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Kristiansen, Kari M S --- "The Right to a House under the Aboriginal Land Rights Act 1983 (NSW): Mason v Wagonga Local Aboriginal Land Council" [2002] IndigLawB 53; (2002) 5(19) Indigenous Law Bulletin 21

The Right to a House Under the Aboriginal Land Rights Act 1983 (NSW):

Mason v Wagonga Local Aboriginal Land Council

Supreme Court of New South Wales

[2002] NSWSC 351

Gzell J

29 April 2002

By Kari M S Kristiansen

In this case the Supreme Court of New South Wales Equity Division considered the application of the doctrine of proprietary estoppel to the situation of an Aboriginal person seeking a grant of housing from a local Aboriginal Land Council (‘LALC’) constituted under the Aboriginal Land Rights Act 1983 (NSW).

The case involved a claim brought by an Aboriginal man and his non-Aboriginal de facto wife, who argued they had been led to believe by the LALC that it would provide them with a house and land package. The Aboriginal plaintiff was a member of the LALC. His name was listed on the housing list maintained by the LALC. The grant of a house and land to the couple was frustrated by external factors, and did not eventuate. The plaintiffs sought equitable relief on the basis of equitable estoppel, breach of fiduciary duty and negligence.

Equitable estoppel

The plaintiffs asserted an equitable estoppel on the basis that they had been induced by the chairperson (second defendant) of the LALC (first defendant), to expect that they would receive a new house and land package. The acquisition of the house and land would have resulted in their ownership of the property in the form of a life estate or similar interest.

The principle of proprietary estoppel enunciated by the High Court in Waltons Stores (Interstate) Ltd v Maher states that:

a person whose conduct creates or lends force to an assumption by another that he will obtain an interest in the first person’s land and on the basis of that expectation the other person alters his position or acts to his detriment, may bring into existence an equity in favour of that other person, the nature and extent of the equity depending on the circumstances.[1]

His Honour held that the plaintiffs did not establish an equitable estoppel. They had not proven that they were induced by the defendants’ words or actions to expect the provision of a house and land package by the LALC, nor that they were treated differently than any other individuals on the LALC’s housing list. There were two additional impediments to equitable relief in this respect: the plaintiffs were offered another house by the LALC which they declined to accept, and the female non-Aboriginal plaintiff was not, in principle, entitled to a grant of land under the Aboriginal Land Rights Act 1983 (NSW).

Fiduciary duty

The plaintiffs argued that the LALC defendants owed a fiduciary duty towards the male plaintiff in its decision making responsibilities, namely to not discriminate against him or treat him unfairly. They also argued that the chairperson owed a fiduciary duty in implementing the LALC’s resolutions in good faith. The plaintiffs alleged that the chairperson had breached his fiduciary duty by failing to implement the LALC’s resolutions, including its decision to provide a house and land package, and with respect to his dealings with external authorities involved in the funding and construction of the property.

Justice Gzell did not find that a fiduciary relationship necessarily existed between a LALC and its members. He concluded that even if such a duty were owed, it would not have been breached in the instant case, as the grant of a house and land was not thwarted by any unreasonable or discriminatory actions by the defendants.

Negligence

The plaintiffs claimed that the LALC owed a duty of care to both plaintiffs or, alternatively, the male plaintiff, to ensure that its resolutions concerning the property were implemented. They sought damages in lieu of the interest in the land.

His Honour found that the defendants had acted in good faith, and that whilst it was not necessary for the LALC to raise statutory immunity as a defence in this context, the relevant provision[2] under the Aboriginal Land Rights Act 1983 (NSW) would have been available.

Kari M S Kristiansen is a legal and management consultant to Indigenous communities and government agencies. She holds a Masters of Laws degree from the University of Sydney.

[1] (1988) 164 CLR 387, 404.

[2] Section 54.


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