Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act

[2007] NSWLEC 800

Land and Environment Court

of New South Wales

CITATION:	Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800
PARTIES:	APPLICANT Batemans Bay Local Aboriginal Land Council RESPONDENT Minister Administering the Crown Lands Act
FILE NUMBER(S):	31187 of 2005
CORAM:	Sheahan J - Behrendt AC
KEY ISSUES:	Aboriginal :- land claim - whether land was needed or likely to be needed for essential public purpose - was land lawfully used or occupied
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1980 Forestry Act 1916 Forestry Regulation 1983
CASES CITED:	Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Darkingjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act & Anor (2006) 149 LGRA 162; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653; Drummoyne Municipal Council v Roads & Traffic Authoritiy of NSW (1989) 67 LGRA 155; Evans v Forestry Commission of NSW(1982) 48 LGRA 266; F Hannan Pty Ltd v Electricity Commission of NSW [No.3] (1985) 66 LGRA 306; F Hannan Pty Ltd v Electricity Commission of NSW [1983] 3 NSWLR 282; Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Helman v Byron Shire Council and Another (1995) 87 LGERA 349; Jarasius v Forestry Commission of NSW [No.1] (1988) 71 LGRA 79; Jerringa Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1988) 43 NSWLR 249; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No.2] (2001) 50 NSWLR 665; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481; New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318; New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685; NSW Aboriginal Land Council v The Minister Administering the Crown Lands Act [2007] NSWCA 281; Prineas v Forestry Commission of New South Wales & Others (1983) 49 LGRA 402; Waranuah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Another (1991) 72 LGRA 149
DATES OF HEARING:	12-13 November 2007
DATE OF JUDGMENT:	14 December 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms S Pritchard with Ms J Taylor SOLICITOR Chalk and Fitzgerald RESPONDENT Mr J Maston SOLICITOR Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Justice Sheahan

14 December 2007

31187of 2005

BATEMANS BAY LOCAL ABORIGINAL LAND COUNCIL v
MINISTER ADMINISTERING THE CROWN LANDS ACT

JUDGMENT

A. Introduction

1. His Honour: This is an appeal against the respondent Minister’s refusal of part of a claim made by the applicant Land Council, in accordance with the regime prescribed by the Aboriginal Land Rights Act 1983 (NSW) (“ALRA”), and I acknowledge the assistance of Acting Commissioner Behrendt in the determination of it.

2. The “claimability” of land under that statutory regime must be assessed and determined as at the date the claim was lodged (ALRA s 36(1)) and the Minister bears the onus of proving that claimed land is not claimable. If the Minister fails to discharge that onus, the Court, on appeal, must order that the land concerned be transferred to the Land Council, and can make such an order on certain conditions.

3. For many years prior to the lodgement of a series of ALRA claims for land in the Bateman’s Bay area, on 18 January 1985, i.e. from about 1961 until the beginning of 1985, there was an intra-governmental dispute about whether some or all of the vacant crown lands involved in them should be dedicated as either an addition to “Bolaro State Forest”, or part of a new “Bolaro Nature Reserve”. That dispute had not been finally resolved by governmental action by the time those claims were lodged (see Exhibit M6 at fol 95).

4. This appeal concerns part of one of those claims.

B. The Claimed Land

5. On 18 January 1985, the Batemans Bay Local Aboriginal Land Council (“LALC”) lodged Aboriginal Land Claim 1431 (“ALC 1431”) in respect of predominantly unreserved crown land near Batemans Bay, the Clyde River and Nelligen, in the Parish of West Nelligen, County of St Vincent, and Shire of Eurobodalla (see Exhibit M1).

6. Part of ALC 1431 was granted on 17 March 1988, and the determination of the remaining part of the claim was deferred by the Minister “pending further consultation between the Department of Lands, the Forestry Commission of NSW, the National Parks and Wildlife Service and … [the Batemans Bay Aboriginal Land] Council, as to the need for the lands for essential public purposes.”

7. On 18 August 2005, the Minister determined the remaining part of ALC 1431, granting it in part and refusing it in part. The grounds of refusal were:

(a) part of the land comprised a Council public road which was land not vested in the Crown;

(b) part of the land comprised Crown public roads which are not able to be lawfully sold or leased under the Crown Land Act 1989;

(c) parts of the land were lawfully used and occupied by State Forests of NSW and was needed, or likely to be needed, for the essential public purpose of timber production; and

(d) parts of the land were needed, for the essential public purpose of access (roadway and fire control management).

8. On 10 October 2005, the LALC lodged this Class 3 Appeal against the Minister’s decision to refuse those parts of the claim concerned with lands to the south of the Bolaro Mountain Road (“the claimed land”), excluding the roads.

9. It would appear to be common ground that none of the claimed land involved in this appeal would have been included in the proposed Bolaro Nature Reserve, which involved land to its north and east (see Exhibit M6, fol10), but the claimed land is relevantly close to many areas of dedicated State Forest, and adjacent to Bolaro State Forest (Exhibit M3).

10. On 24 May 1993, when commenting on a number of claims in the Nelligen area, including ALC 1431, the Forestry Commission of NSW told the Department of Conservation and Land Management (Exhibit M6 Tab 95, fol 173):

“The area has been managed for long term timber production since the early 1960’s. To all intents and purposes it has been managed as State Forest.

· It has been divided into numbered compartments.

· The timber resources have been included in all calculations of long term sustained yield for Batemans Bay sawmills.

· Roads and tracks have been constructed and maintained by the Commission.

· Logging has been carried out under long term sustainable prescriptions.

· Silvicultural treatment works have been undertaken.

· The area has been subject to fire prevention and fire control operations.”

11. The claimed land comprises areas within three forestry compartments, numbered under the system adopted prior to and at the date of the claim: compartment 238 (to the south-east), 239 (to the south-west), and the northern section of compartment 240 (to the north-west) (see Exhibits M2 and M3). The predominant forest community/association is “coastal spotted gum”.

