NSW Aboriginal Land Council v Minister Administering the Crown Lands Act

[2007] NSWLEC 481

Land and Environment Court

of New South Wales

CITATION:

NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481

PARTIES:

APPLICANT
New South Wales Aboriginal Land Council

RESPONDENT
Minister Administering the Crown Lands Act

FILE NUMBER(S):

31484 of 2005

CORAM:

Jagot J - Jacobsen AC

KEY ISSUES:

Appeal :- Aboriginal land claim - whether land likely to be needed for essential public purpose of nature conservation (national park) - appeal dismissed

LEGISLATION CITED:

Aboriginal Land Rights Act 1983
Native Title Act 1993 (Cth)
Crown Lands Act 1989
Environmental Planning and Assessment Act 1979
Forestry and National Park Estate Act 1998
National Parks and Wildlife Act 1974

CASES CITED:

Housing Commissioner of New South Wales v Falconer [1981] 1 NSWLR 547;
Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ;
Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665;
NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685

DATES OF HEARING:

3-4/7/07, further submissions - 30/7/07

 
DATE OF JUDGMENT: 

10 August 2007

LEGAL REPRESENTATIVES:

APPLICANT
Mr J E Griffiths SC
SOLICITORS
Chalk & Fitzgerald

RESPONDENT
Mr M J Leeming SC with Dr C Mantziaris
SOLICITORS
Crown Solicitor's Office

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

10 August 2007

31484 of 2005

NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT
Respondent

JUDGMENT

Jagot J:
A. The appeal

1 On 15 March 2005 the New South Wales Aboriginal Land Council (the Land Council) claimed land described as “lot 503 DP 755264 and adjacent Crown land” at Evans Head (the claimed land) under Div 2 of Pt 2 of the Aboriginal Land Rights Act 1983 (the ALR Act).

2 The Minister refused the claim on 26 October 2005 on the basis that the claimed land was not “claimable Crown land” within the meaning of s 36(1) of the ALR Act as it was subject to a native title application registered on 29 June 2000. The Land Council has appealed against this refusal under s 36(6) of the ALR Act. The Minister no longer relies on the native title application but contends that the claimed land is not “claimable Crown land” by reason of s 36(1)(c) of the ALR Act, being land likely to be needed for the essential public purpose of nature conservation (national park) when the claim was made. The Minister must satisfy the Court that the claimed land is not “claimable Crown land” on the single ground identified (s 36(7) of the ALR Act). Acting Commissioner Jacobsen assisted me in this appeal.

B. Some background observations

3 The claimed land is located to the immediate west of Iron Gates Road and has a total area of about 39 hectares. Lot 503 is in two parts, divided by a road. The northern part of lot 503 is larger, about 28 hectares. The Crown reserve R 90237 is a small parcel to the immediate west situated between the northern and southern parts of lot 503.

4 Other land that is not part of the claimed land is also relevant to the appeal. To the immediate south of the Crown reserve and west of the southern part of lot 503 is lot 429. Lot 429 is small compared to lot 503. On the other side of Iron Gates Road between the claimed land and the Broadwater National Park is lot 534. Lot 534 is large, roughly similar in area to the claimed land. Lot 534 adjoins the Broadwater National Park on its western boundary.

5 The claimed land, lot 429 and lot 534 are within an area referred to as “Broadwater NP Adds” or “Broadwater NP Additions” in many of the documents relevant to this appeal. Broadwater NP stands for Broadwater National Park. The land within “Broadwater NP Adds” has an area of about 76 hectares in total.

6 The northern part of lot 503 is zoned part 1(d) Rural (Urban Investigation) and part 7(a) (Wetland). The southern part of lot 503 is zoned part 1(d) Rural (Urban Investigation) and part 1(e) Rural (Extractive and Mineral Resources). The Crown reserve is zoned 1(e) Rural (Extractive and Mineral Resources). Lot 534 is zoned 4(a) Industrial.

7 Many government departments and officers of those departments have had dealings with the claimed land relevant to resolution of the appeal. Those departments have been restructured and renamed on more than one occasion. The responsibilities of various officers have also changed both by reason of the restructure and otherwise. For these reasons, a short description of the relevant departments and personnel may assist.

8 Relevant departments include:

DEC : - the Department of Environment and Climate Change, formerly known as the Department of Environment and Conservation. This department incorporates the National Parks and Wildlife Service (NPWS) constituted under the National Parks and Wildlife Act 1974 (the NPW Act). I refer to this department as “DEC” unless dealing with officers of the NPWS as constituted by s 6 of the NPW Act before incorporation within DEC.

DMR: - the (former) Department of Mineral Resources, currently the Department of Primary Industries. This department is sometimes referred to as DPI or DPI (Minerals) in the later documents.

Department of Lands: - referred to as DLWC (Department of Land and Water Conservation) in the earlier documents. It is sometimes abbreviated to DoL.

Department of Planning: - referred to as DUAP (Department of Urban Affairs and Planning) and DIPNR (Department of Infrastructure Planning and Natural Resources).

NPWS means the National Parks and Wildlife Service constituted under s 6 of the NPW Act.

9 Relevant people include:

Shelley Braithwaite : – an officer of NPWS and later DEC, responsible for co-ordinating the review of Crown lands from mid 2002 onwards.

Kevin Shanahan: – an officer of NPWS and later DEC (Manager, Reserve Establishment and Land Information).

Ashley Love: – an officer of NPWS and later DEC (Manager, Conservation and Assessment Data Unit).

Gary Davey: - an officer of NPWS and later DEC (Acting Director Northern Branch).

Dr Chris Guest: - an officer of the Department of Lands (Deputy Director General).

Robert (Bob) Fish: – an officer of the Department of Lands (Manager Operations, Far North Coast).

Annette Wheeler: - an officer of the Department of Lands (Planning Officer, Crown Lands).

Tim Rabbidge: – an officer of the Department of Lands (when it was DLWC) who transferred the Department of Planning (Landscape Planning Manager) when the departments were restructured.

Robert Barnes: – an officer of the DMR (Senior Geologist, Strategic Assessments).

Cameron Ricketts: – an officer of the DMR (Chief Geoscientist, Land Use, Geographical Survey of NSW).

C. Statutory provisions and legal principles

10 The long title of the ALR Act identifies the background against which its provisions were to operate – namely,

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:

BE it therefore enacted … as follows:

11 Section 3 provides:

The purposes of this Act are as follows:
(a) to provide land rights for Aboriginal persons in New South Wales,
(b) to provide for representative Aboriginal Land Councils in New South Wales,
(c) to vest land in those Councils,
(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,
(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.

12 Section 36(1) defines “claimable Crown lands”.

(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
(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
(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).

13 Under s 36(2), the Land Council may claim land on its own behalf. Claims are to be made in accordance with s 36(4). The Minister’s obligations with respect to claims are contained in s 36(5):

(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:
(a) if the Crown Lands Minister is satisfied that:
(i) the whole of the lands claimed is claimable Crown lands, or
(ii) part only of the lands claimed is claimable Crown lands,
grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or
(b) if the Crown Lands Minister is satisfied that:
(i) the whole of the lands claimed is not claimable Crown lands, or
(ii) part of the lands claimed is not claimable Crown lands,
refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

14 The right of appeal is vested in claimant land councils by s 36(6). Under s 36(7):

The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

15 Section 36(8) enables the Minister to issue a conclusive evidence certificate. There is no certificate in this appeal.

16 Under the NPW Act the Governor may reserve land as a national park by notice published in the gazette (s 30A).

17 There was no dispute between the parties with respect to the relevant principles. In summary:

(1) The ALR Act is beneficial and remedial legislation and is to be construed accordingly ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [54] and the cases cited therein).

(2) Section 36(1) fixes the relevant time when its conditions must be satisfied as the time when the claim is made ( NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 at 691F).

(3) The Court’s power in s 36(7) is not discretionary but is one the Court is bound to exercise in the claimant land council’s favour if the circumstances specified in the section are made out ( NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 at 693C).

(4) The question whether land is not needed, nor likely to be needed, for an essential public purpose is one of fact ( NSW Aboriginal Land Council v Minister (1988) 14 NSWLR 685 at 691G-692A).

(5) “Needed” in s 36(1)(c) means “required or “wanted”. The Court does not have to “second guess” the government. The only questions are whether the purpose was an essential public purpose and, if so, whether the Executive Government needed (in the sense of required or wanted) the claimed land for that purpose when the claim was made ( Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D per Handley and Powell JJA). The question whether land is not needed, nor likely to be needed “is essentially a question of the view held by the government on the day when the claim was made” ( Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 252C per Meagher JA, in dissent on other grounds). The relevant search is for an “expression of political will” to declare an area to be a national park ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [62], [73] and [74]).

(6) In s 36(1)(c) the exception is expressed in terms of an essential public purpose. This requirement of essentiality “counter-balances the implication of the beneficial construction to which the Aboriginal Land Rights Act would otherwise be entitled”. Hence, the word “likely” does not mean more probably than not, but a “real or not remote chance” or “real chance or [real] possibility” ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [53] – [57] and [73]).

(7) Evidence of events after the making of the claim may be logically probative of the issue whether land was not needed or likely to be needed for an essential public purpose when the claim was made. Such evidence may not be used to “prove a hindsight, but to confirm a foresight” ( Housing Commissioner of New South Wales v Falconer [1981] 1 NSWLR 547 at 558, referred to in Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [69] – [71]).

18 The parties agreed that the purpose of nature conservation (national park) is an essential public purpose (see s 36A of the ALR Act). The parties were at issue concerning the inferences that ought to be drawn from the (largely undisputed) primary facts. They were also at odds about the relevance of material that came into existence after the claim was made, although it would be fair to observe that each sought to rely on such material where it supported their case. Any use of such material must accord with the principles identified above.

D. Evidence

General remarks

19 The parties relied on material spanning the best part of 15 years. It is necessary to refer to this material in some detail to understand the competing submissions.

