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Editors --- "Carpentaria Land Council Aboriginal Corporation & Ors v State of Queensland & Ors - Case Summary" [1998] AUIndigLawRpr 43; (1998) 3(4) Australian Indigenous Law Reporter 511

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.