12. At the date of the claim, the claimed land fell within the definition of classified “Crown-timber land” pursuant to s.4 of the Forestry Act 1916 (NSW) (“Forestry Act”) which provided:

“Crown-timber lands”, means:

but does not include:

(d) any Crown lands the subject of a tenure from the Crown specified or described in the First Schedule if the land the subject of that tenure has an area of 2 hectares or less; or
(e) any Crown lands the subject of a tenure from the Crown not specified in that Schedule.

13. At the date of the claim, the powers of the Forestry Commission in relation to Crown-timber lands were contained in s.11(1) of the Forestry Act and included:

· take any timber or any timber products on any Crown-timber lands (s.11(1)(b))

· sell or dispose of any timber or products so taken (s.11(1)(c))

· construct roads, bridges, gates, ramps, railways or incidental works, necessary for the taking or removing of timber or products on Crown-timber lands (s.11(1)(e)).

14. Crown-timber lands are distinguished from State Forests, timber reserves and flora reserves. Sub-section 11(1)(a) of the Forestry Act gives the Forestry Commission “control and management of State forests, timber reserves and flora reserves and shall control and manage them in such manner as best serves the public interest …”. The sub-section noticeably did not include Crown-timber lands.

15. Similarly, Part III of the Forestry Regulation 1983 (NSW) makes detailed provisions for the “control and management” by the Forestry Commission of State forests, timber reserves and flora reserves, and does not apply to Crown-timber lands. Clause 9 in Part II of the regulation relates to the taking of timber, timber products or forest materials from Crown-timber lands.

16. At all material times the claimed land was zoned “Non-Urban 1(a) rural” under the then key local planning instrument, Interim Development Order No 3, which had been gazetted on 23 July 1976 (Exhibit M5). “Forestry uses”, as defined in that IDO, are permissible without Council consent.

C. Issues to be Determined

17. The issues to be determined (Exhibit M4) in respect of the claimed land are:

(1) Whether, at the date of the claim, the claimed land was “used” within the meaning of s.36(1)(b) of the ALRA and, if so, whether the use was lawful;

(2) Whether, at the date of the claim, the claimed land was “occupied” within the meaning of s.36(1)(b) of the ALRA and, if so, whether such occupation was lawful;

(3) Whether, at the date of the claim, the claimed land was “needed or likely to be needed” for an “essential public purpose”, being timber production, within the meaning of s.36(1)(c) of the ALRA; and

(4) If so, whether the Court should grant the claim under s.36(5) subject to the imposition of a condition pursuant to s.36(5A) relating to the use of the land.

D. The Factual Evidence

18. The Court has considered extensive documentary evidence, affidavit and oral evidence from Paul Joseph Massey-Reed, and expert reports and oral evidence from Roger Steven Lembit for the Respondent and Phillip Anthony Conacher for the Applicant.

Prior to the Lodgment of the Claim

19. The evidence reveals that logging was undertaken on part of the claimed land at least as early as 1960.

20. In 1979, Mr Massey-Reed was posted to Batemans Bay as assistant to the District Forester, Forestry Commission. He held this position until he was transferred in mid-January 1985, just before the land claim was lodged. He described his activities and his supervisory role in relation to the claimed land during that period, including the preparation of harvesting plans, timber assessment, inspections, and the supervision of timber stand improvement activity, designed to improve the condition of the land for the purpose of harvesting and general forest activities. He also supervised the construction of Bolaro Mountain Road and the drainage systems associated with it. He also described fire protection activities that took place on the claimed land, including hazard reduction burning carried out for that purpose.

21. Mr Massey-Reed gave evidence that the compartments that covered the area of the claimed land were actively logged and managed in the period from 1 July 1980 through to July 1984. From that date, according to his evidence, up to the date of the claim, the whole area was managed, conserved and protected in anticipation of further logging coupes within the compartments. He would expect logging to occur in cycles of 10-20 years, as forestry is a cyclical activity and there are periods when the forest is managed for regrowth.

22. On 16 July 1980, plans were made to log the land in compartment 240. Logging commenced on 4 August 1980 and was completed by 14 September 1980. In September 1980 plans were made to log half of compartment 239 in March and April 1981.

23. On 19 November 1981, the Forestry Commission, in correspondence with the Department of Lands, reiterated its request for concurrence for dedication of the claimed land as State Forest, describing it as “Unoccupied Crown land” (Exhibit M6, Tab 43).

24. Correspondence between the Crown Lands Office and the District Surveyor on 4 March 1983 (Exhibit M6, Tab 50) noted that there was a government policy of building up the stock of forest lands and maintaining full employment in the timber industry. It noted that, when making the decision not to allow logging of certain rain forest areas on the North Coast, Cabinet also directed the Forestry Commission to take steps to ensure that jobs in the timber industry were not lost. This was to be achieved by the Commission building up its stock of forest lands to offset the loss.

25. In 1983, the Forestry Commission developed a Management Plan for Batemans Bay Management Area (Exhibit B4, p 2). It covered the management of some Crown-timber lands within the Batemans Bay Forestry District and prescribed the processes and procedures to be undertaken in relation to that management. It included the plan for the Coastal Working Circle that included the claimed land, and prescribed the formula for the quota of sawlogs and other timber products as well as harvesting prescriptions. The Management Plan noted that the “[h]ighest priority should be given to the dedication of some 600 hectares of Crown lands to the east and north of the Bolaro State Forest in the Parish of West Nelligen”. It assumed that “normal … operational procedures” would be followed and that “general policies, such as stumpage appraisal, road construction, harvesting and recreation, will be applied.” Further, it was noted that the prescriptions outlined in the plan were covered by the Indigenous Forestry Policy, and that operations were to “be examined, according to standard procedures and as required under the Environmental Planning and Assessment Act 1979 to determine their likely effect on the environment”.

