Leeton and District Local Aboriginal Land Council v Attorney General of New South Wales [2021] FCA 356

Between the Leeton and Murrami Region in the State of New South Wales.

The determination area consists of the following three plots of land located within the Local Government area of the Narrandera Shire Council.

• Lot 18 in DP 751682 (Lot 18);
• Lot 264 in DP 751682 (Lot 264); and
• Lot 280 DP 726688 (Lot 280)

For further information see the determination via the url link above.

Between: 

Leeton and District Local Aboriginal Land Council (Applicant) and Attorney General of New South Wales (First Respondent), and NTSCORP Limited (Second Respondent). 

Judge: 

Perry J.  

Decision:

This was an unopposed determination by the Court that native title does not exist in the determination area, made under s 86G of the Native Title Act 1993 (Cth). It was common ground between the parties that native title had been extinguished by the Crown granting interests in land, which amounted to previous exclusive possession acts under the s 20(1) Native Title (New South Wales) Act 1994 (NSW).

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

Background

On 24 January 2020 the applicant, the Leeton and District Aboriginal Land Council filed a non-claimant application of determination of native title under s 61(1) of the Native Title Act 1993 (Cth) [1]. 

The Applicant is the registered proprietor of the lots included in the determination area. The applicant holds non-native title interests in the land. 

The Applicant sought this determination to establish that native title rights and interests did not exist over the land in the determination [2]. This was necessary because it was prevented from dealing with the land under s 42 of the Aboriginal Land Rights Act 1983 (NSW).

Details of Judgment

On 14 April 2021, Justice Perry decided that the Leeton and District Aboriginal Land Council had discharged their burden of proving that any native title in the land had been extinguished [43]. While Perry J noted that the Court should practice caution before determining that native title does not exist, upon consideration, his Honour came to the conclusion that native title had been extinguished in the determination area for the following reasons [42]: 

• Lot 18 was extinguished by the granting of an estate to James Henry Douglas on 9 March 1885. This grant constitutes a previous exclusive possession act under s 23B(2) under the Native Title Act 1993 (Cth). Accordingly native title is wholly extinguished per s 20(1)(a) of the Native Title (New South Wales) Act 1994 (NSW) [28-32]. 
• Lots 264 and 280 were extinguished by the granting of Special Lease 1926-3 Narrandera (SP 1926-3) [36]. Per s 75 of the Crown Lands Consolidation Act 1913 (NSW), a Special Lease permits the lessee to use the land or waters covered by the lease solely or primarily for agricultural purposes. As such, Special Lease 1926-3 granted over Lots 264 and 280 were granted for the purposes of grazing and agriculture [37]. Accordingly, with the granting of this Special Lease native title was wholly extinguished per s 20(1)(a) of the Native Title (New South Wales) Act 1994 (NSW) [41].

Native title does not exist

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