Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929

FEDERAL COURT OF AUSTRALIA

Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929

NATIVE TITLE – non-claimant application under Native Title Act 1993 (Cth) seeking determination that no native title exists over land – previous claimant applications for determination that native title exists struck out for not meeting requirements of Act – previous claimant joined as third respondent under s 84(5) of the Act – third respondent opposes non-claimant application – role of Minister in proceedings – Minister has not abandoned right to participate – Minister not required to establish interest to remain a party – burden of proof – evidentiary burden – requirement to prove negative proposition on balance of probabilities – no presumption of native title – third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred – third respondent has not adduced sufficient evidence to cast doubt on applicant's case – no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed – applicant entitled to determination that there is no native title over the land

Aboriginal Land Rights Act 1983 (NSW), ss 36(9), 40AA, 40D, 49, 50, 54(2A) Evidence Act 1995 (Cth), ss 27, 28, 106 Native Title Act 1993 (Cth), ss 13(1), 61(1), 66, 84(3), 84(4), 84(5), 223, 225

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 applied Blatch v Archer (1774) 1 Cowp 63 cited Bodney v Bennell (2008) 167 FCR 84 referred to Commonwealth v Clifton (2007) 164 FCR 355 referred to De Rose v State of South Australia (2003) 133 FCR 325 referred to De Rose v South Australia (No 2) (2005) 145 FCR 290 referred to Derschaw v Sutton (1996) 17 WAR 419 considered Gale v Minister for Land & Water Conservation for the State of New South Wales [2004] FCA 374 considered Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2006] FCA 1115 referred to Ho v Powell (2001) 51 NSWLR 572 referred to Jango v Northern Territory (2006) 152 FCR 150 considered Jango v Northern Territory (2007) 159 FCR 531 referred to Kokatha People v State of South Australia [2007] FCA 1057 referred to Mason v Tritton (1994) 34 NSWLR 572 considered Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 referred to Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 cited Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 cited Peter Hillig as Administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales, State Minister under the Native Title Act 1993 (Cth) [2006] FCA 61 cited Western Australia v Sebastian (2008) 248 ALR 61 referred to Worimi v Minister for Lands for the State of New South Wales [2006] FCA 1770 referred to Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2007] FCA 1357 related