Jurisdiction - Australia
Australia – Developments In Aboriginal Land Issues In New South Wales.

10 November 2012


Legal News & Analysis – Asia Pacific – Australia – Environment


In brief
This article provides a snapshot of recent developments in the active area of Aboriginal land issues in New South Wales, including:
  • NSW Aboriginal heritage legislation reform;
  • NSW Land and Environment Court decision on ground subsistence and Aboriginal objects;
  • significant new native title claims in NSW mining areas; and
  • consideration of whether Crown land under a mining lease can be claimed under the Aboriginal land Rights Act 1983 (NSW).
NSW heritage legislation reform
The NSW Government has initiated a reform process to develop separate NSW legislation for Aboriginal heritage. At present, the primary legislation for the protection of Aboriginal cultural heritage is the National Parks and Wildlife Act 1974 (NSW). There are five reform phases:
Phase 1: Community and stakeholder consultation
Completed between November and December 2011.
Phase 1 involved Aboriginal community workshops and a series of multidisciplinary roundtable workshops for industry, government, and environment and heritage interest groups. Reports from the workshops and submissions received during Phase 1 are available on the Office of Environment and Heritage (“OEH”) website: www.environment.nsw.gov.au/achreform/ACHconsult.htm.
Phase 2: Feedback forums and development of an options paper
Feedback forums were held across NSW in June and July 2012.
An options paper is currently being developed, which will include a recommended reform model. Ashurst Australia anticipates that the options paper will propose an expansion of the role of Aboriginal Land Councils in cultural heritage management.
Phase 3: Options paper discussion
The options paper will be passed onto the NSW Government for wider discussion.
Phase 4: Third round of consultations and roundtables
The options paper will form the basis for a third round of consultation, which will be conducted through a series of roundtables from November to February 2013.
Phase 5: Final recommendations
Final recommendations will be provided to the NSW Government for consideration in March 2013. If these recommendations result in a decision to redraft NSW heritage legislation, there will be a fourth opportunity for public comment on a draft Bill prior to it being debated in parliament.
Have your say on NSW heritage legislation reform
Comments can be made to [email protected] Written submissions can be sent by mail to Mr Norman Lain, Office of Environment and Heritage, PO Box 1967, Hurtsville BC NSW 1481. 
NSW Land and Environment Court decision finds ground subsistence caused by underground mine at Hunter Valley does not harm Aboriginal objects
 It is an offence under section 86(1) of the National Parks and Wildlife Act 1974 (NSW) (“NPW Act”) to harm an Aboriginal object. Harm is defined in the legislation to include, among other things, an act that moves the object from the land on which it had been situated.
Lester v Ashton Coal Pty Ltd [2012] NSWLEC 181 concerned claims by Mr Lester that, among other things, underground longwall mining carried out by Ashton Coal Pty Ltd caused  subsidence that resulted in harm to Aboriginal objects in breach of the  NPW Act.
The NSW Land and Environment Court found against Mr Lester on all
claims relating to ground subsidence, on the basis that the evidence did
not establish that ground subsidence had caused any “harm” to any known Aboriginal objects.
The decision indicates that subsidence alone is not sufficient to infer a breach of the NPW Act. Whilesubsidence is capable of causing “harm”, evidence of actual harm to particular known Aboriginal objects (as defined in section 5(1)) as a result of the subsidence will be a necessaryprecondition to establishing a breach of the NPW Act.
Native title claims in NSW
Two significantly sized native title determination applications have been recently made under the Native Title Act 1993 (Cth) in productive mining areas in NSW.
Gomeroi People
The Gomeroi People have made a  native title claim extending over 111,340 square kilometres of northwest New South Wales, including Gunnedah Basin. It covers the towns of Moree, Tamworth, Narrabri and Gunnedah and extends into the Upper Hunter Valley. The claim is registered and the public notification period has expired.
Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan
The Ngemba, Ngiyampaa, Wangaaypuwan and Wayilwan native title claim area is located within central NSW. This registered claim covers areas of Crown land and waters in the vicinity of the town of Cobar, extending from Walgett and Bourke in the north to Hillston and Ivanhoe in the south. The claim is in notification until 2 November 2012. During this notification period, a person with an interest in relation to land in the claim area that may be affected by a determination of native title, may become a party to this claim through a simple administrative process. 
Can Crown land within a mining lease be claimed under the Aboriginal land
Rights Act 1983 (NSW)? 
The Aboriginal land Rights Act 1983 (NSW) (“ALRA”) is a NSW state law. It predates the Native Title Act 1993 (Cth) and is an entirely separate Aboriginal land rights scheme that is unique to NSW.
The ALRA creates, among other things, a scheme where parcels of Crown land vests in a claimant Aboriginal Land Council if, at the date the claim is made, the land meets the definition of “claimable Crown lands”. This definition excludes, among other things, lands that are needed, or likely to be needed for an essential public purpose (section 36(1)(c) ALRA).
Case law has developed a series of principles in determining whether or not lands are needed or likely to be needed for an essential public purpose. However, there has been no judicial consideration on the specific question of whether mining is considered to be an “essential public purpose”. Accordingly, whether Crown land that is the subject of a mine development is claimable Crown land remains uncertain.
This was an issue that arose in the context of an Aboriginal land claim lodged on behalf of the Wanarauah Local Aboriginal Land Council, over Crown land known as the Camberwell Common, in the Hunter Valley, NSW. The claimed land was the subject of a mining lease held by Ashton Coal Pty Ltd. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174, the Minister asserted that the claimed land was needed, or likely to be needed for the essential public purpose of coal mining.
Ultimately, the Land and EnvironmentCourt considered it unnecessary to consider whether the land was needed for the asserted essential public purpose of coal mining, on the basis the Minister had already proved the land was not claimable Crown land under the ALRA at the date of claim for other reasons. This decision reminds us that the issue remains a live one, and is of particular relevance to mining developments in the Hunter Valley.



For further information, please contact:


Clare Lawrence, Ashurst

[email protected]


Megan Barnett-Smith, Ashurst

[email protected]


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