Before the claim on 15 March 2005

General

20 In December 1992, the NSW government endorsed the National Forest Policy Statement. The statement contained the agreed strategy and policy initiatives of the Commonwealth and States for forest management within Australia. The agreed strategy and policy included conservation goals. The governments agreed to review the appropriateness of existing reserve systems and determine further actions required to complete the development of a “comprehensive, adequate and representative” network of reserves (frequently referred to as a “CAR” system). The governments established a working party of technical experts to advise on broad criteria on which to base the reserve system. Nationally agreed criteria were published in 1997 (under a full authorship and title too lengthy to repeat, but which has attracted the acronym “JANIS”). The criteria gave content to the principles of comprehensiveness, adequacy and representativeness and specified detailed requirements for achieving these principles, focusing on Crown lands in the first instance. The criteria included protecting at least 15% of the pre 1750 distribution of each forest ecosystem, reserving 60% of the remaining extent of vulnerable forest ecosystems and reserving or protecting all remaining occurrences of rare and endangered forest ecosystems. Implementing these criteria required assessments of forest ecosystems and the creation of databases to allow effective use of the information collected through the assessments.

21 From 1996 environmental reviews had been conducted to collect information about the environmental and heritage values of forests throughout the State (known as the comprehensive regional assessment process). These assessments were pre-conditions to the making of forest agreements under Pt 3 of the legislation that became the Forestry and National Park Estate Act 1998. The Resource and Conservation Assessment Council conducted the comprehensive regional assessment for the northeast region. As part of this process, the forests were classified and mapped as a series of ecosystems. NPWS entered the information onto a database by reference to planning land unit identification (“PLUID” or “pluid”) numbers allocated to each parcel in the region. NPWS organised this information by reference to the JANIS criteria. The database also contained information on the status of the lands (such as private freehold, State forests, NPWS reserved land, Crown leasehold and vacant Crown land). NPWS developed targets for each category of land including high conservation value vacant Crown land to direct its negotiations with other departments under the forest agreements anticipated as part of the Forestry and National Park Estate Act 1998 and related Cabinet decisions about achieving a comprehensive, adequate and representative reserve system.

22 A Cabinet minute dated 11 November 1998 recommended:

3.22 That Cabinet approve the process for gazettal of Crown Land administered under the Crown Land Act identified for potential addition to the formal reserve system in the Upper and Lower North East Region after consultation with the Dept of Land and Water Conservation, Dept of Mineral Resources and other stakeholders (see sections 6.8).

…

6.8 Land administered under the Crown Lands Act

6.8.1 Approximately 72,420ha of land administered under the Crown Land Act has been identified for possible inclusion in the reserve system in the Upper and Lower North East Regions. This consists of approximately 25,693ha in the Upper North East Region, and 46,727ha in the Lower North East Region.

6.8.2 The Crown Land identified for possible inclusion in the reserve system can be distinguished between Crown Land where there are no mineral or petroleum issues (yellow on the attached maps, and labelled “Existing Crown Land”), and Crown land which is subject to mineral and petroleum considerations (orange on the attached maps, and labelled “Existing Crown Land subject to mineral consideration”). In the Upper North East, approximately 4,288ha of Crown Land identified for proposed addition to the reserve system (out of a total of 25,693ha) has been identified as having high mineral prospectivity, while for the Lower North East, 39,733ha of Crown Land (out of a total of 46,727ha) has been identified as having high mineral prospectivity.

6.8.3 The National Parks and Wildlife Service will undertake negotiations with the Dept of Land and Water Conservation, the Dept of Mineral Resources and other stakeholders to determine if any of the identified Crown Lands proposed for reservation have continuing major constraints or are unsuitable for declaration as informal or formal reserves. These negotiations are to commence on the passing of the Forestry and National Parks Estate Bill. By February 28,1999, proposed Crown Land found suitable for inclusion in the reserve system in the Upper and Lower North East Regions as a result of these negotiations will be gazetted by the NPWS. It is envisaged the negotiations may result in a proportion of the identified Crown Land subject to mineral objections may become Crown Reserves dedicated under the Crown Lands Act as outlined in sec 6.5.

23 On 12 November 1998 Cabinet:

22. approved the process for gazettal of Crown Land administered under the Crown Land Act identified for potential addition to the formal reserve system in the Upper and Lower North East Region after consultation with the Department of Land and Water Conservation, Department of Mineral Resources and other stakeholders (see section 6.8 of the Cabinet Minute);

24 It is not clear whether the claimed land was specifically identified as part of this process approved by Cabinet in 1998. However, the parties agree the claimed land was subject to a later decision of Cabinet in 2002 relating to the same process.

25 The primary provisions of the Forestry and National Park Estate Act 1998 anticipated by the Cabinet minute commenced on 1 January 1999. The claimed land is within the upper northeast region for the purposes of forest management. The claimed land contains three PLUID areas. The PLUID numbers for the claimed land are: (i) the northern section of lot 503 – 13340, (ii) the southern section of lot 503 – 13364, and (iii) the Crown reserve – 13359. Lot 534 was allocated number 13315 and lot 429 was allocated number 13367.

26 Mr Love (NPWS) was involved in the early phase of the negotiations in 1998. He caused a table to be prepared from information in the database to assist the negotiations. The table disclosed the relative importance of land in the region within the class of high conservation value vacant Crown land. The claimed land was identified in that table. It contained primarily forest ecosystem “Swamp UCFE”, with a smaller area of “Banksia UCFE” on the southern section of lot 503. “UCFE” stands for under conserved forest ecosystem. “Swamp UCFE” is “endangered” and “Banksia UCFE” is “rare” as referred to in the JANIS criteria. Both ecosystems thus fell within the target of “reserving or protecting all remaining occurrences of rare and endangered forest ecosystems”. The claimed land was also classified by NPWS as including wetlands protected by State Environmental Planning Policy No 14—Coastal Wetlands, wildlife corridors and habitat for the Wallum Froglet, which is a threatened species. Lot 534 also contains Banksia and Swamp forest ecosystems.

NPWS and Department of Lands

27 NPWS described the negotiations required by the Cabinet’s decision as the “Crown lands review process”. Although the Department of Lands later contended to NPWS that this process was separate from obligations under forest agreements, there was substantial overlap between the two processes. The initial purpose of this review, according to Ms Braithwaite, was to “confirm which of the parcels of land that were identified by Cabinet in 1998 as lands for ‘possible inclusion in the reserve system’, should be included in the reserve system”. After 2002, this process expanded to deal with additional parcels of land identified for consideration in the reserve system by Cabinet’s decision in 2002. Ms Braithwaite described the process as requiring NPWS (now DEC) to assess land in consultation with other Government departments to ascertain whether vacant Crown land with forest conservation values not adequately represented in the existing reserve system are suitable for transfer to the reserve system. The other agencies primarily involved in this process are the Department of Lands, the DMR (now DPI), councils and reserve trusts. NPWS (now DEC) policy is not to gazette lands for reservation under the NPW Act absent agreement of all relevant agencies. The purpose was to agree the vacant Crown land to be reserved for conservation in accordance with the National Forest Policy Statement, the JANIS criteria, the 1998 Cabinet decision and the 2002 Cabinet decision. The review was conducted in four stages due to its complexity. Stage 1 dealt with Crown lands unencumbered by any restraint for reservation, stage 2 with lands encumbered by licences or permissive occupancies and stages 3 and 4 with lands requiring further negotiations with stakeholders. The area subject to review extended from the border with Queensland to Newcastle. Between 2002 and 2005 Ms Braithwaite dealt with approximately 253 parcels of land covering 53,000 hectares.

28 An early step in the Crown lands review process involved a meeting at Coffs Harbour on 21–22 December 1998 between NPWS, the Department of Lands and the DMR. The purpose was to decide whether to include in the reserves system land identified for possible transfer. A log created by NPWS for the negotiations on 21–22 December 1998 contains an entry against an item “Stage; Irongates Additions To Broadwater” as follows:

…

SP over 1 pluid and Need for urban extension NPWS note areas of high conservation value will comment at appropriate time

13315

13340

13364

29 Another record of the same meeting (probably created by the Department of Lands) operates by reference to a number key, with the numbers having defined meanings. Against the northern part of lot 503 (PLUID 13340) the record says that the area’s “DLWC status” was “ALC or no go”, its “DMR status” was “no objection”, its “NPWS interest” was “no interest” and its “negotiated outcome” was “not proposed for reserves at this time”, with an additional comment “DLWC objections – possible urban/industry expansion”. Against the southern part of lot 503 (PLUID 13364) the same entries are recorded for “DLWC status” and “NPWS interest”. There is no record against “DMR status”. The entry against “negotiated outcome” is “No NPWS interest”. The comment is “DLWC interest – Possible urban/industry expansion”. I infer that “ALC” means Aboriginal land claim. An earlier Aboriginal land claim had been lodged in 1990 over land including lot 503. It was determined on 21 April 1997 by granting much of the claimed area, but refusing the claim for lot 503 by reason of a special lease for plantation purposes. The current claim was not lodged until March 2005.

30 On 5 March 1999, the relevant Ministers (Minister for Natural Resources, Minister for the Environment and Minister for Primary Industries) entered into a forest agreement for the northeast region as contemplated by Pt 3 of the Forestry and National Park Estate Act 1998 (the Forest Agreement for Upper North East NSW). The agreement contains provisions dealing with managing “JANIS dedicated reserves” (sections 2.3.2 and 2.3.3). Section 2.3.3 provides:

The NPWS * and the Department of Mineral Resources must undertake to review all Crown Reserves * every five years. Any areas no longer requiring consideration of mineral interests must be dedicated under the National Parks and Wildlife Act 1974, with the concurrence of the Minister administering the Mining Act 1972.

Section 6.16.2 concerns “lands for further considerations” and provides:

The Directors-General of Urban Affairs and Planning, National Parks and Wildlife and the Chief Executive Officer of SFNSW * in liaison with the Director-General of the Department of Mineral Resources must identify certain additional areas as ‘available for formal reservation’. These areas will be refined from the ‘areas’ for further consideration’ established by the Government’s decision. The process for identifying these lands is that described in the DUAP * memo dated 4 February 1999 and entitled “Procedure for dealing with lands for further consideration for reservation”. Any of these areas (excluding areas of leasehold) which the Agencies agree is suitable for formal reservation must be dedicated as soon as practicable. Minor variations outside the boundaries of the ‘areas for further consideration’ may also be included.

…

NPWS* must assess the forest conservation values of remaining vacant Crown land in consultation with the Department of Land and Water Conservation, the Department of Mineral Resources and other relevant stakeholders by 1 January 2003. Vacant Crown land areas with forest conservation values not adequately represented in the existing reserve system must be designated as dedicated* or informal reserves* unless there are significant reasons for exclusion.

