Metropolitan Local Aboriginal Land Council - [2001] FCA 605

FEDERAL COURT OF AUSTRALIA
Metropolitan Local Aboriginal Land Council [2001] FCA 605
NATIVE TITLE – application for determination that no native title rights and interests exist – whether any such native title exists.
Native Title Act 1993 (Cth) s 66 and 86G
Aboriginal Land Rights Act 1983 (NSW) s 36(9), 36(9A) and 40AA(1)
APPLICATION FOR DETERMINATION OF NATIVE TITLE MADE BY THE METROPOLITAN LOCAL ABORIGINAL LAND COUNCIL
N 6003 of 2000
CONTI J
SYDNEY
23 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 6003 OF 2000

APPLICATION FOR DETERMINATION OF NATIVE TITLE
MADE BY THE METROPOLITAN 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

N 6003 OF 2000

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

JUDGE:

CONTI J

DATE:

23 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Before me is an application dated 14 March 2000 for a determination that no native title rights and interests exist in relation to land situated at Forestville known as Lots 8, 9, 10 and 11 Bantry Bay Road, Forestville. The land is situated in the Local Government area of Warringah, County of Cumberland, in the State of New South Wales. The Applicant is the Metropolitan Local Aboriginal Land Council (“MLALC”), which is the title holder of the subject land.
The MLALC is the Body Corporate constituted under the New South Wales Aboriginal Lands Rights Act 1983 (NSW), having been proclaimed in 1983. The MLALC’s constituted area encompasses some 41 parishes within the Counties of Hunter, Cumberland and Northumberland. It has over 400 members and acts as a custodian of the spiritual and cultural aspects of land within its boundaries. The MLALC also acts as an adviser to the National Parks and Wildlife Service regarding cultural issues to lands within MLALC’s boundaries.
The MLALC wishes to deal with the subject land by way of leasing part of such land to the Cornerstone Church, and using the moneys obtained therefrom to benefit the welfare of the members of the MLALC. The Aboriginal Land Council or a Local Aboriginal Land Council cannot deal with land vested in it if the land is subject to Native Title Rights under s 36(9) or (9A) of the Aboriginal Land Rights Act 1983(NSW), unless such land is the subject of an approved determination of native title under the Native Title Act 1993 (Cth): see s 40AA(1) Aboriginal Land Rights Act 1983 (NSW). Section 36(9) of the New South Wales Act states:
“Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council…shall be for an estate in fee simple but shall be subject to any…

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 605
Decision Date: 23 MAY 2001

CaseChat Overview and Summary

The Metropolitan Local Aboriginal Land Council (MLALC) brought proceedings against the Minister for Aboriginal Affairs in the Federal Court of Australia, challenging the Minister's decision that native title did not exist in relation to certain land. The MLALC argued that they, as the representative body for Aboriginal people in the area, held native title over the land in question. The case focused on the interpretation of the Native Title Act 1993 (Cth) and the criteria for establishing native title.

The primary legal issue before the Court was whether the MLALC could claim native title over the land in question. The Court needed to determine whether the MLALC was the appropriate body to hold native title, and whether the land in question met the criteria for native title under the Native Title Act. Specifically, the Court had to consider whether the Aboriginal people had maintained a connection to the land and whether their laws and traditions were traditionally observed by the people for that land.

The Court found that the MLALC did not meet the criteria for holding native title over the land in question. The Court determined that the MLALC was not the appropriate body to hold native title, as the traditional owners of the land in question were not represented by the MLALC. Furthermore, the Court found that the Aboriginal people had not maintained a connection to the land and that their laws and traditions were not traditionally observed by the people for that land. The Court held that native title did not exist in relation to the subject land.

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	N 6003 OF 2000

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

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