26. A ‘Compartment History’ for compartment 238 is before the Court in the affidavit of Mr Massey-Reed, sworn 10 August 2006, at Annexure C (additional references in brackets). It includes the following documents: Batemans Bay Coastal Working Circle (Exhibit M6, Tab 98); Compartment History Map (Exhibit M6, Tab 61); Compartment History Map of Timber Stand Improvement (Exhibit M6, Tabs 67,68); Yield Summary Statement (Exhibit M6, Tab 63); Harvesting Plan (Exhibit M6, Tab 62); Timber Yields (Exhibit M6, Tab 64) and Post Logging Check (only in Exhibit M6, Tab 99).

27. A ‘Compartment History’ for compartment 239 is before the Court in the same affidavit, at Annexure D (additional references in brackets). It includes the following documents: Batemans Bay Coastal Working Circle (Exhibit M6, Tab 100); Compartment History Map (Exhibit M6, Tabs 34, 41, 101, 102); and Timber Yields (Exhibit M6, Tab 103).

28. A ‘Compartment History’ for compartment 240 is before the Court in the same affidavit, at Annexure E (additional references in brackets). It includes the following documents: Batemans Bay Coastal Working Circle (Exhibit M6, Tab 104); Compartment History Map (Exhibit M6 - Tabs 31, 105, 106); and Timber Yields (Exhibit M6, Tab 107).

29. A Compartment History Map for compartment 238 detailed plans for logging of the area to commence in July 1984 and to be completed by September 1984. The logging of the compartment was completed on 30 October 1984. The detailed plans for Timber Stand Improvement of the area suggest that the area was logged in 1984/1985.

30. The Compartment Histories for compartments 239 and 240 show evidence of logging in 1960 and then some five years prior to the date of the claim. The document entitled ‘Batemans Bay Coastal Working Circle’ for these two compartments identifies the year of last logging as 1980/1981. An undated Compartment History Map for compartment 239 and a Compartment History Map for compartment 240 dated 1980 state: “No recorded yield or operation since 1960, however there are old stumps 40-60 years old, it looks like a section of logging for small handle quality spotted gum logs.”

31. A further Compartment History Map for compartment 239 appears to envisage logging being carried out from mid September 1980 through to December 1980: “The area will be logged using small alternate system. The coupe size being 11-24 ha. The area inside each coupe to be logged, will be logged for maximum yield. The coupe edges, for logging, are to be marked.” It contains a handwritten table of figures detailing timber yield from September 1980 to November 1980.

32. A similar document for compartment 240 states that logging commenced on 4 August 1980 and was completed on 14 September 1980. A handwritten table of figures details timber yield from September 1980 to October 1980.

33. There is no evidence within the Compartment Histories for compartments 239 and 240 of any forestry activity in those areas on or around the date of the claim, 18 January 1985. There is no documentary evidence of any harvesting plan ever having been prepared for either compartment. However, evidence was given by Mr Massey-Reed that some departmental documents in relation to the area may have been lost in a fire, and that he has a clear recollection of having prepared such plans, and having had them approved, in accordance with his usual practice and the requirements of his then superior, Mr Hervert.

34. The LALC submits that “only a very small, de minimis part of” the areas logged (in 1980) within compartments 239 and 240 fall within the claimed land. (See Annexure 1 to Mr Conacher’s affidavit). On the other hand, the evidence suggests that at least part of compartment 238 was logged in 1984 and falls within the claimed land.

35. As previously noted, ALC 1431 was lodged by the LALC on 18 January 1985.

After the Claim was lodged

36. On 8 December 1987 the LALC wrote to the Department of Lands in the following terms (Exhibit B4 fol 128):

“With respect to the claims at Nelligen we recognise that the timber industry is an important resource for the people.

We would be prepared to enter into planned timber harvesting when the land is being considered for granted (sic).

We are prepared to meet with the Forestry and negotiate any timber harvesting with them.”

37. In an Action Sheet dated 22 October 1987, an employee of the Forestry Commission, Mr Graham Grey, noted that a Department of Lands representative, Mr K Hopkins, had expressed a view he was “not convinced that there was high merchantable timber in the claimed areas” However, “in view of the NPWS proposal for a Bolaro Nature Reserve in the east and continuing demand for timber resources, the Commission must pursue acquisition where it can.” The notation concluded that, following the meeting: “I concluded that there were doubts over the need for total claim areas for an essential public purpose” (Exhibit B4, p 126).

38. A draft submission to the Minister dated 31 December 1987, signed by the Officer in Charge of the Aboriginal Land Claims Unit of the Department of Lands, recommended that part of ALC 1431 should be granted, and that determination of the remaining part of the claim be deferred pending further consultation with NPWS, the Forestry Commission and Batemans Bay LALC (Exhibit B4, p 130-131). It noted the following interests in the claimed area:

(a) National Parks and Wildlife Services (“NPWS”) proposed the establishment of “a Bolaro Nature Reserve … to conserve an example of mature spotted gum forest and catchment areas to the Clyde River”;

(b) The Forestry Commission of New South Wales “had identified that the subject lands are not of high merchantable timber value”, but was pursuing acquisition of those available lands as State Forest “in an environment of increasing demand for timber and deletion of resource due to urban expansion and associated services such as easements for major electricity transmission lines”; and

(c) Batemans Bay LALC had “indicated an awareness of the needs of the timber industry and would be prepared to enter into agreements for planned harvesting in the event of the claims being granted.”

39. The draft submission further noted that: “Having regard to the limited merchantable timber resources present in the claim area and significant tracts of land dedicated for forestry purposes in the region, the view of the Forestry Commission that the areas… of about 530 hectares are needed for forestry purposes, is not supported.” A handwritten notation at the foot of the draft submission reads “Action deferred pending meeting with Forestry Commission on 28/1/88”.

40. A submission from the Officer in Charge of the Aboriginal Land Claims Unit went to the Secretary of the Department of Lands, on 27 January 1988, stating: “It is my view, which I believe is supported by the A/Principal, Legal Officer, that securing Forestry’s right to harvest timber from Crown lands for its revenue value only could not reasonably be relied on by the Minister as an ‘essential public purpose’”. Further, in relation to the claim at Nelligen, it was noted: “It has been decided in the circumstances of this particular case that the Forestry proposal is not such that the Minister could reasonably conclude that this land is needed for Forestry purposes” (Exhibit B4, pp 133-135).

