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Australian Indigenous Law Reporter |
Minister Administering the Crown Lands Act v
Deerubbin Local Aboriginal Land Council
New South Wales Court of Appeal (Meagher, Handley and Powell JJA)
3 April 1998
Aboriginal Land Claim -- Aboriginal Land Rights Act 1983 (NSW) -- Definition of "Claimable Crown land" -- Whether claimed land was needed for the "essential public purpose" of nature conservation -- Whether relevant to consider whether the purpose can be achieved regardless of who owns land -- Whether findings vitiated by errors of law by trial judge
Words and Phrases -- "essential public purpose", "claimable Crown land"
Aboriginal Land Rights Act 1983 (NSW) s. 36(1)
Facts:
On 15 August 1989 the Deerubbin Local Aboriginal Land Council ("DLALC") lodged an Aboriginal land claim under s. 36(1) of the Aboriginal Land Rights Act 1983 (NSW) to two portions of land in the parish of Londonderry, county of Cumberland in western Sydney. That claim was refused by the Minister for Land and Water Conservation on 1 February 1996 on the basis that the land was not "claimable Crown land" because the bulk of the land was needed for the essential public purpose of nature conservation and part of the land was needed for the essential public purpose of road widening.
The DLALC appealed the Minister's refusal of the claim to the NSW Land and Environment Court. On 14 August 1997 Justice Sheahan allowed the appeal: see Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (unreported, Land and Environment Court, No. 30025/96, 1997). Justice Sheahan held that the Minister had not satisfied the Court that the claimed land had been needed for either alleged purpose and was therefore "claimable Crown land" for the purposes of s. 36(1) of the Aboriginal Land Rights Act 1983 (NSW) and should be transferred to the DLALC. Justice Sheahan found that at the date the claim was lodged there was little support from a number of government agencies for a proposal by the National Parks and Wildlife Service to use the land for nature conservation purposes. In reaching his finding that the claimed land should be transferred to DLALC, Justice Sheahan accepted the argument of the DLALC that if the public purpose can be fulfilled otherwise than by maintaining a particular system of land tenure, it cannot be said that the land is "needed" for that purpose.
The Minister appealed the decision of the Land and Environment Court on the basis that Justice Sheahan had made an error of law in:
1. Holding that if the public purpose can be fulfilled other than by maintaining a particular system of land tenure, it cannot be said that the land is "needed" for that purpose.
2. Holding that an essential public purpose must be one which requires the retention of the land in public ownership to give effect to that purpose.
3. Considering whether the purpose could be fulfilled under the ownership of the DLALC.
4. Determining that the land was not needed for the essential public purpose of nature conservation by reference to circumstances which would arise following, and as a consequence of, the transfer of land to the DLALC.
The Minister did not appeal Justice Sheahan's determination insofar as that decision related to the essential public purpose of road widening.
Held:
Per Meagher JA with whom Handley and Powell JJA agreed:
1. In determining whether land is needed for an essential public purpose under s. 36(1) of the Aboriginal Land Rights Act 1983, it is irrelevant to consider whether the essential public purpose could have been achieved regardless of whether the land is transferred to the applicant Aboriginal Land Council.
2. It is similarly irrelevant to inquire as to whether the best method of ensuring that the public purpose is achieved is by keeping the land in public ownership.
3. Determining whether land is needed for an essential public purpose does not involve an extensive inquiry into whether the purpose can somehow be achieved; it is essentially a question of the view held by the government of the day when the claim was made.
Per Handley and Powell JJA (Meagher JA dissenting):
4. The error of law made by Sheahan J did not vitiate his finding that the claimed land was not needed for the essential public purpose of nature conservation. "The variety of public purposes suggested by the different agencies, their lack of interest in the years before and after the claim, and the fluctuating priorities demonstrated in the evidence provided ample support for these findings": Yates Property Corp Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 referred to.
Federal Court of Australia (Beaumont J)
3 June 1998
Native title -- Native Title Act 1993 (Cth) -- Acquisition of native title rights and interests -- Whether right to negotiate under s. 26 of the Native Title Act applies -- Failure to negotiate -- Acquisition of Land Act 1967 (Qld) -- Acquisition of native title rights and interests -- Whether proper notice had been given -- Whether notice misleading -- Whether acquisition was for an improper private purpose.
