Dates v Karuah Local Aboriginal Land Council & Ors [2009] NSWLEC 221

Dates v Karuah Local Aboriginal Land Council & Ors [2009] NSWLEC 221

The applicant is estopped from bringing the application due to the Anshun principle, as the issues and parties were substantially the same as earlier proceedings where the applicant discontinued. In any event, s 40AA of the Aboriginal Land Rights Act 1983 does not apply to land claimed and granted before its introduction, as accrued statutory rights under earlier versions of the Act are preserved by s 30(1)(c) of the Interpretation Act 1987 and reinforced by principles established in Winbar No 3 and Esber. Thus, the applicant’s claim for orders and declarations fails.

Parties
Applicant: Worimi Dates; First Respondent: Karuah Local Aboriginal Land Council; Second Respondent: New South Wales Aboriginal Land Council; Third Respondent: Roads and Traffic Authority of NSW
Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Class 4 Application / Judgment and Orders
Outcome
Application dismissed
Legal Topics
Anshun Estoppel, Retrospective Application of Statutory Amendment, Aboriginal Land Rights Act, Disposal of Aboriginal Land, Native Title Act Interaction
Aboriginal Land Law Administrative Law Estoppel Statutory Interpretation Native Title Anshun Estoppel Retrospective Application of Statutory Amendment Aboriginal Land Rights Act +2 more

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Parties

Worimi Dates

Applicant

Karuah Local Aboriginal Land Council

First Respondent

New South Wales Aboriginal Land Council

Second Respondent

Roads and Traffic Authority of NSW

Third Respondent

Procedural Posture

Class 4 Application / Judgment and Orders

Legal Issues

  1. 1 Whether applicant is estopped (Anshun estoppel) from pursuing proceedings due to previous litigation involving the same issues and parties.
  2. 2 Whether s 40AA of the Aboriginal Land Rights Act 1983 applies to prevent the sale of land claimed prior to the insertion of s 40AA into the Act.
  3. 3 Whether proposed sale to Roads and Traffic Authority is prohibited as land was subject to native title rights and interests.

Ratio Decidendi

The applicant is estopped from bringing the application due to the Anshun principle, as the issues and parties were substantially the same as earlier proceedings where the applicant discontinued. In any event, s 40AA of the Aboriginal Land Rights Act 1983 does not apply to land claimed and granted before its introduction, as accrued statutory rights under earlier versions of the Act are preserved by s 30(1)(c) of the Interpretation Act 1987 and reinforced by principles established in Winbar No 3 and Esber. Thus, the applicant’s claim for orders and declarations fails.

Court Disposition

Application dismissed

Orders

  • The Applicant's Class 4 application is dismissed.
  • Costs are reserved.