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Editors --- "Andrew Donnelly and David Mundine v Tenterfield Shire Council, Ross Mining NL & Capricornia Prospecting Pty - Case Summary" [1999] AUIndigLawRpr 27; (1999) 4(3) Australian Indigenous Law Reporter 17

Andrew Donnelly and David Mundine v Tenterfield Shire Council, Ross Mining NL & Capricornia Prospecting Pty

Land and Environment Court of New South Wales (Talbot J)

2 June 1998

[1998] NSWLEC 113

The applicants were native title claimants who alleged that the first respondent (the Council) had acted unlawfully in resolving to approve an upgrade to Timbarra Road to service a mining lease. They also alleged that the mining lease granted to the third respondent was invalid because of non-compliance with s 23(6) of the Native Title Act 1993 (Cth) ('the Native Title Act') as it stood prior to the Native Title Amendment Act 1998 (Cth). The applicants argued that the Native Title Act and Racial Discrimination Act 1975 (Cth) required that notice under s 77 of the Environmental Planning and Assessment Act 1979 (NSW) of the application to upgrade the road ought to have been given to them as 'owners' under the definition in the Local Government Act 1993 (NSW). The mining company moved to have the application struck out or stayed.

The issues were:

• Whether native title holders fell within the definition of 'owner' under the Environmental Planning and Assessment Act and Local Government Act.

• Whether the Land and Environment Court had jurisdiction to determine whether the applicants held native title to the land.

• Whether the Land and Environment Court had jurisdiction to determine the validity of the mining lease.

On the first issue

The approach of the High Court in Mabo v Queensland [No 2] recognises rights in relation to land, but those rights are not rights to own the land derived from the Crown. Because the Local Government Act referred either to Crown land, or to land other than Crown land that was held pursuant to some grant, the definition of 'owner' did not include native title rights and interests. Nor did the Native Title (NSW) Act 1994 (NSW) provide for native title holders to be included within the definition of 'owners' in the Local Government Act. The exclusion of native title holders did not offend against s10 of the Racial Discrimination Act because the definition of 'owner' was not based on race. The holders of any title who do not fall within the definition are not affected by the provisions.

On the second issue

Insofar as the applicants challenged the grant of the mining lease through failure to comply with the future act regime, they first had to establish that native title existed in the land over which the lease was granted. Although the evidentiary barriers to establishing this in a Court where the rules of evidence applied might not be insurmountable, the Land and Environment Court was not an appropriate forum. The statutory scheme under the Native Title Act effected an implied ouster of the jurisdiction of the Land and Environment Court.

[Editorial note: this aspect of this decision on implied exclusion was disapproved by Levine J in Wilson v Anderson[1]]

On the third issue

Section 23(6) of the NTA must be construed as operating to allow a future act to proceed notwithstanding the existence of native title. It does not speak to the validity of the act for all other purposes, including under State law. Nor can it operate to make the act invalid for all purposes. Even if s 23(6) applied, the mining lease would only be invalid to the extent that it affected native title. Section 74 of the Mining Act 1992 (NSW) precluded the Court from entertaining a claim alleging breach of the Environmental Planning and Assessment Act. In relation to the approval to upgrade the road, s 77(1) of that Act did not confer a procedural right, and the native title claimants were not to be regarded as owners for the reasons expressed earlier in the judgment.

The Court struck out the paragraphs of the Statement of Claim and Points of Claim that asserted invalidity of the road approval and of the mining lease.

^[1] (1999) 4 (2)AILR p 91; 'Supreme Court Declines to Hear Extinguishment Claim', (1999) 4 (20)ILB p 21.