Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No.2)

[2010] NSWLEC 124

Land and Environment Court

of New South Wales

CITATION:

Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No.2) [2010] NSWLEC 124

PARTIES:

APPLICANT
Illawarra Local Aboriginal Land Council

RESPONDENT
Minister Administering the Crown Lands Act

FILE NUMBER(S):

30751 of 2006

CORAM:

Sheahan J

KEY ISSUES:

ABORIGINAL :- land claim; whether land was 'needed', or 'likely to be needed', for the essential public purpose of nature conservation; case remitted by Court of Appeal for reconsideration; admissibility, relevance, and probative value of post-claim evidence

LEGISLATION CITED:

Aboriginal Land Rights Act 1983
Land and Environment Court Act 1979
National Parks and Wildlife Act 1974

CASES CITED:

Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act [1999] NSWLEC 82
Housing Commission v Falconer [1981] 1 NSWLR 547
Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188; 161 LGERA 294
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; 168 LGERA 71
Minister for Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No.2) [2001] NSWCA 28; 50 NSWLR 665
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1

DATES OF HEARING:

7 and 8 December 2009

 
DATE OF JUDGMENT: 

15 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Dr J Griffiths SC with Ms G Wright
SOLICITORS
Chalk & Fitzgerald

RESPONDENT
Mr J Kirk with Dr C Mantziaris
SOLICITORS
Crown Solicitors Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

15 July 2010

Matter 30751 of 2006 ILLAWARRA LOCAL ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT (No.2)

JUDGMENT

Introduction

1 His Honour: This judgment, on remitter from the Court of Appeal, deals again with an Aboriginal Land Council claim (No.2673) under the Aboriginal Land Rights Act 1983 (‘ALR Act’) for 182ha of land at Tongarra Gap on the Illawarra Escarpment, in the vicinity of Budderoo National Park.

2 The claimed land is situated north of an imaginary line (“the Schedule A line”) drawn in 1985 to indicate a boundary between land included in the National Park as announced on 17 January 1986 (south of the line), and other land noted as desirable for addition to the park, but not included in that announcement. The announcement and proclamation in January 1986 covered all lands in the planned park area to which there was no extant objection from relevant government agencies, including that responsible for coal mining.

3 The claimed land falls within an area of the State associated with (underground) coal mining from about 1893, but conservation groups and government agencies concerned with national parks had expressed interest in the relevant area since at least 1973 (Exhibit M3, fol 1021). Its conservation values were verified, and establishment of the national park recommended, in 1977. The government of the day became interested in establishing a national park over the area in 1980-81.

4 The land claim was made on 3 March 1986. Section 36A(1)(b) of the ALR Act includes nature conservation as an essential public purpose. The Minister rejected the relevant parts of the claim on various grounds on 22 June 2006, and an appeal was lodged with this court (‘LEC’) on 25 August 2006. Judgment was delivered, largely in favour of the claimant, on 6 June 2008 ([2008] NSWLEC 188, now reported at 161 LGERA 294), and formal orders made in accordance with those reasons on 4 September 2008.

5 An appeal by the Minister to the Court of Appeal was heard on 15 May 2009, and a majority judgment in the Minister’s favour was delivered on 11 September 2009 ([2009] NSWCA 289, now reported at 168 LGERA 71).

6 This court’s decision of 6 June 2008 and its orders of 4 September 2008 were set aside by the Court of Appeal, and the matter was remitted to this court for further determination in accordance with that court’s reasons. Essentially, the Court of Appeal decision to overturn the LEC decision turned on how I, as the presiding judge, had posed and addressed the key question. The Court of Appeal said (at [39]):

“…the primary judge did not decide the correct question, namely whether the land was, as a matter of fact, likely to be needed for an essential purpose; but rather he addressed a question distorted by irrelevant considerations, namely whether any trajectory towards the existence of such need was itself at the appropriate government level, and whether the land had been included in Budderoo National Park up to the date of the hearing.”

7 On this remitter the Minister has maintained the ground of refusal that the claimed land is/was “needed or likely to be needed for the essential public purpose of nature conservation”, under s 36(1)(c) of the ALR Act. The question “likely to be needed” is “the sole issue before the court” (T7.12.09, p6, LL23-24).

8 Again, on the hearing and determination of this remitter, I gratefully acknowledge the assistance of Acting Commissioner Mary Edmunds.

Approach on Remitter

9 The correct approach to take on a remitter to this court, authorised by s57(2)(a) of the Land and Environment Court Act 1979, was last considered by the Court of Appeal in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1.

10 At [30], Basten JA said:

“Where an appeal against a decision on a question of law is upheld, the consequences for the further determination of the matter in the L&E Court will depend upon the precise nature of the decision and the nature of the error …”.

11 Young JA (with whom Beazley JA agreed) said (at [117]-[119])

“In particular I endorse what Basten JA has said that the approach of the Land and Environment Court on remitter will be different depending on the circumstances of each case. That Court needs to consider how in the changed atmosphere it should proceed to reach a just result.

