Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3

Worimi (aka Gary Dates) v Worimi Local Aboriginal Land Council [2010] FCAFC 3

The appeal was dismissed because the Land Council was not required to prove the situation at pre-sovereignty or all steps by which native title may have been extinguished; rather, it was sufficient to establish, on the balance of probabilities and based on direct and circumstantial evidence—including the absence of competing claimants and the lack of credible evidence of continued traditional connection—that no native title exists over the land at the time of the application. The primary judge did not err in her application of the law or assessment of the evidence.

Parties
Appellant: Worimi (aka Gary Dates); First Respondent: Worimi Local Aboriginal Land Council; Second Respondent: Minister for Lands for State of New South Wales
Jurisdiction
Australia
Judgment Date
02 February 2010
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Non Claimant Application, Burden of Proof, Determination That No Native Title Exists, Continuity of Traditional Laws and Customs
Native Title Evidence Non Claimant Application Burden of Proof Determination That No Native Title Exists Continuity of Traditional Laws and Customs

Case Brief

Summary, issues, holding and outcome

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Parties

Worimi (aka Gary Dates)

Appellant

Worimi Local Aboriginal Land Council

First Respondent

Minister for Lands for State of New South Wales

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the Land Council was required to prove the nature and content of pre-sovereignty native title rights and interests in relation to the Land
  2. 2 Whether there was sufficient evidence to find that no native title exists in relation to the Land
  3. 3 Whether compliance with formal requirements entitles a non-claimant applicant to a determination that no native title exists

Ratio Decidendi

The appeal was dismissed because the Land Council was not required to prove the situation at pre-sovereignty or all steps by which native title may have been extinguished; rather, it was sufficient to establish, on the balance of probabilities and based on direct and circumstantial evidence—including the absence of competing claimants and the lack of credible evidence of continued traditional connection—that no native title exists over the land at the time of the application. The primary judge did not err in her application of the law or assessment of the evidence.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellant to pay the costs of the appeal.