Restrictions on Use of the Land
8 The Land is subject to the restrictions contained in the provisions of ss 40 and 40AA of the Aboriginal Land Rights Act 1983 (NSW) ("Aboriginal Land Rights Act"). Those provisions were repealed and replaced with new provisions which came into effect on 31 March 2010. The relevant provisions are now contained in ss 42 and 42E of the Aboriginal Land Rights Act.
9 The effect of the now repealed provisions, ss 40 and 40AA, was explained by Bennett J in Peter Hillig in his capacity as administrator of Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales [2005] FCA 1713 ("Peter Hillig") at [3].
10 It seems to me that the effect of Schedule 4 Part 9 cl 51 of the Aboriginal Land Rights Act as in effect from March this year, is that the present application is governed by the provisions of ss 42 and 42E of the Aboriginal Land Rights Act rather than the repealed provisions of ss 40 and 40AA, even though the present application was made before the new provisions came into force.
11 In my opinion, this follows from the definitions of "existing land dealing" and "existing registrable instrument" contained in cl 50 of Part 9 of Schedule 4 of the Aboriginal Land Rights Act. It follows from those definitions that cl 51(1) and (2) of Part 9 of Schedule 4 do not apply.
12 Clause 51(3) of Part 9 of Schedule 4 provides as follows:
If the requirements of the former land dealing provisions were not complied with in relation to a land dealing entered into before the commencement of the new land dealing provisions, the new land dealing provisions apply to that land dealing.
13 The definitions of "former land dealing provisions" and "new land dealing provisions" are contained in cl 50(1) of Part 9 of Schedule 4. Relevantly, "new land dealing provisions" means Division 4 of Part 2 of the Aboriginal Land Rights Act as substituted by the amending Act which, as I have said, came into force on 31 March 2010.
14 Sections 42 and 42E are contained in Division 4 of Part 2 and they, therefore, apply to the present application.
15 My attention has been drawn in written submissions provided by the Eden LALC to Item 8 of Part B of the New South Wales Aboriginal Land Council application form for Approval of Dealings. That form makes it clear that a determination under s 61 of the Native Title Act is a prerequisite for the NSW Aboriginal Land Council ("NSW ALC") to deal with the matter.
16 The provisions of ss 42(1), 42E(1), (2) and (3), as well as s 42G(1), are relevant.
17 Those subsections are as follows:
42(1) An Aboriginal Land Council must not deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
42E(1) A Local Aboriginal Land Council must not deal with land vested in it except in accordance with an approval of the New South Wales Aboriginal Land Council under section 42G.
42E(2) However, the approval of the New South Wales Aboriginal Land Council is not required for the following land dealings by a Local Aboriginal Land Council:
(a) a lease for a period of less than 3 years (including any option to renew the lease), other than a social housing management lease,
(b) a land dealing prescribed by the regulations for the purposes of this section.
42E(3) A Local Aboriginal Land Council must not deal with land vested in it that is land transferred to the Council under section 36 unless both the Crown Lands Minister referred to in that section and the Minister have been notified of the proposed dealing.
42G(1) The New South Wales Aboriginal Land Council must (subject to subsection (2) and any requirements of the regulations), on an application for approval of a land dealing being made by a Local Aboriginal Land Council in accordance with this Act, approve (with or without conditions) the land dealing if the New South Wales Aboriginal Land Council is satisfied that:
(a) the application is in accordance with this Act, and
(b) the members of the Local Aboriginal Land Council have passed a resolution in accordance with subsection (5) and that the dealing is in accordance with that resolution.
42G(5) A Local Aboriginal Land Council resolution approving a land dealing must:
(a) be passed at a meeting of which prior notice was given, in accordance with the regulations, and at which a quorum was present, and
(b) be passed by not less than 80 per cent of the voting members of the Council present at the meeting, and
(c) contain the following matters:
(i) the identity of the land,
(ii) a statement that the impact of the land dealing on the cultural and heritage significance of the land to Aborigines has been considered in determining whether to approve the dealing,
(iii) the manner in which the land is to be dealt with,
(iv) any conditions to which the approval of the dealing is subject.
18 I have been informed that, in anticipation of the Court's approval of the present application, the Eden LALC is currently preparing an application for approval from NSW ALC in accordance with s 42G of the Aboriginal Land Rights Act for the proposed land dealing with Telstra.