In my view, when so proceeding the Land and Environment Court does not proceed according to the strict guidelines dealing with reopening cases after judgment. It exercises a broad discretion as to how the matter is to be concluded in a fair and just way. Probably no better guidelines can be laid down than those uttered by Biscoe J in the present case at [24]:

… the undisturbed findings stand and all that seems to be called for is a determination of the outstanding issues on the existing evidence in accordance with law – subject to the admission of any further evidence and any leave to amend, which lie in my discretion …

The Court certainly has power to remit a matter to a different judge. My researches have not discovered any overriding principle as to when it does so, but there are guidelines in the authorities. The key question is whether there will be a perception of a fair trial if the case is remitted to the judicial officer who previously heard it.”

Evidence put before the Court on the Remitter

12 The relevant factual background is long and complex, but largely agreed between the parties. It was set out in great detail in the primary judgment, and comprehensively summarised in the Court of Appeal judgments of Hodgson JA (for the majority) and Basten JA (in dissent). It need not be repeated in full.

13 At first instance Commissioner Edmunds and I identified (at [33]) seven questions to be answered. We heard limited oral evidence (from Henry John Watkins), but considered extensive documentary evidence. We held that we could and should consider some post-claim evidence (see [70]ff).

14 The same evidence as was placed before this court on that earlier occasion, was placed before the Court of Appeal, and (so far as concerns the remaining ground for the Minister’s refusal of the claim) is again before the court on this remitter (Exhibits M1-M4).

15 In addition, on the remitter, the Minister tendered two other documents (Exhibit M5 and Exhibit M6), which post-date the claim, and I admitted them subject to relevance, which the Minister has established to my satisfaction. Both documents come from the official records in the database of the NSW Department of Mineral Resources (‘DMR’):

Exhibit M5 establishes that Coal Authority 231, covering the southern part of the western area of claimed land, was granted 17 September 1981 and expired 17 September 1991. Mining in that area ceased in 1965, but there was, relevantly, some exploratory drilling in 1986-87.

Exhibit M6 concerns “ Exploration Licence application No.61 Wollongong ”, in respect of the claimed land – it appears to have been received on 6 June 1990, and withdrawn by about 13 March 1992, and involved minerals other than coal.

16 The use of post-claim evidence always confronts the principle which takes its common name from the Court of Appeal decision in Housing Commission v Falconer (“Falconer”) [1981] 1 NSWLR 547. As Basten JA put it (at [80]), the Minister submitted in the appeal in this matter that I had “inverted” the Falconer principle “so as to infer from an absence of post-claim executive activity, the absence of a likely need at the date of claim”.

17 Before turning to reconsider this court’s primary decision, the question of appropriately using post-claim evidence should be explored.

The Falconer principle re post-claim evidence

18 As Basten JA noted (at [70]-[85]), the principle drawn from Falconer is often too simplistically summarised as requiring simply that post-claim evidence must be used not to “prove a hindsight but to confirm a foresight”. I stated the principle in such simple terms twice in the primary judgment (at [32] and [70]), but, on appeal, the Minister submitted that I employed “hindsight to deny, rather than confirm, a foresight”.

19 Although Basten JA dissented from the majority decision in the Court of Appeal to allow the appeal in this matter, he usefully traced the history of the evolution of the principle, including the factual circumstances of Falconer itself.

The Falconer decision

20 Falconer was a case determining compensation for compulsory acquisition of land. At the resumption date, contracts were about to be entered by the owner for construction work on the resumed land. At the time of the hearing before the trial judge (Ash J) the dispossessed owner had purchased new land, and completed the first stage of a two-stage building programme on it. On a “case stated” to the Court of Appeal, Hope and Glass JJA considered the admissibility of evidence given of actual cost increases post-resumption to confirm what would have been foreseen by a properly advised hypothetical purchaser as at the date of resumption.

21 The so-called Falconer principle comes from the judgment of Hope JA, but needs to be seen in its proper context, as “risk … attaches to taking an aphorism out of context” (per Basten JA at [80]). To this end I quote at some length from the judgment of Hope JA (at 558-9):

