Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act
[2008] NSWLEC 82
•28 February 2008
Land and Environment Court
of New South Wales
CITATION: Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82 PARTIES: APPLICANT
Bathurst Local Aboriginal Land Council
RESPONDENT
Minister Administering the Crown Lands ActFILE NUMBER(S): 30281 of 2006 CORAM: Pain J - Behrendt AC KEY ISSUES: Aboriginal :- land claim - claimable Crown land - whether lawful use and occupation by local council for nature park
LEGISLATION CITED: Aboriginal Land Rights Act 1983 s36
Crown Lands Act 1989 s92
Crown Lands Consolidation Act 1913 s28
Exhibited Animals Protection Act 1986CASES CITED: Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 180
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 Crown Lands Act [2007] 155 LGERA 307
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 New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133
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 (The Department of Education Claim) (1992) 76 LGRA 192
New South Wales Aboriginal Land Council (on behalf of Dubbo GA Local Aboriginal Land Council) v Minister [1997] NSWLEC 157
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281DATES OF HEARING: 21 November 2007
22 November 2007
23 November 2007
DATE OF JUDGMENT:
28 February 2008LEGAL REPRESENTATIVES: APPLICANT
Mr M Wright
SOLICITOR
Chalk & FitzgeraldRESPONDENT
Mr S Free
SOLICITOR
Crown Solicitor's Office
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPain J
28 February 2008
JUDGMENT30281 of 2006 Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act
1 Her Honour: On 21 August 2001, Aboriginal Land Claim 6616 (“ALC 6616”) was lodged by the Applicant, Bathurst Local Aboriginal Land Council, as provided for in s 36(3) of the Aboriginal Land Rights Act 1983 (the ALR Act). The claimed land is at Bathurst, Parish of West Bathurst, County of Bathurst. It is located south-west of the Bathurst township, adjoins the southern section of the Mount Panorama racetrack and is bounded to the south by a waste disposal depot. It covers approximately 40 hectares. I thank Acting Commissioner Behrendt for her assistance in this matter.
2 On 8 February 2006, ALC 6616 was refused by the Minister of Lands under s 36(5) of the ALR Act because it was not claimable Crown land. The grounds of refusal were:
(i) The land shown by the red edge excluding orange colour on the attached diagram was lawfully occupied for the purposes of covering reserve 86313 for the protection of native flora (known as the Sir Joseph Banks Nature Park);
(ii) The land shown by orange colour on the attached diagram was a Crown road not able to be lawfully sold or leased under Crown lands legislation;
(iii) The parts of the land shown by blue lines on the attached diagram were needed for the essential public purpose of electricity supply;
(iv) The part of the land shown by purple hatching on the attached diagram was needed for the essential public purpose of access to roads.
3 On 7 April 2006 the Applicant lodged a Class 3 application appealing against the Minister’s decision to refuse the claim under s 36(6) of the ALR Act.
4 The Applicant withdrew that part of ALC6166 relating to the roads on the claimed land (orange on the plan) during the hearing.
- Issues to be determined
5 At the outset of the hearing there were several issues to be determined in respect of the claimed land. The principal issues that are now to be determined are:
1. Whether, at the date of the claim, the land now claimed was “lawfully occupied” within the meaning of s 36(1)(b) of the ALR Act by the Bathurst Regional Council (the Council);
2. Whether, at the date of the claim, the land now claimed was “lawfully used” within the meaning of s 36(1)(b) of the ALR Act by the Council;
During the course of the hearing of this matter, the parties came to an in principle agreement about the resolution of issues 3, 4, 5 and 6 which were as follows:
3. Whether, at the date of the claim, the claimed land was “needed or likely to be needed” for an “essential public purpose”, being for electricity supply, within the meaning of s 36(1)(c) of the ALR Act;
4. Whether, at the date of the claim, the claimed land was “needed or likely to be needed” for an “essential public purpose”, being for water mains, within the meaning of s 36(1)(c) of the ALR Act;
5. Whether, at the date of the claim, the claimed land was “needed or likely to be needed” for an “essential public purpose”, being for access to public roads, within the meaning of s 36(1)(c) of the ALR Act;
6. If the answer to issues 3, 4 or 5 is in the affirmative, 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.
6 That agreement required the Minister to file further evidence specifying on a plan precisely where the activities and access to public roads, electricity supply and water mains were taking place. This has now been done in two affidavits of Mr Sartori, Manager Technical Services of the Council, dated 13 December 2007 and 20 December 2007.
7 Accordingly, the Court has to determine issues 1 and 2. Clarification of the boundaries of the claimed land has been provided in the affidavit of Mr Sartori, dated 13 December 2007, filed after the substantive hearing in accordance with Court orders. The area is that part of Reserve 86313 that was occupied by the Sir Joseph Banks Nature Park (the nature park), identified by line “D” on the plans attached to his affidavit. As identified in issues 1 and 2 the Minister is relying on occupation and use of the land by the Council to discharge his onus that the land is not claimable Crown land.
- Legislative framework
8 The Preamble of the ALR Act 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 as follows:
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:
9 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 (1987) 9 NSWLR 154 by Kirby P at 157:
- 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.”
10 Section 36(1) of the ALR Act provides:
- (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires:
"claimable Crown lands" means lands vested in Her Majesty that, when a claim is made for the lands under this Division:
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 ,
(b) are not lawfully used or occupied,
(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
(c) are not needed, nor likely to be needed, for an essential public purpose, and
(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
11 Section 36 establishes a regime for the claiming of land. 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.”
12 Section 36(5) of the ALR Act 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 (s 36(7)).
13 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 Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (“the Winbar case”) (1988) 14 NSWLR 685 at 692.
14 The relevant date of determining whether the land is “claimable Crown land” is the date that the claim was lodged; the Winbar case at 691. That date in this case is 21 August 2001.
15 Because of its remedial nature, the Court has determined that the ALR Act exceptions to the right to claim land should be construed narrowly; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No.2] (2001) 50 NSWLR 665 (the Maroota case) at 674 per Spigelman CJ (Powell and Heydon JJA concurring); NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 (the Wagga Wagga case) at [21] per Mason P (Giles and Tobias JJA concurring).
