On 2 August 2019, the Griffith Local Aboriginal Land Council (the Griffith Local ALC) filed a non-claimant application for a court determination that native title does not exist in relation to the described parcel of land under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) .
The land had been transferred to the Griffith Local ALC on 22 February 2018 under s 36(5A) of the Aboriginal Land Rights Act 1983 (NSW) providing the ALC with a non-native title interest in the whole of the land per subsection (2) of s 61(1) of the NTA , .
Details of the Judgment
Neither the Attorney General of New South Wales nor NTSCORP Limited (the Native Title Service Provider for Aboriginal Traditional Owners in NSW and ACT) opposed the application . As a result, this case was dealt with under s 86G of the NTA ,. The principles relevant to this case were deemed not controversial  and Justice Abraham summarised the principles by referencing Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales  FCA 1236 -.
The primary basis of this application, and the issue to be determined, was whether native title had been extinguished . Extinguishment will have occurred where rights have been granted to third parties, or where the government asserts rights or powers which are inconsistent with the continuing existence of the native tile concerned .
The Griffith Local ALC had the onus of proving that extinguishment was more likely than not to have occurred -. The Griffith Local ALC submitted that if native title was found to have been extinguished, it was not necessary for the Court to also determine whether native title is not claimed . This claim was not challenged.
Formal requirements were met
The Griffith Local ALC provided evidence that the formal notification requirements outlined in s 66 of the NTA were met .
The notification period for the application was from 9 October 2019 to 8 January 2020 . On 25 September 2019, the National Native Title Tribunal issued a public notification of the application in the Koori Mail and the Area News .
No native title claimant applications were filed nor any notices of intention to become a party to the proceeding, other than by NTSCORP . There were no approved or pending native title determination applications over the land .
The Court was satisfied all formal or procedural requirements were met .
Native title did not exist in the determination area
The Griffith Local ALC submitted that native title had been extinguished in the land by a previous act of the Crown where the land was vested in the Crown in fee simple under the Public Works Act 1900 (NSW) . Vesting like this amounts to a previous exclusive possession act (PEPA), as outlined in s 23B(2) of the NTA .
The evidence suggested that the land was appropriated on 6 November 1912 under the Public Works Act 1900 (NSW) for the purposes of the Murrumbidgee Irrigation Area Redemption Act 1910 (NSW) . This vesting was recorded in the NSW Government Gazette dated 6 November 1912 .
Three elements must be satisfied for an act to be a PEPA pursuant to the NTA. The act must have:
- been valid: s 23B(2)(a);
- taken place on or before 23 December 1996: s 23B(2)(b); and
- granted or vested an interest or an estate as set out in s 23B(2)(c) .
According to s 20(1) of the Native Title (New South Wales) Act 1994 (NSW) and ss 23C and 23E of the NTA, extinguishment has occurred when an act was done that is a PEPA (other than a public work) and is attributable to the State of NSW .
The Attorney-General submitted that Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales  FCA 936 is 'sufficient authority to dispose of these proceedings and for the Court to make the orders sought' .
In that case, an appropriation under the Public Works Act 1900 (NSW) was found to have extinguished native title .
NTSCORP agreed, submitting that the notice published in the NSW Government Gazette on 6 November 1912 was a PEPA pursuant to the NTA  and so had extinguished native title at common law. The Attorney-General concurred .
After outlining the principles for common law extinguishment -, the Court held that the appropriation and vesting had been the granting of an estate in fee simple to the Crown which wholly extinguished native title .
All three elements for a PEPA under the NTA were found to be satisfied and the vesting was within the definition of PEPA under s 23B(2) :
- The vesting had been valid because it took place prior to the commencement of the Racial Discrimination Act 1975 (Cth) and effectively extinguishes native title apart from the NTA;
- the vesting did in fact take place before 23 December 1996;
- the vesting was of a freehold interest for the purposes of s 23B(2)(c)(ii) of the NTA, taking into account s 23B(3).
Due to the PEPA, the Court found that native title had been extinguished in the land by the vesting of the estate in fee simple in 1912, and therefore s 23B(9C)(a) of the NTA was satisfied .
With the procedural requirements also met, the Court determined it was appropriate and within its power to make the determination order in the terms sought by the Griffith Local ALC . As native title was found not to exist due to extinguishment, it was deemed unnecessary to address whether native title had not been claimed .