Chalk, Andrew --- "News: Win at Winbar" [1988] AboriginalLawB 55; (1988) 1(34) Aboriginal Law Bulletin 15

• Win At Winbar

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Win at Winbar

by Andrew Chalk

The NSW Court of Appeal recently handed down its decision on the Winbar land claim, a 25 000 hectare property in the far north-west of the state. The result was an important victory for the NSW Aboriginal Land Council which has been fighting the claim since 1984. (see [1988] AboriginalLB 30; 2(32)pg6 ).

The underlying issue throughout the case has been whether Aboriginal Land Councils should be entitled to claim land in the Western Division of NSW in fee simple. As non-urban land in that part of the state is held under Crown leases, often with stringent environmental protection conditions circumscribing land use, pastoralists have been openly hostile to what they believed was the privileged position being afforded Aborigines. Similarly the Western Lands Commissioner, who stood to lose his supervisory control over claimed lands, also added his voice to the protest. The Minister for lands at the time the Winbar claim was lodged, Janice Crosio, (sympathetic to their arguments) used a s36(8) certificate stating that the land was needed for an essential public purpose to block the claim. Later an offer was made to remove the certificate and transfer the land as a lease in perpetuity on condition that the proceedings seeking the transfer in fee simple were abandoned. This offer was refused.

Partly in response to the ensuing litigation, the government amended the Land Rights Act in May 1986 to restrict title to land claims in the Western Division to leases in perpetuity (s36(9)(a)). Following the amendment, the Minister finally approved the lease of Winbar.

The question for the court of appeal was whether the amendments applied to a claim lodged prior to the amendment, (Mr Justice Hope delivering the leading judgement and Samuels and Clark JJ agreeing) the Court held that they didn't and ordered the land to be transferred in fee simple. They found that certain rights, enforceable in equity, accrued at the date a claim was lodged and drew analogies with the rights of employees injured in accidents prior to the introduction of the Workcover Legislation. They also ordered the Minister to pay the Land Council's costs.

It is not yet known whether the Minister will appeal.