West Wyalong Local Aboriginal Land Council v Attorney-General (NSW) [2021] FCA 1116

West Wyalong

The application area consists of 10 parcels of land in West Wyalong, approx 400 km west of Sydney.

Native title does not exist in the determination area

Between: West Wyalong Local Aboriginal Land Council (Applicant) and Attorney-General (NSW) and NTSCORP LTD (Respondent)

Judge: Stewart J

Determination

Native title does not exist in the determination area.

Background

The applicant sought a determination that no native title exists in the area via a non-claimant application made under ss 13(1) and 61(1) of the NTA [1]-[3]. The application area consisted of ten parcels of land located in or in the vicinity of West Wyalong [1]. The lot numbers are detailed in [4].

The applicant held freehold title for ten parcels of land in West Wyalong. However, under s 42 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act), the applicant could not deal with the land unless an approved determination of native title was been made.

'Deal with land' is defined in s 40 of the ALR Act to include, the sale, lease or mortgage of the land. 

The applicant had previously obtained a determination that no native title exists in three other parcels of land in the vicinity of West Wyalong, on a similar basis to this application: West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1194 [9].

Senior members of the Local Aboriginal Community, were aware of the application, however, they decided not to pursue any claims in the area [23]-[24]. 

Details of the Judgment

The application area is familiar to senior members of the Local Aboriginal Community, however, no native title claims, overlap the application area and no party has indicated opposition to the application [23]-[24].

Evidence submitted showing a severance of Indigenous connection

Justice Stewart noted that each parcel of land was surrounded by built-up areas such as residential, industrial, and retail zones and some parcels had been cleared or are crossed with roads. Which suggested that no Aboriginal people had an ongoing connection to the area [43].

EMM Consulting Pty Ltd conducted an Aboriginal Heritage Due Diligence Assessment dated February 2021 for Evolution Mining (Cowal) Pty Ltd in support of a development application for Evolution Mining's proposed accommodation village on two of the land parcels [44]. The archeology assessment suggested a low likelihood of Aboriginal objects being present in the land, due to the highly disturbed nature of the application area from construction and from being near a water source [45].

The history of the parcels of land showed that each parcel of land, except Lot 4 DP 1239699,had non-indigenous ownership [46]. No further information was made available to the court in relation to Lot 4.

The Mooka people had an unsuccessful claim in the area. The Mooka claim was filed on 11 February 2000 [37]. It was discontinued on 24 April 2002 [39]. Mooka #2 and Mooka #3 were filed on 28 February 2002 and 7 June 2002, respectively [42]. No evidence exists that the Mooka people maintain an interest in the application area [42]. 

Justice Stewart noted that the evidence overall, pointing to a lack of cultural importance or significance in the area, does not automatically mean no native title exists in the area. However, it does indicate a lack of connection to the land under traditional laws and customs which is the pivotal issue in determining the existence of native title [36]. Further, that no intention had been made to make a native title claim suggests that the local Aboriginal community did not consider there was a connection to the land [36].

Justice Stewart concluded that the evidence indicated a lack of cultural significance and connection to the land [49]. Coupled with there being no opposition to the application, his Honour was satisfied on the balance of probabilities that no native title exists in the application area and that it was appropriate to make that determination [50]-[52].

Native title does not exist in the determination area.

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