Dates v Karuah Local Aboriginal Land Council - [2009] NSWLEC 221

Land and Environment Court

of New South Wales

CITATION: Dates v Karuah Local Aboriginal Land Council & Ors [2009] NSWLEC 221

PARTIES: APPLICANT
Worimi Dates
FIRST RESPONDENT
Karuah Local Aboriginal Land Council
SECOND RESPONDENT
New South Wales Aboriginal Land Council
THIRD RESPONDENT
Roads and Traffic Authority of NSW

FILE NUMBER(S): 40771 of 2009

CORAM: Pain J

KEY ISSUES:
ESTOPPEL :- Anshun estoppel - whether applicant estopped from having proceedings determined because of previous litigation when issues should have been raised - identical parties in earlier proceedings - same relief sought in earlier proceedings
ABORIGINAL :- application of s 40AA of the Aboriginal Land Rights Act 1983 to land claims made prior to insertion of s 40AA into Act - whether proposed sale to third respondent prohibited because land transferred to aboriginal land council subject to native title rights and interests

LEGISLATION CITED: Aboriginal Land Rights Act 1993 s 36, 40, 40AA, 40D
Acts Interpretation Act 1901 (Cth) s 8
Environmental Planning and Assessment Act 1979 Pt 3A
Interpretation Act 1987 s 30
Interpretation Act 1897 s 8
Native Title Act 1993 (Cth) s 11, 13, 24OA, 61, 228, 237A, 238
Native Title (New South Wales) Act 1994 s 8
Racial Discrimination Act 1975 (Cth)
Western Lands Act 1901

CASES CITED: Dates v Roads and Traffic Authority of NSW [2009] NSWLEC 82
Esber v Commonwealth (1992) 174 CLR 431
Henderson v Henderson (1843) 3 Hare
Mabo v Queensland (No 2) (1992) 175 CLR 1
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (The Winbar Claim No 3) (1988) 14 NSWLR 685
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Shephard v Chiquita Brands South Pacific Ltd [2004] FCAFC 76
Zavodnyik v Alex Constructions Pty Ltd (2005) 67 NSWLR 457

TEXTS CITED: D C Pierce and R S Geddes, Statutory Interpretation in Australia, 6th edition (2006, Federation Press)

DATES OF HEARING: 14 December 2009
15 December 2009

DATE OF JUDGMENT:
23 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr A Oshlack (agent)
FIRST RESPONDENT
Mr D Rayment
SOLICITOR
Bilbie Dan
SECOND RESPONDENT
Ms S Pritchard
SOLICITOR
Chalk & Fitzgerald
THIRD RESPONDENT
Mr S Lloyd SC with Ms G Wright
SOLICITOR
Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

23 December 2009

40771 of 2009 Dates v Karuah Local Aboriginal Land Council & Ors
JUDGMENT

1 Her Honour: The Applicant, represented by his agent, Mr Oshlack, seeks various declarations and orders concerning two lots of land at Karuah (Lot 206 DP729578 and Lot 217 DP48786) which are owned by the First Respondent. The First Respondent, Karuah Local Aboriginal Land Council (Karuah LALC), wishes to sell the lots to the Third Respondent, the Roads and Traffic Authority of NSW, for use in a road project. It is able to do so provided certain requirements under s 40D(1) of the Aboriginal Land Rights Act 1983 (the ALR Act) are met. The Second Respondent, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWLEC 221
Decision Date: 23 December 2009

CaseChat Overview and Summary

The Applicant, Worimi Dates, sought various declarations and orders concerning two lots of land at Karuah which are owned by the First Respondent, the Karuah Local Aboriginal Land Council (Karuah LALC). The First Respondent wished to sell the lots to the Third Respondent, the Roads and Traffic Authority of NSW, for use in a road project. The Second Respondent, the New South Wales Aboriginal Land Council, had to approve the sale of the lots under s 40D(1)(b) of the Aboriginal Land Rights Act 1983 (the ALR Act). The Applicant sought a declaration that the First and Second Respondents were restrained from disposing of the land to the Third Respondent because of the provision of s 40AA(1) of the ALR Act. In addition, the Applicant sought an order restraining the First and Second Respondents from selling or otherwise disposing of the land to the Third Respondent for the purpose of the construction and ancillary work for the Bulahdelah Bypass. The Applicant also sought an order restraining the Third Respondent and its employees, contractors, sub contractors, servants, consultants from entering the land for the purpose of undertaking any activity or work that may impact on the environment. The Court found that the principle of Anshun estoppel applied to these proceedings. The Applicant was prevented from pursuing these proceedings. The Court also found that the Applicant had not established that the declarations and orders he sought ought be granted. The Court dismissed the Applicant's Class 4 application and reserved costs.

Orders