Background Awabakal Aboriginal Land Council (Awabakal ALC) filed a non-claimant application for a determination of native title under s 61(1) of the Native Title Act 1993 (Cth) on 24 January 2020 [1]. Awabakal ALC sought the determination to establish that native title rights and interests did not exist over the land so that it could deal with the land unencumbered [7]. Awabakal was the registered proprietor of the lots comprising the determination area [2], but their current and future ability to deal with the land was restricted as a result of ss 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) [7]. Section 42 restricts dealing with land if native title interests exist over it. Section 36(9) states that if native title is found to
exist then the applicant would be subject to those native title rights
and interests [7]. Details of Judgment Although the application was unopposed, there was a difference between the parties about whether it should be decided on the basis that native title had been extinguished or whether native title had not been claimed [34]. Griffiths J ultimately decided on the basis that native title had not been claimed [36]. Native title had not been claimed The application areas overlapped with two historical native title claims. This meant that Awabakal ALC needed to do more to prove that no native title existed. Griffiths J was satisfied that they had discharged that burden [38]-[39]. Native title had been extinguished While not strictly necessary, Griffiths J addressed the submission that native title had been extinguished [43]. It was uncontroversial that native title had been wholly extinguished over the application areas by the grant of Special Lease 1964-46 and Special Lease 1959-18. These amounted to a Previous Exclusive Possession Act (PEPA) [44].
Section 20 of the Native Title (New South Wales) Act 1994 (NSW), when read together with section 23C and 23E of the Native Title Act 1993 (Cth), says that a PEPA of the State of New South Wales has the effect of wholly extinguishing native title [45]. A PEPA was valid if it took place before 23 December 1996 (date of the Wik Peoples v The State of Queensland [1996] HCA 40; 187 CLR 1 determination) [46].
Special Lease 1964-46 Newcastle was for the “Erection of building (clubhouse) and recreation (bowling greens)” granted on 15 October 1965 in relation to Portion 3109. This is known as Lot 3109 in Deposited Plan 755247 (Area 1). Special Lease 1964-46 wholly affected Area 1 [50]-[51].
Special Lease 1959-18 Newcastle was also for the “Erection of building (bowling clubhouse) and recreation (bowling green)”, granted on 26 February 1960 in relation to Portion 1580. This became known as Lot 1580 in Deposited Plan 755233 (Area 4) [52].
On 3 November 1972, Portion 976 was added to Special Lease 1959-18 Newcastle. This became known as Lot 976 in Deposited Plan 755233 (Area 3) [52].
On 24 October 1975, Portion 1713 was added to Special Lease 1959-18 Newcastle. This became known as Lot 1713 in Deposited Plan 755233 (Area 5) [52].
On 30 July 1980, Lot 1814 Deposited Plan 42580 (Area 2) was added to Special Lease 1959-18 Newcastle [52]. Special Lease 1959-18 Newcastle thus wholly extinguished native title in Areas 2-5 [54].
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