Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act

[2001] NSWLEC 20

Land and Environment Court

of New South Wales

CITATION:	Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20
PARTIES:	APPLICANT: Wanaruah Local Aboriginal Land Council RESPONDENT: Minister Administering the Crown Lands Act
FILE NUMBER(S):	30208 of 1998
CORAM:	Lloyd J
KEY ISSUES:	Aboriginal :- land rights claim - claimable Crown land - whether needed or likely to be needed for residential land - whether lawfully occupied and used - whether needed for an essential public purpose - whether Court has power to make a grant subject to conditions
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 s 36(1), s 36(5A) and s 36(6) Land and Environment Court Act 1979 s 39 Muswellbrook Local Environmental Plan 1985
CASES CITED:	Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No. 2] (The Londonderry Claim) (1995) 89 LGERA 194; Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Council (1995) 43 NSWLR 249; Minister Administering the Crown Lands Act v New South Wales Local Aboriginal Land Council (1993) 31 NSWLR 106; Minister Administering the Crown Lands Act v New South Wales Local Aboriginal Council [No. 2] (1997) 42 NSWLR 641; Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133; Minister for Natural Resources v New South Wales Aboriginal Land Council & Anor (1987) 9 NSWLR 154; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act (The Winbar Claim) (1988) 14 NSWLR 685; New South Wales Local Aboriginal Land Council (on behalf of Dubbo GA Local Aboriginal Council) v Minister Administering the Crown Lands Act [1997] NSWLEC 157, 22 October 1997, unreported; Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act (1990) 72 LGRA 177
DATES OF HEARING:	03/10/2000, 04/10/2000, 05/10/2000 and 06/10/2000
DATE OF JUDGMENT:	02/21/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr M Wright (Barrister) SOLICITORS: Minter Ellison RESPONDENT: Mr M A Robinson (Barrister) SOLICITORS: I V Knight Crown Solicitor

JUDGMENT:

1

and Commissioner G Davison)
Decision date: 21 February 2001

Wanaruah Local Aboriginal Council

Applicant

v

Minister Administering the Crown Lands Act

Respondent

REASONS FOR JUDGMENT

1. This is an appeal under section 36(6) of the Aboriginal Land Rights Act 1983 (“the Land Rights Act”) against the refusal of the respondent to grant a claim for land made by the applicant under section 36(3) of that Act.

2. The claimed land comprises an area of about 180 hectares at Muswellbrook known as the Muswellbrook common. The respondent granted part of the claim covering about 90 hectares. Part of the claim that was granted was from the surface to a depth of 15.24 metres below the surface and part was from the surface to unlimited depth. The reason for the limitation to a depth of 15.24 metres below the surface is the existence of Consolidated Coal Lease No. 713 from 15.24 metres below the surface to unlimited depth. The applicant nevertheless persists in this appeal with its claim to the whole of the land, including that part of it which below a depth of 15.24 metres.

3. The claim that was granted was expressed to be subject to a number of easements which affect the land and which are to continue in force by virtue of section 36(12) of the Act. Those easements comprise an easement for an underground cable, easements for electricity transmission lines, easements for water supply and an easement for access.

4. In refusing to grant the whole of the applicant’s claim, the Minister said that when the claim was made the balance of the land was not claimable Crown land. Part of the land was freehold land vested in the Minister for Public Works; part was held under Permissive Occupancy 1957/16 Muswellbrook and Permissive Occupancy 1977/8 Muswellbrook respectively and thus not claimable under clause 8 of the Savings, Transitional and Other Provisions under Schedule 4 to the Act; part was subject to Consolidated Coal Lease No. 713, referred to above; part (comprising about 83 hectares) was needed or likely to be needed as residential lands; part was needed for an essential public purpose, being a road 20 metres wide; part was needed for essential public purpose, namely a trigonometrical station and access thereto 20 metres wide; and part was needed for an essential public purpose of electricity distribution, 15 metres wide. During the hearing, however, I understood the applicant Land Council to concede that the freehold land vested in the Minister for Public Works was not claimable Crown land. I also understood the respondent to concede that the road 20 metres wide was not an essential public purpose and was claimable Crown land.