41. On 17 March 1988, part of ALC 1431 was granted by the then Minister, who agreed that the remainder of the claim be deferred, “pending further consultation between the Department of Lands, the Forestry Commission of NSW, the National Parks and Wildlife Service and … [the Batemans Bay Aboriginal Land] Council, as to the need for the lands for essential public purposes” (Exhibit M7, Tab 2).

42. On 14 August 1992, the NPWS wrote to the then Department of Conservation and Land Management, stating that ALC 1431 conflicted with its proposal for the Bolaro Nature Reserve and requesting that that part of the claim be rejected. In particular, the correspondence noted: “A review of nature conservation resources undertaken by the Service in 1985 indicated that of the 467 plant associations then recorded in NSW, eight of the nine Eucalyptus maculate associations were among the 40 most threatened/poorly conserved plant communities. The report specifically identifies the nature reserve proposal as a way to address the problem.” It further noted: “Correa baeuerlenii (a plant classified as vulnerable) has been located at three sites within a few kilometres from the proposal and may be within the proposed reserve” (Exhibit B4, p 141-142).

43. In a Southern Regional Forestry Commission submission dated 30 September 1992, the General Manager noted that, in relation to the need for the claimed land, “it could be difficult to sustain an argument in court that it is ‘essential’ – as distinct from ‘highly desirable’”. It recommended the withdrawal of the objection “over all or some of the claims”. A suggestion was made about seeking an agreement with the Land Council to “negotiate a reasonable share of the royalty revenue with the Council” (Exhibit M6, Tab 91).

44. I have previously referred to the Forestry Commission’s letter of 24 May 1993 to the then Department of Conservation and Land Management (see par [10] above). In the conclusion to that letter, the Commission withdrew its objection to that part of ALC 1431 north and west of the Bolaro Mountain Road, but maintained its objection to the part of ALC 1431 south of the Bolaro Mountain Road – the claimable land that is the subject of the current proceedings – on the basis of “its importance for future sustainable timber production and past investment in roading, silviculture and protection” (Exhibit M6, Tab 95).

45. A memorandum dated 22 June 1993 from the District Manager, Nowra to the Director-General of the Department of Conservation and Land Management noted that the notification of the proposed Bolaro Nature Reserve was delayed because of “protracted negotiations” between the NPWS and Forestry Commission as to where the boundaries between the forest and the nature reserve should be located (Exhibit M8, p 58-65).

46. On 23 March 2000, the then Department of Lands and Water Conservation wrote to State Forests of NSW (formerly the Forestry Commission of NSW), nothing that: “…the evidence submitted to date has not established either that an addition to Bolaro State Forest is an essential public purpose, or that this particular parcel, to the exclusion of all reasonable alternatives, is needed for that purpose. Under the circumstances, grant of the claim in respect of the … [claimed area] would appear to be indicated”. The correspondence went on to suggest that State Forests may wish to provide further evidence and “may wish to explore the concept of Executive Government support for a proposal prior to the date of the claim…” (Exhibit B4, p 143-144).

47. On 3 May 2002, the Southern Region Forest Agreement was signed by various NSW State Ministers. It included the claimed land.

48. On 27 January 2004, the Department of Lands wrote inviting State Forests to “submit evidence relating to any involvement of the Executive Government in the intended addition of the land to Bolaro State Forest.” It added: “Only with this evidence could the affected part of Claim 1431 be recommended for refusal.” In addition, it stated: “In the event that State Forests has no evidence of Executive Government involvement, and the claim is subsequently granted to the Batemans Bay Local Aboriginal Land Council, it does not necessarily follow that the objectives for sustainable timber production will be unable to be achieved. In this regard the Land Council has advised that it recognises the importance of the timber industry and is prepared to negotiate arrangements with State Forests for staged timber harvesting” (Exhibit B4, p 145-147).

49. State Forests replied to the Department of Lands on 9 March 2004 advising that it “is still keen” to bring the claimed land “under State forest tenure”. It relied on the Southern Region Forest Agreement of 3 May 2002 as evidence of the land being needed, and noted that the land “has been partly managed to some extent by State Forests over many years as part of the surrounding public forest estate.” It suggests that the Southern Region Forest Agreement and “the legal instruments that flow from it, including a long term timber supply imperative, has confirmed government commitment to bringing as much public forested land capable of sustainable timber supply under the control of the government” (Exhibit M6, Tab 96).

50. On 24 June 2005, a submission from the Manager of Aboriginal Land Claim Investigations, State Forests, to the Minister, recommended that the claim be refused on the basis that the land is lawfully used and occupied by the Forestry Commission and needed or likely to be needed for the essential public purpose of timber production (Exhibit B4, p 148-156).

51. The Minister refused the remaining part of ALC 1431 on 18 August 2005, and this appeal was filed on 10 October 2005.

E. The Expert evidence

52. The Court has had the benefit of expert reports from relevantly qualified witnesses, Philip Conacher (Exhibit B2) and Roger Lembit (Exhibit M9), a joint report from them (Exhibit M10), and their concurrent oral evidence.

53. Mr Conacher and Mr Lembit agreed that the Batemans Bay Management Plan was not an environmental impact statement under the provisions of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) and that the Forestry Commission was, at the relevant date, undertaking or completing such statements for other parts of the state, but not for the claimed area. Neither could access evidence of any assessment of the forestry operations on the claimed land that accorded with the provisions of the EP&A Act as it stood at the time of the claim. Both agreed that it was likely that the site provided, or had provided in 1985, habitat for several fauna species of conservation significance, including the Glossy Black Cockatoo, Swift Parrot, Brown Treecreeper, Regent Honeyeater, Southern Brown Bandicoot, Yellow Bellied Glider, Squirrel Glider, Long-nosed Potoroo, White Faced Dunnart and Brush-tailed Phascogale (Exhibit M10).

