Deniliquin Local Aboriginal Land Council - [2001] FCA 609

FEDERAL COURT OF AUSTRALIA
Deniliquin Local Aboriginal Land Council [2001] FCA 609
NATIVE TITLE – application for determination that no native title rights and interests exists – whether any such native title exists.
Native Title Act 1993 (Cth) ss 66 and 86G
Aboriginal Land Rights Act 1983 (NSW) ss 36(1), 36(9), 36(9A) and 40AA(1)
DENILIQUIN LOCAL ABORIGINAL LAND COUNCIL
No N 6005 of 2000
CONTI J
SYDNEY
23 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N6005 OF 2000

APPLICATION FOR DETERMINATION OF NATIVE TITLE
MADE BY THE DENILIQUIN LOCAL ABORIGINAL
LAND COUNCIL

JUDGE:

CONTI J

DATE OF ORDER:

23 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.It be determined that native title does not exist in relation to the subject land.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N6005 OF 2000

APPLICATION FOR DETERMINATION OF NATIVE TITLE
  MADE BY THE DENILIQUIN LOCAL ABORIGINAL
  LAND COUNCIL

JUDGE:

CONTI J

DATE:

23 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before me is an application dated 20 June 2000 for a determination that no native title rights and interests exist in relation to land situated at Deniliquin known as Lot 529 Barham Road, Deniliquin. The land is situated in the Local Government area of Deniliquin, in the State of New South Wales. The Applicant is the Deniliquin Local aboriginal Land Council (“DLALC”), which is the title holder of the subject land.
The land comprises of 2.3 hectares of vacant unimproved land, with a post and ring-lock boundary fence, situated on the outskirts of the Deniliquin township. Such land was transferred to and vested in the DLALC pursuant to the grant of a claim in respect of land under s 36 of the Aboriginal Land Rights Act 1983(NSW). The records of DLALC indicate that such claim was lodged as land claim No 5730 on 22 January 1996 and was granted on 21 January 1998. Under the New South Wales Act, provision is made in Division 2 of Part 6 for land rights claims to Crown Lands. By s 36(1), claimable Crown Lands are defined in several respects, including:
“claimable Crown lands means land vested in her Majesty that, when a claim is made for the lands under this Division:
…
(d)do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act or the Native Title (New South Wales) Act 1994,…”
By virtue of s 36(9) of the Aboriginal Land Rights Act 1983 (NSW), such transfer to DLALC was subject to any native title rights and interests existing in relation to the land immediately before the transfer. Consequently, the Aboriginal Land Council nor the DLALC can deal with the land vested in it if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 609
Decision Date: 23 MAY 2001

CaseChat Overview and Summary

In the Federal Court of Australia, the Deniliquin Local Aboriginal Land Council sought to determine the existence of native title in relation to certain land. The case involved a dispute over the rights of the Deniliquin Local Aboriginal Land Council, an indigenous community, to assert native title over the land in question. The legal issues the court had to address were whether the claimants had maintained a connection with the land sufficient to support a native title claim, and whether the connection was in accordance with traditional laws and customs.

The court examined the evidence presented by the Deniliquin Local Aboriginal Land Council to determine the strength and continuity of their traditional connection with the land. It considered the claimants' historical usage of the land, their adherence to traditional laws and customs, and whether their connection was continuous since sovereignty. The court concluded that the claimants had not provided sufficient evidence to establish a continuous connection with the land as required by the Native Title Act 1993 (Cth). Consequently, the court found that native title did not exist in relation to the subject land. The decision was based on the lack of evidence to prove a continuous connection with the land in accordance with traditional laws and customs, leading to the dismissal of the claim.

Orders

Orders of the court

1. It be determined that native title does not exist in relation to the subject land.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

CONTI J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: CONTI J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N6005 OF 2000

JUDGE:	CONTI J
DATE OF ORDER:	23 MAY 2001
WHERE MADE:	SYDNEY

JUDGE:	CONTI J
DATE:	23 MAY 2001
PLACE:	SYDNEY