Evidence
16 The evidence consisted of a bundle of documents relating to the Council’s dealings with the claimed land. The evidence included Draft Management Plans and financial records from the Council and other material related to the management, planning and use of the claimed land.
17 The Council, and therefore the Minister, principally relied on two witnesses. Mr Robert Roach, Director of Corporate Services and Finance for the Bathurst Regional Council, was the City Treasurer between 1997 and May 2004 and gave affidavit evidence (sworn 22 November 2006) and oral evidence about the Council’s expenditures on the nature park. Much of his affidavit deals with use of that part of the claimed area immediately next to the Mount Panorama racing track. That part of the claim has been resolved (issue 5). He also gave oral evidence about aspects of financial management of the nature park.
18 Mr Peter Navin, Manager, Bathurst Recreation, Bathurst Regional Council and Manager of Parks and Recreation at the time of the claim, gave affidavit evidence about the management of the nature park (sworn 21 November 2006).
19 An affidavit of Mr Rayner, Council officer, sworn 24 November 2007 was also read but concerns matters now agreed between the parties and I do not need to refer to this again.
Creation of Crown reserve
20 A history of the claimed land based on the evidence relied on follows. Reserve 86313 for the purpose of “Preservation of Native Flora” was created on 23 June 1967 pursuant to s 28 of the Crown Lands Consolidation Act 1913. On 16 February 1968, the Council of the City of Bathurst was appointed as trustee of Reserve 86313. For the purposes of the Crown Lands Act 1989 (the CL Act) (which replaced the Crown Lands Consolidation Act 1913), a reserve trust called Bathurst City Council Crown Reserves Trust that included Reserve 86313 was established on 12 May 1995. The Council was appointed as trustee under s 92(3) of the CL Act “for the public purpose of preservation of native flora” and notified in the Government Gazette on 23 June 1967. Under s 92(5), the Council’s appointment as trustee charged it with the care, control and management of the Reserve.
Sir Joseph Banks Nature Park
21 The claimed land was used for a nature park known as the Sir Joseph Banks Nature Park that had been maintained and operated by the Council until shortly before the claim. The Council proposed the establishment of a flora and fauna reserve on the claimed land in 1968 (several letters in evidence refer to this in February and September 1968). A fence had been erected around the perimeter of the reserve which was to be that nature park in or around 1968 and it opened to the public in September 1971. According to a memorandum to the Council from the supervisor of parks and gardens dated 21 November 1974 it was fenced, had various trails constructed on it and various animal enclosures. The name “Sir Joseph Banks Nature Park” was gazetted on 11 April 1986.
22 In November 1986 a report from Dr David Goldney was received by the Council which detailed management problems with the nature park such as erosion and weed infestation. In April 1995 a report “Review of Objectives and Priorities for the Sir Joseph Banks Nature Park” was provided to the Council. It identified erosion as a major management problem. The report also identifies that:
- The facility, since its inception, has not only been greatly undercapitalised, but also development has been hamstrung by a lack of Revenue Finance, which only covers basic essential maintenance and minor improvements only.
23 From December 1997, members of the public were charged an admission fee for entry to the nature park. The park was open to the public from 9.00am to 3.30pm daily and Council staff were in attendance from 7.15am until 4.15pm.
24 Mr Navin gave affidavit evidence at par 6 that the subject land is heavily vegetated, containing predominantly eucalypts with an understorey of native and exotic grasses and shrubs. As at 21 August 2001,
- .. the nature park was completely fenced with a person-proof boundary fence and contained various public works, including a toilet block, picnic shelters containing tables and benches, barbeques, rubbish facilities, extensive pathways, information shelters, a building at the main public entrance containing an office, store rooms, reptile and aquatic animal displays, together with a collection of pamphlets and posters and other items for visitors. The structures were used by the members of the public who visited the nature park. There was also a large workshed in the park which was used by Council staff working for the park.
25 The nature park contained enclosures that were used as animal exhibits. These enclosures contained wallabies, koalas, dingos, wombats, quolls, native birds, reptiles and fish species. Kangaroos, other wallabies and emus roamed freely through the nature park. In his oral evidence, Mr Navin stated that no additional capital was spent on the nature park between 1995 and 1998. Major capital works items were recommended but never carried out. From 1998 onwards, most of the expenditure was directed towards the upkeep of animals to ensure that licences were maintained.
26 The report entitled “Parks Manager’s Report to the Sir Joseph Banks Nature Park Committee Meeting to be Held 31 August 1998”, prepared by Mr Navin and dated 26 August 1998, stated that:
- Council has received renewed licences and permits for the holding and exhibiting of animals at the Nature Park. Such documents are issued by the NSW Department of Agriculture and remain valid for the following 12 months. Only premises that meet the prescribed standards and fulfil other mandatory statutes are issue [sic] with such licences and permits.
27 In 1999, the Council engaged Goldney and Associates to prepare a report on the future of the nature park.
28 Mr Navin, in his oral evidence, refers to a brochure produced by students at Charles Sturt University in 2000 depicting an aerial diagram of the nature park. The diagram represented the locations of various animal enclosures for the non-itinerant animals. Mr Navin stated that the nature park was originally fenced so that the free ranging animals would be kept in. Other reasons included that entry to the nature park was not free and kangaroos needed to be kept off the Mount Panorama racetrack. The Council had also constructed facilities for the keeping of various native animals, which were the main drawcard for the nature park along with the native flora.
29 In May 2001, Goldney and Associates provided their “penultimate report”, “Future Scenarios for the Sir Joseph Banks Nature Park, Mount Panorama, Bathurst” to the Council. It provided five options as to the future management of the nature park:
(1) Leave more-or-less as it is as a third rate facility that will continue to be a financial drain and likely to become even more irrelevant as a tourist destination;
(2) Relocate the park…;
(3) Close down the park and remove the infrastructure and allow the area to revert to a woodland area open to the public. This may have political ramifications at the local level and may in fact be very difficult and expensive to achieve;
(4) Redevelop the site to best practice standards via an injection of capital or partial or whole privatisation;
(5) Other possibilities (eg rehabilitation).