“However there are many decisions, including decisions of the High Court , in which it has been held that evidence of future events is admissible not to prove a hindsight, but to confirm a foresight : … An application of the principle namely, that ‘The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition’: Minister for Army v Parbury Henty & Co Pty Ltd [Parbury Henty] (1945) 70 CLR 459, at p 514 is to be found in the decision of the Full Court of Queensland in Brisbane City Council v Thorpe (1965) 13 LGRA 31. In that case the council resumed land on which stood a part of a shop building, the other part standing on land retained by the owners. Two years after the date of resumption the council offered to move the existing shops back to the resulting new alignment. In his judgment Gibbs J, as he then was, with whom Hanger and Jeffries JJ agreed, said (at p 37):
‘In the present case at the date of the resumption it was reasonable to expect that the council would offer to make the building available, since the purpose of the resumption was to widen a road and possession of a portion of a building could be of no use to the council. The fact that it has since made the offer may be regarded to show that as at the date of resumption the building would have been available.’
If such a principle were to be applied to the present case then it would seem that as at the date of resumption in March 1974, a prudent purchaser, properly advised, would certainly have anticipated a signifi­cant rise in building costs. …. Accordingly a prudent purchaser would have taken into account the probability, indeed certainty, of increasing building costs. The Court would not be concerned here, as it has been in ordinary damages cases, to determine what the amount of those inflated costs would be; it would be concerned with what a prudent purchaser would do in the knowledge that there had been a sudden and very large growth of inflation which was likely to continue. ... [W]hat would have to be determined is what would be the attitude of a prudent person in the hypothetical circumstances which the cases have described; but the actual increases could be looked at in confirmation of what the hypothetical purchaser, properly advised at the time of resumption, would have foreseen. The extent to which foresight coincided with or approached fact must be a question of fact—assuming there is evidence to support a conclusion … [T]here are many reported decisions concerning compensation for disturbance where regard has been had directly to actual costs subsequently incurred, but those are cases where, because of different legislation, because of the shortness of the time span, because the assessment was not tied to any particular date, or for other reasons, no challenge was made to the way in which the evidence of what had in fact happened should be used. I do not think that these decisions affect the principles I have described.” (emphasis added)

22 Hope JA cited several High Court cases from the 1940s including, as quoted above, Parbury Henty per Williams J. Basten JA in the appeal in the present case also referred to Parbury Henty and other cases, where later events were used to set a value at a particular date. That line of authority clearly informed Hope JA’s articulation of the “principle”. As Basten JA noted (in [67]), assessing “real value” of shares as at a past date “required the valuer to speculate as to the temporary nature of factors (in that case a war) which may have tended to depress the value of the business”, and (in [80]), Hope JA intended to draw a distinction “not between confirming or denying a foresight, but between evidence which could relate to a foresight and that which merely constituted a hindsight”.

23 Also in Falconer, Glass JA said (at 563F):

“Special value is that additional sum over and above the market price
which the owner would give for the land sooner than fail to obtain it at
the time of the hypothetical sale assumed to have occurred at the date of resumption….

In relation to both market and special value, events subsequent to the
resumption are of no relevance … except to the extent that they provide some evidence of what was foreseeable by the owner in calculating what he would have accepted or offered at the time of resumption…” [Parbury Henty]”.

How far post-claim can the evidence go?

24 Glass JA said in Falconer (at (564C):

“Proof of events subsequent to the expropriation, within a period limited by the necessity to act with reasonable dispatch , is an integral part of the evidence supporting a claim for the cost of reinstatement…”. (emphasis added)

25 In the appeal in the present case, Basten JA said (at [78]) that the “use of future events to confirm a real chance must be subject to reasonable time constraints” (emphasis added) or there would be an incentive to delay deciding a land claim until “the government’s position with respect to the land had crystallised”. His Honour added (again in [78]):

“ Clearly a point is reached … at which time future events will no longer assist in confirming an existing state of affairs at the date of claim”.

26 The majority judgment is silent on any time restriction, subject to issues concerning relevance (see [31] below).

The principle explained

27 As I have already noted, it was argued by the Minister, in the appeal in this matter, that I had applied Falconer in reverse, in the claimant’s favour, in that I had resorted to a hindsight to deny, rather than confirm, a foresight. Basten JA noted (in [80]):

“…This argument illustrates the risk which attaches to taking an aphorism out of context. The distinction which Hope JA was intending to draw in Falconer was not between confirming or denying a foresight, but between evidence which could relate to a foresight and that which merely constituted a hindsight. The point may be illustrated by reference to the example to which Hope JA referred, of the use of subsequent events to quantify loss…. The fact that foresight might anticipate a very significant loss does not mean that future events which discount the loss, rather than confirm its significance, are not admissible. Indeed, that was the point of the evidence in Parbury Henty: the cost of moving to cheaper premises was lower than expected, without adverse impact on the business of the property owner.”

Its application to the present case

28 I accept the Minister’s formulation of the principle in the context of the present case (at par 5 of subs in reply):

“ When assessing likely need at the date of claim, this Court must take itself back to a moment in the past (3 March 1986) in order to consider, from that standpoint in time, the future as it then appeared ( the anticipated future ). Evidence from after that date is only relevant if it confirms the perceived existence of a need in the anticipated future, as viewed from the standpoint of 3 March 1986”.

29 Hodgson JA said (at [35]), “it is a question as to whether it is likely that there will in the future be a Government requirement”. Basten JA observed (at [77] and [66]) that that question “addressed, as at the date of the claim, is one involving an inherent level of speculation”, “for which purpose it may be permissible to take account of events which had not then occurred”.

