Editors --- "New South Wales Aboriginal Land Council v New South Wales Native Title Services Ltd [2007] FCA 112 - Case Summary" [2007] AUIndigLawRw 15; (2007) 11(1) Australian Indigenous Law Review 118

• New South Wales Aboriginal Land Council v New South Wales Native Title Services Limited
• Facts:
• Held, granting the determination:

New South Wales Aboriginal Land Council v New South Wales Native Title Services Limited

Federal Court of Australia (Graham J)

6 February 2007

[2007] FCA 112

Native Title – standing to bring non-claimant application – unopposed application– Federal Court order under Native Title Act s 86G

Facts:

The New South Wales Aboriginal Land Council (‘NSWALC’) is the registered proprietor of a parcel of land described as Lot 323 DP 823189 (‘the land’). The land was granted by the Crown as an estate in fee simple under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) (‘ALRA’), but under sections 36(9) and (9A) of the ALRA it remains subject to any native title rights that existed immediately prior to transfer by the Crown.

Under section 106(1)(c) of the ALRA, the NSWALC is able to transfer the land to the local Aboriginal Land Council, and have stated that it is their policy to do so. However, this form of dealing is restricted by section 40AA(1) of the ALRA, which prevents the NSWALC from effecting a transfer of land subject to native title interests under s 36(9) or (9A) unless that land has been the subject of an approved determination of native title. Under section 225 of the Native Title Act 1993 (Cth) (NTA), such a determination includes a finding that native title does not exist.

The applicants sought a determination of non-existence of native title in relation to the land. Furthermore, they submitted that their application could be dealt with under section 86G of the NTA, which allows the Federal Court to make an order without holding a hearing, provided that the application is unopposed and that the order sought is within the power of the Court.

Held, granting the determination:

1. A non-claimant applicant has standing to bring an application for determination of non-existence of native title under section 61(2) of the NTA where they are the registered proprietor of the land over which the determination is being sought: [28].

2. For an order to be made under section 86G of the NTA, the Court must be satisfied that the application is unopposed within the meaning of that section, that the Court has jurisdiction to hear the application and make the orders sought, that the applicant has standing to bring the application, that appropriate notice of the application has been given, and that no prior determination of native title has been made in relation to the land: [26].

3. For an application to be unopposed within the meaning of section 86G(2) of the NTA, the notice requirements under ss 63 and 66 of the NTA must be complied with, and each party to the proceeding must notify the Federal Court in writing that they do not oppose an order in or consistent with the terms sought by the applicant: [28].

4. Where an applicant can satisfy the criteria for the making of a section 86G order, the Court can make a determination of non-existence of native title without conducting a hearing: [29] Cruse v New South Wales Native Title Services Limited [2006] FCA 1124 affirmed.