…

DUAP* , SFNSW* , and NPWS* agree that any tenure changes to any of these lands as a result of the above process must not occur without prior consultation with DMR* .

31 Dedicated reserves were defined to include national parks under the NPW Act and certain other land tenures sufficient to secure land permanently for conservation purposes. Informal reserves were defined more broadly.

32 In August 1999, as part of the comprehensive regional assessment process, the Department of Planning and Commonwealth Government published a report entitled “Response to Disturbance of Forest Species: Upper North East and Lower North East Regions”. This report identifies detailed targets for the quantity of land needed to achieve conservation of endemic flora and fauna.

33 On 23 October 2000 the Director-General of NPWS wrote to the Director-General of the Department of Lands noting that stages 1 and 2 of the Crown lands review process were complete and it was proposed to commence with what was then described as the “third and final stage of the assessment and consultation over the next nine months”.

34 Matters proved more complicated and took longer than anticipated. Mr O’Gorman of the NPWS wrote to Dr Guest (the Assistant Director-General of the Department of Lands) on 19 April 2002 commencing stage 4 of the process. A Department of Lands memorandum of 18 October 2002 discloses the background to the delayed commencement of this stage of the negotiations, including cumbersome checking and deleting processes as well as clashes with other commitments. As part of the initial steps in stage 4 NPWS sent digital maps of the areas NPWS considered should be made available for conservation within the reserves system to the Department of Lands. These digital maps included the claimed land.

35 On 11 October 2002 officers of NPWS (including Ms Braithwaite) met with officers of the Department of Lands. They agreed that the negotiations as part of the Crown lands review process should be conducted between NPWS and relevant district offices of the Department of Lands. The Department of Lands memorandum of 18 October 2002 recorded that the Department agreed on the transfer of the “majority of lands for transfer, except for areas required or potentially required for urban use or infrastructure”. The memorandum noted that NPWS had put forward additional lands for transfer including lands agreed for exclusion during stage 2, which NPWS sought to have reconsidered by 30 June 2003.

36 On 23 October 2002 NPWS (Mr Davey, the Acting Director Northern) wrote to Dr Guest (the Department of Lands) about the meeting on 11 October 2002. The letter sought to confirm the Department of Lands’ agreement to propositions discussed at the meeting including: - (i) all high conservation vacant Crown land for review was shown on the map accompanying a draft Cabinet minute and the Department of Lands agreed that NPWS would seek in principle endorsement from Cabinet for the “continuation of consideration of these lands for transfer to the national park estate” and (ii) the date for finalising transfers be extended until June 2003.

37 An internal Department of Lands’ memorandum of 4 November 2002 prepared by Ms Wheeler addressed the NPWS letter. The memorandum noted that the NPWS letter “implies that DLWC has agreed to the transfer of all high conservation lands identified by NPWS. Any maps that accompany a cabinet minute that seeks endorsement for the transfer of Crown lands to the national parks estate needs to be endorsed by DLWC. This has been the situation for all RFAs that have been translated into legislation in map form rather than property description”. The Department of Lands (Dr Guest) wrote to NPWS (Mr Davey) on 4 November 2002 observing that the majority of matters were agreed subject to comments. One comment was that any maps to accompany a Cabinet minute seeking endorsement to the national park estate had to be endorsed by the Department of Lands.

38 A handwritten internal Department of Lands’ memorandum from “Bob” (Mr Fish) to “Annette” (Ms Wheeler) was most likely prepared around this time. Mr Fish was the Manager, Operations – Far North Coast. The memorandum relates to land at Evans Head. From the attached map it is apparent that its subject matter included the claimed land and lot 534. The memorandum said the Department of Lands objected to any transfer of these lands because they might be required for future development. The Department would carry out an assessment and then consider any further boundary rationalisation.

39 On 11 November 2002 Cabinet considered a minute dated 4 November 2002 relating to additions to the NPWS estate in various regions including the upper northeast region. The minute observed:

5.7 Crown lands negotiations

Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement agreed that the assessment of Crown lands for transfer to NPWS estate be completed by January 2003. To date, approximately 40 000 hectares have been transferred to NPWS under this process. A further 47 500 hectares of crown lands have been identified for consideration for addition to the NPWS estate under this process. These lands are identified on the attached maps (N2 and N4). These are indicative maps showing those crown lands that have been identified to date.

As at 11 October 2002, 6957 hectares of these identified Crown lands have been agreed to by DLWC and Dept of Mineral Resources for immediate transfer to the NPWS estate. These agreed areas are represented on the attached maps (N2 and N4). These are indicative maps only. Cabinet endorsement is sought for the reservation of these lands as NPWS estate by June 2003.

NPWS and DLWC have agreed on a process which will finalise the assessment of high conservation value Crown lands in northern NSW by June 2003. In-principle endorsement is sought from Cabinet for the continuation of consideration of these lands for transfer to the NPWS estate, as well as any further lands agreed between DLWC and NPWS that may be of high conservation value. These ongoing assessments will take into account land use interests such as mining and grazing, in accordance with the process outlines in the northern Forest Agreements.

40 The minute recommended:

2.5 That Cabinet endorse, as a result of both the Vacant Crown Land Review conducted by NPWS and Department of Land and Water Conservation according to the decision of Cabinet (Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement), and also additional Crown land assessed by agreement between DLWC and NPWS, the transfer of 6957 hectares of Crown land to the NPWS estate comprising (1879 hectares of national park, 255 hectares of nature reserve and 4803 hectares of State Conservation Areas) (refer 5.1 and 5.7).

2.6 That Cabinet note that the balance of the Crown land reviews will be completed by 30 June 2003, following which transfers to the NPWS estate will be recommended. Following endorsement of these recommendations, reservation of the agreed areas as national park, nature reserve or state conservation area will occur.

41 Section 5.1 of the Cabinet minute included a table of land “proposed to be transferred”. Against the entry for Crown land (47,577 ha) the figure 6957 appeared under the column “total transfer later”, with a footnote 3. Footnote 3 said, “In addition to this area, there remains approximately 40,600 hectares of Vacant Crown Lands to be assessed for possible transfer to the NPWS estate (refer 2.5 and 5.7)”.

42 Map N2 is “Additions to National Parks Estate – Northern 2002 Miscellaneous Areas Not in the Proposed National Parks Estate (Reservation) Bill 2002 Upper North East Region”. The parties agree that the claimed land was shown on map N2 as dark green “Crown Land subject to ongoing negotiation”.

43 On 11 November 2002, Cabinet:

v) endorsed, as a result of both the Vacant Crown Land Review conducted by the National Parks and Wildlife Service and the Department of Land and Water Conservation according to the decision of Cabinet (Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement), and also additional Crown land assessed by agreement between the Department of Land and Water Conservation and the National Parks and Wildlife Service, the transfer of 6957 hectares of Crown land to the National Parks and Wildlife Service (estate comprising 1,879 hectares of national park, 255 hectares of nature reserve and 4,803 hectares of State Conservation Areas) (as set out at section s5.1 and 5.7 in the Cabinet Minute);

vi) noted that the balance of the Crown land reviews will be completed by 30 June 2003, following which transfers to the National Parks and Wildlife Service estate will be recommended. Following endorsement of these recommendations: reservation of the agreed areas as national park, nature reserve or state conservation area are to occur.

44 Another forest agreement was executed in 2002, being the Forest Agreement for Upper and Lower North East Regions. That agreement contained a provision in the same terms as a provision in the 1999 forest agreement – namely:

NPWS * must assess the forest conservation values of remaining vacant Crown land in consultation with the Department of Land and Water Conservation, the Department of Mineral Resources and other relevant stakeholders by 1 January 2003. Vacant Crown land areas with forest conservation values not adequately represented in the existing reserve system must be designated as dedicated * or informal reserves * unless there are significant reasons for exclusion.

45 On 1 May 2003 Mr Rabbidge sent a fax to Mr Fish (Department of Lands) identifying lot 503 as land zoned 7(a) Environmental. Mr Rabbidge wrote on the fax “therefore I think they can have 503 and 429”. He noted against lot 534 “zoned industrial leave till later”. Some time before May 2003 a departmental restructure resulted in part of the Department of Lands (then known as DLWC) being incorporated within the Department of Planning (then known as DIPNR). Mr Rabbidge appears to have been transferred from the Department of Lands to the Department of Planning as part of this process.

46 On 1 - 2 May 2003 Ms Braithwaite and Mr Love (NPWS) met Mr Rabbidge (with the Department of Planning) and then Mr Fish (Department of Lands). Mr Fish informed Ms Braithwaite that the Department of Lands would agree to transfer the northern but not the southern section of lot 503. The record of that meeting created by Ms Braithwaite is in tabular form. It contains the following entries for land identified as “Broadwater NP Adds” (that is, additions to Broadwater National Park, which included the claimed land and, relevantly, lots 534 and 429):

Crown Land	lot/DP	Parish	Comments	Tenure	DLWC Agreement for Transfer
# Broadwater NP Adds	Lot 429 DP 755624	Riley	Extractive reserve	NO
# Broadwater NP Adds	Lot 503 DP 755624	Riley	OK to area north of road; NO to area south of road
# Broadwater NP Adds	Lot 537 DP 729456; Lot 534 DP 820100	Riley	Subject to assessment for council needs	Zoned for industry	NO

47 On 10 June 2003 Mr Fish forwarded a response to Ms Braithwaite and Mr Rabbidge about the record of the outcomes of the 1–2 May 2003 meeting. Mr Fish said the comment for lots 534 and 537 should read “subject to assessment by Richmond Valley Council and Dept of Lands for urban infrastructure requirements – land zoned for industry”. Mr Rabbidge confirmed this as the position of the Department of Lands on 12 June 2003.

48 By October 2003 it is clear that officers within the Department of Lands were concerned that processes under the Cabinet decisions should be dealt with separately from processes under the regional forest agreements and the Department of Lands should be able to justify its actions more effectively. On 24 October 2003 the Manager of Crown Lands Policy sent a memorandum to the General Manager Crown Lands NSW addressing these concerns.

49 There were no further negotiations between NPWS and Department of Lands about the transfer of land to form part of the Broadwater National Park between May 2003 and July 2005. According to Ms Braithwaite this was a result of the position of the DMR (see below).

