West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1194

West Wyalong Local Aboriginal Land Council v Attorney-General of New South Wales [2018] FCA 1194

The application was properly notified, no competing native title determination application or register entry existed, the notification period had ended, no person opposed the application, and the Court had power to make the determination. The direct and uncontradicted evidence of local Aboriginal witnesses, including elders responsible for cultural heritage, together with the absence of any assertion or application claiming native title over the land, established on the balance of probabilities that no native title group held native title rights and interests in the application area. It was therefore appropriate to make the unopposed determination without a hearing under s 86G.

Jurisdiction
Australia
Judgment Date
10 August 2018
Procedural Posture
Non Claimant Application for an Approved Determination of Native Title Under the Native Title Act 1993 (cth) / Heard on the Papers; Unopposed Application Determined Without a Hearing
Outcome
Determination made that native title does not exist in the application area; no order as to costs.
Legal Topics
['non Claimant Application' 'determination That No Native Title Exists' 'aboriginal Land Rights Act Restrictions on Dealing With Land' 'unopposed Native Title Application' 'determination Without Hearing']
['native Title' 'aboriginal Land Rights'] ['non Claimant Application' 'determination That No Native Title Exists' 'aboriginal Land Rights Act Restrictions on Dealing With Land' 'unopposed Native Title Application' 'determination Without Hearing']

Case Brief

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Procedural Posture

Non Claimant Application for an Approved Determination of Native Title Under the Native Title Act 1993 (cth) / Heard on the Papers; Unopposed Application Determined Without a Hearing

Legal Issues

  1. 1 ['Whether the prescribed conditions for making an approved determination that no native title exists in the application area were satisfied.' 'Whether the Land Council established on the balance of probabilities that no native title exists in the application area.' 'Whether it was appropriate to determine the unopposed non-claimant application without a hearing under s 86G of the Native Title Act 1993 (Cth).']

Ratio Decidendi

The application was properly notified, no competing native title determination application or register entry existed, the notification period had ended, no person opposed the application, and the Court had power to make the determination. The direct and uncontradicted evidence of local Aboriginal witnesses, including elders responsible for cultural heritage, together with the absence of any assertion or application claiming native title over the land, established on the balance of probabilities that no native title group held native title rights and interests in the application area. It was therefore appropriate to make the unopposed determination without a hearing under s 86G.

Court Disposition

Determination made that native title does not exist in the application area; no order as to costs.

Orders

  • ['Native title does not exist in the land described as the entirety of each of Lots 1233, 1243, and 1257 in Deposited Plan 753135 and located in the Local Government Area of Bland, Parish of Wyalong, County of Gipps, State of New South Wales.' 'There be no order as to costs.']