Background
Metropolitan Local Aboriginal Land Council, the registered proprietor in fee simple of Lot 2 in Deposited Plan 1293455 in Willoughby, metropolitan Sydney, sought a determination under the Native Title Act 1993 (Cth) that native title does not exist over the parcel. The land comprises eight tennis courts and associated buildings next to extensively developed residential land.
The Council brought a non-claimant application because, under the Aboriginal Land Rights Act 1983 (NSW), it could not deal with the land unless native title had been determined not to exist. The Attorney General for New South Wales and NTSCORP did not oppose the application.
The Court’s Holding
Raper J held that the Council had proved, on the balance of probabilities, that native title does not exist in relation to Lot 2 DP 1293455. The Court made the requested negative determination and ordered that there be no order as to costs.
The Court stressed that an unopposed application does not itself justify a negative determination, which operates in rem. But the statutory notification process had been completed; no person sought to join the proceeding; register searches disclosed no current claim or determination over the land; and NTSCORP’s direct notifications to two people in its database produced no response. There was no objectively arguable assertion of native title over the parcel. Historical claims concerning nearby land, including discontinued or dismissed claims, did not alter that conclusion.
Key Takeaways
- A non-claimant applicant bears the burden of proving that native title does not exist, even where no respondent opposes the application.
- The decisive question is whether there is evidence of an objectively arguable assertion of native title over the particular land, not merely a possibility of such an assertion.
- Completed notification, no current overlapping claims, and NTSCORP’s evidence may collectively support a negative determination.
Why It Matters
The decision allows the Metropolitan Local Aboriginal Land Council to deal with this Willoughby parcel without the statutory constraint that applies while native title remains unresolved. It also illustrates the evidence required for a negative native-title determination where the applicant relies on the absence of a sustainable present claim rather than on extinguishment.