Dungog Shire Council v Attorney General of New South Wales

Dungog Shire Council sought a determination of native title over land that it owns, and which is subject to the Crown Lands Act 1989 (NSW) and the Crown Land Management Act 2016 (NSW). The dispute involved whether the Council had the legal standing to bring the application under the Native Title Act 1993 (Cth) and whether a land grant in 1823 extinguished native title over the land. The Federal Court of Australia was tasked with resolving these issues.

The primary legal issues were whether the Dungog Shire Council had the authority to bring a non-claimant application for a determination of native title under section 61(1) of the Native Title Act, and whether the grant of land in 1823, and the subsequent 1880 Deed, constituted a previous exclusive possession act that extinguished native title. Additionally, the court had to determine if the grant was valid due to the requirement of royal approbation and whether it was validated by a subsequent Act.

The Court held that the Dungog Shire Council had the legal standing to bring the application as it was a person authorised by the Native Title Act to do so. The Council's interest in the land qualified as a non-native title interest, which is sufficient to bring such an application. The court found that the 1823 Deed did not extinguish native title because it did not meet the requirements of a previous exclusive possession act. The grant was not valid as it did not receive the necessary royal approbation, and the subsequent Act did not validate the grant. Therefore, the court concluded that native title had not been extinguished by the 1823 Deed.

The Federal Court ordered that the parties confer and provide draft short minutes of order within 21 days, to be marked up to indicate any points of disagreement, in accordance with Rule 39.32 of the Federal Court Rules 2011.