Native Title Act 1993 (Cth), ss. 23(3), 23(6), 23(7), 26, 79
Acquisition of Lands Act 1967 (Qld), s. 7
Native Title (Queensland) Act 1994 (Qld), ss. 148,149
Facts:
On 8 September 1997 the Burke Shire Council ("the Council"), as the "constructing authority" under the Acquisition of Lands Act 1967 (Qld), informed the Carpentaria Land Council Aboriginal Corporation ("CLCAC") of its intention to compulsorily acquire native title rights and interests for the proposed construction of the Gregory River Bridge and the upgrade of the Gregory-Lawn Hill Road in north western Queensland. Public notice of the acquisition was also given. The CLCAC was the representative body under s. 202 of the Native Title Act 1993 (Cth) ("NTA") for the area affected by the proposed acquisition. The CLCAC objected to the proposed acquisition on a number of grounds including that the notice did not comply with the Acquisition of Lands Act 1967 (Qld) and was misleading and requested that the notices be reissued. The Council proceeded with the proposed acquisition. In the correspondence between the Council and the CLCAC, the CLCAC requested on a number of occasions that the Council indicate whether it was willing to negotiate in relation the acquisition. The Council refused to do so.
The acquisition was effected by a proclamation published in the Queensland
Government Gazette on
23 January 1998. On 9 April 1998 the CLCAC and three
native title claimants commenced proceedings in the Federal Court challenging
the validity of the notice and the proclamation and sought to restrain the
carrying out of the works for which the acquisition took place. The application
was brought on a number of grounds which included:
1. That the notice which had been issued did not comply with the Acquisition of Lands Act 1967 (Qld) as it omitted to state that the "constructing authority" was willing to negotiate in relation to the acquisition as required by s. 7(3)(f) of that Act.
2. The notice was misleading because it indicated that native title would not be extinguished by the compulsory acquisition but failed to mention the effect of s. 23(3)(b) of the NTA which provided that "[n]othing in this Act prevents any act that is done in giving effect to the purpose of the acquisition from extinguishing the native title rights and interests."
3. That as the compulsory acquisition was for the benefit of a person other than the State, namely the Council and Pasminco Century Mine Ltd, the right to negotiate procedures in the NTA applied to the compulsory acquisition and those procedures had not been followed.
4. The acquisition was undertaken for essentially private purposes in order to satisfy contractual obligations of Council to Pasminco Century Mine Ltd and accordingly the Council acted outside its powers.
5. That, contrary to s. 79 of the NTA, the Council did not negotiate over the taking of the native title rights and interests.
Held:
1. The Council was required to comply with the notice provisions in both the NTA and s. 7 of the Acquisition of Lands Act 1967 (Qld). Section 7(3)(f) of the Acquisition of Lands Act 1967 (Qld) was not complied with.
2. The notice was not misleading as it was doing no more than accurately restating the effect of the acquisition as provided for by s. 23(a) of the NTA. To attempt to go further in the notice "and predict accurately any possible extinguishment as a result of the carrying out of the road and bridge works ... would have been a complex, perhaps impracticable, undertaking which could, itself, have created a misleading impression".
3. The proposed acquisition did not attract the right to negotiate procedures in the NTA. The acquisition was made by the Council "as a State instrumentality for the appropriate local government public purpose of road construction".
4. The acquisition was not vitiated by any impermissible private purpose. There were transparent benefits flowing from the acquisition for the Council, the residents, the general public and Pasminco Century Mine Ltd. Prentice v Brisbane City Council (1966) Qd R 394 referred to.
5. Contrary to s. 79 of the NTA, the Council did not negotiate in good faith over the compulsory acquisition when asked to do so by the CLCAC. While failure to comply with s. 79 of the NTA was not intended to carry with it the consequence of invalidity, it may be appropriate to grant injunctive relief to restrain future unlawful conduct: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 applied.