Native Title Claims Upheld in High Court and Federal Court

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Native Title Claims Upheld in High Court and Federal Court

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50 (14 December 2016)

The applicants made a claim under the Aboriginal Land Rights Act 1983 (NSW) over two pieces of land in NSW that are subject to Crown land ownership under the Crown Lands Act 1989 (NSW). The area was formally used by the Corrective Services of NSW but was decommissioned for this purpose in 2011. Under the Aboriginal Land Rights Act 1983 (NSW), indigenous land may be claimed over land which is described as claimable crown lands pursuant to s 36(1). The applicant’s contested that the claim was possible because the land was ‘no longer lawfully occupied or used’ (s 36(1)(b)) as the Crown was simply holding the land whilst it determined another use for the area.

The original decision by the Crown Lands Minister rejected this claim finding that the land was still being lawfully occupied for administrative purposes. The Land and Environment Court of New South Wales, and later the Court of Appeal, upheld this decision. On appeal to the High Court the plurality found that despite the beneficial and remedial purposes underlying the Act, there was no need to beneficially interpret the words ‘occupied’ or ‘used’ to require active and ongoing use of the land reflective of the purpose, in this instance as a functioning gaol.

In dissent, the applicant’s contentions of the land not being occupied was upheld. The dissenting judgement found that in accordance with the remedial and compensatory purpose of the Act, s 36(1)(b) should be read to strictly require government occupation of land to be linked to its established purpose. The closure of the gaol meant in this sense the land was no longer occupied for its purpose and the indigenous land rights claim was valid.

The appeal was dismissed, 5 to 2.


Narrier v State of Western Australia [2016] FCA 1519 (16 December 2016)

The native title claim, brought by the Western Desert people, extended over an area of approximately 13 600 km2. The issue was firstly, whether at the time of sovereignty (1912), the claim area was Western Desert country and if this was so, was the connection between the applicant and their ancestors enduring until today.

The application for native title was granted with the court finding the Western Desert people occupied the area at sovereignty and have continued to occupy the area since. Further, pursuant to Native Title Act 1993 (Cth) s 223(1), the applicant has enduringly continued to operate under their own culturally normative system of customs and laws in the area. However, there was a mutual agreement between the parties that native title, should it be found to exist, was partially extinguished by executive acts over the entire claim area. This was supported by His Honour’s finding under the Native title Act 1993 (Cth) s 47B. Non-exclusive native title rights remain although are subject to extensive access agreements between the parties.



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