30 The report recommended option (4), redeveloping the park with a particular emphasis on the history and culture of the Wiradjuri people. It noted, amongst other things, that the kangaroo-proof perimeter fence would need to be repaired and upgraded, that a major revegetation program should be initiated, including the management and eradication of weeds, a major planting and regeneration program for flora be undertaken, and that unwanted tracks would need to be closed and rehabilitated. The estimated cost for redeveloping the site, according to the Goldney Report, was $75,000 alone on revegetation/vegetation works.
31 On 15 June 2001, the Council was informed of legal advice obtained by its solicitors that if the nature park was closed, a bequest specifically to the nature park of over $95,000 (received in October 1998 by the nature park) could be returned to the Council and that the Council would then be free to expend these funds as it chose.
32 On 20 June 2001 the City Engineer reported to the Council that the overriding factor was lack of financial resources to upgrade the facilities to bring it to an appropriate standard. An estimate of $500,000 was considered necessary for an upgrade. Mr Roach in oral evidence stated that option 3 was the least cost option and he supported it in his then role as City Treasurer.
33 On 20 June 2001, the Council passed a resolution that formally adopted option (3) of the Goldney Report, “to close down the park and remove infrastructure and allow the area to revert to a woodland area open to the public.”
34 As at July 2001, according to the oral evidence of Mr Roach, the Council had projected operating expenses of $55,220 in respect of the nature park for the 2001/2002 financial year. Similar expenses were projected for the financial years to 2005/2006.
35 On 2 July 2001 the nature park was closed to the public. It has not been reopened since except briefly for some form of motor race in 2003. On 4 July 2001, Mr Navin provided to the General Manager a timetable for the implementation of the closure of the nature park. Mr Navin proposed that from July onwards:
- it is intended to relocate the animals to other licensed facilities as swiftly as possible …
- Further, it is intended to relocate infrastructure such as the barbecues, picnic tables and shelter sheds to other parks within the City where they will be well utilised by the community.
- The staff of the Nature Park will remain at the facility to carry out daily feeding of the animals, stocktake the assets to be disposed of and generally assist in the transition of the present facility to a woodland area.
- The above process may take until the end of 2001 to finalise.
36 Also on 4 July Mr Navin recommended to the Council in the “City Engineer’s Report to the Policy Committee Meeting Held on Wednesday 4 July 2001” that it take part in a community tree planting project organised by Conservation Volunteers Australia. Three areas were nominated as preferred which did not include the nature park. The Report stated:
- It is believed that Council could have the opportunity to add or delete sites if necessary which can include the Sir Joseph Banks Nature Park site, where funding could be sourced.
37 On 16 July 2001 Director of Corporate Services, Mr Sherley, wrote to Mr Navin:
- It is considered that a planting regime should be put in place to accelerate the actions that are currently occurring at this facility. I understand that discussions have been held with Conservation Volunteers. Please provide current status and likely start time.
38 On 15 August 2001 Mr Navin reported to a meeting of the Council:
- …Further, the picnic shelters sheds, picnic tables/seats and barbecues from within the Sir Joseph Banks Nature Park are to be re-located to other parks within the City area, with the largest shelter shed and 2 barbeques to be re-erected within the Macquarie River Bicentennial Park. The other shelter sheds are to be re-erected on land adjacent to the old Ranken’s Bridge, Eglinton. It is anticipated that other seating and picnic tables will be sited in other parks within the City for the benefit of the public
39 On 16 August 2001, the Council received a licence from the NSW Agriculture Department under the Exhibited Animals Protection Act 1986 authorising the use of the nature park as animal display premises for the period 1 July 2001 to 30 June 2002. Council paid $1,000 for this licence on 22 May 2001.
40 ALC 6616 was lodged on 21 August 2001. The claim was notified to the Council on 23 August 2001. On 23 August 2001 General Manager of the Council reported:
- …Discussions with Conservation Volunteers Australia indicate a strong potential for a major tree planting programme.
A report will be prepared for Council to establish a Sub-Committee including a representative from the Friends of the Sir Joseph Banks Nature Park to assist in the development of the most appropriate method to preserve the remnant bush lands and enhance the flora of the Sir Joseph Banks Nature Park.
Removal of barbeque shade structure and seat infrastructure has ceased pending Council’s consideration of the Sub-Committee’s recommendation…
41 Mr Navin gave evidence that, at the date of the claim, the boundary of the nature park was completely fenced and contained a number of improvements and structures. He attested that, after the decision to close the nature park on 20 June 2001, two staff members continued to work there on a daily basis to feed and tend to the remaining animals and provide “obligatory maintenance” until their removal. From 20 June 2001 onwards, the Council progressively removed the animals and some of the structural improvements from the land. On 20 December 2001 the last of the animals housed in an enclosure at the nature park were relocated. From this time, Council did not require staff on duty at the nature park and they were relocated. Mr Navin stated that the dismantling of the park was completed sometime around 25 December 2001.
42 On 14 September 2001, the General Manager wrote to the local MP that “once all the animals and associated infrastructure has [sic] been re-located/removed”, the nature park would be “allowed to revert back to an area of bushland accessible to the public. It should be noted that the area has always been gazetted as being “For Preservation of Native Flora”.”
- …To this time, almost all of the animals from within the enclosures have been relocated or arrangements made to re-locate them in the near future.
The infrastructure that has been, or is planned to be removed consists mainly of the animal enclosures that housed the captives animals. Council has not taken any action to remove the picnic facilities that are presently situated within the facility.
The letter also stated that:(The report of Mr Navin to the Council on 15 August 2001 stated that all infrastructure was to be removed.)
- “Council envisages that the area, once all the animals and associated infrastructure has been re-located/removed, will be allowed to revert back to an area of bushland accessible to the public. It should be noted that the area has always been gazetted as being ‘For Preservation of Native Flora’…
Further, to assist the implementation of a smooth transition from fauna reserve to flora reserve, Council has indicated that it will investigate the formulation of a working party…
It is anticipated that, in time , the area will become an attraction for many locals and visitors for its endemic flora and animals…
43 On 19 September 2001 the Council established a “12 month Sunset Working Party” to consider the following:
(i) identify future directions and ongoing development of the area for recommendation to Council;
(ii) preservation of remnant woodland;
(iii) creation of a woodland area open to the public; and,
(iv) medium and long term management options.
