Ritter, David --- "Non-Revival of Native Title in Bodalla: Yuin Council of Elders Aboriginal Corporation v State of NSW" [1996] AboriginalLawB 11; (1996) 3(79) Aboriginal Law Bulletin 33

• Non-Revival Of Native Title In Bodalla: Yuin Council Of Elders Aboriginal Corporation V State Of Nsw

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Non-Revival of Native Title in Bodalla:

Yuin Council of Elders Aboriginal Corporation v State of NSW

Casenote by David Ritter[1]

The case concerned two parcels of land in Bodalla on the south coast of New South Wales ('the land'). The land was formerly covered by two roads, which were closed on 3 June 1994. On the date the roads were dosed, title passed from the local Shire Council to the State. The land then became available for sale under the Crown Lands Act 1989 (NSW). A third party called Mr Plasier purchased the land from the State, with settlement on 1 June 1995.

The applicant, Yuin Council of Elders Aboriginal Corporation, submitted that native title in favour of the Yuin People had once existed over the land. It further asserted that while native title may have been extinguished by the Shire's ownership of the land, it was revived upon title passing to the State. Finally, it was argued that the revived native title was finally and irrevocably extinguished by the freehold sale of the land to Mr Plasier.

Lockhart J found that the applicant's claim must fail on the basis that there could be no revival of native title. His Honour stated (at page 18):

'The notion of re-establishment of native title has no support from the authorities and in my opinion is inconsistent with the whole concept of native title'.

That statement was not expanded by reference to specific authority or principle. On the basis that there was no revival of native title when the land was passed to the State, Lockhart J found that there could have been no extinguishment as a result of the sale to Mr Plasier, and therefore no entitlement to compensation. The Judge said (at page 18) that

'The order for payment of compensation sought by the applicant must involve the notion that there has been an extinguishment of native title. Otherwise, there is nothing for which compensation can be given'.

Accordingly, Lockhart J decided that the application must fail, as no reasonable cause of action was disclosed. The application was dismissed with costs.

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[1] The views reflected in this casenote are solely those of the author, and do not necessarily reflect the views of the National Native Title Tribunal or any other member of its staff.