Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929

Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929

The Land Council proved on the balance of probabilities that no native title exists in relation to Lot 576. The Court held that there is no presumption of native title, that the Land Council was not required to prove and then disprove every element of native title, and that the absence of any claimant application after notification supported an inference of no native title. The Aboriginal evidence called by the Land Council denied the asserted laws and customs relating to Lot 576, and Worimi’s evidence, including his assertions about a women's site, custodianship and traditional use, did not sufficiently establish or cast doubt by reference to a continuing normative system of traditional...

Jurisdiction
Australia
Judgment Date
18 December 2008
Procedural Posture
Non Claimant Application for an Approved Determination of Native Title Under the Native Title Act 1993 (cth) / Final Judgment and Order
Outcome
Application allowed; determination made that no native title exists in relation to Lot 576.
Legal Topics
['non Claimant Application' 'determination That No Native Title Exists' 'burden of Proof' 'evidentiary Burden' 'traditional Laws and Customs' 'role of State Minister as Party' 'notification and Joinder']
['native Title' 'aboriginal Land Rights' 'evidence'] ['non Claimant Application' 'determination That No Native Title Exists' 'burden of Proof' 'evidentiary Burden' 'traditional Laws and Customs' 'role of State Minister as Party' 'notification and Joinder']

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) / Final Judgment and Order

Legal Issues

  1. 1 ['What is the role of the Minister in the proceedings?' 'What is the burden of proof on the Land Council and on Worimi?' 'Is there a presumption that native title exists over the Land?' 'Does the description of the Land as part of "traditional Worimi country" establish a presumption of native title?' 'Must the Land Council provide evidence to negative the existence of native title over Lot 576 to the extent of negativing each of the elements of native title under the Act?' 'In order to defeat a prima facie case of no native title, must Worimi adduce evidence of each of the elements of native title under the Act?' 'What does the evidence as a whole establish about the existence or absence of native title over Lot 576?']

Ratio Decidendi

The Land Council proved on the balance of probabilities that no native title exists in relation to Lot 576. The Court held that there is no presumption of native title, that the Land Council was not required to prove and then disprove every element of native title, and that the absence of any claimant application after notification supported an inference of no native title. The Aboriginal evidence called by the Land Council denied the asserted laws and customs relating to Lot 576, and Worimi’s evidence, including his assertions about a women's site, custodianship and traditional use, did not sufficiently establish or cast doubt by reference to a continuing normative system of traditional...

Court Disposition

Application allowed; determination made that no native title exists in relation to Lot 576.

Orders

  • ['No native title exists in relation to NSW Department of Lands Certificate of Title folio identifier 576 in Deposited Plan 48823 and located in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, State of New South Wales.']