54. However, the evidence of Mr Conacher and Mr Lembit differed in some important respects. Mr Conacher opined that the forestry activities were likely to result in impacts on the environment and on flora and fauna habitats. He found no evidence of flora and fauna surveys and opined that any environmental impacts should have been described and assessed through the preparation of instruments in accordance with the EP&A Act .

55. Mr Lembit, on the other hand, considered that the subject land was of low to moderate fauna habitat value in comparison to other foothills forests in the Nowra to Bega area. He believed that there was a very low likelihood that forestry activities on the claimed land would have had an impact on the habitat of various flora. He said that prescriptions within the applicable harvesting plan in relation to the claimed area would have mitigated the effects of forestry activities on the habitat of threatened species, that there were no plans to include the claimed land within a National Park or similar reserve at the time the forestry activities took place, and that was there was no evidence that the subject land was of scientific significance. He concluded that the forestry activities were of such a nature as to not be likely to have a significant effect on the environment.

F. The Statutory Regime

56. The Preamble of the ALRA states that it is the intention of the legislation to provide a compensatory regime aimed at redressing the impact of dispossession on Aboriginal people in New South Wales:

WHEREAS:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:
(2) Land is of spiritual, social, cultural and economic importance to Aborigines:
(3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:
(4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

57. The intention of the Act as expressed in the Preamble has been articulated in Minister for Natural Resources v New South Wales Aboriginal Land Council and Another (1987) 9 NSWLR 154, by Kirby P, in these terms:

“The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgment, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia.” (at 157)

58. The ALRA establishes a regime for the claiming of land as a mechanism to achieve the aims of the legislation in s.36.

59. Section 36(1) contains the definition of “claimable Crown lands” and includes, at s.36(1)(b), lands that “are not lawfully used or occupied” and, at s.36(1)(c), lands that “are not needed or likely to be needed, for an essential public purpose.”

60. Section 36(5) of the ALRA directs the Crown Lands Minister to determine the claim and grant it under s.36(5)(a) or refuse it under s.36(5)(b). In the event that the Minister is unable to satisfy the Court that the whole of the claimed land is not “claimable Crown land”, the claimant is entitled to have that part of the land that is claimable Crown land transferred to it.

61. Section 36(6) grants an Aboriginal Land Council a right to appeal to the Court against a refusal under s.36(5)(b). On such an appeal, the Minister bears the onus of satisfying the Court that the land is not claimable Crown lands, as per s.36(7) (New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (“Winbar”)).

62. Section 36(5A) provides for a claim to be granted in whole or in part, on conditions acceptable to the LALC, in order to enable the public purpose needs for the land to be met. This subsection commenced on 2 May 1986. The power is available to the Court on appeal (DarkingjungLocal Aboriginal Land Council v Minister Administering the Crown Lands Act & Anor (2006) 149 LGRA 162 (“Darkingjung”)). It can be exercised in the case of a claim submitted earlier, given the beneficial character of the ALRA: Waranuah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163, at [100]-[104] per Lloyd J; Winbar at 694-6).

63. For the land to be “occupied” for the purposes of s.36(1)(b), there must be some physical occupancy over at least part of the land, as opposed to constructive occupation. It must be occupied to more than a notional degree (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (“Daruk”)). Mere proprietorship is insufficient (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (“Tweed Byron”)). Likewise, the mere exercise of control over or maintenance of the land without any occupation is insufficient (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; Darkingjung).

64. “Use” for the purposes of s.36(1)(b) must be to more than a notional degree (Daruk; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (“Nowra Brickworks”)). The fact that land is reserved for a particular purpose is not sufficient to establish that it is lawfully “used” within s.36(1)(b) (NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281). Something more is needed, and the Court has to be satisfied that there was actual use at the date of the claim, that is, not just a contemplated or intended use (NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281).

65. Judicial consideration has been given to the phrase “essential public purpose” in s.36(1)(c) of the ALRA with particular reflection upon the inclusion the word “essential” in the statutory standard.

66. In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No.2] (2001) 50 NSWLR 665 (“Maroota”), Spigelman CJ stated:

The reference to “essentiality” of the public purpose sets a high standard. The restriction implied in the use of the word “essential” is a significant one. It is not enough that the public purpose to be served is “desirable” or even that it is “highly desirable.” (at 674).

67. The applicable principles in s.36(1)(c) have been further articulated in various cases, including Winbar, Maroota, Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1988) 43 NSWLR 249 (“Castlereagh Nature Reserve”), and the recent decision of Jagot J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481 (“Evans Head”) namely:

(1) The ALRA is beneficial and remedial legislation and is to be construed accordingly (Winbar).

(2) The question of whether land is not needed or likely to be needed for an essential public purpose is one of fact (Winbar).

(3) The relevant time when the conditions of s.36(1)(c) must be met is at the time the claim is made (Winbar, Castlereagh Nature Reserve and Maroota).

(4) “Needed” means “required” or “wanted”. The Court does not have to “second guess” the government. The only question is whether the purpose was an essential public purpose and, if so, whether the government “required” or “wanted” the claimed land for that purpose when the claim was made (Winbar). It must be “indispensable or at least material and important” or “necessary or indispensable” (New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 (“Tredega”); Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act and Another (1991) 72 LGRA 149). This means “fundamental” as distinct from something merely “desirable” or “suitable” (La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 (“La Perouse”)).

(5) The essentiality required by s.36(1)(c) counter-balances the implication of a beneficial construction to which the ALRA would be otherwise entitled. Hence, “likely” does not mean “more probable than not”, but a “real or not remote chance”, or a “real chance or real possibility” (Maroota).

(6) Evidence of events after the making of the claim may be logically probative of the issue of whether the land was not needed or likely to be needed for an essential public purpose when the claim was made. Such evidence may not be used to “prove hindsight but to confirm foresight” (Maroota;Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 653 (“Dorrigo”)).

