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

REASONS FOR JUDGMENT 1 This is an application for a determination of native title under s 61 of the Native Title Act 1993 (Cth) ('the Act'). The applicant, namely the Bahtabah Local Aboriginal Land Council ('the Land Council') by its 'non-claimant' application seeks a declaration that no native title exists in relation to all of the land contained in Lot 424 in Deposited Plan 755233 at Pelican, in the Parish of Kahibah, County of Northumberland (formerly known as Portion 424), Crown Plan 8691.2111 ('the Land'). The term 'non-claimant' application is used to describe those applications by a party who seeks to have a determination made by the Court that the land in question is not subject to any native title interest. The application is supported by the affidavit of Barbara Guthrie sworn 7 November 2006 and Michael Green sworn 1 November 2006. 2 The Land was transferred to the Land Council, as an estate in fee simple on 5 August 2005 subject to any native title rights and interests that existed in relation to the Land immediately before the transfer pursuant to s 36 of the Aboriginal Land Rights Act 1983 (NSW) ('the Land Rights Act'). Pursuant to s 61(1) of the Act the Land Council may make application as a non-native title interest holder for a declaration of native title. 3 A title search of the Land conducted by the legal representatives of the Land Council on 3 May 2006 records that the title was subject to restrictions on dealings under ss 40 and 40AA of the Land Rights Act. Section 40 imposes restrictions upon the disposition of any interest in land vested in the New South Wales Aboriginal Land Council or a Local Aboriginal Land Council except in accordance with Division 4A, Part 2 of the Land Rights Act. Section 40AA of the Land Rights Act provides that the Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it unless it is the subject of 'an approved determination of native title'. 4 An application may be made under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Act). A determination made on such an application will constitute an 'approved determination of native title' (see s 13(3)(a) of the Act). 5 Section 66 of the Act provides the requirements for notice of the application. Section 66(2) and s 66(2A) of the Act require the Native Title Registrar ('the Registrar') to provide the relevant State or Territory Minister and representative bodies a copy of the application and related documents. Section 66(3) of the Act requires the Registrar to give notice containing details of the application to certain bodies and persons and to notify the public. Such notice must specify a notification day (s 66(8)) and comply with the other requirements of s 66(10) of the Act in relation to the content of the notice. A notification day is defined in s 66(9) of the Act as a day: '…by which, in the Registrar's opinion, it is reasonable to assume that all notices under paragraphs (3)(a) and (d) in relation to the application will have been received by, or will otherwise have come to the attention of, the persons who must be notified under those paragraphs.'

6 A Notice of Appearance was filed on behalf of the Minister for Lands for the State of New South Wales ('the Minister') on 31 July 2006 and a Notice of the Minister's Intention to Cease to Appear as a party to the application was filed on 26 September 2006. New South Wales Native Title Services ('Native Title Services') notified the Court of its intention to become a party to the application on 6 July 2006 and was joined as a respondent on 3 October 2006. The Court is thus satisfied that the notice requirements under s 66(2) and s 66(2A) of the Act have been complied with. 7 A letter dated 14 June 2006 from the National Native Title Tribunal (the 'NNTT') addressed to the Land Council is annexed to the affidavit of Barbara Guthrie. This letter establishes that the application was notified in three newspapers, namely The Sydney Morning Herald and The Koori Mail on 21 June 2006 and the Lake Macquarie News on 22 June 2006. The notification day is stated in such notices as 5 July 2006. The notification period of 5 July 2006 to 4 October 2006 outlined in this letter complies with the requirement of notice in s 66(10) of the Act. A letter on the Court file dated 20 June 2006 from the NNTT describes the measures undertaken by the Registrar to comply with the requirements of 66(3) and the Court is satisfied that the notice required by s 66(3) of the Act has been given. 8 The evidence of Ms Guthrie also establishes that Native Title Services conducted a search of the NNTT Register and found no record of any native title claim therein in respect of the Land. 9 A notice pursuant to s 86G of the Act was filed by Native Title Services on 24 November 2006 informing the Court that it does not oppose the determination sought by the Land Council that native title does not exist with respect to the Land. 10 The Court is satisfied upon the affidavit evidence that the Land Council is the holder of a non-native title interest in the Land and is entitled to bring the non-claimant application under s 61(1) of the Act. The Court has jurisdiction to make a determination of native title under s 61 of the Act that native title does not exist in relation to the Land provided no prior determination of native title has been made (see ss 81, 225 and 13(1)(a) of the Act). There is no evidence before the Court of any native title rights or interests in the Land. 11 Accordingly the Court will make the order sought that no native title exists in relation to the Land. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy .

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