Deerubbin Aboriginal Land Council v Attorney-General of New South Wales [2017] FCA 1067

Category: Case Law
Binomial Name: Federal Court of Australia
Date: 7 September 2017
Sub Category:Unopposed Determination
Place:

North Parramatta

State/Country:New South Wales, Australia

The determination area covers three lots of land (described as lots 1, 2 and 4) situated east of the Westmead Hospital and west of Church StreetIt is within the jurisdiction of the City of Parramatta Council. For a detailed description of the area see the Extract from the National Native Title Register attached below in the documents tile.

Legal Status:

Registered with the National Native Title Tribunal.

Legal Reference: Federal Court file no.: NSD1472/2016; Tribunal file no.: NND107/002
Alternative Names:
  • Deerubbin Local Aboriginal Land Council
  • Subject Matter:Cultural Heritage | Native Title | Native Title - Extinguishment
    URL: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2017/1067.html?context=1;query=%20Deerubbin%20Aboriginal%20Land%20Council%20v%20Attorney-General%20of%20New%20South%20Wales;mask_path=
    Summary Information:

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

    Judge: GriffithsJ

    Determination:Native title does not exist in the determination area.

    Detailed Information:

    Background

    TheDeerubbinAboriginal Land Council (theDeerubbin ALC) holds freehold title over the three lots of land. The transfer of this land to the applicant was ordered on12 December 2014 in the NSW Land and Environment Court [7].

    On 5 September 2016, theDeerubbin ALC filed a non-claimant application for acourtdetermination that nativetitle does not exist in relation to the described lots of land 1, 2 and 4, under s 61(1) of the Native Title Act 1993 (Cth) (the NTA) [1].

    This determination is sought because the applicant isrestricted indealing with the land as a result of sections 36(9) and 42 of the Aboriginal Land Rights Act 1983 (NSW) (the ALR) [2].

    Restrictions imposed by sections 36(9) and 42

    Section 36(9) states that any transfer of land to an ALC is subject to any native title rights and interests that existed prior to the transfer of the land.

    Section 42 requires that an ALC may not deal with land subject to native title rights and interests unless that land is subject to an approved determination of native title.

    Details of the Judgement

    Formal requirements were met

    The Deerubbin ALC provided evidence thatthe formal notification requirements of s 66 of the NTA were met [36].

    The notification period for the application was 16 November 2016 to 15 February 2017. On 2 November 2016, public notice was given in the Parramatta Advertiser and Koori Mail. During the notification period, no application for a determination of native title had been made [9].

    The Court was satisfied that all formal or procedural requirements were met [47].

    Native title did not exist in thedeterminationarea

    Neither the AttorneyGeneral of New South Wales nor NTSCORP (the state native title representative body) opposed the applicationandthe Court made orders byconsent of the parties thatthe proceeding bedetermined unopposed in relation to s 86G of the NTA [10].

    The primary basis of this application and the issue to be determined was whether native title had been extinguished [21]. The legal requirement to be satisfied here is that previous acts of the Crown had extinguished native title.

    The State of NSW had constructed and established public works (the Paramatta Gaol complex) in relation to lots 1 and 2 on or before 23 December 1996 [22-26]. The applicant submitted further that a wall was constructed on lot 4 in 1898 [29].

    Deerubbin ALC submitted that because the determination area had been the subject of one or more of these previous exclusivepossession acts this meant that native title was extinguished [21].

    Apart from extinguishment, Deerubbin ALC submitted that no application of native title had been filed in respect of the area during the notification period [31]. They also submitted that even if it was, it is unlikely that native title would be recognised over the land [32]. This was because in the Darug Lower Portland claim it was established that it was "extremely unlikely" that those who previously asserted native title in relation to land within boundaries that included "Parramatta" would succeed [32].

    The Court found that native title had indeed been extinguished by one or more previous exclusive possession acts by the State of NSW, therefore satisfying s 23E of the NTA [21]. The Court also determined that because the procedural requirements were met, it was within its power to make the determination order that no native title exists in relation to the relevant area being lots 1, 2 and 4 [55].

    Outcomes:

    Native title does not exist.


    Related Entries

    Organisation
  • National Native Title Tribunal
  • Deerubbin Local Aboriginal Land Council - Native Title Applicant
  • NTSCorp Limited - Respondent
  • Legislation
  • Native Title Act 1993 (Cth)
  • Native Title Amendment Act 1998 (Cth)
  • Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth)
  • Aboriginal Land Rights Act 1983 (NSW)
  • People
  • Attorney General of New South Wales - Respondent

  • Documents

    Document
    Extract from the National Native Title Register for NND2017/002 as at 24/02/2022 (Deerubbin Aboriginal Land Council) - ( PDF)

    Glossary

    Native Title (Australia) | National Native Title Tribunal (NNTT) (Australia) | Native Title Registers | Aboriginal and Torres Strait Islander (Australia) | Applicant | Respondent | Consent Determination (Native Title Act 1993 (Cth)) (Australia) | Aboriginal Corporation (Australia) | Native Title Applicants | Native Title Holders (Native Title Act 1993 (Cth)) (Australia) | Registered Native Title Body Corporate (RNTBC) (Native Title Act) (Australia)