The Statutory framework

5. The Minister must grant the claim by transferring either the whole or part of the land to the claimant Aboriginal Land Council if he is satisfied that the land or part thereof is claimable Crown lands (section 36(5)(a)). If, however, the Minister is satisfied that the land or part thereof is not claimable Crown lands, he must refuse the claim or refuse the claim to the extent that it applies to that part (section 36(5)(b)).

6. Section 36(1) of the Act defines “claimable Crown lands” relevantly as follows:

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...

7. Sub-section (5A) provides as follows:

Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.

8. Sub-section (12) provides that where the Minister grants a claim by transferring the whole or the part of the lands claimed to the claimant Local Aboriginal Land Council, “a transfer of land pursuant to this section shall be subject to any easements affecting the lands immediately before the transfer”.

9. Where the Minister has refused the claim under section 36(5)(b) the Aboriginal Land Council may appeal to the Court (section 36(6)). Such an appeal is a hearing de novo (section 39(2)(3) Land and Environment Court Act 1979). The Minister bears the onus of satisfying the Court that the land is not claimable Crown land (section 36(7), New South Wales Aboriginal Land Council v The Minister(The Winbar Claim) (1988) 14 NSWLR 685 at 692 per Hope JA).

10. I note here a submission made by Mr M A Robinson, appearing for the Minister, that the Court is limited to hearing an appeal against a refusal to grant a claim under section 36(5)(b). The appeal arises as a consequence of the Minister’s refusal of the claim under section 36(5)(b). Sub-section (6), which states: “An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it”, enlivens the Court’s jurisdiction. Sub-section (6) says nothing about sub-section (5A). The Court does not, in Mr Robinson’s submission, have the power to do anything other than to allow or refuse the claim. The Court cannot, in his submission, exercise the power of the Minister by allowing a claim and itself imposing a condition such as reservation of an easement. This is confirmed, according to the submission, by sub-section (7), which provides: “The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed ...”. Sub-section (7) says nothing about sub-section (5A). Notwithstanding section 39(2) of the Land and Environment Court Act, the appeal relates only to the refusal of the claim under section 36(5)(b) of the Land Rights Act.

11. I also observe that sub-section 36(9) states:

Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer. (Sub-section (9A) is not presently relevant).

This provision appears to support Mr Robinson’s submission.

12. As appears from the definition of claimable Crown lands, the time at which the determination (of whether the land is claimable Crown land) is to be made is the date of the claim (New South Wales Aboriginal Land Council v The Minister (The Winbar Claim) at 691, per Hope JA). This does not mean that the conditions to be satisfied may exist at some later date, for example, when the Minister investigates the matter or when this Court on appeal investigates it. The question posed, whether the land satisfied the definition, must be determined as at the date of the claim, which in this case is 18 September 1992. (The Minister took almost eight years to determine the claim, the determination being made on 23 June 1998.)

Residential land

13. A large proportion of the claim comprising about 83 hectares was refused because the land was said to be needed or likely to be needed as residential lands and was thus not claimable by dint of sub-section 36(1)(b1). The land was zoned as Residential 2(c) under the relevant environmental planning instrument, Muswellbrook Local Environmental Plan 1985.

14. The fact that the land is zoned for residential purposes is not, however, conclusive of the question of whether it is needed or likely to be needed as residential lands. The zoning of the land is merely evidence in favour of the respondent that there was at the relevant date an acknowledgment in public documents of the capacity or suitability of the land for the future residential use: it does not of itself establish that the claimed land was relevantly likely to be needed as residential lands (Daruk Local Aboriginal Land Council v The Minister [No.2] (The Londonderry Claim) (1995) 89 LGERA 194 at 204, Bignold J). It is a question of fact in each case whether the land is likely to be needed as residential lands ((New South Wales Aboriginal Land Council v The Minister (The Winbar Claim) at 691, per Hope JA).

15. On the question of need Mr Robinson relies upon the joint judgment Handley and Powell JJA in The Minister v Deerubbin Local Aboriginal Council (1995) 43 NSWLR 249 at 254, a case involving paragraph (c) of the definition of claimable Crown land:

The word “needed” in s 36(1)(c) means “required”. The Land and Environment Court on an appeal from the Minister under this Act would not be called upon to second guess, for example, a decision by the Executive Government that Sydney needed a second major airport, and that it should be located at Badgery’s Creek. The only question for the Court in such a case would be whether the particular land was needed, that is, required or wanted, by the Executive Government for that purpose.

