Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 |
| Category: | Case Law | |
| Date: | 18 December 2008 | |
| Sub Category: | Litigated Determination |
| Place: | Boat Harbour, LGA Port Stephens, Parish of Tomaree, County of Gloucestor, NSW |
| State/Country: | New South Wales, Australia |
| The determination area consists of land at Boat Harbour in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, State of New South Wales. The determination area is approximately 3200 square metres, with a lengthy frontage to Kingsley Drive.
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| Legal Reference: | Federal Court No: NSD1989/2004; National Native Title Tribunal No: NN04/12 | |
| Subject Matter: | Native Title |
| URL: | http://www.austlii.edu.au/au/cases/cth/federal_ct/2008/1929.html | |
| Summary Information: | |
| Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929
Between: Worimi Local Aboriginal Land Council (APPLICANT) and
Minister for Lands for the State of New South Wales as the State Minister under the National Native Title Act 1993 (Cth) and Gary Dates (also known as Worimi Dates) (RESONDENTS)
Judge: Bennett J
Where made: Sydney
Determination:
Native title does not exist over the determination area
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| Detailed Information: | |
| The applicant Land Council sought a declaration that no native existed in the determination area. This was because the Land Council had acquired non-native title rights and interests over the land through a grant and transfer of the land from the Minister for Lands for the State of new South Wales pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW). Under this Act, the Land Council was prevented from 'selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the Land' without a determination of native title.
The Court made the following points:
- The applicant (Worimi Local Aboriginal Land Council) must demonstrate on the balance of probabilities that no native title exists in the determination area.
- The evidential burden shifts to the respondent (Worimi Dates) if the Land Council establishes sufficient evidence that no native title exists in the determination area.
- There is no presumption that native title exists on the land.
- The applicant provided sufficient evidence that native title did not exist over the determination area. The applicant presented evidence from Aboriginal people associated with the area who confirmed that, in their view, the native title rights and interests asserted by the respondent did not exist.
- Worimi Dates did not present sufficient evidence to cast doubt on the evidence provided by the applicant. In particular, the respondent failed to identify a normative body of laws and customs acknowledged and observed prior to settlement and failed to demonstrate how those laws and customs continued to be acknowledged and observed without substantial interruption.
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