44 The Sunset Working Party included representation from the Applicant. Mr Navin, in oral evidence, stated that no decision has been made by the Council, since the appointment of the Sunset Working Party, to direct the future nature of the park. From 2001 to date the nature park remains as it was when the animals were removed from it by Christmas 2001.
45 On 4 December 2001 Mr Peter sent a facsimile to the Department of Land and Water Conservation (DLWC) in relation to ALC 6616 on behalf of Mr Allen, City Engineer. Mr Allen stated that the decision to close the park “was brought about mostly because of financial reasons” and that the decision to close down the fauna section of the park does not “alter the gazetted usage of the area which is for the Preservation of Native Flora”.
Mr Allen stated:
At this point in time it is Council’s intention to defend the retention of the Reserve. Council has formed a Working Party which includes representatives of the local Aboriginal Lands [sic] Council, to discuss the future direction of the SJBNP…
The Reserve has always been used by the public and, depending on the outcome of the Native
Title Claim [sic], should remain accessible to the public.
46 On 19 December 2001 the General Manager of the Council, Mr Perram wrote to the DLWC in relation to ALC 6616. Mr Perram stated that the decision to close the fauna section of the park does not “alter the gazetted use of the area which is for the preservation of native flora”.
He also stated:
“The site offers unique recreational facilities, public amenities and due to its topographical significance and proximity to the Mount Panorama Motor Racing Circuit and camping facilities, the reservation of the land should reflect the broader purposes for which the land has been, and must continue to be used.
The Council intends that the land is used as open bush land for the benefit of the public at large, while maintaining the facilities and recreational amenities of the site…”
Mr Perram suggested that if the Council were to cease being the trustee of the claimed land it would “ require areas of land to be excised from the reserve (per hatched map, attached):
1. Access to the track adjacent to the northern boundary of the Reserve,
2. Access to the land, be restricted during race times,
3. Forest Elbow required for future track access and spectator amenities
47 On 21 December 2001 Mr Navin advised the General Manager of the Council that the relocation of the animals is complete. Mr Navin stated that the relocation of the animals “negates the need to have staff on duty there for the purposes of feeding the animals. The two staff members will now transfer to positions with in the Parks and Reserves Section…”
48 From that date, the Council considered a range of options including the possibility of converting the site into a reserve for native flora. Part of the documents provided in the tender bundle included correspondence between the Department of Lands and the Council concerning the claim. Given that they were produced after the claim date and therefore prepared with knowledge of the claim, I consider these have limited weight (see also Dorrigo Plateau Local Aboriginal Land Council v MinisterAdministering Crown Lands Act [2007] 155 LGERA 307 per Jagot J at 320). The letters to the Department after the claim such as the letters of 4 and 19 December 2001 must also be read in light of the fact the Council had knowledge of the claim and stated what they wished to depend on.
49 On 21 March 2002, the Sunset Working Party resolved to “adopt Conservation Volunteers Australia’s proposal as a possible vision for the park, including an indigenous centre.”
50 On 15 May, 2002, the Council projected that over $10,000 per annum would be spent on the nature park in each of the five ensuing years. This was a downwards revision in the projected expenditure compared to the Council’s estimate in July 2001 (see par 34). These figures were confirmed by Mr Roach in oral evidence as being “a best guess”.
51 In his oral evidence, Mr Navin stated that the area of the subject claim had been assessed as being in a state of degeneration and required considerable management measures to rejuvenate. He stated that this was a fair description of the state of the land in 2001 and 2003.
52 Mr Roach attested that, in the 1999-2000 financial year, the Council incurred total operating expenses of $117,688 in respect of the nature park. A similar sum was incurred in the 2000-2001 financial year. The Council estimated that between 1 July 1995 and 31 December 2001, $639,348 was spent on capital and special expenditure items associated with the nature park.
Issues
1. Section 36(1)(b) of the Aboriginal Land Rights Act
General principles
53 Section 36(1)(b) of the ALR Act prescribes that, to be claimable, “Crown lands” cannot be lawfully occupied or used. There is general agreement on the relevant principles which are set out before considering the respective parties arguments.
- (i) Lawful occupation
54 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, that is, it must be “actually occupied” in the sense of being occupied in fact and to more than a notional degree; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 (Daruk) at 162 per Priestley JA (Cripps JA concurring, Mahoney JA dissenting) in the NSW Court of Appeal.
55 Mere proprietorship is insufficient to establish that claimed lands are occupied within the meaning of s 36(1)(b). Clarke JA (Samuels and Meagher JJA concurring) in Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (Tweed Byron) at 140:
[C]ontinuous physical presence on every part of the land does not have to be shown to establish occupation. For instance, the fact that a public authority charged with the care, control and maintenance of land reserved for public recreation improves only part of the land for public use and leaves the rest in a natural state does not lead inevitably to the conclusion that the part it has not improved is not occupied by it. The fact that land is left in its natural state does not mean it is not an important recreation area.[M]ere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether the Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in other the use to which the land is put might be determinative…
56 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 (“The Department of Education Claim”) (1992) 76 LGRA 192 at 198 per Stein J; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180 at [39].
- (ii) Lawful use
57 “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 (No 1)”) at 121 per Sheller JA (Clarke and Priestley JJA concurring). Nor is the fact that land is reserved for a particular purpose sufficient to establish that it is lawfully used within s 36(1)(b); the Wagga Wagga case at [55] per Mason P (Giles and Tobias JJA concurring). Something more is needed to establish whether the use of the land is lawful.
58 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 (No 1) at 120.
59 The Minister has to establish that there was actual use at the date of the claim, that is, it cannot be just a contemplated or intended use; Wagga Wagga at [32].
60 Section 36(1)(b) requires that the use and occupation be lawful; Tweed Byron. Crown land is not claimable if it was either lawfully occupied or lawfully used at the date of the claim Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] 42 NSWLR 641 (Nowra Brickworks (No 2)) at 653.