16. The respondent concedes that the view of the executive government must be reasonable. The executive government could not suddenly and without reason decide that it wants the land and thereby remove the land from the Land Rights Act. The question must be whether the land is reasonably required for the relevant purpose. The Court’s function is explained by Hope JA in New South Wales Aboriginal Land Council v The Minister (The Winbar Claim) in the following terms (at 692):

The function of the court again is simply to determine whether the conditions in the definition “claimable Crown lands” are satisfied, again as at the date the claim was made, the onus being on the Minister to prove that they were not so satisfied.

17. Moreover, the concept of “needed or are likely to be needed as residential lands” involves an element of reasonable futurity, so that if the evidence indicates that any possible development on the land is many years distant then the element of reasonable futurity is unlikely to be satisfied (Daruk Local Aboriginal Land Council v The Minister [No.2] (The Londonderry Claim) at 204, Deerubbin Local Aboriginal Land Council v The Minister (1997) 95 LGERA 353 at 361, Lloyd J). This approach is consistent with the phrase “likely to be needed”. The word “likely” implies some degree of reasonableness. Astronomers are confident that the sun is going to explode in a few billion years, but this likelihood cannot be reasonably considered in a time-frame which is concerned with the urban planning of Muswellbrook. Similarly, if the land would not be needed for a thousand years, then it would be unreasonable to regard it as likely to be needed in the time-frame concerned with the urban planning of Muswellbrook. There must be an outer limit of what can be considered as likely. In the present case, the Minister’s town planning witness, Mr D Fox, suggested an approximate time-frame of twenty five to thirty years which he considered to be a commonly used standard for long-term urban planning. I am thus prepared in this case to adopt Mr Fox’s opinion of twenty five to thirty years as being the appropriate time-frame for considering whether the subject land is likely to be needed as residential land.

18. The respondent submitted that at the date of the claim in 1992 the future demand for residential land in the vicinity of Muswellbrook, combined with a shortage of appropriate land, would have been expected to lead to a need for those areas of the subject land that would be suitable for residential development. I turn now to the evidence relating to this question. The affidavit of Mr L P Scrivener, who was employed by the Land Commission from 1961 to 1987, includes many documents detailing the planning history of the subject land. The Land Commission (which became know as LandCom in 1984) was, until 1995, the relevant executive government body which developed land for residential purposes in New South Wales. By 1981, the Land Commission, in consultation with Muswellbrook Shire Council, had begun to make plans for the future residential development of the Muswellbrook common. Consultants were briefed to prepare detailed subdivision designs and preparations were made to rezone the land. Mr Scrivener also said that in June 1982 a payment was made by the Department of Lands to Shortland County Council of $83,500.00 to cover the extra expense of constructing electricity transmission lines around the subject land to avoid the future residential area being transected if the lines were to take a direct route.

19. Mr L P Fisher was employed by Muswellbrook Municipal Council as Town Clerk in 1975, becoming in 1979 the Shire Clerk for Muswellbrook Shire Council (“the council”) which was the resultant body of the amalgamation of the Municipality of Muswellbrook and the adjacent Shire of Denman. He was appointed General Manager of the council upon the introduction of the Local Government Act 1993. Mr Fisher said that in the late 1970s and early 1980s employees and councillors of the council were concerned about the fact that the physical expansion of Muswellbrook was constrained by a number of factors. The council was concerned to ensure that residential development in Muswellbrook would be able to meet future demand. In about 1980 the council commissioned several consultants to report on the likely future demand and supply of residential land in Muswellbrook. The council also lobbied the State Government to allow it to compulsorily acquire private land for subdivision by the council to help meet the then substantial demand for residential land.

