Case: 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
Outcome: cited
The applicant ('the Land Council') seeks a declaration that no native title exists in land at Boat Harbour in the Local Government Area of Port Stephens, Parish of Tomaree, County of Gloucester, State of New South Wales, being Lot 576 in Deposited Plan 48823 ('the Land' or 'Lot 576'). This is a non-claimant application, commenced on 31 December 2004, for an approved determination of native title pursuant to s 13 of the Native Title Act 1993 (Cth) ('the Act'). An application may be made to the Court under Part 3 of the Act for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a) of the Act). A determination made on such an application will constitute an ' approved determination of native title ' (s 13(3)(a)) unless varied or revoked (s 13(4)). 2 The Land Council is a body corporate established under s 50 of the Aboriginal Land Rights Act 1983 (NSW) ('the NSW Act') for an area delineated under s 49 of the NSW Act and known as the Worimi Local Aboriginal Land Council Area, which includes the Land. Membership of the Land Council is not confined by statute to persons with a traditional association with the area but, by s 54(2A) of the NSW Act, is open to adult Aboriginal persons who either reside within the Land Council's area or have a sufficient association with that area. Membership is also open to Aboriginal owners in relation to land in that area. 3 The Land Council's non-native title rights and interests arose from the grant and transfer of the Land to the Land Council by the Minister for Lands for the State of New South Wales ('the Minister') pursuant to s 36 of the NSW Act on 16 March 1998. Following the transfer of the area that includes Lot 576, the Land Council holds a non-native title interest ' in relation to the whole of the area in relation to which the determination is sought '. It is the holder of an ' an estate in fee simple ... subject to any native title rights and interests existing in relation to the land immediately before the transfer ' (s 36(9) of the NSW Act). As the holder of such an interest, the Land Council is entitled under s 61(1) (Table, clause 2) of the Act to make the present application. Section 40AA of the NSW Act prevents the Land Council from selling, exchanging, leasing, disposing of, mortgaging or otherwise dealing with the Land unless the Land is the subject of an approved determination of native title within the meaning of the Act. 8 A notice of intention to become a party to these proceedings was filed within the three month time period provided for in the s 66 notice by New South Wales Native Title Services Limited ('Native Title Services') and by Mr and Mrs Parkinson. The application by Mr and Mrs Parkinson to be joined to the proceedings was dismissed ( 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). Native Title Services was joined as a party on 5 July 2005. On 11 March 2008, an order was made granting leave to that party (whose name had been amended to NTS Corp Limited) to withdraw as a party to the proceedings.