Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236

Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1236

Between: Bahtabah Local Aboriginal Land Council (Applicant) and Attorney General of New South Wales (Respondent #1) and Native Title Services Corp Limited (NTSCorp) (Respondent #2)

Judge: Abraham J

Judgment:

Bahtabah Local Aboriginal Land Council has a non-native title interest in the land and sought a determination that native title does not exist under s 61(1) of the Native Title Act 1993 (Cth). The respondents did not oppose this application.

Abraham J made orders that native title does not exist on the land within the claim area.

Abraham J noted that he was concerned with an unopposed non-claimant application but was satisfied that all procedural requirements were met and that the evidence that showed, on the balance of probabilities, that no native title claims exist in the area.

Background

Under a non-claimant native title determination application, a person or entity that holds a 'non-native title interest' in land can seek a court determination that native title does not exist in relation to a specific area.

The land in the claim area was previously transferred to the applicant in fee simple, subject to any existing native title rights preserved under s 36(9) of the Aboriginal Land Rights Act 1983 (NSW).

The application sought a determination on the existence of native title within the land, and to be released from the restrictions under s 42(1) of the ALR Act. This section states that an Aboriginal Land Council must not deal with land vested in it which is subject to native title rights and interests, unless that land is subject to an approved determination of native title.

The Bahtabah Local Aboriginal Land Council identified that some of the areas in this non-claimant application are related to the native title claim of the Awabakal and Guringai People. That claim was discontinued in June 2017. This is now the sixth non-claimant application heard before the Federal Court, since the Awabakal and Guringai People discontinued their claim relating to the same land.

Details of judgment

The Court determined that the formal requirements of public notification of the application had been met [20]-[22]. The Court rejected NTSCORP's arguments that the requirements had not been met, firstly saying that an absence of evidence from local Aboriginal people responding to the application does not necessarily have to be given great weight [25]. Secondly, the Court held that notifying the public by newspaper is still reasonable, although in the future it may be more appropriate to use social media [24]-[25].

The Bahtabah Local Aboriginal Land Council drew similarities to Mace v State of Queensland [2019] FCAFC 233 (Mace) to forward their argument. Specifically that, "at the time this non-claimant application falls to be decided, there is no persons or groups who assert native title rights and interests in the claimed land" [33].

Further, the applicants submitted that, as in Mace [165], "[i]f those who brought the Awabakal and Guringai People's claim have not come forward by now, it is reasonable to infer those people no longer assert native title continues to exist in the area claimed in this non-claimant application."

Abraham J accepted that this conclusion applied to this case.

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