20. Mr D Fox, a consultant town planner, gave evidence for the respondent on the question of whether the land is needed or likely to be needed as residential land. He described the constraints upon potential residential land surrounding Muswellbrook. These include the presence of large coal mines which surround the township, with some potential for these to be extended; and the course of the Hunter River which flows along the western boundary of the township area and renders the adjacent lands flood-prone. The other substantial areas of undeveloped residential land are located to the south of the existing town, most of which is privately owned by two parties, with a small area having recently being subdivided. Mr Fox refers to previous problems in the early 1980s when owners of large lots were slow or reluctant to subdivide and sell, contributing to a shortage of residential land. The council had as a consequence sought and obtained from the State Government approval for compulsory acquisition of some land for the purpose of residential development.

21. Mr Fox referred to various reports which had been prepared for the purpose of future planning in Muswellbrook. A heavy emphasis is placed therein on the increasing number and size of mines in the coal industry and also on the decreasing dependence on coal mining for employment in the town due to the changes in coal production methods. Mr Fox made projections about population growth, residential densities and available land. He then estimated how long it would take for available land in Muswellbrook to run out, on the basis that someone was doing the estimate in 1992.

22. Mr Fox’s projection of demand for residential land was based on census figures for the preceding ten years. Mr Fox simply took the fact that 850 lots had been needed over the period from 1981 to 1991. His reckoning of potential number of lots available was 2,375 and a calculation of 85 lots per year (based on the previous ten years growth to 1991) gives a result of 27.9 years of available land.

23. Mr H M Sanders, a town planning consultant, gave evidence for the applicant. He took a broadly different approach to calculating the future demand for land in Muswellbrook. There are also some minor differences between the experts regarding the appropriate housing densities and corresponding lots per hectare, as well as precisely how much land is still available. Mr Sanders did not include the subject land in his calculations when considering how much land would be available.

24. The somewhat different approach of Mr Sanders is illustrated by his reliance upon a report entitled “Population Projections - Non-Metropolitan Local Government Areas in New South Wales: 1991-2016” which had been prepared by the then Department of Planning in 1990. Based on the report’s projected population for Muswellbrook, and using its high, medium and low figures, he estimated that this population growth would not use up the available land as quickly as Mr Fox had projected.

25. Mr Sanders noted that preliminary 1991 Census figures became available in early 1992, prior to the lodgment of the subject claim. The population of Muswellbrook in 1991 was 15,115 persons, which is substantially lower than the lowest of the 1990 projections which had envisaged a minimum population of 15,700.

26. After discussions between Mr Fox and Mr Sanders, both experts made alterations to their calculations. The most substantial alterations were made by Mr Sanders, whereby he incorporated Mr Fox’s lower density and household size figures into his original calculations based on the Department of Planning’s projections. Mr Sanders made several calculations with varying parameters. His worst-case scenario incorporates the high growth projections from the Department of Planning’s projections with Mr Fox’s lowest typical density (8 lots per hectares) and Mr Fox’s household size figures.

27. This worst-case calculation projects 44 years of available land for residential purposes (again, excluding the claimed land). A higher density of 10 lots per hectare, at the high growth rates, gives a projection of 55 years of available land. At low growth rates, at the low density, the projection is 91 years. A low growth rate at the higher density gives a projection of 114 years of available land. Mr Sanders also applied his preferred higher density of 10 lots per hectares to Mr Fox’s calculations (which are based on past land demand) to produce an estimate of 35 years of available land.

28. Mr Sanders referred to a general expectation in the early 1980s of major growth, primarily generated by the growth in the coal industry. By the mid-1980s various planning studies had culminated in the gazettal of the Muswellbrook Local Environmental Plan 1985 (“the LEP”). The LEP zoned extensive areas of land for residential purposes to cater for the needs of a then rapidly expanding population. An economic downturn in the mid-1980s, however, led to the cancellation of many of the anticipated mining projects in the vicinity of Muswellbrook. By the end of the 1980s the population growth that had actually taken place was very much lower than had been forecast in the early 1980s.

29. Mr R McCotter gave evidence for the applicant. His expertise is as an environmental consultant and civil engineer, specialising in mining. Although not a planner, his extensive experience as a project manager in producing environmental impact statements for coal mines around Muswellbrook and in the Hunter Valley provide him with a valuable insight into the local coal industry and its social impacts, including the demand for employment.