30 Both parties have sought to rely on post-claim evidence, but they disagree on how the principle should be applied to it (see applicant subs pars 49ff, c.f. Minister’s reply pars 5-6).

31 It would appear from Hodgson JA’s remarks ([37]-[39]) that evidence of events occurring in the period from claim (1986) until refusal (2006), or even hearing (2007-2009), can be taken into account, provided it is not infected by irrelevant considerations.

32 However, the claimant now submits (par 58) that there must be “reasonable time constraints” (per Basten JA at [78]). In his oral submissions (T7.12.09, p48, L49), Dr Griffiths SC said that “the line should be drawn” generally at 2 to 2½ years post-claim, subject to the facts of each case. Mr Kirk (for the Minister) complains that adoption of that “arbitrary line” would rule out post-claim evidence upon which the Minister seeks to rely in this case (T8.12.09, p7, LL35-41).

Background to the LEC decision

33 The Minister bears the onus of proof (ALR Act s 36(7)), and his/her case was that the January 1986 national park announcement, made just prior to the land claim, represented only the “initial stage” of the establishment of the park – action being urgently required at the time to protect the Minnamurra Falls, and some political imperatives and pressures being then in play.

34 The claimed lands were not included in the park, due to objections from the DMR dating back to 1980, and some issues with the local Council. The claimed lands were in fact excluded from consideration for inclusion in the park proclamation from late 1985, the only opponent to their inclusion then being the DMR. The DMR position could not be described as outright opposition to the park proposal – nor, indeed, after March 1986, to the land claim – but it objected in 1985-86 on the grounds that a national park would preclude the exploitation of “economic” coal, and/or prevent access to it. (National Parks and Wildlife Act 1974 (“NPW Act”) s 41, and ALR Act s 45(12), as at the date of claim).

35 Appropriate testing was again carried out in 1986-87 to evaluate the “economicality” of coal reserves in the area. Such testing had been inconclusive in 1984-85, and, as a consequence, although the “Schedule A line” was drawn on the map in August 1985 to delineate areas to its north not included in the park, those areas were to be managed, while further considered, according to National Parks principles/guidelines. (There is no evidence as to what those guidelines entailed). The NPWS, from August 1981, was concerned only to conserve the park lands to a depth of 15.24m, and the DMR, apart from access issues, seems to have been concerned only about “economic” coal below that depth (see T8.12.09, p5, LL32-43).

36 Active mining of the claimed land had ceased in 1965, and maintenance work on mining installations in the area had ceased in 1966. Elcom wanted to reserve its position on access requirements in 1986 “for ten years or more”, but the pitheads were sealed in 1993, as part of long planned rehabilitation works. Tongarra Colliery was officially abandoned in 1997, and Elcom renounced all interest in the area by 1999, having first considered purchasing Tongarra in 1986.

37 The DMR’s objection to the park remained firmly on foot until 1993, i.e. some years after the gazettal, but, as noted in the primary judgment, the National Park was extended on several occasions (1994, 1998 and 2001), without including in it the subject lands.

The original LEC decision and the appeal

38 At first instance the Minister introduced the concept of a “trajectory” leading towards a particular public sector decision, and relied on some post-claim evidence to refute the validity of the land claim. The land council also relied on that post-claim evidence in support of its case.

39 In the end analysis this court found a clear government “desire” to include the subject lands in the National Park, but no “trajectory” towards their actual inclusion.

40 We held that (1) the land could not be regarded as “needed” for an essential public purpose, (2) that the Minister had failed to discharge the onus of establishing that the subject lands were “likely to be needed”, and (3) that the lands were not being lawfully used or lawfully occupied as at the claim date March 1986.

41 The passage in the primary judgment, which the Court of Appeal majority identified as manifesting error, comprised pars [115]-[118], especially par [117]. I set out the whole passage for completeness:

“[115] The boundaries of the Park were extended in 1994, 1998 and 2001 (see maps attached to the Affidavit of Peter Bowen sworn 27 July 2007). Yet, as of 2007, none of the claimed land forms part of the Budderoo National Park (see [9]-[11] above). The western part of the claimed land, as of 29 September 2004, forms part of the Macquarie Pass SCA.
[116] Up to and including the date of claim the NPWS had the desire to include the claimed land for the essential public purpose of nature conservation. However, this desire, even with the concurrence of various other departments, was frustrated by DMR objections and issues with Kiama Council. This desire, although supported by other departments, does not satisfy "needed" for the purpose of s 36(1)(c) of ALRA (see Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act [1999] NSWLEC 82 at [82]; Maroota at [61]-[64]).
[117] Turning now to the question of whether the land was likely to be needed for the essential public purpose of nature conservation, the relevant question, at the date of claim, is was there a real (or not remote) chance or real possibility that the claimed land was needed for nature conservation? As already discussed, the evidence demonstrates that the NPWS had a desire, admittedly a strong desire, to control the claimed land for the purpose of nature conservation. This desire was supported by some departments but opposed by others. The post claim evidence reveals continued objection by the DMR to inclusion of the area into National Parks because of underlying coal. The DMR toward the end of 2003 supported Tongarra Reserve becoming a SCA, despite its initial opposition, and this occurred in September 2004. Budderoo National Park has increased in size since the claim was lodged and still does not include the claimed land. As a whole the post claim evidence reveals the expansion of Budderoo National Park and SCAs when appropriate land became available, and does not support a "trajectory", at the appropriate Government level, to include the claimed land in Budderoo National Park or reserve it for nature conservation. The "trajectory" was that of the NPWS, which changed course because of DMR (and other) objections. There was not a real chance (or a not remote chance) or real possibility that the claimed land was likely to be "needed" for the stated essential public purpose at the date of claim.
[118] The Act requires the Minister to prove that, at the time of the claim, the land was needed, or likely to be needed, for an essential public purpose, in this case, for nature conservation. After considering all the arguments, I have concluded that the Minister has not discharged that onus.”

42 Hodgson JA (with whom McColl JA agreed, without comment, to form the majority on this appeal) reformulated the Minister’s grounds of appeal (at par [3] of his judgment) into six headings, but concluded that the main issue to be dealt with was whether the subject lands were “likely to be needed”.

43 His Honour (at [32]) set out the so-called Maroota principles (drawn from the Court of Appeal decision in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No.2) (“Maroota”) [2001] NSWCA 28; 50 NSWLR 665):

“ [32] In the Maroota case, it was held:
(1) "likely" in s 36(1)(c) of the Act conveyed the notion of a substantial, that is a real and not remote chance (at [57]);
(2) it was not enough that the public purpose within s 36(1)(c) be desirable or highly desirable – it had to be essential (at [55]);
(3) the question of need was referrable to what was required by the Government (at [62]); and
(4) facts subsequent to the relevant date could be used, not to prove hindsight, but to confirm a foresight (at [69]; [71]) (…Falconer … at 343-344).”

44 His Honour found (at [33]-[42]) that this court had misapplied the Maroota principles in this case, and had taken into account irrelevant considerations (1) in terms of the asserted “trajectory”, and (2) consideration of all the additions made to the park, of lands other than the subject lands, between the date of claim and the LEC hearing. His Honour said (at [33]-[39] and [41]-[42], with emphasis added by me):

“[33] The contention of the Minister was that the subsequent history confirmed what was foreseeable at the date of the land claim , namely that it was unlikely that DMR objections would prevail over the strong reasons supporting the establishment of a continuous chain of areas reserved for nature conservation, particularly in the area of the escarpment covered by Budderoo National Park and Macquarie Pass National Park and the intervening Gap, and the strong desire of NPWS supported by the Minister for Environment that this happen. It was put that this was particularly so in circumstances where the purpose of nature conservation could be achieved without precluding mining at a depth below 15 metres , as proposed by NPWS in 1981 and progressively accepted by DMR in 1987 (as regards part of the western part of the claim) and in 1991 (as regards the eastern part of the claim). I would add that another relevant matter is that, as early as 26 August 1985, the Minister for Mineral Resources agreed that even the area over which it had objections "would need to be managed in accordance with National Park guidelines" (Blue 222).
[34] In my opinion para [117] of the judgment does disclose errors of law in dealing with this contention.
[35] First, it shows that the primary judge considered that any "trajectory" that might support a finding that the land was likely to be needed had to be "at the appropriate government level". In my opinion, this is a misapplication of what was said in Maroota . The question of whether land was needed must be decided with reference to what the Government requires, and that of course means a requirement at the level of executive Government. However, where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement; and if this is addressed by considering whether there is a trajectory at the relevant time, this need not then be a trajectory existing at the appropriate Government level, but only a trajectory towards a requirement at the appropriate Government level.
[36] Second, para [117] particularly read with para [115] indicates that the primary judge considered it was relevant that the claimed land still had not been included in Budderoo National Park. The submission of the Minister was that, because the land claim precluded inclusion, this consideration could not be relevant; but we were not referred to any statutory provision which had that effect, and I am not aware of any such statutory provision.
[37] However, in my opinion , it appears from the history I have given that , at least from March 2003, the existence of the land claim was recognised and given effect to as a practical obstacle to inclusion of the land in Budderoo National Park (although this was apparently overlooked in the 2003 election undertaking); so that non-inclusion of the land in Budderoo National Park between March 2003 to the hearing (December 2007) could not be relevant, except conceivably in a tenuous and highly indirect way not suggested in the primary judge's reasons (that delay by the Minister in determining the claim between March 2003 and December 2007 somehow bore on the question whether, as at March 1986, the land was likely to be needed for nature conservation).
[38] As regards the period from March 1986 to March 2003, the position is less clear: it is not apparent that the land claim was an operative factor in the non-inclusion of the land during that period. However, apart from the land claim, the only matter standing in the way of inclusion of the lands in Budderoo National Park (both when it was originally established and thereafter) was opposition from DMR; so it was the likelihood (as at the date of the claim) of the persistence and success of this opposition, on which some light could be shed by what happened in relation to DMR opposition after the claim, that was relevant, and not the bare fact of subsequent non-inclusion of the land. So in my opinion, while reference to non-inclusion of the land in Budderoo National Park from March 1986 to March 2003 would not itself have manifested error, in its context and in combination with the other matters I have mentioned, it does do so.
[39] In my opinion, having regard to these considerations, the primary judge did not decide the correct question, namely whether the land was, as a matter of fact, likely to be needed for an essential purpose; but rather he addressed a question distorted by irrelevant considerations, namely whether any trajectory towards the existence of such need was itself at the appropriate government level, and whether the land had been included in Budderoo National Park up to the date of the hearing.
…
[41] The appeal to this Court in this case is against a decision with respect to a question of law; and what is being challenged is not the exercise of a discretion but a determination whether or not a state of affairs satisfies a statutory description . In relation to such challenges, I accept that a finding that a judge has taken into account irrelevant considerations may in some circumstances not involve an erroneous decision on a question of law, but may merely be an error in reasoning on a question of fact. However, in the present case the primary judge's reliance on irrelevant considerations does, in my opinion, show that he was misapplying the statutory description and thus was making an error of law.
[42] The next question is whether the errors I have identified were material to the primary judge's decision. In my opinion, they were: there is a reasonable possibility that, but for those errors, the decision could have been different .”