50 In 2004, NPWS was incorporated within DEC. Ms Braithwaite lost access to the two officers who had been assisting in the Crown lands review process. Ms Braithwaite’s role also altered as she acquired additional responsibilities when, previously, her primary task had been the Crown lands review process. Ms Braithwaite said that the available resources within NPWS for the process were reduced at this time from the equivalent of three full time officers to half a full time officer. At the same time Ms Braithwaite was responsible for the legislative processes relating to areas agreed for transfer to the national park estate, which involved substantial work. Ms Braithwaite therefore “reprioritised” her responsibilities to focus on taking the agreed areas through to gazettal but said she “never lost sight of eventual follow-up of the land”.

NPWS and the DMR

51 NPWS negotiated separately with the DMR. In January 2003 NPWS sought the DMR’s views on some 38 parcels of land as part of stage 4 of the Crown lands review process. The claimed land, lot 429 in DP 755624 and lot 534 in DP 820100 (the “Broadwater NP Adds” land), was part of the land referred by NPWS to the DMR for review. Ms Braithwaite sent an email to Mr Barnes of the DMR on 20 January 2003 containing digital maps and information saying, “attached is the shape file for the remaining Crown lands in need of DMR comment”. Mr Barnes’ responsibilities at this time included providing technical advice to senior officers of the DMR and to NPWS during negotiations about the reservation of lands under the forest agreements for the northeast region. After a request by NPWS had been made the DMR officers would ascertain whether it had an interest in any mining activity or minerals on the land by conducting a geological assessment addressing four issues (mineral excavation potential, previous mining or quarrying irrespective of its date, historical or current mining leases, existing mines or quarries). From the geological assessment the DMR would adopt one of three positions: - (i) if no mining or mineral interests were identified the DMR would approve transfer of the land, (ii) if any mining or mineral interests were identified from the DMR records the DMR would object to transfer of the land, and (iii) if any mining or mineral interests were identified from the DMR records but the DMR needed to verify its information or confirm the status of mines or quarries the DMR would indicate that the land may be approved for transfer subject to further inquiries, but the DMR reserved its right to object to transfer. Initial objections did not necessarily represent the DMR’s final position. Where NPWS sought to renegotiate, the DMR would engage in further discussions with NPWS and senior DMR officers could override the initial objection.

52 Mr Barnes received Ms Braithwaite’s email and responded the following day to the effect that the DMR’s response would be co-ordinated through its land use section in Sydney. Nevertheless, on 23 January 2003, Mr Barnes informed Ms Braithwaite by email that the DMR would need to “go through the whole process of looking at each of the areas for their mineral potential and existing constraints such as existing mining of exploration licenses”, which would take some time as it involved several areas within the DMR. Between 23 January and 4 April 2003 the DMR officers carried out geological assessments of thousands of hectares of land. A standard geological assessment of these parcels would have taken a couple of years, but the DMR dealt with these parcels in months because of the forest agreements. The DMR did not conduct a site inspection of the “Broadwater NP Adds” area, as its own records were sufficiently comprehensive to use as a basis for advice.

53 On 4 April 2003 Mr Barnes sent a further email to Ms Braithwaite attaching the DMR’s advice to NPWS about the referred lands. Each parcel was the subject of a response from one of the following:

· DMR OK The DMR has no objections to areas becoming any type of conservation reserve.

· DMR SCA The DMR will not object to these areas becoming State Conservation Areas which will allow access for mineral exploration and possible mining. The DMR objects to these areas becoming more restrictive formal reserves.

· DMR Objections The DMR has identified important mineral interests in these areas. These areas should remain available for mineral exploration and mining and include some existing operations in some areas. These areas should not be included as conservation reserves.

· DMR Provisional OK …These areas include small construction materials sites which are not administered by the DMR.

54 Mr Barnes’ email concluded with the request:

Please feel free to contact myself, Iain Paterson or John Watkins about these matters if necessary.

55 In the attachment the DMR identified the “Broadwater NP additions” as “DMR objection” specifying its reason for objection as “Section 117 notifications, quarries/pits”. Mr Barnes said the basis of this advice was the information in the DMR’s records that the land was formerly quarried for sandstone or some similar construction material. I understand the reference to be to s 117 of the Environmental Planning and Assessment Act 1979, enabling the Minister to direct public authorities with respect to plan making functions under that Act.

56 On 14 May 2003 Mr Davey (NPWS) wrote to Mr Gilligan (DMR – Assistant Director (Minerals)) observing that following negotiations 9,600 hectares of land was available for transfer, a relatively modest outcome. He suggested a meeting to reconsider the areas subject to the DMR objection to attain an outcome acceptable to both agencies. NPWS had prioritised 23 areas for reconsideration that were said to have agreement from all parties other than the DMR. All these areas were identified as having high conservation value and containing substantial amounts of under target forest ecosystems. The attachment of these areas included a reference to “Broadwater NP Adds”, with an area of 76 hectares (although, in fact, the Department of Lands had agreed to the transfer of the northern part of lot 503 only). It is not apparent whether there was any reply to this letter, but it is clear that no meeting occurred in response. Ms Braithwaite raised the issue of a reply with Mr Davey twice but understood it to be Mr Davey’s responsibility to chase the DMR.

After the claim on 15 March 2005

57 On 13 May 2005 the Director-General of DEC wrote to the Director-General of the Department of Lands observing that there appeared to have been a significant (and negative) change by the Department of Lands with respect to the process. The Director-General of DEC suggested a meeting to resolve concerns about these significant changes.

58 On 4 August 2005, and in anticipation of the meeting, Ms Braithwaite forwarded to Ms Wheeler a digital map of the “Broadwater NP Addition” land with the northern part of lot 503 shown as agreed Crown land and the balance of lot 503, the Crown reserve and lot 534 shown as Crown land. This reflected Ms Braithwaite’s understanding that the participants at the meeting in May 2003 had agreed to the transfer of the northern portion of lot 503 to the national park estate, whereas the balance of the land was still part of the negotiations through stage 4 of the process. Officers of DEC (Mr Wright, Mr O’Gorman and Ms Braithwaite) and the Department of Lands (Mr Hunt, Ms Wheeler and Ms Matchett) met on 8 August 2005.

59 On 20 September 2005 the Director-General of DEC signed a briefing note (prepared by Ms Braithwaite on 30 August 2005) recording the perceived difficulties experienced with the Department of Lands and the outcomes of the meeting on 8 August 2005. The briefing note calculated that 49,880 hectares of high conservation value Crown land would be transferred to the national park estate once the gazettal process was complete. With other lands not yet acted on and lands proposed for consideration the potential total outcome would be some 66,000 hectares, which was well within the 72,420 hectares foreshadowed by the 1998 Cabinet decision. The briefing note recommended that a letter be forwarded to the Department of Lands to record the position agreed at the meeting. The Director-General of DEC wrote to the Director-General of the Department of Lands on the same day, 20 September 2005. This letter recorded:

As you would be aware, the Cabinet Minute for the Forestry and National Park Estate Act 1998 identified approximately 72,240 ha of high conservation Crown land for possible inclusion in the reserve system in Upper and Lower North East Forest Agreement Regions. The Cabinet Minute required stakeholder negotiations to determine if any of the identified Crown lands proposed for reservation have continuing major constraints or are unsuitable for declaration as informal or formal reserves. Consequently, the 2002 Forest Agreements for Upper and Lower North East Regions of NSW state that vacant Crown land areas with forest conservation values not adequately represented in the existing reserve system must be designated as dedicated or informal reserves unless there are significant reasons for exclusion.

60 The letter continued:

Prior to the August 8 meeting DEC provided DoL with a list and individual maps of the known Crown lands within the NE RFA area. Of these 70 areas, 49 have since been selected for consideration under the terms of the RFA (refer Attachment 2), with the remaining 21 areas to be dealt with under the Reserve Referral Process. The total area for RFA consideration is now approximately 6,765 ha. Details of these areas, including conservation values, will be forwarded to Richard Hunt for distribution to DoL districts for comment. It was further agreed that on the completion of DoL’s assessment another meeting will be organised to confirm the future tenure of the areas. For those areas for consideration as part of the NE RFA process, I seek your agreement that both agencies work to have that completed by the end of 2005.

61 The letter observed:

To date, the total number of hectares of Crown land reserved under the National Parks and Wildlife Act 1974 or currently being considered for reservation is consistent with the intent of the 1998 Cabinet Minute. As the breakdown in the table at attachment 1 shows, the 14,697 ha for which DEC is seeking further negotiations with DoL would not exceed the 72,420 ha identified in the Cabinet Minute.

62 Although the Department of Lands and DMR had agreed to the transfer of 57 parcels of land (some containing multiple lots) by this time, DEC also had to consult with other stakeholders (such as councils and reserve trusts). Consequently, the formal reservation of these agreed parcels did not occur until 23 December 2005. The reservations were published in the NSW gazette on that day and involved about 9000 hectares of land. Ms Braithwaite said the completion of gazettal meant that DEC had “time to go back and look at those areas where we’d always sought eventual reconsideration”.

63 On 26 October 2005 the Minister for Lands refused the Aboriginal land claim on the ground that land was subject to a native title application NC 98/19 registered on 29 June 2000. As noted, the Minister does not rely on this ground in the appeal.

64 Ms Braithwaite prepared a briefing note to the Minister in February 2006 about reopening negotiations with the DMR. However, that briefing note was not formalised until November 2006 and was approved by the Minister on 4 December 2006. Although Ms Braithwaite forwarded the briefing note to the Deputy Director of the Parks and Wildlife Division of DEC, it was treated as a draft and Ms Braithwaite had to resubmit the briefing note in November 2006. I deal with its contents in chronological order below.

65 On 12 April 2006 Ms Braithwaite forwarded to Ms Wheeler of the Department of Lands a map showing the northern part of lot 503 as “agreed Crown land” and the balance of the claimed land and lot 534 as “Crown land”. A schedule identified that balance as 48 hectares.

66 Ms Braithwaite and the other officers of DEC involved in the meeting on 8 August 2005 first became aware of the Land Council’s claim on 15 May 2006, when the Department of Lands sought comment on the claim in the context of this appeal. On 16 May 2006 DEC responded to the effect that the land had been identified in 1998 or 2002 as of high conservation value under consideration for reservation, with the forest agreement requiring designation as formal or informal reserves unless there were significant reasons for exclusion. Accordingly, DEC maintained that the lands were not claimable Crown lands.