- Minister’s submissions
(i) Lawful occupation
61 The Minister contends that at the date of the claim, the Council occupied the claimed land as a nature park and it was therefore lawfully occupied under s 36(1). The Council, as the manager of the reserve trust of Reserve 86313, was the authorised occupant of the land and the Council acted in accordance with its reservation as trust land.
62 Reliance was placed on Clarke JA at 141 in Tweed Byron. While in Daruk it was held that legal custody alone is not sufficient to establish occupation, Tweed Byron confirms that the existence of legal custody is a relevant step in any inquiry. Vesting of land in the Council also confirms, if there be any doubt, that Council’s occupation of the reserve was “lawful” occupation, see Nowra Brickworks (No 2) at 653.
63 The Council had erected structures on the land and had maintained and improved the land, including the tracks and access roads. It had also erected animal enclosures. It maintained flora on the land, including by weed control and the cultivation of new plants. Two people were employed as a regular presence at the nature park and were still working there at the time of the claim after the nature park had closed. The Council controlled public access to the land, including enclosing it with a fence maintained by Council staff.
64 The location, physical features and operation of the nature park are best described in the affidavit of Mr Navin sworn 21 November 2006, as well as in a letter from the General Manager of the Council to DLWC dated 19 December 2006. Photographs of the nature park dating from around May 2002 are reproduced in the Minister’s tender bundle. A tourist map and information brochure for the nature park, dating from July 2000, is reproduced in the Minister’s supplementary tender bundle.
65 The evidence indicates that in the period before and including 21 August 2001, the nature park was operated as a flora and fauna park. It was completely fenced and contained extensive improvements and infrastructure for the amenity of visitors and Council staff situated at the nature park. The nature park, as at 21 August 2001, housed various native animals in enclosures. From December 1997, members of the public were charged an admission fee for entry to it.
66 The Minister submitted that, at the date of the claim, the claimed land was in the early stages of “a period of transition” from a flora and fauna park to a flora reserve only.
67 The Minister contended that the substantive effect of the resolution of the Council on 20 June 2001 “to close down the park and remove infrastructure and allow the area to revert to a woodland area open to the public” was to close down the caged fauna section of the nature park. The Council did not intend to alter the gazetted use of the area, namely, “the preservation of native flora” (letter from the General Manager of the Council to DLWC dated 19 December 2001)
68 To this end, in August 2001, Council was engaged in extensive maintenance activities including feeding the animals, mowing and weed reduction, planting and maintenance of trees, maintenance of physical structures, water system, roads, tracks and fences. This was a continuation of earlier activities carried out before the closure of the nature park. The Council also received a licence authorising the use of the nature park as animal display premises. These activities undertaken by the Council on the land were enough to amount to “occupation” under the Act.
69 The Council spent significant sums on the land. In the 1999/2000 financial year the Council incurred total operating expenses of $117,688 in respect of the nature park. A similar sum was incurred in 2000/2001. The Council estimated that between 1 July 1995 and 31 December 2001, $639,348 was expended on capital and special expenditure items associated with the nature park. It was submitted that the list of acts of occupation in this case was far more extensive than the acts in Tweed Byron.
70 Although the Council resolved on 20 June 2001 to close the nature park and thus alter the nature of its occupation, it was submitted that this does not lend weight to any proposition that the Council’s occupation of the land ceased from that date or any date thereafter. Events and activities after 20 June 2001 are consistent with such an intention. Although the level of expenditure tapered off, monies were still spent on the claimed land.
(ii) Lawful use
71 The test for ‘use’ has a lower threshold than occupation, relying on the Department of Education case. The same activities that were relied on, unsuccessfully, to prove occupation were held to constitute use of the building in that case. The Wagga Wagga case confirms that this is a matter of fact and degree. The purpose for which the lands are claimed to be used are important, per Sheller JA in Nowra Brickworks No 1 at 120, also Tweed Byron 142-143 per Clarke JA. The authority of the Council in this case derives from the management of the affairs of the trust. It was using the claimed land as part of its responsibilities as manager of the trust.
72 At the time of the claim, the nature park remained in the early stages of the transitional phase and was still being used, in a more than nominal sense, as a fauna and flora reserve. That the use was less intensive was consistent with the shift in purpose from flora and fauna reserve to flora reserve only.
73 It was submitted that this matter is different to the circumstances in the Department of Education case because in that case the Department had decided to vacate the building and as at the date of the claim had relocated all of its usual activities and staff but for a handful of employees in anticipation of the full abandonment of the building. In this case, by contrast, at the date of the claim, most if not all of the usual activities associated with the nature park were continuing. The transitional phase was directed not towards abandonment of the reserve but the institution of a different program of activities that were still entirely consistent with the Council “using” the land in the relevant sense.
74 Events after the date of the claim do not need to be considered, on the Minister’s primary case. They do, in the alternative, if the transitional phase of the nature park needs to be clarified.
75 Further, the Council’s occupation and use was lawful as it performed its duty of care, control and management as trustee of Reserve 86313.
Applicant’s submissions
(i) Lawful occupation
76 At the date of the claim, the claimed land was not occupied by the Council. The Minister’s case attempts to combine past activities on the land (the nature park) with evidence of possible future activity (a woodland area open to the public) to argue the land was being used in a transitional period at the date of the claim. Two facts are fatal to that case. Firstly, the Council had resolved to close the nature park and it was closed to the public on 2 July 2001, six weeks before the date of the claim, and secondly, no firm decision had been made as to the purpose to which the claimed land would be devoted in the future either at the date of claim or at any time thereafter.
77 The test of “occupation” in Daruk per Priestley J at 161 is important. Constructive occupation as the person in control of the land as trustee of the reserve trust is not sufficient. Mere exercise of control or carrying out of maintenance without physical occupation is insufficient. The presence of structures and improvements on land is not sufficient to establish use or occupation; Tweed Byron, New South Wales Aboriginal Land Council (on behalf of Dubbo GA Local Aboriginal Land Council) v Minister [1997] NSWLEC 157 (Dubbo Ga).
78 The Applicant contended that there is no evidence to support the Minister’s assertion that the Council actually occupied the claimed land in fact and to more than a notional degree for the purpose of Reserve 86313 the preservation of native title either before or at the date of the claim. The matters relied on by the Minister (erection and maintenance of structures and improvements such as animal enclosures, maintenance of flora by weed control and cultivation of new plants, regular presence of Council staff controlling public access to the land) were carried out many years before the date of the claim and were stopped or winding down at the date of the claim.
