Bandjalang People No 3 v Attorney-General of New South Wales [2021] FCA 386

FEDERAL COURT OF AUSTRALIA

Bandjalang People No 3 v Attorney-General of New South Wales [2021] FCA 386 File number(s): NSD 426 of 2016

Judgment of: RARES J

Date of judgment: 30 April 2021

Catchwords: NATIVE TITLE – consent determination of non-exclusive native title – whether within power of court under s 87(1)(c) of Native Title Act 1993 (Cth) to disregard extinguishment under s 47A(2) by original grant of freehold – where land subsequently leased in 1899 to Colony to establish and construct public work within meaning of s 23B(7) – where freehold later vested in Land Council under Aboriginal Land Rights Act 1985 (NSW) for benefit of Aboriginal peoples – whether previous possession act under s 23B(7) had any effect on prior freehold extinguishment of native title under s 237A – held: s 47A(2) would apply so that within power of Court to make the consent determination in the terms proposed

Legislation: Aboriginal Land Rights Act 1983 (NSW) Native Title (New South Wales) Act 1994 (NSW) s 20 Native Title Act 1993 (Cth) ss 13, 23B, 23E, 47A, 56, 61, 61A, 64, 66, 87, 94A, 190A, 225, 237A, 251A

Cases cited: Bandjalang People No 1 and No 2 v Attorney-General of New South Wales [2013] FCA 1278 Erubam Le (Darnley Islander) #1 v Queensland (2003) 134 FCR 155 Fejo (on behalf of Larrakia People) v Northern Territory (1998) 195 CLR 96 Lampton on behalf of the Juru People v State of Queensland [2014] FCA 736 Long v Northern Territory of Australia [2011] FCA 571 Mabo v State of Queensland [No 2] (1992) 175 CLR 1 Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442