67 On 18 May 2006, the Department of Lands officer handling the claim, Mr Carey, prepared a memorandum to Ms Weiss, the Department’s Principal Case Manager (Legal). He described the claimed land as having an area of about 39 hectares forming part of the Richmond Valley Council draft urban land release strategy for Evans Head mapped as “future development area”. This draft strategy appears to have been published in April 2006. The memorandum continued:

Need for Essential Public Purpose

Department of Environment and Conservation (DEC) stated the whole of the claimed area was identified in Cabinet minutes in either 1998 or 2002 as “high conservation value Crown land under consideration for reservation in the DEC reserve system”.

DEC further stated that a formal agreement for the transfer of that part of Lot 503 DP755624 north of the road was received from the former Department of Land and Water Conservation (DLWC) in 2003. However, regional Departmental officers are unaware of the agreement and are unable to find any supporting documentation.

Agreement for transfer of Crown land south of the road is still being sought by DEC. While the subject land is included in the North East Forest Agreement (expected to be finalised by mid 2006), the Department of Lands has not yet consented to the transfer. Given the current climate, transfer of the land to DEC is considered unlikely.

Given the claimed lands were identified at an executive level of Government in 1998 and/or 2002 as being required for an essential public purpose (nature conservation), DEC maintains that the portions are not claimable Crown lands.

Broadwater National Park is situated two kilometres to the north of the subject land and comprises 3800 hectares. Bundjalung National Park is just 1 kilometre to the west and south of the subject land and compromises 17738 hectares. As both of these parks already contain significant examples of the same fauna and flora communities as those found on the claimed land it is difficult to support DEC’s view that the claimed lands’ nature conservation values are such that it is essential that be retained in public ownership.

Overhead powerlines, as shown by pink colour in annexure “B”, which traverse the reserve are needed indefinitely as they exist as a crucial part of the electricity transmission network supplying the local community of Evans Head.

68 The reference to the absence of any agreement by the Department of Lands to transfer of the northern part of lot 503 is incorrect. The reference to the transfer not being essential given the existence of other lands of conservation value, is difficult to reconcile with the statutory provisions as explained in the decisions referred to in section C above.

69 An undated letter from the Director-General of the Department of Lands to Mr Wright of DEC attached a schedule of lands agreed for transfer or not agreed for transfer (as the Department of Lands considered them best managed as part of the Crown lands system) or subject to Aboriginal land claims. The Department noted the agreed for transfer lands had conservation value and were located in close proximity to existing DEC owned lands and would thus best be managed as part of the DEC estate. The “Broadwater NP Adds” land was identified as not available for transfer due to an unresolved native title claim and Aboriginal land claim.

70 On 2 June 2006 the Minister for the Environment wrote to the Minister for Lands about the implementation of Cabinet’s decisions in 1998 and 2002. The Minister for the Environment sought to resolve five outstanding issues, including implementing previous arrangements for reservation of Crown land under the NPW Act and completing and agreeing the Crown lands review of the stage 4 lands to be transferred under the North East Forest Agreement by the end of July 2006. The Minister for Environment observed that the 1998 and 2002 Cabinet minutes established the process for completing the review of lands for possible inclusion in the formal reserves system and the 2002 forest agreement confirmed the criteria for transfer of high conservation value Crown land to this system. He said DEC considered certain decisions of the Department of Lands reversing previous agreements on transfer did not show sufficient regard for the intent of Cabinet decisions. The Minister’s letter attached relevant extracts from the Cabinet decisions, as well as clause 16.6.2 of the 2002 forest agreement under which vacant Crown lands with forest conservation values not adequately represented in the existing reserve system must be designated as dedicated or informal reserves unless there were significant reasons for exclusion.

71 The Minister for Lands responded on 7 August 2006:

The Resource and Conservation Division (RACD) was mainly involved in negotiations between National Parks and Wildlife (NPWS), NSW State Forests and Department of Mineral Resources in the Eden, Southern and Northern Regional Forest Agreements (RFAs). Crown lands were negotiated separately and RACD had little involvement. While the Cabinet Decision on the Northern RFAs provided for consultation with DLWC on the lands identified by NPWS, it did not direct that Lands agree to the transfer of all lands.

…

An interdepartmental committee between the two departments that meets on a regular basis to resolve these outstanding issues has been established, with an initial meeting to occur shortly. Should clarification of these issues be required, Richard Hunt, Director Crown Lands Policy, can be contacted on [phone].

72 Ms Braithwaite carried out an analysis in June and July 2006 showing that the reservation targets set by the nationally agreed criteria (the JANIS report) had not been met for six of the nine forest ecosystems mapped as present on the claimed land so that it fulfilled the criteria for transfer to the NPWS estate set out in the Forest Agreement for Upper North East NSW.

73 Ms Braithwaite informed Mr Shanahan that the DMR were reviewing their coastal mineral interests in early November 2006. On 1 December 2006 Mr Shanahan arranged a teleconference for 11 December 2006 with the DMR officers to ascertain the current position of the DMR about transfer of Crown lands to the national park estate.

74 On 4 December 2006 Ms Braithwaite prepared maps of six priority Crown lands, including the claimed land, lot 429 and lot 534. She emailed this information to Mr Shanahan. The map relating to this land is titled “Broadwater NP Additions”. The map contains a text box saying:

Following a site inspection in September 2006, it appears the quarry in lot 429, the central unreserved Crown land and the southern section of lot 503 is no longer in use. The Crown land contains 66 ha of under-conserved forest ecosystems.

75 On 4 December 2006 the Minister for the Environment approved a briefing note prepared by Ms Braithwaite on 14 November 2006 (similar to the one she had prepared in February 2006 which had not gone to the Minister). The purpose of the note was to inform the Minister about the officers’ proposal to instigate renegotiations with the DMR about areas agreed for transfer by the relevant land management agency but not by the DMR. The note observed that the DMR’s position might have altered as a result of its revision of potential mining requirements. Approximately 43,787 hectares in northeast NSW were available for transfer subject to the DMR revising its position, with 10,411 hectares available from acquisition of State forests. Together the total of 54,198 hectares was identified as contributing “to finalising the NE Regional Forest Agreement” and would “substantially add to JANIS forest ecosystem targets and wilderness areas under the Commonwealth/State agreement”. A three phase negotiation was proposed with the “Broadwater NP Addition” in phase 1. The attachment identified this area as 28 hectares.

76 On 5 December 2006, Ms Braithwaite emailed to Mr Ricketts (DMR) the digital files depicting the areas of Crown land to be discussed at a proposed meeting on 11 December 2006. She forwarded a further email to Mr Shanahan on 6 December 2006 attaching a table listing conservation values for the areas to be discussed at that meeting. The entry for “Broadwater NP Add” is as follows:

Crown Land	Area (ha)	SEPP 26 Rainforest	SEPP 14 Wetlands	UCFE	Rainforest
Broadwater NP add	76	17	66

Key Habitat	Regional Corridor	Old Growth	Threatened Flora	Threatened Fauna
52	76	Wallum Froglet

77 Mr Ricketts and other officers of the DMR, on receiving Ms Braithwaite’s email, reviewed whether there were any mining interests in relation to each parcel of land. From the DMR’s information systems Mr Ricketts ascertained that the land within “Broadwater NP Adds” had been evaluated for coal in the early 1920’s and subsequently quarried or mined for sandstone or other material. These mines and quarries had not been used for decades and Mr Ricketts considered they were unlikely to be used in the future because of the poor quality of the coal and extractive material. Mr Ricketts briefed Mr Gilligan before the teleconference on 11 December 2006 and recommended that the DMR not object to the transfer of the land to the national park estate.

78 The teleconference on 11 December 2006 involved Mr Shanahan, Mr Michael Wright (Director, Reserve and Wildlife Conservation Branch) and Mr John O’Gorman (Director Northern, Parks and Wildlife Division) representing DEC and Mr Lindsay Gilligan (Director, Geological Survey of NSW) and Mr Ricketts representing the DMR. Mr Shanahan made notes on a map showing that the “Broadwater NP Addition” land was part of a much larger area affected by a petroleum exploration licence of no interest to the explorer, and with underlying coal that could not commercially be extracted. During the teleconference Mr Gilligan informed Mr Shanahan that the DMR had carried out further investigations about the coal and sandstone potential of the “Broadwater NP Addition” land. The DMR was satisfied the sandstone quarry had been abandoned and there were no current mining titles relating to coal affecting the lands. Accordingly, the DMR no longer objected to the transfer of the “Broadwater NP Addition” land to the national park estate.

79 Mr Wright wrote to Mr Gilligan on 20 March 2007 confirming that the DMR agreed at the meeting on 11 December 2006 to the reservation of certain lands under the NPW Act, as listed in attachment 1 to the letter. The first item in the attachment is “Broadwater NP Addition”, being an area of 28 hectares. One of the attached maps enclosed for reference is the map emailed to Mr Shanahan by Ms Braithwaite on 4 December 2006 showing all the “Broadwater NP Adds” land (that is, the 76 hectares). Mr Gilligan responded on 7 May 2007, agreeing to the reservation of the six areas set out in Mr Wright’s letter under the NPW Act.

Ms Braithwaite

80 Ms Braithwaite said NPWS never abandoned or qualified its request that all parts of the claimed land be transferred to the national park estate as the land contains forest ecosystems identified by NPWS since 1998 as inadequately reserved. In Ms Braithwaite’s view the land within lot 503 and the Crown reserve had to be transferred to NPWS unless there were “significant reasons for its exclusion”. This is a reference to the provision within the 1999 and 2002 forest agreement for the northeast region.

81 Ms Braithwaite agreed that in her November 2006 briefing note she was not seeking Ministerial approval to renegotiate the whole of the land within the “Broadwater NP Additions”, as the focus was on areas agreed for transfer other than by the DMR. For the “Broadwater NP Additions”, this was the area of 28 hectares being that part of lot 503 north of the road. The maps Ms Braithwaite provided to Mr Shanahan showed the whole of the “Broadwater NP Additions” and noted that the land contained 66 hectares of under conserved forest ecosystems because she remained hopeful of successfully negotiating with the Department of Lands for the transfer of the whole area. In the interests of efficiency, Ms Braithwaite hoped there would be only one negotiation with the DMR. Ms Braithwaite, recognised, however, that the Minister’s approval related to an area of 28 hectares only.