30. Mr McCotter noted the physical and market-based constraints upon the claimed land: potential highway noise, flooding, transmission lines, water reservoirs, lack of views and proximity to former and current coal mining, all of which are raised as factors that reduce the likely desirability of using the claimed land for residential subdivision.

31. Mr McCotter included in his report population data for the Muswellbrook local government area. After sustained growth of approximately 2.4% from 1976 to 1986, the population growth rate dropped dramatically to a rate of 0.24% from 1986 to 1991, contrary to earlier predictions which had assumed continued strong expansion into the foreseeable future.

32. Mr McCotter also performed a statistical comparison between total employment in the Hunter coal fields and raw coal output per person, which shows that since 1986/1987 there has been a consistent and significant trend of increasing production per employee. He also questioned any direct correlation between employee numbers and residential demand, noting a tendency for employees to commute to work from previously established residential communities in the lower Hunter Valley.

33. At the same time that these trends in the coal industry were developing, employment in Muswellbrook shifted towards other industries, so that the number of employees engaged in mining remained static during the later1980s, but employment in other sectors of industry increased. Mr McCotter noted that many of these other industries, such as equipment servicing, were linked to mining, but there is some evidence of wholly new industries, such as the establishment of a correctional services facility in the locality. There was no evidence to show whether these new employment opportunities were absorbed by the existing population of Muswellbrook; and, therefore, there is no evidence to show that the employment changes translated into increased demand for residential land in Muswellbrook.

34. The evidence also includes a letter of 9 March 1983 from Mr Scrivener to the Shire Clerk of Muswellbrook Shire Council which states that in view of the then economic climate, the Land Commission had decided not to proceed with the development of the subject land beyond planing stage until the market situation had improved. Other correspondence at that time reiterates the decision to defer development for the foreseeable future.

35. A further letter from LandCom dated 1 October 1985 states that it has refused to contribute towards the costs of “the repetitive fire trail construction process” because “serious attention” was not likely to be given to the subdivision of the subject land until other precincts in Muswellbrook were first developed. The correspondence indicates that there was in existence a plan to develop the subject land by way of subdivision, but that plan was for some indefinite time in the future. The development of the land was far from imminent and entirely contingent upon the future level of demand therefor.

36. Mr Robinson, appearing for the respondent, submits that a large proportion of the subject land is likely to be needed as residential lands. He relied upon the second reading speech of the Aboriginal Land Rights (Amendment) Bill 1986 which inserted sub-section 36(b1) into section 36 of the Land Rights Act:

The conditions under which claims to Crown Land (proposed sections 36(1)(b1) are made will, in future, be varied. It is intended that land earmarked for residential development be made non-claimable. (Legislative Assembly of New South Wales, 16 April 1986, p 2044.)

37. Mr Robinson submits that these words support the view that any land which is properly regarded by the decision-maker to be likely to be needed as residential land is simply not claimable. He further argues that there is no need for a test of reasonable futurity. The expression “needed or likely to be needed” ought not be added to in any way other than to consider if the land can be reasonably regarded as being needed or likely to be needed.

38. Submissions regarding the reasonableness of the executive decision to withhold the land for future residential development relate to the evidence of Mr Fox, Mr Sanders, Mr Fisher and Mr McCotter. Mr Robinson relies upon the constraints on the availability of land in Muswellbrook, arguing that only the land zoned residential is suitable for future urban development and that the subject land comprises a significant portion of such land. He submits that since a future scenario in which private land elsewhere in the town would need to be resumed for residential subdivision is a realistic possibility, the decision to retain the subject land is reasonable in order to avoid such an outcome.

39. Mr Robinson seeks to give weight to the fact that the subject land is specifically identified and provided for in the 1985 LEP, arguing that this “earmarking” of the land is the plainest possible evidence that the land is likely to be needed for residential development. Similarly, the request from Muswellbrook Shire Council to purchase the land from the State Government in 1991 is, in Mr Robinson’s submission, indicative of the need for such land.

40. Mr Robinson points to a previous Aboriginal land claim that was made in 1985 and then abandoned in 1988. The withdrawal by the Wanaruah Local Aboriginal Land Council of its claim to the land is presented by Mr Robinson as evidence of an acknowledgment by it that the land was regarded as being required for residential lands.

