Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act - [1999] NSWLEC 12

Reported Decision: 102 LGERA 33

Land and Environment Court

of New South Wales

CITATION:

Birrigan Gargle Aboriginal Land Council -V- Minister Administering Crown Lands Act [1999] NSWLEC 12

This judgment revised on:

18/02/99

PARTIES

APPLICANT
Birrigan Gargle Aboriginal Land Council

RESPONDENT
Minister Administering Crown Lands Act

NUMBER:

30052 of 1998

CORAM:

Bignold, J

KEY ISSUES:

:- Land claims - whether land relevantly vested in her Majesty;
whether lands needed for essential public purpose of nature conservation, public access.

LEGISLATION CITED:

Land claims - whether land relevantly vested in her Majesty;
whether lands needed for essential public purpose of nature conservation, public access.

DATES OF HEARING:

01/28/1999

EX TEMPORE JUDGMENT DATE:

01/28/1999

LEGAL REPRESENTATIVES:

APPLICANT:
Mr J. Basten QC
Solicitors:
Andrew Chalk Associates
RESPONDENT
Mr Maston, Barrister
Solicitors:
State Crown Solicitor

JUDGMENT:

INTRODUCTION
1. On 28 January 1999, at the conclusion of the hearing of the present proceedings, being an appeal pursuant to s.36(6) of the Aboriginal Land Rights Act 1983 (Land Rights Act) in respect of claims to fifteen (15) adjacent parcels of land situate in the vicinity of Wooloweyah Lagoon, a short distance from the township of Yamba on the State’s North Coast, I announced my finding that the Respondent had failed to satisfy the Court that any of the lands claimed were not “claimable Crown lands” within the meaning of Land Rights Act on any of the several bases relied upon at the hearing in support of that contention. The legal consequence of that finding, as provided by s.36(7) of the Land Rights Act , was that the appeal must be upheld and the claimed lands be ordered to be transferred to the Applicant.

2. However, on the application of the Respondent, and with the concurrence of the Applicant, I agreed to briefly defer making final orders in the proceedings in order to allow the Respondent the opportunity to make out a case to the Court for a longer stay to enable the Respondent the opportunity to consider launching contemplated separate proceedings in the Supreme Court seeking to correct what it claimed to be erroneous entries in respect of eleven (11) parcels of claimed land in the Register maintained under the Real Property Act 1900, showing “the State of New South Wales” as the registered proprietor of each of those parcels. The prospect of such proceedings had been announced by the Respondent at the commencement of the hearing in the event of the Court rejecting the Respondent’s submission that the 11 parcels of land were not relevantly “vested in Her Majesty” (and hence were not relevantly “claimable Crown lands”) within the meaning of s.36 of the Land Rights Act. My finding was based, in part, upon my rejection of the Respondent’s submission.

3. I now publish my reasons for my aforesaid finding announced at the conclusion of the hearing during which I had the assistance, pursuant to s.37 of the Land and Environment Court Act 1979, of Commissioner McDermott. It may be that after considering these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act [1999] NSWLEC 12
Case: [1999] NSWLEC 12
Decision Date: 18/02/99

CaseChat Overview and Summary

The case of Birrigan Gargle Aboriginal Land Council v Minister Administering Crown Lands Act involved a land claim by the Birrigan Gargle Aboriginal Land Council over fifteen parcels of land near Wooloweyah Lagoon, New South Wales. The Minister for Crown Lands had rejected the land claims, and the Land and Environment Court was tasked with reviewing this decision. The key issues in the case were whether the lands were vested in Her Majesty and whether they were needed for essential public purposes such as nature conservation and public access.

The Court found that the Group I lands were vested in Her Majesty, rejecting the argument that there was an administrative error in the land registry. The Court's decision was influenced by the principle of the indefeasibility of title under the Real Property Act 1900. The Court also found that none of the claimed lands were needed for the essential public purpose of nature conservation at the date of the land claim, as evidenced by the abandonment of the Yamba Waters Project and the lack of support from the National Parks and Wildlife Service. Furthermore, the Court determined that the Group II Land was not needed for the essential public purpose of public access, as the beach was accessible from other routes.

Based on these findings, the Court concluded that the Respondent had failed to satisfy the Court that any of the claimed lands were not "claimable Crown lands" within the meaning of the Aboriginal Land Rights Act 1983. Consequently, the Court ordered that the claimed lands be transferred to the Birrigan Gargle Aboriginal Land Council.

Orders