45 It can be seen that Hodgson JA, speaking for the Court of Appeal’s majority, noted (at [33]) that the Minister relied on subsequent events to confirm a foresight at the date of claim that DMR objections were unlikely to prevail over the argument in favour of executive reservation of the claimed and other lands to establish a “continuous chain of areas” (or a “corridor” as some of the research described it) for nature conservation, particularly in the area of the escarpment already in national park.

46 The majority then held (in [35]) that “where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement…and…this need…be…only a trajectory towards a requirement at the appropriate Government level.” Hodgson JA’s majority judgment dealt with the period March 1986 to March 2003, a period of 17 years (in [38]), and concluded (in [39]), on the basis of all the circumstances, including that history, that in my primary judgment I had framed and answered the wrong question.

47 It should be noted that for much of this 17 year time period the existence of the outstanding land claim was simply overlooked (see the Lands Department’s contradictory correspondence in February 2003 regarding the transfer of the eastern lands to National Parks – Exhibit M2, fols 440-1). There are hints in Basten JA’s judgment (at [77]), that 17 years might be an “impermissible” period.

Consideration

48 In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285, Kirby J said:

“19. …The principle mandating a beneficial and remedial interpretation of the Land Rights Act requires that exceptions to the right to claim land under that Act should be construed narrowly. The same principle necessarily applies to the interpretation of disqualifications from entitlements under the Land Rights Act.

20. Furthermore, in interpreting legislation that has a substantive impact upon Aboriginal rights, enjoyed by statute or by the common law, any ambiguity should be resolved in a way that is favourable to the rights of Aboriginal peoples.”

49 In this case it might be thought that there was a collision of several “essential public purposes”, namely (1) proactive nature conservation by land reservation, (2) the facilitation of the exploitation of valuable coal reserves, and (3) reinstatement of appropriate lands to aboriginal custody.

50 However, as Mr Kirk observed, “competing imperatives … were entirely reconcilable” as at 3 March 1986 because of the 15m policy, and the “only real potential conflict between national park or land claim on the one hand and mining on the other was access” on “half of the western claim” (see T8.12.09, p10, LL46-9, and p13, LL28-32).

51 As the coal mining could be restricted to levels more than 15m below the surface, it could coexist with aboriginal custody or nature conservation on the surface, but the need for appropriate access and pit-head infrastructure on the surface would be incompatible with achieving either of those other two essential public purposes.

52 During the twenty years that elapsed between the land claim and its refusal, the focus was on the clash between the NPWS desire for the lands to be added to the park and the concern of DMR that mining not be excluded – much of the evidence suggests that the land claim was largely ignored or overlooked ([47] above), and it was clearly overlooked when Premier Carr gave his March 2003 election undertaking to link the two national parks on the escarpment (to form the long-envisaged “Greater Illawarra Escarpment National Park”). However, there is no reason to believe that the DMR objection to the land claim would be any different from its objection to the park proposal (T7.12.09, p28, LL48-50, c.f. T7.12.09, p49, LL3-6).