41. Mr Robinson submits that Mr Fisher’s evidence regarding the “earmarking” and planing history of the land is itself indicative of the need for the land for residential purposes. He notes that both Mr Fox and Mr Sanders agree that the land will be needed at some time in the future and it is merely the predicted time-frame thereof that differentiates the two planning experts.

42. Mr Robinson rejects Mr Sanders’ method of calculating projected need for residential land in Muswellbrook, submitting that Mr Fox’s reliance on actual growth figures is the more appropriate approach. Mr Robinson submits that even the longest period of land supply projected by Mr Sanders could be the basis for a reasonable apprehension that the land is likely to be needed. In support of this view, Mr Robinson seeks to re-emphasise the constraints upon the future expansion of Muswellbrook; that the town is essentially “walled-in”, with nowhere else to expand after existing available land is used up.

43. Mr M Wright, appearing for the applicant, submits that the Land Rights Act is beneficial legislation and this fact needs to be borne in mind. Sub-section (5A) of section 36 of the Land Rights Act enables the Minister to make a grant of land subject to appropriate conditions to provide for essential services on the land. Mr Wright submits that the status of the present hearing as a de novo appeal pursuant to section 36(6) of the Land Rights Act and section 39(2) of the Court Act empowers the Court to stand in the shoes of the decision-maker and exercise all of the same functions and powers. Mr Wright submits that any restriction on the Court’s power to impose conditions under section 36(5A) would be contrary to the beneficial operation of the Land Rights Act.

44. In Mr Wright’s submission the appropriate approach to the issue of residential land is that of Mr Sanders. He notes that Mr Sanders was not cross-examined on his evidence. The 1985 Muswellbrook LEP, in which significant parts of the claimed land were zoned residential, was, in Mr Wright’s submission, introduced in response to a crisis. The perceived shortage of residential land was caused by an exceptional era of growth in the 1970s and early 1980s. Mr Wright submits that there have since been changes in the core industries which drive growth in the Muswellbrook area. Those changes were evident by 1992, leading to expectations of extremely low growth in the future. The core of Mr Wright’s submission regarding the residential lands issue is the demonstrated inaccuracy of earlier population projections. Mr Wright argues that the consistent overestimation of these projections does not justify them being wholly disregarded. Instead, Mr Wright submits that the consistent overestimation of population projections in the past should lead to a conclusion that there is an even longer-term supply than that which was indicated by Mr Sanders’ projections.

45. Mr Wright submits that the evidence regarding growth of employment in sectors other then the mining industry should not be given great weight because the Minister’s evidence, contained primarily in Mr Fox’s report, was that mining creates the primary pressure on population growth in the area. He submits that Mr McCotter’s evidence regarding the future of the coal industry should be preferred over Mr Fox’s evidence. Mr McCotter’s evidence that the Muswellbrook area has reached the zenith of new mining projects which create demand for land should be accepted because of his long and intimate association with mining projects in the area. Hence, in Mr Wright’s submission, the key driver of growth, mining, will not continue to create the pressure it formerly did. Mr Wright submits that for this reason Mr Fox’s projection of future population figures should be rejected. Mr Fox’s decision to rely on the rate of growth in the 1980s ignores changes in the primary cause of growth, thus his projections give an artificial view of future population growth.

46. In Mr Wright’s submission it is also important to take account of the desirability of the claimed land for potential residential purposes. The evidence of Mr Sanders, supported by Mr McCotter, is that the claimed land (which is zoned 2(c)) is the least desirable of the residentially zoned land in Muswellbrook when compared to other areas also zoned residential. According to Mr Wright, it can be inferred from this evidence the subject land would be the last to be developed out of total available land and hence would not be needed until residential expansion had absorbed other available areas. The relatively low desirability of land for residential use should lead to the conclusion that the time-frame before the subject land would be required for the residential development should be taken as the longest time within any given estimation.

47. Further as to the zoning of the subject land as residential 2(c), Mr Wright submits that the evidence of Mr Scrivener and Mr Fisher merely shows that there was a perceived need for more residential land in the early 1980s but that by 1992 that need had drastically diminished.

