Koompahtoo Local Aboriginal Land Council v KLALC Property Investment Pty Ltd

The dispute before the New South Wales Court of Appeal concerned the validity of certain disposals of Aboriginal land. The Koompahtoo Local Aboriginal Land Council (KLALC) sought to set aside transfers of land to KLALC Property Investment Pty Ltd (KLALC Property), arguing that the transfers were void under section 40(2) of the *Aboriginal Land Rights Act 1983* (NSW) due to non-compliance with the Act's certification requirements.

The central legal issues were whether a certificate issued by the secretary of a Local Aboriginal Land Council, stating that a disposal of Aboriginal land did not contravene the Act by reason of the land not having cultural significance, satisfied the requirements of section 40D(2) of the Act. Furthermore, the court had to determine whether the indefeasibility of title provisions under the *Real Property Act 1900* (NSW) could override the statutory voidness of a disposal of Aboriginal land where a transferee had obtained registered title.

Giles JA, with whom Tobias JA agreed, held that the certificate provided was insufficient because the addition of the phrase "land not having cultural significance" was not merely explanatory but rather a qualification of the grounds upon which the disposal was permitted. This qualification meant the certificate did not confirm that the disposal did not contravene the Act in the manner required. However, all judges agreed that despite the voidness of the disposal, the registered title held by one transferee conferred indefeasibility. Young CJ in Eq dissented on the interpretation of the certificate.

In proceedings 40580/06, the appeal and cross-appeal were dismissed. In proceedings 40581/06, the appeal was allowed, and the cross-appeal was allowed in part, with the proceedings remitted to the Equity Division for determination of the cross-claim on the basis of unjust enrichment.