Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1507

Awabakal Local Aboriginal Land Council v Attorney General of New South Wales [2020] FCA 1507

The Court was satisfied that the application was unopposed, the statutory notification and formal preconditions were met, and the order sought was within power. On the evidence, including the absence of any current claimant application or defensive assertion of native title, the discontinuance and circumstances of historical overlapping claims, the absence of evidence from NTSCORP identifying any native title holder, and the absence of any dispute within the local Aboriginal community, Awabakal discharged its burden of proving on the balance of probabilities that no native title exists in the Application Areas. The Court also accepted, in the alternative, that Special Lease 1964-46...

Jurisdiction
Australia
Judgment Date
20 October 2020
Procedural Posture
Non Claimant Application for Determination of Native Title Under S 61(1) of the Native Title Act 1993 (cth) / Unopposed Application Determined on the Papers Under S 86 G of the Native Title Act 1993 (cth)
Outcome
Application granted; negative determination of native title made; no order as to costs.
Legal Topics
['non Claimant Application' 'negative Determination of Native Title' 'extinguishment of Native Title' 'previous Exclusive Possession Acts' 'aboriginal Land Council Dealings With Land']
['native Title' 'aboriginal Land Rights' 'property Law'] ['non Claimant Application' 'negative Determination of Native Title' 'extinguishment of Native Title' 'previous Exclusive Possession Acts' 'aboriginal Land Council Dealings With Land']

Case Brief

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Procedural Posture

Non Claimant Application for Determination of Native Title Under S 61(1) of the Native Title Act 1993 (cth) / Unopposed Application Determined on the Papers Under S 86 G of the Native Title Act 1993 (cth)

Legal Issues

  1. 1 ['Whether the Court had power under s 86G of the Native Title Act 1993 (Cth) to make an order that native title does not exist in the Application Areas.' 'Whether it was appropriate to make the unopposed negative determination of native title sought by the applicant.' 'Whether the applicant discharged its burden of proving on the balance of probabilities that no native title exists because native title has not been claimed or asserted in the Application Areas.' 'Whether any native title in the Application Areas had been wholly extinguished by Special Lease 1964-46 Newcastle and Special Lease 1959-18 Newcastle as previous exclusive possession acts.']

Ratio Decidendi

The Court was satisfied that the application was unopposed, the statutory notification and formal preconditions were met, and the order sought was within power. On the evidence, including the absence of any current claimant application or defensive assertion of native title, the discontinuance and circumstances of historical overlapping claims, the absence of evidence from NTSCORP identifying any native title holder, and the absence of any dispute within the local Aboriginal community, Awabakal discharged its burden of proving on the balance of probabilities that no native title exists in the Application Areas. The Court also accepted, in the alternative, that Special Lease 1964-46...

Court Disposition

Application granted; negative determination of native title made; no order as to costs.

Orders

  • ['Pursuant to s 86G of the Native Title Act 1993 (Cth), native title does not exist in relation to the areas of land and waters comprised in and known as Lot 3109 in Deposited Plan 755247, Lot 1814 in Deposited Plan 42580, Lot 976 in Deposited Plan 755233, Lot 1580 in Deposited Plan 755233, and Lot 1713 in Deposited...