Biraban Local Aboriginal Land Council v Attorney-General of New South Wales [2022] FCA 144

Hunter Region

The determination area relates to the land and waters in 26 areas within the Lake Macquarie City Council local government area, which in total cover approximately 40.5 hectares. 

National Native Title Register Extract (NND2022_001), attached, provides a written description of the area covered.

The area is within the jurisdiction of the Macquarie City Council.

Registered on the National Native Title Register

Between: Birabin Local Aboriginal Land Council (Applicant) and Attorney-General of New South Wales (First Respondent) NTSCORP Limited (Second Respondent)

Judge: Abraham J 

Determination

The Federal Court of Australia determined that native title does not exist in respect of the relevant determination area.

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

Background

On 17 September 2020, the applicant made a non-claimant application for a determination of native title under s61(1) of the Native Title Act 1993 (Cth) (NTA), given the applicant held a non-native title interest in relation to the whole of the area in relation to which the determination is sought, as the applicant held a legal interest in the land.

The applicant is a Local Aboriginal Land Council (LALC), and the land forming part of the determination sought had been transferred to the applicant in fee simple. This transfer is subject to any existing native title rights, which are to be preserved per s36(9) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act). 

Details of Judgment

The first respondent, per s86G of the NTA, outlined that it did not oppose the Court making orders in, or consistent with, the terms sought by the applicant (per Abraham J at [4]). In addition, the second respondent, also per s86G of the NTA, outlined that it neither consents nor opposes orders in, or consistent with, the terms sought by the applicant (per Abraham J at [5]). 

The parties agreed that it would be 'open for the Court to determine this proceeding on the basis that no native title exists because it has not been claimed, without the need for making any findings regarding the extinguishment of native title...[and] that it would be appropriate for the Court to determine the proceeding on the papers...' (per Abraham J at [7]). 

The Court outlined that a determination of native title is, per s225 of the NTA, a determination of whether or not native title exists in relation to a particular area (per Abraham J at [14]). However, as a non-claimant application seeks a determination that native title does not exist, the s225 NTA criteria are not operationalised, and therefore the '...Court is not required to make a determination in relation to them' (per Abraham J at [15]). As outlined by Abraham J, and borrowing from the determination of Mace v State of Queensland [2019] FCAFC 233, the question that follows for the Court is '...whether the applicant [has] discharged its burden of proof that no native title exists in the claim area' (per Abraham J at [16]). 

On the question of a prior registered claimant application made in relation to the area covered by a non-claimant application, the Court reflected that the NTA encouraged all persons with a proper interest in relation to any particular area to ensure that their interest is able to be taken into account where any application in relation to that area is made, with such assertions being able to become subject of evidence in the non-claimant application and '...tested in the usual way' (per Abraham J at [19]). This is reflective of the "once and for all" nature of the determination the Court is asked to make (per Abraham J at [19]). 

In submitting that native title does not exist because it has not been claimed, or cannot be proven by, a native title claimant, in its application for a determination the applicant outlined that the notification period for the application was adhered to and in that period no claim to hold native title had been asserted (per Abraham J at [24]-[30]). 

The Court also heard evidence outlining that the Register of Native Title Claims showed there were no relevant entries on the Register which fell within the external boundary of the application (per Abraham J at [26]) as well as that there were no approved determinations of native title in any of the areas forming part of the application (per Abraham J at [29]). 

Based on this evidence, the Court held that it was satisfied on the balance of probabilities that no native title claims exist in the areas forming part of the application, and that the orders sought by the applicants are within the Court's power (per Abraham J at [49]).  

Native title does not exist. 

Related Entries

Documents

Glossary