Background
The New South Wales Aboriginal Land Council claimed Crown land adjoining the Brunswick River under the Aboriginal Land Rights Act 1983 (NSW). The disputed parcel, Lot 50 in DP 1067782, fell within the external boundary of a native title determination application registered in 2001. The Minister refused the land claim.
The Land and Environment Court upheld the refusal, reasoning that Lot 50 was “the subject of” the registered native title application and therefore excluded from “claimable Crown lands” by s 36(1)(d) of the Aboriginal Land Rights Act. The Council appealed, arguing that the provision covers only land that could validly be included in a native title application and that historical special leases had already extinguished native title over Lot 50.
The Court’s Holding
The Court of Appeal unanimously upheld the appeal. It held that land is “the subject of” a native title determination application for purposes of s 36(1)(d) only if it can validly be covered by such an application. Under the Native Title Act 1993 (Cth), a claimant application must not cover land affected by a previous exclusive possession act, which completely extinguishes native title.
The parties had agreed that Lot 50 had been subject to two historical special leases that were Scheduled interests and therefore previous exclusive possession acts. Native title had consequently been extinguished, so Lot 50 could not validly have been covered by the registered native title claim. The Federal Court’s 2019 determination that native title was extinguished over Lot 50 was declaratory and a judgment in rem. The Minister failed to prove that Lot 50 was not claimable Crown land.
The Court set aside the relevant orders of the Land and Environment Court, directed the Minister to transfer Lot 50 to the Council within 90 days, and ordered the Minister to pay the Council’s costs both on appeal and below.
Key Takeaways
- For s 36(1)(d) of the Aboriginal Land Rights Act, a parcel lies “the subject of” a native title application only when the Native Title Act permits that parcel validly to be covered by the application.
- The Minister and the Land and Environment Court must decide for themselves whether a previous exclusive possession act extinguished native title; they need not defer that question to the Federal Court.
- Historical special leases over Lot 50 were previous exclusive possession acts that completely extinguished native title, making the parcel claimable Crown land on the issue litigated.
Why It Matters
The ruling prevents the mere inclusion of land within the external boundaries of a registered native title application from automatically defeating an Aboriginal land claim. Decision-makers must examine whether the parcel could lawfully have been covered by the native title application, including whether earlier tenure extinguished native title.
The Court also explained that the Aboriginal Land Rights Act manages the risk of inconsistent decisions: transferred land remains subject to any surviving native title rights, and dealings with such land are restricted pending an approved native title determination.