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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Nettheim, Garth --- "Re McGrath and Director-General of Social Security (Social Security Act - Handicapped Childrens Allowance - discretion to backdate payments 'in special circumstances')" [1985] AboriginalLawB 49; (1985) 1(15) Aboriginal Law Bulletin 5

New South Wales Aboriginal Land Council v Minister for Natural Resources

Aboriginal Land Rights Act, 1983 (NSW) - Land and Environment Court Act, 1979 (NSW) - whether Court has jurisdiction to protect property pending appeal against Minister's refusal of a land claim.

New South Wales Aboriginal Land Council v Minister for Natural Resources

Land and Environment Court of New South Wales

E. T. Perrignon J. Sydney, 19 March 1985

Casenote by Garth Nettheim

The Council, in April 1984, lodged a claim under s.36(2) of the Aboriginal Land Rights Act, 1983, for a property known as Winbar of 25,516 hectares. In November the Minister indicated that she was not satisfied that the property was claimable Crown land and she refused the claim under s.36(5)(b) of the Act. In December the Council appealed to the Court.

Meanwhile, in January 1985, the Council learned off a proposal from the Western Lands Commission to give temporary grazing permission on Winbar to Braziers whose own properties had been affected by bushfires. The Council sought an interlocutory order to restrain the Minister and any persons authorised by her from proceeding with the proposal.

The Minister submitted that the Court had no jurisdiction to grant the interlocutory relief. If the Council's appeal was successful it would-be entitled only to a transfer of the property in whatever condition it might be in at the date of transfer. There was also a series of arguments against the Court's jurisdiction to make an order based on the interpretation of the Land and Environment Court Act, 1979.

However the Judge held that the Court did have jurisdiction, based upon the principle that the Court has the necessary power, pending the hearing and determination of the appeal, to protect the subject matter of such appeal.

The Council argued that, once a claim had been made, the Minister had no right whatsoever to use the land or to allow others to use it. It followed that the Court's jurisdiction to preserve the property pending the appeal required a complete prohibition of any grazing on Winbar. The Council argued that the decision of Cohen J. in Darkingung Local Aboriginal Land Council v. The Minister for Natural Resources (21 February [1982] AboriginalLawB 6; 1985, 13 AboriginalLB 9, presently under appeal) should be distinguished or, alternatively, not followed. But this submission was not accepted.

The judge considered evidence as to the archaeological and cultural significance of the property, the state of the pastures on Winbar and adjoining properties, the possibility of environmental damage by sheep grazing, and the location and quantity of water. He concluded that grazing on the property would not prejudice its adequate preservation if the appeal was successful, provided that grazing was limited in accordance with undertakings given by the Minister. The effect of those undertakings was to limit the number of sheep to be depastured on Winbar to 2500, to confine them to a specified portion of the property, to require supervision by the Western Lands Commissioner, to limit the sheep to be pastured to those owned by persons affected by bushfires in the Cobar region in the period December 1984 to January 1985, and to require that such people apply for permission from the Western Lands Commissioner and satisfy him that the effect of bushfires on their own land is such that the making available of pasture lands on an emergency basis is deemed desirable. He also directed that the Council should be at liberty to enter Winbar for the purpose of inspecting the property and carrying out an archaeological survey and assessment.

Winbar - Postscript

It has recently been announced the Army is interested in the Winbar land and they have ordered an environmental impact study.

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