79 From the date of the decision on 20 June 2001 to adopt option (3) of the Goldney Report and close the nature park, the Council considered a range of options including the possibility of converting the site into a reserve for native flora. In the period from 20 June 2001 to at least the end of that year, no firm decision had been made concerning the future of the defunct nature park. The Minister’s evidence suggests that a range of options were being considered for the claimed land following the closure of the park. The Minister’s characterisation that, at the date of the claim, the claimed land was in a “transitional period” should be rejected. The Applicant asserted that the activities that were taking place on the claimed land at the time of the claim were properly characterised as the acts being done to facilitate the closure of the park, namely, removing the structures and resettling the animals that remained after the nature park’s closure.
80 There is no documentary evidence of the Council carrying out weed control around the date of the claim and there is no evidence of the fencing being repaired or maintained after the Council closed the nature park. The presence of a few animals on the land and daily visits by two Council staff merely to tend to these animals should be seen as insufficient to constitute occupation of the land, in order to defeat an Aboriginal land claim. In oral evidence Mr Navin stated that the maintenance of the roads after the date of claim was to ensure the safety of staff attending the land to feed the animals.
81 The presence of a few animals and daily visits by two staff to tend to them are not sufficient activity to give rise to occupation of the land. The fencing and improvements took place a long time before the claim and are not evidence of actual occupation at 21 August 2001. That the area was fenced and closed to the public at that date is not evidence of an actual act of control by the Council. Rather it reflects the decision of the Council to abandon the use of the land as a nature park and to cease its occupation for that purpose. There were minimal physical acts of occupation, no actual exercise of control by the Council and no evidence of maintenance of the land related to the purpose of the reserve for the preservation of native flora. Rather this is evidence of a decision to abandon the use of the land as a nature park and to cease to occupy it for that purpose.
82 The circumstances here are not equivalent to those in Tweed Byron as the Minister argued but rather fall short of the activities considered in Tweed Byron and also in Daruk. The Department of Education case is also important to consider on the issue of occupation. In that case the activities relied on were held not sufficient to amount to occupation in circumstances where a building which could house 900 people was now occupied by six people in a very small part of it at the time of the claim. In Dubbo Ga the council was the manager of a reserve and intended to establish a sporting complex. Its preparatory work of preparing budgets, lodging a development application, terminating a temporary licence granted over the reserve and digging holes for surveying purposes on the land was held by Lloyd J not to amount to occupation in fact.
83 The Minister argued that the purpose for which the land was to be used was undergoing a transitional stage to flora reserve at the date of the claim. The resolution to close the nature park on 20 June 2001 referred to its closure and stated that the area would revert to a woodland area open to the public.
84 Matters after the date of the claim should be generally disregarded as the issues have to be decided on the basis of what occurred at the date of the claim. In limited cases matters after the event can be referred to where they confirm a hindsight but not to prove a foresight; the Maroota case at 677.
85 The Minister relied on several documents after the date of the claim including a Council staff minute dated 14 September 2001 that once all the animals and associated infrastructure had been relocated/removed the nature park would revert to an area of bushland accessible to the public. A working party was established for twelve months on 19 September 2001 to advise the Council of future directions for the area, preservation of remnant woodland, and the creation of a woodland area open to the public, inter alia. If these events are considered they confirm that at the date of the claim the claimed land was not being occupied for any purpose other than closing the nature park.
(ii) Lawful use
86 It is necessary to determine the purpose of the use relied on as that dictates the degree of immediate physical use of the land required to establish use in the circumstances of each particular case (see Sheller JA at 120 in Nowra Brickworks (No 1)). The Minister must satisfy the Court in this case that the land was used at the date of the claim for the claimed lawful purpose to more than a notional degree. A contemplated or intended use is not sufficient; Dubbo Ga; Nowra Brickworks (No 2) per Sheller JA at 649, the Wagga Wagga case per Mason P at [32]. The use relied on is that the Council operated the land as a nature park.
(i) use nominal
87 The use as a nature park ceased as a result of the Council’s resolution on 20 June 2001. For the reasons already identified in relation to occupation the activities relied on do not amount to the use of the land for the nature park. Activities at the date of the claim in relation to the use of the nature park were too slight to amount to more than a notional use and the activities relied upon by the Minister, such as staff attending the site to feed the animals and remove some structures, were preliminary steps taken in preparation for a change of use.
(ii) activities directed to change of use
88 Further, a number of the steps taken by the Council and relied on by the Minister were directed to changing the use, similar to the preliminary steps taken towards sale in the Wagga case and the surveying undertaken by the local council in Dubbo Ga to establish the suitability of the site for a sporting complex. The Minister’s argument was that the Council’s use of the land was in a transitional phase whereby its use was changing to operate as a flora reserve only. The evidence does not establish that at the date of the claim the claimed land was used for a lawful purpose being the preservation of native flora. That was a contemplated use for the future. The Council had taken preliminary steps towards identifying this future use by closing the nature park to the public, removing animals and structures and establishing in September 2001 a working party to consider future options which included the creation of a woodland area.
(iii) material after date of claim should be disregarded
89 The Minister has relied on material which is after the claim date (par 11(p) to (u) of Minister’s outline, see particularly matters in par 72 of Applicant’s submissions). Regard should not be had to material that post dates the date of the claim particularly where that does no more than evidence a change in priorities in the Council after the land claim was made by the Applicant (see Deerubbin). Material such as the facsimile transmission from the Council to Department of Lands dated 4 December 2001 (p 81 tender bundle) which defends the Council’s actions should also be disregarded, see Dorrigo at 320.
90 In fact, the Council’s focus, after the claim was made was an attempt artificially and after the fact to demonstrate that it continued to exercise control over the land. It was preoccupied not with preserving the land for native flora but ensuring the land’s availability for activities associated with motor racing.
