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Extinguishment of Native Title
Native Title was first recognised by the Common Law in Australia in 1992. In the landmark decision of Mabo v Queensland, the High Court acknowledged "…a form of native title, which in cases where it has not been extinguished, reflects the entitlement of the indigenous inhabitants, in accordance with their laws and customs, to their traditional lands."
The Federal Court, in the Miriuwung Gajerrong case confirmed that native title rights are only extinguished by acts which show a "clear and plain" intention to do so. In that case, native title in land, reserved and vested in Local Governments, was part of the claim. The Court found the vesting of reserved land did not show a "clear and plain" intention to extinguish native title. Therefore, the rights of the native title holders and other interested holders were co-existing.
The majority of the Full Court of the Federal Court saw native title as a 'bundle of rights', some of which could be extinguished by certain acts, while other rights in the bundle remain. The test involved a comparison between any rights conferred and the rights under native title. To the extent of inconsistency, native title is extinguished. Whilst the Court decided that native title had been extinguished in some of the claimed areas, it agreed the reservation of land for a public purpose does not automatically cause extinguishment.
Leave of the High Court has been sought to appeal this decision. Until the High Court further clarifies and refines the test of what does extinguish native title, detailed comparisons of various rights will be necessary to assess what, if anything, remains in the "bundle of native title rights" to particular areas of land.
Confirmation of Minutes of Meeting of Previous Council
With the Council elections over and newly elected Councils having had a number of meetings an issue which warrants consideration is how does a new Council confirm the minutes of the last meeting of the previous Council?
Regulation 9 of the Local Government (Procedures at Meetings) Regulations 2000 provides that:
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Regulation 9 further provides what must be included in the minutes such as the names of the members present and each motion or amendment.
It is sometimes thought the confirmation of the minutes constitutes an approval of the decisions made at the meeting to which the minutes relate. This is not so. Rather, the purpose of confirming the minutes is to certify formally that the minutes constitute the record of what transpired at the meeting to which they relate.
A member not present at a meeting may move, second and vote upon the confirmation of the minutes of that meeting. The same can be said of a newly elected Council confirming the minutes of the last meeting of the previous Council.
Confirmation of the minutes merely represents confirmation that they are the record of the decisions of fact arrived at the meeting to which they relate. The decisions themselves are not being confirmed nor is approval being given to those decisions.
To "confirm" the minutes does not in this context mean to "verify" and thereby give them force, but to certify that the minutes constitute the record of what took place at the meeting to which the minutes relate.
Therefore, there is no obstacle to the minutes of the last meeting of an outgoing Council being confirmed by a new Council notwithstanding that some, or even a majority, of the members of the new Council were not members of the previous Council.
Council duties to Road Users
Calvaresi v Beare concerned the liability of a Local Council in relation to a traffic accident between a bicycle and a motor vehicle at a Council – controlled intersection. The main issue concerned the duty of care that a Council owes in relation to road users for road design and vegetation maintenance.
The Court made very specific findings about the management of roadside vegetation by Local Councils. The duty a Council owes is to take reasonable measures to clear vegetation to the extent necessary to provide road users with a sufficient line of sight to negotiate roads with reasonable safety.
The Court identified that the scope of the duty may differ between Councils. There will be no breach of duty if reasonable care has been taken and reasonable measures adopted to manage roadside vegetation. The Court determined that in implementing a system of native vegetation clearance, a Council was entitled to take into account:
Watercourses
Macag Holdings v Torrens Catchment Water Management Board
The definition of "watercourse" as used in the Water Resources Act 1997 was recently considered by the Supreme Court in this case. Justice Debelle found that a watercourse must satisfy two requirements:
He expanded on these requirements by contrasting a watercourse with a depression or land contours to which water moves and flows along. A watercourse must have a bed and identifiable banks, and while it can run dry from time to time, it will not be a watercourse if the flow of water exists for only a few hours over some days in a year.
Categorisation of Development
Corporation of the City of Enfield v Development Assessment Commission
This case concerned a challenge to the categorisation of a development as "general industry", as opposed to "special industry". Enfield challenged the categorisation of the application as "general industry", which removed its rights to make a decision on the proposal. A classification of "special industry" would have required the decision-making authority to obtain the concurrence of Enfield before giving consent.
The High Court decided that the requirements of the Development Act do not state that the ruling of the decision-making authority on classification is to be final. The classification of applications into complying and non-complying can be reviewed by a Court.
The main consequence of this case for decision-makers is that their findings of fact on matters that affect their powers will be open to review by the Courts.
For further information about issues covered in this article, please contact Michael Kelledy on +61 8 8210 1237 or e-mail mkelledy@normans.com.au. We produce the following Briefly editions:
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