asserted native title in relation to land within boundaries that included "Parramatta" would succeed [32].

The Court found that native title had indeed been extinguished by one or more previous exclusive possession acts by the State of NSW, therefore satisfying s 23E of the NTA [21]. The Court also determined that because the procedural requirements were met, it was within its power to make the determination order that no native title exists in relation to the relevant area being lots 1, 2 and 4 [55]. 

Native title does not exist.

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