Finding
91 The issues of whether the claimed land is lawfully occupied or lawfully used arise separately in this case. The first issue I will consider is whether the land was lawfully occupied. If it has been shown that the claimed land is not “lawfully occupied” for the purposes of s 36(1)(b), it falls to the Court to consider whether it was “lawfully used” at the date of the claim; Tweed Byron at 139.
92 The issue arises of whether the land was “occupied” for the purposes of s 36(1)(b) of the ALR Act at the time the claim was lodged. The general principles are identified above at par 54-56. There must be more than constructive occupation of land and evidence of physical acts which amount to actual occupation.
93 While the Council was the appointed manager of the trustee of Reserve 86313 under the CL Act that status alone is insufficient to establish occupation for the purposes of s 36(1)(b) of the ALR Act. Constructive occupation is not enough; Daruk at 162. Occupation requires some degree of actual physical occupancy over the land or the carrying out of maintenance on the land without which physical occupancy is insufficient; Tweed Byron at 140. What is required will depend on the circumstances of the case. In Tweed Byron Clarke JA referred to the physical acts of occupation, the exercise of control and maintaining of lands as all relevant factors but recognised that each matter must be determined on its own facts.
94 The physical occupation of the land asserted in this case by the Minister is by the Council’s conduct of the nature park. It was submitted that the purpose of the nature park was as a reserve for native flora and fauna.
95 The Minister has the onus of establishing that at the date of the claim there were activities occurring which supported his submissions that the occupation was for the purposes of, firstly, the nature park and, secondly, the flora reserve aspects of the nature park.
96 The Council has managed the claimed land in its role as manager of the trust body since 1967. The nature park was opened in 1971. While there is a long history of the use of the land for the nature park, I do not have a great deal of information about how the nature park operated over its history and the extent to which flora protection was part of its activities. The extent to which it was dedicated to the protection of native flora is disputed by the Applicant which argued that the nature park focused on the display of native fauna and effectively operated as a zoo. The limited evidence that is available about the operation of the park over some 30 years includes the Goldney report “Future Scenarios for the Sir Joseph Banks Nature Park” dated July 2001. That states that the park was established nearly three decades ago as an attempt to conserve native flora and fauna and make it possible for regional people to view a range of native animals under semi-natural conditions or in cages. Also in evidence is the brochure prepared in 2000 by students of Charles Sturt University which focuses on the presentation of native fauna in the park in a bushland setting. There are references to maintaining vegetation and weed control in the Council’s documentary evidence and to tree planting by volunteers such as the Friends of Sir Joseph Banks Nature Park. The dominant activity in terms of the Council’s activities in the few years before the date of the claim appears to have been the care and display of native fauna in enclosures and in a natural bushland setting.
97 The history of the nature park which was first laid out in 1967 is identified in the section above at par 21 and beyond. That history shows that there were concerns raised from at least 1998 concerning the under capitalisation of the park. Expenditure on the ongoing maintenance of the park greatly exceeded income received from park visitors. The evidence also shows that the Council did not choose to make capital improvements in the nature park from at least 1995. A 1998 bequest of over $95,000 to the nature park was not spent on it. Nevertheless, substantial sums were expended by the Council on the nature park over its lengthy operation. Mr Roach estimates that over $600,000 was spent between 1995 and 2001. It is difficult to determine on the evidence how much of this was directed to the care and upkeep of the animals rather than the preservation of flora.
98 Following the Goldney Report, option (3) of closing the nature park and allowing it to revert to a woodland area, was adopted in June 2001 by the Council. It is necessary to consider the evidence relied on to establish physical occupation as at the date of the claim. By the date of the claim, namely 21 August 2001, public access had ceased on 2 July 2001. The area was fenced. A number of activities had also been undertaken that were designed to facilitate the closure including the relocation of all caged animals and the relocation of improvements such as barbeques and picnic tables to other places in Bathurst (reports of Mr Navin dated 4 July 2001 and 15 August 2001). Very shortly after the claim was lodged the Council decided that it would not remove all the infrastructure such as picnic tables from the nature park. The intention to close down the nature park in relation to native fauna was realised by 25 December 2001 when all animals were removed and the two dedicated staff moved elsewhere.
99 While Mr Navin identified in his affidavit at par 11 and 12 the numerous activities undertaken by staff at the nature park from 1994 to Christmas 2001 including controlling weeds and planting and maintaining vegetation, that general evidence does not establish the extent to which, at the date of the claim, his instructions to the staff focused on the nature park as a flora reserve. At par 13 of his affidavit he stated that at the claim date staff undertook weed control and fence repairs, inter alia. I agree with the Applicant’s submissions that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintaining the roads to ensure the safety of staff when visiting, according to Mr Navin’s oral evidence. That is confirmed by the two dedicated staff being moved in December 2001 elsewhere after all the animals were removed. Regardless of whether the nature park was fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards. This view is also confirmed by the evidence of Mr Roach which establishes that there was a very substantial decrease in expenditure on the nature park in the 2000-2001 financial year after its closure compared to previous years. The estimate of expenditure for the five years after 2001 was approximately $10,000 per year. The expenditure in the two years before the nature park was closed was about $117,000 per year.
100 As to the aspects of the nature park which focused on flora reserve (for the sake of argument I am assuming here that the Minister established there was some activity related to a flora reserve conducted up to the date of the claim) there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve. The only evidence of occupation after December 2001 was the continuing presence of the fence, the remaining structures such as a visitors’ centre identified in Mr Navin’s affidavit and the exclusion of the public from the fenced area. While there is a Council staff minute of 16 July 2001 stating that a planting regime should be put in place to accelerate the actions currently occurring there is no evidence of this being physically implemented at the date of the claim. There is reference in the evidence several months after the date of the claim to possible planting by volunteers from Conservation Australia.
101 After the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the park which included its reversion to a woodland area open to the public. That suggests that the woodland area was a future use rather than a current use at the date of the claim and not therefore the subject of activity which could support a finding of occupation on that basis.