48. My assessment of the evidence and the submissions shows that the Land Commission clearly had made plans to develop the subject land for residential purposes. The planning therefor was based, however, on overestimations of population growth. By 1993 the Land Commission’s plan was recognised as unnecessary for any foreseeable period and was virtually abandoned. The mere fact that the plan was not wholly abandoned does not indicate that the land was required or wanted by the executive government. The evidence suggests a situation rather like that in Daruk Local Aboriginal Land Council v The Minister (The Londonderry Claim) [No. 2] to which I have referred above. In that case Bignold J said (at 204):

In my judgment the highest the evidence rises in favour of the respondent is that there was at the relevant date an acknowledgment in public planning documents of the capacity of land at Londonderry for future urban development. However this evidence does not establish that the claimed lands were relevantly “likely to be needed as residential lands”.

49. In New South Wales Aboriginal Land Council (on behalf of Dubbo GA Local Aboriginal Council) v The Minister [1997] NSWLEC 157, 22 October 1997, unreported, I said:

As Bignold J said [in Daruk (No.2)], the existence of an appropriate zoning of the land in an environmental planning instrument at the relevant date was merely an acknowledgment in public planning documents of the capacity of the land for such development. If the public purpose can be fulfilled otherwise than on the subject land it cannot be said that the subject land is needed or likely to be needed for that purpose.

50. In the present case, the evidence regarding LandCom’s view relating to the subject land does not demonstrate a clear opinion that the subject land was likely to be needed as residential land at any particular time in the future. The executive government in 1983 had specifically deferred any further activity leading to development of the land; and nearly ten years later, at the date of the claim, there was no indication that the residential development plan was ever going to be implemented. LandCom did not undertake any further planning in relation to the land and refused to contribute to construction of fire roads, which indicates a deliberate “hands off” policy. I conclude that the relevant authority of the executive government, LandCom, did not hold an opinion that the land was likely to be needed at any reasonably foreseeable time in the future.

51. It remains for me to examine the expert evidence regarding the foreseeable growth of population and consequent demand for residential land at the date of the claim. Once it is established what the foreseeable trend was for residential growth in Muswellbrook, it can then be ascertained whether, at the date of the claim, the land could have been reasonably regarded as likely to be needed as residential land. I note that the respondent conceded that the land was not actually needed at the date of the claim.

52. Mr Robinson argues that Muswellbrook is a somewhat special case when it comes to future urban planning. The geographical peculiarities of the township have the effect of preventing unlimited expansion. I have referred to these constraints, which include the flood-prone land to west of the town and mining areas around most of the rest of the town.

53. In my opinion such constraints are by no means extraordinary or special. For example, the Sydney Metropolitan region faces many constraints on its expansion, including the fact that along its entire eastern border is the Tasman sea. Many towns face other geographical constraints on their development and it is not practicable for most urban centres to expect unrestricted expansion. In my opinion the geographical constraints upon the expansion of Muswellbrook are only relevant as far as the future expansion of the town is likely to be bound thereby; and those constraints are factored into both Mr Sanders’ and Mr Fox’s projected number of years of available supply of land.

54. I accept Mr McCotter’s evidence regarding the relatively low desirability of the subject land for residential development. I refer, in particular, to a matter to which he referred and which I set out in paragraph 30 above. I therefore accept the evidence that for those reasons, if the town of Muswellbrook continues to expand, the subject land would probably be the last area to be subdivided for residential purposes.

55. In determining the likely future demand for residential land in Muswellbrook, I prefer the methodology of Mr Sanders. His reliance upon official population projections, which were subsequently, in 1991, found to be somewhat optimistic, is more realistic than the approach of Mr Fox. The fundamental change in the rate of growth in Muswellbrook’s population that had occurred since 1986 is not taken into account by Mr Fox. His approach, which simply averages past rates of growth and extends them into the future is, in my view, too simplistic. The primary driver of growth in the area, the coal industry, was undergoing a marked transformation, was approaching its zenith and was undergoing changing working methods, whereby a low workforce was required to produce larger quantities of coal. In this respect I again prefer the views of Mr McCotter, relying upon his particular knowledge and expertise in the mining industry. All of these factors require an adjustment to rates of population growth that had occurred in the past.