82 Ms Braithwaite considered that it was possible for part only of the land “Broadwater NP Additions” to be reserved as national park. In particular, both the Department of Lands and DMR had agreed to the reservation of the northern part of lot 503 so that part could be subject to gazettal, but Ms Braithwaite understood that the Department of Lands would not allow the transfer of lot 503 until resolution of a native title application. She did not know what the final position of the Department of Lands would be with respect to the balance of the claimed land. She indicated that boundaries of areas for reservation were often adjusted. When asked for specific examples of partial transfer, Ms Braithwaite could recall two. Ms Braithwaite understood the Department of Lands’ remained opposed to the transfer of lot 534.

Mr Shanahan

83 Mr Shanahan’s responsibilities include managing the process by which lands are identified, acquired and reserved under the NPW Act and liaising with other departments about the transfer of Crown lands for inclusion within the national park estate. According to Mr Shanahan:

14. Where DEC has reached agreement with the Department of Lands on transferring certain areas into the reserve system, under the Regional Forest Agreements, the gazettal notice may not always be prepared immediately after such an agreement occurs. Delays may occur in formally reserving agreed areas for inclusion in the DEC reason, for a number of reasons. These reasons include:
(a) where the Department of Lands has agreed to the transfer of lands to DEC conditional upon the occurrence of another event, act or approval (for example, where further approval is required from a local council);
(b) where other stakeholder Departments do not agree to the transfer of lands under the relevant forest agreement, because of their own interest in the lands; or
(c) where the Department of Lands has agreed to the transfer of only part of the area sought by DEC for inclusion in the DEC reserve system, a formal gazettal notice will not be prepared until DEC obtains agreement for the whole area to be transferred. This is done to protect the integrity or viability of the reserve system.

84 Mr Shanahan explained that where DEC had identified an area to bring into the reserve system, their intent was “to bring the entirety of that area into the reserve system”. Otherwise, the conservation objectives may not be fulfilled and unmanageable boundaries may result. Agreeing to part transfer might also weaken their negotiating position. Agreeing to lesser areas being transferred to the reserve system had to be done on a case-by-case basis. Mr Shanahan was aware that NPWS (DEC) had accepted transfer of parts of areas, but he could not estimate a number as hundreds of parcels were reserved each year. When asked whether he would agree to reserve the northern part of lot 503 in isolation, Mr Shanahan thought it difficult to say. The main criteria would be achieving the conservation objectives and a sound management boundary. Separation from the national park would create management difficulties and was not desirable. It is preferable to add adjoining areas, but separate areas have been reserved.

85 According to Mr Shanahan the discrepancy between the references to the areas of 28 and 76 hectares in the attachments to Ms Braithwaite’s correspondence was most likely a typographical area. Mr Shanahan considered that the reference in the Ministerial briefing note approved on 4 December 2006 to 28 hectares of land did not prevent officers seeking to achieve a more favourable outcome. He said the discussions with the DMR on 11 December 2006 were based on the diagrams, not numbers of hectares. The DMR’s agreement related to all of the land shown on the map. DEC regularly discussed matters with the DMR within a regional context. Mr Shanahan was not aware of the Minister’s approval of the briefing note on 4 December 2006 when the teleconference took place on 11 December 2006. He did not consider that an issue given the ongoing discussions with the DMR and noted that Ministerial approval to any particular reservation ultimately was always required.

Mr Cockerill

86 Mr Alexander Cockerill, botanist, provided a statement of evidence reviewing the extent to which the forest ecosystems classified under the comprehensive regional assessment occurred on the claimed land. Mr Cockerill’s opinions were based on site surveys rather than the broad scale mapping techniques used for the comprehensive regional assessment. Mr Cockerill identified differences in terminology about, and the extent of, forest ecosystems. Nevertheless, his conclusions confirmed the presence on the claimed land of the Banksia and Swamp forest ecosystems.

Department of Lands

87 No officers of the Department of Lands gave evidence.

E. Submissions

88 The Land Council made the following submissions (in summary):

(1) The Minister carries the onus. The issue under s 36(1)(c) of the ALR Act has to be approached in the context of the process established by Cabinet. The processes mandated by Cabinet involved negotiation and discussion. It contemplated that the conservation value of land may not prevail in the process and may need to succumb to other legitimate public considerations. It was not preordained to produce a result favourable to NPWS/DEC as long as they persisted. Desire to use land for the purpose of nature conservation (national park) contingent on there not being any other preferred use does not satisfy the statutory test. Nor does a Cabinet decision relating to an investigation of the mere suitability of the claimed land for the purpose of nature conservation (national park). Land cannot be likely to be needed for an essential public purpose so as to defeat an Aboriginal land claim if it is not so likely that the purpose may never be realised because of the priority of other uses. For land to be reserved under the mandated Cabinet process, there had to be no conflicting uses, agreement between relevant departments, a recommendation that the land be reserved and endorsement of that recommendation. In this case, at 15 March 2005, there was no agreement, no recommendation and no endorsement, merely interdepartmental negotiations that had reached an impasse and stagnated for two years.

(2) DEC’s desire to have the claimed land transferred for reservation as national park was insufficient and did not answer the statutory test.

(3) As at 15 March 2005, the processes of negotiation and discussion mandated by Cabinet had not yielded any result.

(a) The DMR opposed the transfer of any part of the claimed land and the “Broadwater NP Additions” generally. Despite the DMR’s invitation on 4 April 2003 to NPWS to discuss any matters if necessary and a letter from NPWS on 14 May 2003 requesting a meeting, nothing further occurred with the DMR before the date of the claim or, indeed, until 2006. The DMR’s silence in the face of the NPWS letter of 14 May 2003 discloses its position of maintaining its objection. At 15 March 2005, there was no real chance that the DMR would lift its objection and enable this land to be transferred to date. When further steps were taken in 2006, the Minister’s approval related the area of 28 hectares only, being the northern part of lot 503.

(b) The Department of Lands opposed the transfer of any part of the “Broadwater NP Additions” from 1998 until May 2003. By May 2003, the Department’s agreement to transfer was limited to the northern part of lot 503, but even that was not irreversible. It maintained its opposition to any transfer of the balance. Mr Carey’s memorandum of 18 May 2006 confirmed the existence of that opposition at the claim date and the foresight of that opposition continuing. As late as 5 June 2006 the Minister for Lands was asserting in the proceedings that the claimed land was needed for residential purposes. This confirms the existence of unresolved competing uses that remains to this day.

(4) Delay is relevant to the assessment of the likelihood of things coming to pass ( Minister v Deerubbin LALC (1998) 43 NSWLR 249 at 254F and Minister v Deerubbin LALC [No. 2] (2001) 50 NSWLR 665 at [76]). The inactivity of NPWS (then DEC) from May 2003 to 2006 indicates that the only available foresight was continuing opposition to transfer. Relying on subsequent documents relating to the DMR involves impermissible hindsight. What was the likelihood of this isolated part of the “Broadwater NP Additions” land being transferred to DEC on its own? There was no real chance of that occurring having regard to Mr Shanahan and Ms Braithwaite’s evidence.

89 The Minister submitted that at the relevant time, 15 March 2005, the Court would very comfortably conclude that the claimed land was likely to be needed for the essential public purpose of nature conservation (national park). The primary elements supporting this submission were as follows:

(1) Cabinet established a process. By 2002 the whole of the claimed land was part of that process. The process involved negotiations between three departments. At all times NPWS (DEC) urged the whole of the claimed land to be included in its estate. Taking the applicant’s case at its highest, the negotiations had reached and remained at an impasse by the claim date. Faced with such an impasse, it is relevant to ask, “what was going to give”? Clearly there was a real or not remote chance, in fact a good chance, of the objections of the DMR and Department of Lands being overcome at the claim date.
(a) The threshold of “likely” (a real or not remote chance) is low. (b) Up to the claim date there had been a consultative process where departments expressed views, negotiations continued and outcomes were achieved. NPWS’s position was not a mere aspiration. The land was part of the process established by Cabinet. (c) Delay and inactivity are relevant, but Ms Braithwaite had not simply downed tools. The area involved was substantial. NPWS was subject to a major restructure in 2004. The available resources were reduced and the remaining resources reallocated until the 9000 hectares was reserved in December 2005. That part of the process involved significant work. Accordingly, there was activity throughout this period as part of the process, albeit directed at other lands. But the “Broadwater NP Additions” land never exited the process. The NPWS (DEC) had never given up with respect to these lands. It was not put to Ms Braithwaite that it had. It was always her position that she would return to this land when she had the resources to devote to it. The delay is thus readily explicable. (d) The DMR’s position in April 2003 was not irrevocable, as the terms of its response and the NPWS’s letter of 14 May 2003 disclose. Nor was the position of the Department of Lands, which was said to be “subject to assessment”.
(2) The evidence of Mr Barnes and Mr Ricketts of the DMR is relevant absent any impermissible hindsight. First, the evidence shows the process by which the DMR reached its global objection in April 2003. The cogency of the DMR’s position is probative of the likelihood of its objection ultimately being sustained. The DMR’s global objection was based on a quick assessment and not a site inspection, as was necessary given the magnitude of the task. It was an objection based on weak grounds. Given that NPWS had not given up, it was likely at the claim date that the DMR’s objection would be removed. Secondly, the evidence shows the objection did dissolve on closer review, which is relevant by way of confirming a foresight. Moreover, the objectives dissolved very quickly in 2006 (in the space of days), confirming its weakness when first formulated. (3) The references to 28 hectares in the 2006 negotiations with the DMR do not sustain the applicant’s submissions. At best, the references introduce some ambiguity. In fact, the discussion between the departments was based on diagrams not numbers of hectares. The maps and diagrams all showed the whole of the “Broadwater NP Additions” land. Those diagrams were included in the correspondence recording the agreement.

(4) The Department of Land’s objection was modified in May 2003 when it agreed to transfer of the northern part of lot 503. Its objection to lot 534 was expressed to be “subject to assessment for council needs”. This land claim under the ALR Act on 15 March 2005 explains the absence of further assessment by the Department of Lands. Mr Carey obviously had access to limited information only. He was wrong about the Department’s agreement to transfer the northern part of lot 503. He knew nothing of the DMR’s position. He did not have any apparent expertise with respect to the conservation value of the claimed land. Mr Carey’s memorandum expressed his opinion well after the claim date.

