Blackburn v Wagonga Local Aboriginal Land Council [2021] FCAFC 210 (23 November 2021) (Mortimer, Perry and O’Bryan JJ)


Catchwords:


NATIVE TITLE – non-claimant application – appeal against determination that native title does not exist in respect of certain land in New South Wales – where land in question is contained within larger registered native title claim application (the South Coast People’s claim) which is yet to be determined – where non-claimant application was opposed by the applicants in respect of the South Coast People’s claim – consideration of s 67 of the Native Title Act 1993 (Cth) – whether the primary judge erred in making findings in respect of the South Coast People’s claim – whether the primary judge’s reasons should have been confined to a consideration of the question whether the evidence adduced by the appellants “cast doubt” on the claimed non-existence of native title – whether the primary judge erred in holding that s 223(1)(b) requires that the relevant land was “significant”, “sacred” or “important” to Aboriginal people – whether the primary judge erred in inferring that, when the Aboriginal witnesses were speaking of “significance” of the land to Aboriginal people, they were in fact referring to the existence or otherwise of connection with the land under s 223(1)(b) – whether the primary judge erred in concluding that the evidence adduced by the appellants was not evidence of an ongoing connection with the land under s 223(1)(b) – the need for caution in respect of non-claimant applications concerning parcels of land that are within larger registered native title claims that are not determined – appeal dismissed