53 In any event, the dealings among relevant government agencies appear to have been quite cordial. NPWS accepted the “economic coal” imperatives driving DMR opposition, and the DMR accepted the conservation value of the land. Both were far from inimical to the land claim, as it was capable of coexistence with mining, or native conservation.

54 The Minister’s submissions (pars 41-2, and 76) say that the threshold for establishing “likely to be needed” is “low”, but there is no authority advanced for that proposition. It seems to me to be contrary to the beneficial spirit of the legislation, and to Maroota ([43] above), which established that the word ”likely” in s36(1)(c) “conveyed the notion of a substantial, that is, a real and not remote chance”, but also identified the question of essentiality, that “it was not enough that the public purpose within s36(1)(c) be desirable or highly desirable – it had to be essential” (see [55] and [57]). In the present matter the Court of Appeal talked of “substantial chance” – as Dr Griffiths said (T7.12.09, p52, LL4-5): “It’s not easy to reconcile the notion of a substantial chance … with the description of a low threshold”. I agree with that observation.

55 The Minister’s submissions present the argument that the DMR objection was always of a “contingent” nature (see T8.12.09, p7, LL42ff), and (in par 42) they assert that the threshold, “low” or otherwise, is satisfied by virtue of three factors:

“ Had there been no possibility or only a remote possibility that the DMR would consent to the inclusion of the northern lands in the proposal:
(a) The DMR would not have made its position conditional on the outcome of the drilling tests; it would have opposed the proposal outright;
(b) The DMR would not have agreed to put the area subject to the drilling tests under a management plan to be administered conjointly with the NPWS in order to protect the conservation values of the area;
(c) The DMR would not have subsequently entered into dialogue with the holders of exploratory interests (Coal Authorisations) to ascertain their precise surface level access needs (if any) from the claimed land into coal seams located in contiguous areas”.

56 The Minister goes on to suggest (at par 44) that the DMR objections had disappeared, or would have disappeared, by 1993:

“To the extent that this post-claim evidence is relevant, it confirms that the objections were, at the date of claim, conceived to be of a temporary and provisional nature, and ultimately evaporated. The resolution of almost all mining related objections by 1987-1989, and their complete disappearance by 1993, strengthens the probability that, as at the date of claim, the claimed land would have been required at a point in the future, for the purpose of nature conservation.”

57 The DMR objections related not just to the areas of land under claim, but to all the lands north of the Schedule A line. The Minister’s proleptic assertion about the ultimate evaporation of these objections is not supported by either the pre-claim or the post-claim evidence. On the basis of what the Court of Appeal said (see [31] above), the evidence of the position 17 years post-claim confirms the foresight at 1986 that DMR objections would continue to prevent proclamation of the claimed lands as park. In 2003, with the then Premier’s announcement, it became politically imperative to resolve those objections once and for all. However, there is no evidence of the Government or its officers putting in place any process aimed at – or likely to result in – the resolution or removal of DMR objections to clear the way for park proclamation of the claimed land.

58 It was only after the 2001 change in the NPW legislation that DMR’s position changed, as mining became theoretically possible on conserved land. The Minister submits that it remained very difficult to achieve. The essential public purpose of nature conservation at no stage required inclusion of all relevant lands in National Parks. As at the date of claim some degree of nature conservation was also achievable by declaration of “Crown Reserves”, and, since 2001, an amendment to the NPW Act, has allowed for the establishment of “State Conservation Areas” (‘SCAs’) as an addition/alternative to National Parks. Management arrangements (or guidelines) were always negotiable.

59 The new DMR position was not withdrawal of its opposition to the addition of land north of the Schedule A line to the Budderoo National Park; it was to support “the change from Crown Reserve to SCA” for a number of Crown Reserves, including Tongarra. Although this DMR support extended only to Crown Reserves where there were no active exploration licences, the amended NPW Act allows for future grants of mining interests under certain conditions. This DMR approval – not a withdrawal of its objections to reserving the land as national park – was noted by the NPWS in a letter to State Forests in December 2003 (Exhibit M2, fol 446).

60 There is no question that the decisions to declare the Budderoo National Park, and define its boundaries to exclude the claimed lands, were decisions of the Executive Government, albeit that they were taken in accordance with a ministerial concurrence (or consensus) protocol, agreed upon by Cabinet in 1979, rather than by a meeting of Cabinet. Ministers can signify their commitment to a park proposal outside a formal meeting. The final stage of the consultation among Ministers followed the decision by the sponsoring Minister to exclude the claimed lands from the proposal.

61 Parks are proclaimed by the Governor on the motion of a Minister (not a government official or agency) to the Executive Council. Most of the background correspondence in evidence is authored by officials, and cannot automatically be taken to express the policy or decisions of the Executive Government. The position of the Executive Government as to whether that reserved area was only a “first stage”, “initial reservation”, or “initial core area” is less clear. NPWS certainly held the view that the reserved area was a first stage only and clearly there was within the government an aspiration to reserve as park the lands along the escarpment between Macquarie Pass National Park and Budderoo National Park. Minister Carr endorsed that aspiration in 1985, took forward what was achievable in 1986, and, as Premier in 2003, sought to fulfil the balance of it.