F. Findings

90 The 1992 national forest policy statement, the 1997 nationally agreed JANIS criteria, the comprehensive regional assessment process and the forest agreements under the Forestry and National Park Estate Act 1998 set the context of the Cabinet’s decisions in 1998 and 2002. The context is clear:

(1) The NSW government agreed to the objective of achieving a comprehensive, adequate and representative reserve system focusing on Crown land in the first instance.

(2) The NSW government accepted that the target of such a system should be to reserve or protect all remaining occurrences (I infer, on Crown lands) of rare and endangered forest ecosystems.

(3) Through NPWS and other involvement in the comprehensive regional assessment process, the NSW government devoted substantial resources over many years to obtaining the information necessary for it to achieve the objectives established by the 1992 national forest policy statement and the 1997 nationally agreed JANIS criteria.

(4) Forest agreements under the Forestry and National Park Estate Act 1998 were an important element in achieving these policy objectives. These Ministerial agreements are regulated by Pt 3 of the Forestry and National Park Estate Act 1998, which includes provisions for five year reviews, public consultation and annual Parliamentary reports.

(5) In the forest agreement for the northeast region in 1999, the DMR agreed to carry out a review of Crown reserves every five years. Crown reserves no longer requiring mineral consideration were required to be dedicated as national park. NPWS was required to review all remaining vacant Crown land in consultation with the DMR and Department of Lands by 1 January 2003. Vacant Crown land with forest conservation values not adequately represented in the existing reserve system was required to be dedicated as formal or informal reserves absent “significant reasons for exclusion”. These obligations (or at least the last of them) were repeated in the 2002 forest agreement.

91 In this context the 1998 and 2002 Cabinet decisions cannot be characterised as doing nothing more than authorising NPWS to identify land that might be suitable for inclusion in the reserve system through a consultative process with other departments. That suggests Cabinet’s decisions would or could be satisfied by the mere fact of consultation irrespective of the results achieved. However, Cabinet clearly intended that the process it endorsed would be directed to achieving or at least substantially achieving the objective of a comprehensive, adequate and representative system of reserves that had been adopted in 1992.

92 This conclusion is supported by the terms of the Cabinet decisions. Both decisions contained references to specific land areas identified for possible inclusion in the reserve system. The 2002 minute identified these areas by map, which included the claimed land. Both decisions disclosed the objective of the endorsed process. The 1998 minute made clear that the identified land was to be reserved as national park unless the land was found through the negotiations to have “continuing major constraints” or to be “unsuitable for declaration”. The 2002 minute made clear that the outcome of the consultation process was to be recommendations for transfer to the national park estate.

93 From early in the process NPWS classified the “Broadwater NP Adds” land (which included the claimed land) as vacant Crown land of high conservation value. NPWS also identified the claimed land, by reference to the JANIS criteria, as containing rare and endangered forest ecosystems. Through the national forest policy statement and the JANIS criteria the NSW government had endorsed the target of bringing all remaining occurrences of such ecosystems on vacant Crown land into the reserve system. To facilitate this target, Crown reserves no longer required for mineral consideration were to be transferred to the national park estate under the forest agreements. For additional areas of vacant Crown land with forest conservation values not adequately represented in the existing reserve system the forest agreements provided that only a “significant reason” raised by the DMR or Department of Lands through the consultative process would be sufficient to warrant exclusion from transfer to the reserve system.

94 Accordingly, although it is true that the result of the consultative process endorsed by Cabinet was not pre-ordained provided NPWS did not give up, the process was not undirected and value neutral. The NSW government at the highest level had given the process direction by establishing the objective of achieving a comprehensive, adequate and representative reserve system. It also identified criteria for the resolution of interdepartmental interests (land suitable for inclusion in the reserve system and not affected by continuing major constraints should be transferred). The forest agreements were consistent with these policy decisions in respect of Crown reserves and additional land. In the latter class, high conservation vacant Crown land containing forest conservation values not adequately represented in the existing reserve system was required be transferred absent significant reasons for exclusion.

95 These facts have at least four consequences for the process. First, it was highly unlikely that NPWS would be permanently deflected by any objection to the reservation of high conservation vacant Crown land containing forest conservation values not adequately represented in the existing reserve system. Secondly, NPWS knew that it had the capacity to point to the Cabinet’s reference to “major constraints” and the forest agreement’s “significant reasons” to support it in negotiations with other departments if the need arose (which accords with Ms Braithwaite’s understanding). Thirdly, maintenance of objections by the DMR and Department of Lands on grounds that did not warrant the description of a major constraint or significant reason would not be consistent with the decisions made by the government. Fourthly, in the ordinary course, Cabinet would endorse the reservation of land agreed for transfer through the process. The negotiations that in fact occurred and their results need to be understood in this context. This context is evident from the government’s decisions made before the claim date.

96 The need for further negotiations about the “Broadwater NP Adds” land was apparent from the first phase of the process. NPWS identified the land as high conservation value vacant Crown land. The Department of Lands identified the land or part of it as needed for urban extension. The NPWS record of the 1998 negotiations says only that there would be comment at an appropriate time. Another record, which I infer the Department of Lands created, says NPWS had no interest in the land and that the Department of Lands objected to transfer because of “possible urban/industry expansion”. NPWS’s alleged lack of interest is inconsistent with its own record and the already identified status of the land as high conservation value vacant Crown land. I am satisfied the NPWS log accurately reflects NPWS’s position at that time. The need for further consideration meant that the “Broadwater NP Adds” land could not be dealt with in the first two stages of the process and was deferred to stage three (which was later split into stages three and four).

97 The Department of Lands’ memorandum of 18 October 2002 provides a cogent explanation of the reasons that the first two stages of the process took substantially longer than anticipated by those involved. The period up to mid 2002 should not be treated as inexplicable delay on the part of NPWS or any other agency. It is clear that significant activity took place during that time with respect to the first two stages of the process. In April 2002, NPWS commenced the fourth stage of the process. The “Broadwater NP Adds” land was part of this fourth stage. NPWS intended to complete this stage by 30 June 2003. Internal memoranda around this time disclosed the concern of the Department of Lands to ensure it endorsed lands approved by Cabinet for inclusion in the process and its general position to limit its objections to land required or potentially required for urban use or infrastructure. The “Broadwater NP Adds” included land zoned for urban purposes (lot 534). I construe the memorandum from Mr Fish (undated but likely to relate to this period) as recommending that the Department of Lands maintain its objection to transfer of the “Broadwater NP Adds” land for this reason pending assessment of potential urban uses and later consideration of “boundary rationalisation”.

98 Cabinet endorsed the further process (in fact commenced in April 2002) on 11 November 2002. Consistent with NPWS’s position Cabinet sought completion of the process by June 2003. The “Broadwater NP Adds” land appeared on one of the maps accompanying the Cabinet minute as land subject to the process, namely “Crown land subject to ongoing negotiation”. This negotiation must be understood as a continuation of the process commenced in 1998 and subject to the same contextual considerations identified above. The May 2003 negotiations with the Department of Lands resulted in agreement for transfer of the northern section of lot 503 and objection to the transfer of any other part of the “Broadwater NP Adds” land for different reasons. Lot 429 was said to be extractive reserve. Lot 534 was zoned for industry and said to be subject to assessment by the Department of Lands and the Council for urban infrastructure requirements.

99 In the meantime, after the 2002 Cabinet decision, NPWS referred 38 parcels (some including multiple lots) to the DMR in January 2003. The DMR reviewed its records for these parcels and responded in April 2003. It objected to the transfer of the “Broadwater NP Adds” land as part of a general objection to lands identified as having important mineral interests and thus should not be conservation reserves. The DMR’s response invited further discussion. NPWS responded on 14 May 2003 observing that the outcomes achieved (that is, the lands agreed to be transferred by the DMR) were “relatively modest” and sought a meeting to attain an outcome acceptable to NPWS and the DMR. Importantly, this letter noted that NPWS had given priority to 23 areas all of which where high conservation value and contained ecosystems under the targets (which is a reference to the JANIS criteria). These priority areas included the whole of the “Broadwater NP Adds” land (76 hectares). In other words, the DMR’s position was not acceptable to NPWS. The reason it was not acceptable is obvious. NPWS was working within the framework set and developed by the NSW government since 1992, directed to achieving a comprehensive, adequate and representative reserve system. An important aspect of achieving this objective was to reserve high conservation value vacant Crown lands containing forest ecosystems under represented within the existing reserve system absent significant reasons to the contrary.

100 After April/May 2003 the process stalled with respect to the areas given priority by NPWS. It remained stalled until after the claim date (that is, for at least two years). Other than Ms Braithwate asking Mr Davey of NPWS (responsible for the 14 May 2003 letter to the DMR) to follow up with the DMR, the NPWS took no further steps with respect to the priority areas and thus no further step with respect to the “Broadwater NP Adds” land, including the claimed land, before the claim date.

101 Putting to one side the material that came into existence after the claim date, I am satisfied that the evidence requires the following inferences to be drawn.

(1) Neither the original nor the extended time stipulations for completion of the process were achieved. However, the failure to complete the process within the time required by the Cabinet decisions and the forest agreements did not mean that the process had ended. That was not the understanding of NPWS and would not have been consistent with the context of the Cabinet decisions or forest agreements. Accordingly, satisfying the time stipulations was not an essential pre-condition to the process continuing but, as the Minister acknowledges, is relevant to the assessment of whether it was likely the claimed land was needed for the nature conservation (national park) purpose when the claim was made. Other factors also affect the assessment of that issue, as discussed below.

(2) The silence of the Department of Lands and the DMR absent action by NPWS was to be expected. Under the process established by Cabinet, NPWS was the instigating agency for all negotiations. Without NPWS driving the process none of the other agencies would volunteer land for transfer. The DMR’s silence after the 14 May 3003 letter from NPWS has to be understood in this context and does not have the significance the Land Council seeks to place upon it.

(3) Part of the delay from late 2003 is explained by the fact that the resources NPWS was able to devote to the process were substantially reduced during the period of the restructure following its incorporation within DEC in 2004. Nevertheless, the process remained ongoing, albeit with reduced resources. Although most of Ms Braithwaite’s work during this period was directed towards ensuring that the agreed land was transferred to the national park estate by notice published in the government gazette, this took significant time to achieve due to the need for ongoing discussions with other parties including councils and reserve trusts about boundaries and related issues. In other words, material resources were still being directed at the process from mid 2003 onwards involving lands other than the “Broadwater NP Adds” land. Part of the delay from late 2003 is also explained by a documented change of position within the Department of Lands in October 2003. The Department believed that more formal internal processes were required and was concerned by the overlap between the Crown lands review process proper and reviews under the forest agreements.

