ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL (2 June 1998) [1998] NSWLEC 7

ANDREW DONNELLY & DAVID MUNDINE v. TENTERFIELD SHIRE COUNCIL (2 June 1998) [1998] NSWLEC 7

The Land and Environment Court of NSW does not have jurisdiction to determine the existence of native title or the validity of mining lease ML 1386 where the challenge rests solely on native title issues; native title holders are not 'owners' within the meaning of the EPA Act; failures to comply with the Native Title Act render acts invalid only to the extent that they affect native title, not for all purposes; accordingly, the impugned parts of the applicants' pleadings were struck out and the relevant portions of the application dismissed.

Jurisdiction
Australia
Judgment Date
02 June 1998
Procedural Posture
Interlocutory Application / Ruling on Notice of Motion to Strike Out/dismiss Portions of Amended Application and Points of Claim
Outcome
Notice of motion by the second and third respondents substantially upheld; applicants' relevant claims struck out or dismissed.
Legal Topics
['jurisdiction' 'native Title Procedures' 'statutory Interpretation' 'validity of Mining Lease' 'land Use Consent']
['administrative Law' 'environmental Law' 'mining Law' 'native Title'] ['jurisdiction' 'native Title Procedures' 'statutory Interpretation' 'validity of Mining Lease' 'land Use Consent']

Case Brief

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Procedural Posture

Interlocutory Application / Ruling on Notice of Motion to Strike Out/dismiss Portions of Amended Application and Points of Claim

Legal Issues

  1. 1 ["Whether native title holders are 'owners' under the Environmental Planning and Assessment Act 1979 (EPA Act)" 'Whether the Land and Environment Court has jurisdiction to determine the existence of native title' 'Whether the Land and Environment Court has jurisdiction to determine the validity of a mining lease (ML 1386)' "Whether the applicants' claim regarding native title is to be stayed or dismissed pending determination by the National Native Title Tribunal (NNTT) or Federal Court" 'Effect of procedural deficiencies under the Native Title Act 1993 (Cth) (NT Act) on validity of mining approvals and consents']

Ratio Decidendi

The Land and Environment Court of NSW does not have jurisdiction to determine the existence of native title or the validity of mining lease ML 1386 where the challenge rests solely on native title issues; native title holders are not 'owners' within the meaning of the EPA Act; failures to comply with the Native Title Act render acts invalid only to the extent that they affect native title, not for all purposes; accordingly, the impugned parts of the applicants' pleadings were struck out and the relevant portions of the application dismissed.

Court Disposition

Notice of motion by the second and third respondents substantially upheld; applicants' relevant claims struck out or dismissed.

Orders

  • ['Paragraphs 10, 11, 12, 13 and 20-31 of the Second Further Amended Points of Claim are struck out.' 'Paragraphs 5 and 6 of the Second Further Amended Application Class 4 are dismissed.' 'Costs reserved.' 'The exhibits are retained.']