102 While the Minister’s submissions focused on the activities giving rise to occupation being in a transitional phase while the nature park closed and it changed to use for a woodland area, in accordance with the Council’s resolution of June 2001, the evidence supports only a finding that the nature park was closed and at the date of the claim the only activity by Council staff was directed to achieving that outcome. This process was finalised shortly after the date of the claim in December 2001 when the last animals were relocated and the two dedicated staff then moved elsewhere. That activity after the date of claim confirms the finality of the decision to close the nature park but does not suggest there were any activities which justify a finding of occupation on the basis of a transition to a woodland area. Exclusion of the public by a fence is not sufficient. This finding on the evidence applies regardless of whether part of the nature park was directed to being a flora reserve as the Minister submitted.
103 The Applicant argued that this occupation is analogous to the situation in the Department of Education case where Stein J found that the majority of the furniture and equipment in the building that was the claimed land had been removed and a small area on the first floor and another on the eighth floor remained occupied by six staff of the Department of Education. Up until the date of the claim, services to the building, including lifts, electricity, telephone, air conditioning and gas had been maintained. The building was cleaned regularly and had a caretaker and was patrolled by a security service. In the circumstances, Stein J, at 198, found that, as a matter of fact, the occupation was “so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1).”
104 I agree with that analogy. If the purpose of the occupation of the land was the nature park, it was clear that the activities being undertaken were of the type identified in that case and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises. In this way, these activities fall into the category of being “so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)” as described by Stein J. The exercise of control by the Council demonstrated by the fence around the perimeter does not in the circumstances of this case give rise to the physical act of occupation by the Council.
105 I agree with the Applicant that the Minister has not discharged his onus under s 36(7) of establishing that the lands were lawfully occupied under s 36(1)(b) of the ALR Act.
(b) was the claimed land lawfully used?
106 General principles concerning lawful use are identified at par 57-59. The purpose of the use will dictate the degree of immediate physical use of the land required to establish use, as a matter of fact, in the circumstances of each particular case. The claimed land must be used in more than a notional sense; Nowra Brickworks (No 1).
Use was nominal only/activities related to change of use
107 By the date of the claim, the Council had adopted option (3) of the Goldney Report on 21 May 2001 and moved to close down the nature park. While this showed that there was an intention to abandon the nature park, the Minister argued that the Council had not abandoned the continuing use of land for the purposes of the preservation of flora.
108 The activities on the land at the date of the claim were considered above in relation to occupation. The question now arises whether they are a more than notional use of the claimed land as determined by their purpose. While in the Department of Education case the same activities which were not sufficient to found occupation were found to be a sufficient use of the land, in the Wagga Wagga case (Court of Appeal) Tobias JA referred to the Department of Education case and notes that it was decided before Daruk and Nowra Brickworks No 1. Tobias JA refers to the reasoning of Stein J in relation to his finding of “use” relying in part on acts of occupation. As noted by Stein J questions of fact and degree must arise for consideration.
109 Evidence of contemplated or intended use is insufficient; Wagga Wagga at [32]; Dubbo Ga;Minister v New South Wales Aboriginal Land Council [No.2] (1997) 42 NSWLR 641 (Nowra Brickworks (No 2)) at 649. The Council resolution in June 2001 to close the nature park included that it revert to a woodland area open to the public. As referred to above at par 101, after the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the nature park which included its reversion to a woodland area open to the public. That evidence suggests that the woodland area was an intended future use rather than a current use at the date of the claim when the activity occurring at the date of the claim is considered.
110 I have determined already in relation to occupation that at the date of the claim there were insufficient physical acts to amount to occupation. The same activity by the Council in relation to the nature park is relied on by the Minister to establish use. I also do not consider that activity is sufficient to establish lawful use of the claimed land for the nature park. That applies to the nature park whether it was devoted to fauna displays only, about which there can be no doubt of a cessation of use, or shortly after the date of claim. To the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area, also for the reasons already discussed in relation to occupation at par 99-100 and in light of the substantially reduced expenditure on the area of the nature park, the evidence of use at or shortly after the date of claim does not establish lawful use for the purpose of s 36(1)(b).
Material after the claim date
111 As noted above the actions of the Council immediately after the date of the claim confirm the intention to close the nature park with that process effectively completed in December 2001. Other activity concerning future planning for the area was also commenced such as the establishment of the working party in September 2001. Much of the material the Minister sought to rely on after the date of claim related to the Council’s plans for the intended use of the land as a woodland area. The Minister argued that material is relevant because it confirms a hindsight namely that at the date of the claim the use was transitional, moving from nature park to woodland area. Even if considered on that basis it cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the nature park.
Further issue - was Council’s occupation and use of the reserve land for the nature park lawful?
112 Section 36(1)(b) requires that any use and occupation relied on must be “lawful”. The arguments I have considered and ruled on above deal with the Minister’s primary case and the Applicant’s response to that case, namely that the occupation and use relied on by the Minister was the Council’s occupation and use of the claimed land for the nature park. That consideration did not require me to have regard to whether the nature park was a lawful occupation or use of the claimed land. An alternative argument put by the Applicant was that the activity of conducting the nature park by the Council was not lawful.
113 The Applicant argued in relation to both lawful use and occupation that as the claimed land was required to be used for “the preservation of flora” under the terms of the trust for Reserve 86313 for which the Council is the manager of the trust entity, its use for the nature park was not lawful as that use did not comply with the terms of the trust. The Applicant argued that it was essentially a tourist attraction devoted largely to native fauna and that detracted from the purpose of the trust. It was submitted that the Council appears, up until at least 2001 and perhaps longer, to have conducted itself as though the nature park was not for the preservation of native flora but rather was a tourist facility for the display of native fauna. This is wholly inconsistent with the public purpose identified by the Minister in the creation of the Reserve.
114 As I have held that the level of occupation and use as a nature park does not satisfy the Minister’s onus under the ALR Act (assuming that occupation/use for the nature park was lawful) it is unnecessary to consider this argument in any depth. I observe that there is little case law concerning the obligations of managers of trusts of Crown land referred to by the parties and further argument on this issue would have been necessary to enable a final determination of an important issue.
Conclusion
115 I have determined that the claimed land is claimable Crown land as defined in the ALR Act. In accordance with s 36(7) the land identified in the plan attached to the affidavit of Mr Sartori should be transferred to the Applicant taking into account the matters otherwise agreed in relation to issues 3, 4, 5 and 6. The parties should file appropriate orders to give effect to this finding shortly.
2
5
4