(4) Despite the priority Ms Braithwaite gave to other lands that had been agreed for transfer after mid 2003, the entire process remained ongoing consistent with Cabinet’s decisions, if not within its time objectives. Ms Braithwaite’s focus on ensuring that the land agreed for transfer was transferred to the national park estate meant that further negotiations about the priority areas, including the “Broadwater NP Adds” land were deferred. The process, however, still included all remaining land identified to or in accordance with the process endorsed by Cabinet. Areas of high conservation value vacant Crown land containing forest ecosystems not adequately represented in the existing reserve system remained a priority for consideration, required by the government to be transferred if suitable for inclusion in the reserve system absent some major constraint or significant reason. It follows that to complete the implementation of the Cabinet’s decisions, NPWS/DEC would have to recommence the outstanding parts of the process as soon as it could direct its resources to that end. Once the part of the process focusing on lands not agreed for transfer had recommenced, high conservation value vacant Crown land containing forest ecosystems not adequately represented in the existing reserve system would remain the priority. The “Broadwater NP Adds” land was within that category since 2002.

(5) Accordingly, NPWS/DEC, as the instigating agency, would have to recommence negotiations with the DMR and the Department of Lands about the priority lands including the “Broadwater NP Adds” land. It would do so because the outcome for those lands remained modest and unacceptable having regard to the Cabinet decisions.

(6) The evidence of Mr Barnes about the DMR’s position before the claim date and how it was formulated did not involve any impermissible hindsight, but rather a description of facts known to the DMR before the claim date. Although the DMR considered its information satisfactory to provide responses to the referred land, it also knew that it had dealt quickly with a large amount of land. It knew its objection was based on a review of documents and former use of part of the lands for quarrying. It knew that it had not inspected the lands when it notified its original objection. It knew that it could and on further inquiry by NPWS would make further inquiries to determine whether its objection was a major constraint or significant reason for exclusion. A relatively small part of the “Broadwater NP Adds” land was zoned for extractive purposes. The facts before the claim date weighed heavily against acceptance by NPWS or continued claim by the DMR that there was any major constraint or significant reason for exclusion. The DMR’s objection, accordingly, would be difficult to maintain.

(7) No officer of the Department of Lands has given evidence. Nevertheless, the documentary record is sufficient to establish that the primary basis of the Department’s objection to transfer of all of the “Broadwater NP Adds” land except for the northern part of lot 503 before the claim date was the potential need for future urban development. Lot 534, located between the claimed land and the national park, was zoned for urban purposes (4(a) Industrial), but the balance was not. Although part of its objection (lot 429) referred to an extractive reserve, I consider the Department of Lands would have accepted that the DMR had the principal responsibility of resolving any such issue. The Department’s objection before the claim was not absolute but “subject to assessment”. This is evident from Mr Fish’s undated memorandum and the agreed record of the meeting in May 2003. The outcome of the assessment was not known before the claim date and remains unknown.

(8) The relevant facts, however, are not limited to an outstanding assessment by the Department of Lands. Other facts, absent any impermissible hindsight, are apparent before the claim date. First, the Department of Lands described its position as “subject to assessment”. Hence, the Department was willing to carry out or be involved in such an assessment and implicitly contemplated that its position may alter. Secondly, the lands are close to the Broadwater National Park; lot 534 immediately adjoins the park and the balance immediately adjoins lot 534. Thirdly, lot 534 (the land immediately adjoining the national park) was zoned for urban purposes, but the balance of the “Broadwater NP Adds” land was not. Fourthly, the claimed land was part of an area of vacant Crown land of high conservation value containing forest ecosystems not adequately represented in the existing reserve system identified and identified by Cabinet as part of the process. Hence, for any objection to be maintained there needed to be a major constraint (in accordance with the endorsed Cabinet minute) or significant reason for exclusion (in accordance with the forest agreements). Competing interests not warranting those descriptions could not be maintained consistently with the government’s decisions. Finally, the delay and reduced resources available for the process, whilst relevant, do not sustain findings that the process had ceased or been materially altered in terms of context or intended outcomes. For these reasons, and making the assessment in the light of all the circumstances existing at the claim date, there was a good prospect that the Department of Lands’ objection would yield with respect to all of the “Broadwater NP Adds” land. I am also satisfied that the process adopted by Cabinet, understood in the context identified, would then lead to reservation of the claimed land as part of the Broadwater National Park.

102 In these circumstances, the meaning of “likely” as a real or not remote chance, as accepted by the Court of Appeal in Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 (at [53] – [57] and [73]), becomes critical. This meaning of “likely” applies to the question posed by s 36(1)(c). Accordingly, it would not be permissible or proper to adopt a chain of reasoning that proceeds from one intermediate “real or not remote chance” to another. But that is not the present case. The circumstances at the claim date establish that the claimed land was likely to be needed for the essential public purpose of nature conservation (national park).

103 It will be apparent from these conclusions that I have not adopted the Land Council’s characterisation of the Cabinet’s decisions or the factual circumstances at the claim date. In particular, I do not accept that the Cabinet’s decisions related to the investigation of the mere suitability of land for a national park. The context and terms of the Cabinet decisions cannot be reconciled with that description. I do not accept that land could only be reserved under the process if there were no conflicting land uses, agreement between relevant departments, a recommendation and endorsement. While that describes the mechanical steps involved in the process it provides only a part of the picture. The process was intended to achieve a comprehensive, adequate and representative reserves system. Substantial public resources and years of work before 1998 had enabled detailed criteria to be developed for achieving such a system. The NSW government endorsed the ultimate objective and the criteria to be applied. Through its decisions and the forest agreements the government had put in place obligations suited to the reality of government decision-making involving inter-departmental interests. Outcomes could be achieved as the NSW government had endorsed a target of reserving all vacant Crown land containing rare or endangered forest ecosystems in 1992 and required objections to transfer, particularly to land containing inadequately represented ecosystems, to be based on matters warranting the description of major constraint or significant reasons. The mere fact of other competing interests thus would not be sufficient to avoid reservation unless they satisfied this nominated standard. Absent such constraints or reasons, the Cabinet endorsed process contemplated that all such land would be recommended for reservation and then in fact reserved. The claimed land had been identified as part of the process. Cabinet had endorsed this identification by 2002. While reservation of the claimed land as national park was not certain when the claim was made, the government’s decisions were directed to that end and substantially limited the prospect of the land not being reserved. I do not accept that land cannot be “likely to be needed for an essential public purpose” if there is any element of contingency involved. Accepting this submission of the Land Council would be inconsistent with the idea of likelihood, particularly when given its meaning of “real or not remote chance”.

104 On evidence not involving any impermissible hindsight, I am satisfied that when the claim was made the claimed land was not claimable Crown lands as defined in s 36(1) of the ALR Act. At that time the claimed land was likely to be needed for the essential public purpose of nature conservation (national park). The view of the government on the day at the highest level supports this conclusion.

105 Subject to my observations concerning the knowledge of the DMR about how its objection had been prepared, I consider using much of the material brought into existence after the claim date would involve impermissible hindsight. Be that as it may the material does not affect my primary conclusion.

106 The material relating to the DMR in 2006, if relevant, is consistent with my findings above. The references to the 28 hectares relied upon by the Land Council are of little significance not only for the reasons advanced by the Minister in submissions, but also because the actions of DEC with respect to the whole of the “Broadwater NP Adds” land were already authorised under the Cabinet decision of 2002. For these reasons, the evidence of Ms Braithwaite and Mr Shanahan about reserving only part of the “Broadwater NP Adds” land is also of little significance. In any event, it was clear from their evidence that parts of identified areas had been and could be reserved if those parts met the conservation objectives, provided manageable boundaries and, I infer, negotiations had otherwise been exhausted (presumably because of acceptance at an appropriate level within DEC that there were major constraints or significant reasons warranting exclusion from transfer). Insofar as the Land Council’s submissions asserted lack of authority with respect to DEC’s further negotiations with the DMR, DEC’s actions have to be understood in the context of the existing Cabinet decisions. The Minister’s approval in December 2006 also has to be understood in the context of the undoubted delay in implementing this part of the process. In other words, Ms Braithwaite’s briefing note and the Minister’s approval were not essential pre-conditions to the completion of the process endorsed by Cabinet, but confirmed the consistent position of DEC.

107 The material relating to the Department of Lands in 2005 and 2006, if relevant, is also consistent with my findings above. It discloses: -(i) elevation of DEC’s concerns about the apparent change of position of Department of Lands to the Director-General and then ministerial level, (ii) the Minister for the Environment referring to the obligations imposed by the Cabinet decisions and the forest agreements to support DEC’s position, (iii) that this part of the process had stalled, but not ended, and (iv) the Department of Land’s position about continuing negotiations for transfer was affected not only by a mistaken belief about a native title claim, but also by this Aboriginal land claim.

108 Mr Carey’s memorandum of 18 May 2006 should be given little weight. It contains a significant error about the position of the Department of Lands with respect to the northern part of lot 503. It discloses no knowledge of the Crown lands review process or the government decisions that established it. It appears to have been brought into existence in relation to these proceedings by the officer immediately responsible for the Aboriginal land claim and with no role in the Crown lands review process. It contains a view about essentiality that is difficult to reconcile with the statutory scheme.

109 Mr Cockerill’s opinions adopt different terminology from NPWS/DEC and indicate the presence of different quantities of ecosystems on the claimed land. Nevertheless, Mr Cockerill’s statement generally supports NPWS’s classification of this land before the claim date. It is also relevant that the process Cabinet endorsed operated (and continues to operate) by reference to the criteria as used and applied by NPWS/DEC.

110 The Minister’s position or apparent changes of position in the appeal are difficult to use absent impermissible hindsight. In any event, they are insufficient to undermine the conclusions reached above.

G. Conclusion and orders

111 The Minister has satisfied the Court that the claimed land is not “claimable Crown lands” within the meaning of s 36(1) of the ALR Act, by reason of s 36(1)(c) of that Act. Accordingly, the appeal must be dismissed.

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