G. The Respondent’s Submissions
Lawfully used or occupied

68. The Respondent submitted that the claimed land was both used and occupied at the date of the claim. The Forestry Commission at all relevant times had the right to occupy and/or use the claimed land for the purpose of forestry and certain associated purposes. It managed the land for the purpose of long-term timber production, and carried out activities on the claimed land from the early 1960s up to the date of the claim. The land was divided into compartments using the system adopted by the Forestry Commission at the date of the claim. Planning documents generated by the Forestry Commission included the claimed land.

69. It was submitted that Mr Massey-Reed’s evidence and the departmental documentation indicated both a physical use of the whole of the claimed land, as well as the management of the land for the purpose of forestry during periods of lesser physical activity, in accordance with the cyclical nature of forestry use. His evidence highlighted the cyclical nature of forestry for timber production. It is a sustainable activity that requires a considerable period (10–30 years) of regrowth in order to ensure a maturity at which logging can then take place, and Mr Massey-Reed gave evidence that the land was prepared for this purpose.

70. In response to the Applicant’s claim that the Forestry Commission’s use and/or occupation of the claimed land was unlawful because the Commission did not satisfy some of the requirements of the EP&A Act after it commenced on 1 September 1980, the Respondent submits that the claimed land was “lawfully” used and/or occupied for the purposes of s.36(1)(b), because the practices and procedures of the Commission satisfied the requirements of ss.111 and 112 of the EP&A Act, and of cl 56 of the Environmental Planning & Assessment Regulation 1980. On this point the Respondent relies on Mr Massey-Reed’s evidence regarding those practices and procedures, and his consideration of the factors set out in those provisions, and on Mr Lembit’s expert opinion that the activities of the Forestry Commission were not likely, at the time of the claim, to have had a significant effect on the environment.

71. The Respondent submits that failure to meet such statutory requirements cannot be collaterally or indirectly challenged in Class 3 proceedings such as these (F Hannan Pty Ltd v Electricity Commission of NSW[No.3] (1985) 66 LGRA 306). The Respondent further submits that, in any event, the definition of “lawful” for the purposes of s.36(1)(b) of the ALRA was intended to exclude use and occupation by people without a lawful right to be on the land, such as trespassers or squatters, and not intended to deem any use “unlawful” if a legal use or occupation simply failed to comply with town planning laws or “zoning regulations” (Tweed Byron at 142). The objectives of s111 of the EP&A Act are covered, it is submitted, by the Forestry Commission adhering to the objectives of s8A(2) of the Forestry Act (inserted in 1992). (Evans v Forestry Commission of NSW (1982) 48 LGRA 266).

Needed for an essential public purpose

72. The Respondent also submitted that the land was needed or likely to be needed for an “essential public purpose”, as per s.36(1)(c) of the ALRA, namely, timber production.

73. The documentary evidence (see par [24] above) refers to a duty imposed by the Government on the Forestry Commission at the relevant time to ensure adequate employment opportunities and adequate supplies of timber, following decisions taken to cease logging rainforest timber, especially on the North Coast. Timber production from areas of forest in southern New South Wales was said to be essential or necessary or indispensable in order for sawmills to supply timber for building and associated industries. The claimed lands were covered by the Commission’s 1983 Batemans Bay Area Management Plan which noted that “the highest priority should be given to the dedication of some 600 hectares of Crown lands to the east and north of the Bolaro State Forest in the Parish of West Nelligen”.

74. The Respondent also relied on the compartment history prepared for compartment 238 on 1 July 1984, that specified the quota logging operations in accordance with a harvesting plan, and on the May 2002 Southern Region Forest Agreement, as evidence of the need for the claimed land to be used for timber production. The Forestry Commission had, long before the date of claim, and the rainforest decision, formally sought the dedication of the claimed land as State Forest (see Exhibit M6, tabs 1-38).

75. The Respondent submits that the Forestry Commission’s 1983 Area Management Plan (see Exhibit M6, tab 53 p 96) again sought dedication, as forest, as “highest priority”, and that the Department of Lands agreed on 12 July 1983 (tab 54). If it can be accepted that the letter of 12 July 1983 (in indicating no objection to the proposal) signified, specifically, such an agreement, the Court notes that the Forestry Commission did not act upon it, before the LALC made its claim, beyond continuing to negotiate with the Department of Lands about boundary and road issues (see tabs 55-60).

A Section 36(5A) condition?

76. The Respondent submitted that, if a finding were to be made that the claimed land was needed or likely to be needed, the Court should not exercise its discretion under s.36(5A) of the ALRA to grant the claim subject to the imposition of a condition relating to the use of the land for the purpose of timber production, since that provision was not in the ALRA at the time of the claim.

H. The Applicant’s Submissions
Lawfully used or occupied

77. The Applicant submits that the claimed land was not lawfully occupied or used by the Forestry Commission.

78. The Forestry Act, as it applied at the time of the claim, showed a legislative intention to treat the powers that the Forestry Commission exercised over Crown-timber lands differently from the powers it was able to exercise over State forests, timber reserves and flora reserves. The effect of this was to give the Forestry Commission limited powers pursuant to s.11(1) of the Forestry Act to use the land to take timber and timber products and to do the works necessary for the taking or removing of timber or timber products. Importantly, it did not have any general statutory powers and duties to control and manage the land.

79. While the Forestry Commission had cause to go on to the claimed land and undertake activities in relation to assessing the land, preparing plans for it and engaging in other activities such as timber stand improvement work and fire protection activities, these were not enough to constitute “occupation” for the purposes of s.36(1)(b) of the ALRA.

80. Nor was there sufficient evidence of activities to constitute “use” for the purposes of the sub-section. The mere fact that the land was designated as Crown-timber lands is insufficient to establish that it was, at the date of the claim, used by the Forestry Commission to the standard required by s.36(1)(b).

81. The Applicant further relies on the fact that the Respondent did not invoke s.36(1)(b) as a reason for rejecting the claimed land until 1993. Up until that time, the Respondent relied on s.36(1)(c) of the ALRA to support its refusal of the claim. In any event, had the Crown Lands Minister so desired, he could have exercised his powers well before the claim was made and dedicated the Crown-timber lands as State Forest.

