Bahtabah Local Aboriginal Land Council v Attorney General of New South Wales

The Bahtabah Local Aboriginal Land Council filed an application under section 66 of the Native Title Act 1993 (Cth) seeking a declaration that native title does not exist over certain land in New South Wales. The application was unopposed by the Attorney General of New South Wales. The court was tasked with determining whether native title claims existed over the specified areas and whether the application should proceed without opposition.

The central legal issue was whether the court should proceed with the non-claimant application to declare that native title does not exist over the specified areas, given that no native title claims had been made and the application was unopposed. The court needed to consider the procedural requirements, the evidence provided, and the appropriate weight to be given to the absence of responses to notifications.

The court found that the procedural requirements were met, with proper notification published in relevant newspapers and no native title claims made during the notification period. The absence of responses to notifications, while not determinative, was considered in light of the Full Court's observations in Mace, where it was noted that the weight given to such absences would depend on the overall circumstances. The court was satisfied on the balance of probabilities that no native title claims existed over the specified areas, and it was appropriate to make the declaration sought by the applicant. The alternative consideration of whether native title had been extinguished was not necessary given this conclusion.

The court granted the application, declaring that native title does not exist over the specified areas of land and waters. No order was made as to costs.