62 The NPWS view to that effect endured throughout the period surveyed in the case. It was expressed in the documents referred to in the Minister’s submissions (par 40). Two letters from Ministers (Exhibit M1, fols 203-4 and 224-5) refer to “the first stage”. Both Ministers were writing in their then capacity as Minister for Planning and the Environment to the local member for Kiama in response to concerns raised by him, not as representing a particular decision taken by the Executive Government. The other documents tendered reflect the position of NPWS, not the (whole of) government’s position, that the declaration of Budderoo National Park in 1986 was a first stage only. The NPWS appears never to have shifted its position over the years since at earliest, 1985, but its view did not transform itself into a Government position.

63 The evidence supports an interpretation that the Minister for the Environment, as well as the NPWS, hoped in 1985-86 that there would, in the future, be a Government requirement for the claimed land to be needed for nature conservation, and that there was a real and “not remote” chance that this would be the case. However, this could not be realised without the consent of the Minister for Mineral Resources; without that consent, the hope could not become a requirement “at the appropriate Government level”. As noted above, no mechanism was put in place to resolve the conflict between the positions taken by the respective responsible Ministers, either at the date of claim, or later.

64 The Minister, in his Submissions in Reply (par 12), suggests that “the ongoing discussions between government agencies” were “conducted in an entirely collegial way”, and the evidence supports this view. However, the DMR objections were not withdrawn until after the amendments to the NPW Act in 2001 introduced the possibility of the co-existence of nature conservation and mining through the establishment of SCAs. Unlike national parks, SCAs “protect native vegetation and habitats while allowing coal, gas, petroleum and other mining, subject to appropriate environmental assessment and approvals”. Under the amendment, SCAs may be revoked and the land reserved as a national park or nature reserve, but “only with the concurrence in writing of the Minister administering the Mining Act 1992”.

65 The letter from the Minister for Mineral Resources and Energy of 26 August 1985 (Exhibit M1, fol 222), referred to by the Court of Appeal is not inconsistent with the DMR position taken once SCAs became possible. DMR’s objections both pre-claim, and then up to 2003, were not hostile to the NPWS’s desire to see the claimed lands managed in accordance with NPWS guidelines, although the Minister’s letter refers specifically to the need in that regard “to protect the integrity of the Carrington Falls catchment”. The DMR objections were to the reservation of the land such as to completely preclude mining or mining-related activities. Once that obstacle was removed, either by management under guidelines, or by introduction of SCAs, the DMR objections “evaporated”. The letter in no way carried any sense of the Minister or DMR seeing those objections in 1985 as temporary or provisional or as likely to be speedily resolved by completing the testing.

66 The subsequent Government decision to reserve part of the claimed land for the purposes of nature conservation made the government requirement of the claimed land for nature conservation “not remote” after the 2001 amendments, well after the date of the claim. The balance of the claimed land in the eastern area was reserved for Future Public Requirements on 31 March 2006 (Exhibit M4, tab 7).

67 I accept the claimant’s detailed submissions (pars 43ff) to refute the Minister’s case that the DMR objections were “temporary”, “provisional” and likely to be removed. Those submissions place some reliance on post-claim evidence (pars 49ff). I found in the primary decision that, as at the date of claim, the only available foresight was continued opposition by the DMR, and the available post-claim evidence simply confirmed it (see claimant subs par 62).

68 Taking into account again the evidence of DMR’s position both pre-claim and up to 2003, therefore, and the absence of any indication as at the date of claim that the government would introduce legislation sixteen years later that would accommodate DMR’s concerns while still allowing for the “essential public purpose” of nature conservation, I can only come to the same result again, and conclude that the Minister has failed to discharge the onus under s 36(1)(c).

Conclusion and Orders

69 Having so concluded, the appeal should be upheld and an order made for the transfer of the claimed land. I am, therefore, happy to make the orders urged upon the court by the claimant (subs par 64), namely that:

1. The appeal be upheld;
2. The claimed land be transferred to Illawarra Local Aboriginal Land Council in fee simple within 12 months, excluding the following portions:
(i) The part described in paragraph (a) of the Minister’s letter of refusal dated 22 June 2006; and
(ii) The portion denoted as public road in Annexure N to the affidavit of Henry J Watkins sworn 20 July 2007;
3. For the purpose of giving effect to Order 2, the Minister survey the land as soon as reasonably practicable; and
4. The respondent pay the applicant’s costs on the remitter.

70 I grant the parties liberty to apply within 14 days if it is considered that these orders should be varied in some respect to properly reflect these reasons.

71 The exhibits may be returned.