82. The activities that the Respondent relies upon to support its claim that it used the land all took place before the date of the claim. The construction of Bolaro Mountain Road took place in 1979 and 1980, and the bushfire activities were undertaken in 1981, 1982 and 1984. In relation to the actual logging activities, there was only the evidence of Mr Massey-Reed (which the Applicant submits is very unreliable) about the cyclical nature of forestry activities, and scant documentary evidence about the logging of any of the three compartments.

83. The Applicant relies on various decisions of the Court of Appeal and of this Court to submit that the Forestry Commission’s failure to comply, in terms, with s.111 of the EP&A Act renders any of its activities on or regarding the land as an “unlawful” use of it. It relies on Mr Conacher’s evidence that, had an appropriate s.111 assessment been done, the Forestry Commission would have determined that its activity would negatively impact upon the environment. See Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Jarasius v Forestry Commission of NSW [No.1] (1988) 71 LGRA 79; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Prineas v Forestry Commission of New South Wales and Others (1983) 49 LGRA 402 at 415, 418; F Hannan Pty Ltd v Electricity Commission of New South Wales [1983] 3 NSWLR 282; and Helman v Byron Shire Council and Another (1995) 87 LGERA 349 at 358-359).

84. As the Applicant’s written submissions say (at par 109):

This case is about being lawfully on the land in the first place; not about what is done once lawfully on the land. In this case, the Forestry Commission had no lawful authority to be on the land other than to log and for purposes incidental thereto. That authority is subject to the prerequisite, or condition precedent, of compliance with the obligations in the EP&A Act. Absent prior compliance with Part V of the EP&A Act, there can be no lawful use within the meaning of s 36(1)(b) of the ALRA.

Needed for an essential public purpose

85. The Applicant submits that timber production is not an “essential public purpose”, in the sense of its being a “purpose of the administration of government” (see Tredega at 331, per Stein J), and points out that there has been no case to date in which a land claim has been refused on the grounds that the land was needed or likely to be needed for the essential public purpose of “timber production”. Although the revenues flowing from timber production may be desirable, or even highly desirable, timber production is neither a public purpose nor essential (see also Maroota at 674 per Spigelman CJ).

86. Further, there is no evidence of the requisite expression of political will, at the date of the claim, to support the essentiality of the claimed land for the purpose of timber production by the government agency concerned about the production of necessary timber. The Applicant submits the Executive Government took no action to have the claimed land dedicated as part of the Bolaro State Forest. Officer-level consideration of such a proposal never progressed to the stage of a formal Executive Government decision.

87. The Applicant submits that the Court should disregard the Regional Forest Agreement 2002 as evidence of any government policy to pursue the dedication of the claimed land, given that it postdates ALC 1431 by seventeen years, and cannot be evidence of relevant political will at the time of the claim. Delay in bringing a proposal to fruition has been held to be relevant to determining the questions of need, likely need, and essentiality (see La Perouse at 182-3, and Maroota at [61]). Coupled with the evidence of some lack of conviction among Forestry Commission and Lands Department officers as to the quality and quantity of “merchantable timber” on the claimed land, the delay in finalising the dedication of the land, it is submitted, defeats the assertion by the Respondent that there was, at the date of the claim, a “real and not remote chance that the land was needed or likely to be needed for the essential public purpose of timber production” (Applicant’s submissions par 146, and the evidence cited therein). “Highly desirable” perhaps, but not “essential”.

A Section 36(5A) condition?

88. The Applicant submits that, if a finding were made by the Court that the claimed land was needed or likely to be needed, it should exercise its discretion under s.36(5A) of the ALRA to grant the claim subject to the imposition of a condition relating to the use of the land for the purpose of timber production.

I. Findings

89. I have gone through the evidence and the competing submissions in this case with some care and in some detail as the matter is quite complex. I have concluded that I should prefer the Applicant’s submissions as more consistent with the evidence, and I find myself in agreement with Jagot J’s recent comment that: “No land council should have to wait for twenty years for its land claim to be determined” (Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577 at para [124]). Such delays cause serious evidentiary problems for all parties, and can thus frustrate the beneficial and remedial legislative intention of the ALRA to return land to Aboriginal people.

(a) Was the Claimed Land Occupied?

90. The first issue for the Court to determine is whether the land was “occupied” for the purposes of s.36(1)(b) of the ALRA at the time the claim was lodged.

91. It is significant that a clear decision by the legislature was made to grant a different set of powers to the Forestry Commission under the Forestry Act in relation to Crown-timber lands than it gave it in relation to State forests, timber reserves and flora reserves. The failure to extend the powers for the “control and management” contained in s.11(1)(a) of the Forestry Act must be taken as an indication of an intent to give the Forestry Commission significantly lesser powers over Crown-timber lands than the other categories of land referred to in the Act. From this it must be concluded that the Forestry Commission did not have “control and management” of the claimed land at the time of the claim.

92. It is well established that occupation under s.36(1)(b) of the ALRA must be more than incidental. While there is evidence that the Forestry Commission entered on to the land to undertake planning and other activities, such as timber stand improvement work to improve the condition of the land, and fire protection activities, its activities were sporadic and I cannot conclude that they constitute occupation to the requisite level needed to satisfy s.36(1)(b). This is so even though the Court accepts that it may be necessary to leave the land to regenerate after logging as part of the cyclical nature of forestry activity.

93. The Court is not concerned with what happened before or after the date the claim was made; the date of the claim is the focus of its inquiry. In the circumstances of this matter, the Court accepts that there was incidental occupation, but insufficient occupation to satisfy s.36(1)(b) of the ALRA.

(b) Was the Claimed Land Used?

94. Given my finding that the claimed land was not “occupied” for the purposes of s.36(1)(b), it falls to the Court to consider whether it was “used” at the date of the claim (Tweed Byron).

95. In determining whether lands are being (lawfully) used, it is necessary to consider the purpose for which they are being used. The purpose will then dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense (Nowra Brickworks).

96. While there is clear evidence that logging activity had taken place on the claimed land in both the 1960s and in the early 1980s, there is also clear evidence that this had ceased at the date of the claim.

97. Mr Massey-Reed’s evidence has been comprehensively attacked by the Applicant, but I am satisfied that he did his best to assist the Court in a frank manner, despite the passage of so many years since relevant events. While he was clear on standard Forestry Commission procedures and practices at the time of the claim, and gave evidence of the land being included in forestry planning cycles, he also conceded that there were some things that he could not remember clearly. He was, for example, unable to recall accurately the actual location and boundaries of compartments 238, 239 and 240.

98. Overall I am not satisfied, on the evidence presented, and to the standard of proof that the Minister is required to meet, that, at the date of the claim, the claimed land was “used” in the sense required by s.36(1)(b) of the ALRA.

(c) Was any use or occupation of the Claimed Land “Lawful”?

99. Despite my having determined that the land was neither used nor occupied in the relevant sense, I should make the following observations about the submission made by the Applicant that, due to a failure to comply, in terms, with the EP&A Act, the land was not “lawfully” used or occupied for the purposes of s.36(1)(b) of the ALRA.

100. The Court has made the distinction between “unlawful” use by a squatter or trespasser and the breach of town planning laws. In Tweed Byron (at 142) Clarke JA said:

The qualification that the user must be lawful has been, I think, introduced to distinguish between cases where a person uses the land without any lawful right to do so (the trespasser or squatter) and the person who enjoys a licence or permit which, while not constituting that person an occupier, render the use a lawful one.

I do not think that the definition of claimable Crown land is concerned with nice distinctions of town planning laws nor do I accept that a court charged with determining whether a user is lawful is concerned to investigate whether the actual use conforms in every respect with the minute detail of particular town planning schemes or ordinances. What the court is concerned with is whether the user of the particular Crown land is legally authorised.

101. However, the Court believes that there are significant public policy reasons as to why compliance with the environmental assessment provisions of the EP&A Act itself should be held at a higher standard than town planning schemes and ordinances.

102. Section 111 of the EP&A Act stipulates the duty of a determining authority, in its consideration of an activity (as defined by s.110), to take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. Section 112 requires environmental impact statements to be undertaken before certain final decisions are made by determining authorities to undertake certain activities. Clause 56 of the Environmental Planning and Assessment Regulation 1980 sets out the matters to take into account when considering the likely impact of an activity on the environment. Clause 57 prescribes the form and matters to be included in an environmental impact statement.

103. A breach of s.111 or s.112 can be identified in a matter concerning the ALRA, without any separate Class 4 proceedings. A failure to observe those provisions might be so serious as to render the activities undertaken on the land “unlawful” to the extent that it could affect a finding to be made under s.36(1)(b) of the ALRA. In such a case, the Court would have to consider whether the Respondent examined and took into account to the fullest extent practicable all matters affecting or likely to affect the environment by reason of the activities concerned (Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155).

104. Mr Conacher and Mr Lembit differ in their conclusions about the likely environmental impact of forestry activity on the claimed land but they were required to reach their conclusions on the basis of scant evidence and their observations on recent visits. On the other hand, Mr Massey-Reed. had a clear and credible recollection of the departmental policies and practices at the time of the claim in relation to environmental assessments under the Forestry Act. In particular, his affidavit of 30 October 2007 detailed the environmental considerations that would have been taken into account as standard practice at the relevant time in relation to the claimed land.

105. Were it necessary to determine the question of lawfulness, if adequate use or occupation had been found, the Court could well have been satisfied, on the evidence, that no breach of the EP&A Act had occurred.

106. Failure to comply with the provisions of the EP&A Act may in an appropriate case be so serious and significant that it may render relevant activities “unlawful” for the purpose of s.36(1)(b) of the ALRA, but this is not such a case.

(d) Was the Claimed Land Needed or likely to be needed for an Essential Public Purpose?

107. The Applicant’s argument that “forestry” or “timber production” is not a public purpose and that no land claim has been refused on that basis cannot be sustained. Whether it is or is not an “essential public purpose” is a matter to be determined by reference to the factual situation as at the date of the claim.

108. The evidence noted in detail above indicates that both the Forestry Commission and Department of Lands, in 1987 and 1988, considered that the timber in the claimed area was of “low merchantable quality” and the claim that it was “essential” was not supported (see, especially, par 87 above). The departmental views firmed, in terms of essentiality only after the claim was made, but the political and economic situation in 2002, when the Regional Forest Agreement is made, does not tell the Court much about the situation in 1985.

109. While this is evidence of the opinion of departmental staff and not the Ministers, it provides for the Court some information which would then have been placed before Ministers and would so have formed the basis for ministerial decisions at relevant times. The evidence supports a finding that, at the date of the claim, the claimed land was not required for an essential public purpose.

110. The departmental correspondence of 4 March 1983 (Exhibit M6, tab 50 – see par 24 above) shows a general governmental intention to build up the stock of forest lands, after the decision to stop logging in some rain forest areas, and the desire to maintain full employment in the timber industry as a result of that decision. While this explains government policy at the relevant time, and shows a general attitude about Crown-timber lands, it is not evidence of a specific government intention in relation to the claimed land. If at the time of that pressure on the industry the dedication of the claimed land was “essential” to advance the timber production of the State, one would anticipate firm steps to have been taken by the government to achieve it before this claim was lodged (see par 75 above).

J. Conclusion & Orders

111. The Minister has failed to satisfy the Court to the requisite level of proof that the claimed land was not “claimable Crown land” within the meaning of s.36(1) of the ALRA, by reason of s.36(1)(b) and (c).

112. Accordingly, the appeal must be upheld and the subject land transferred.

113. In that circumstance, I do not need to consider whether or not the Court could or should make an order under s.36(5A) of the ALRA, despite the possible acceptability of such an arrangement in the case of this land (Exhibit B4, fol 128).

114. I direct the parties to bring in short minutes of the orders appropriate to give effect to this decision. The exhibits may be returned except Exhibit M2, Exhibit M4, and Exhibit M10.