56. Rather than merely using census figures, Mr Sanders used forecasts which had been prepared by population experts in 1990 and these predicted dramatically less growth than that which had occurred in the early 1980s. Mr Sanders also noted that even the lowest projected population was somewhat higher than the actual census figures of 1991, which were available at the date of the claim, and which were dramatically lower than the growth rates of the early 1980s upon which Mr Fox relied. For these reasons I am inclined to place greatest weight on Mr Sanders’ low-growth figures, which predict that Muswellbrook has, apart from the claimed land, available land for residential development for 114 years. Based on population trends that were foreseeable at the date of the claim, even this estimate could be regarded as overstating the likely growth of Muswellbrook.

57. I have referred to Mr Fox’s opinion that twenty five to thirty years is a standard long-term planning period. This opinion appears to be supported by the Department of Planning’s own study of population projections, to which I have referred in paragraph 24 above. That study was for a period twenty five years. I accept Mr Fox’s opinion as to a reasonable period for which planning bodies assess the likely demand for development. I find that there is enough land in Muswellbrook (excluding the claimed land) to supply residential land for over three times this period. I am therefore not satisfied that the Minister has discharge the onus of demonstrating that the land is needed or likely to be needed as residential land.

Mining lease

58. I have noted that the Minister, in granting part of the applicant’s claim, limited the grant from the surface to a depth of 15.24 metres. This was said to be because the existence of Consolidated Coal Lease No. 713 from 15.24 below the surface to unlimited depth rendered this part of the land not claimable. The applicant nevertheless persists in this appeal with its claim to the whole of the land, that is to say, to unlimited depth.

59. Mr T A Beattie, an employee of the New South Wales Department of Mineral Resources, gave evidence of Consolidated Coal Lease No. 713. This lease is held by Muswellbrook Coal Company Limited. Mr Beattie’s affidavit annexes a map which shows the lease underlying that part of the claimed land which was only granted to a depth of 15.24 metres. The map also shows underground coal workings within the area of the coal lease and under the claimed land.

60. Mr Beattie explained that he could not be sure how old the workings over the claimed land are, but he noted that the leaseholder is still mining other parts of the lease. The mining company is not planning to remove any further coal from within claimed land. Its right to mine, however, is in force under the lease until 2007. Mr Beattie also explained that mining leases impose various rehabilitation obligations which must be fulfilled before cancellation, surrender or expiry of the lease, but these are only checked by the Department at the time of a cancellation, surrender or expiry. A security deposit of $16,700.00 dollars remains with the Department, which will not be returned to Muswellbrook Coal Company Limited until the rehabilitation has been completed to the Department’s satisfaction.

61. Mr Scriveners’s affidavit contains various documents relating to LandCom’s plans in the early 1980s to develop the claimed land. Those documents include extensive plans for rehabilitation of the land and reference is also made to the land being prone to subsidence. There is no evidence that the rehabilitation has been carried out and the outstanding security deposit is a strong indication of this fact.

62. The evidence of Mr Fox includes a “constraints” map which shows that a sizeable proportion of the claimed land is “undermined – subject to subsidence”. Again, this suggests to me that the rehabilitation has not been carried out.

63. Mr Robinson submits that the area to which the mining lease relates is lawfully used and occupied. The lawful occupation arises pursuant to the coal lease and the composite term of use or occupation is satisfied by the fact that there is an outstanding security deposit under the lease and outstanding obligations for remediation. Mr Robinson also points to the evidence of Mr Fox relating to subsidence problems as evidence that remediation is incomplete.

64. Mr Wright submits that the evidence of Mr Beattie merely discloses the existence of Consolidated Coal Lease No. 713 and that this does not go to show that the land is relevantly being used, only showing occupation. He argues that in any event the use and occupation are only notional and not actual. This difference should be enough to show that the land is in fact claimable. Mr Wright further submits that the obligations and rights of the leaseholder would nevertheless remain if the land was to be granted to the applicant.

65. Although Consolidated Coal Lease No. 713 commenced on 15 April 1990, it is, as its name implies, a consolidation of previous leases. The evidence of Mr Beattie and, to a lesser extent, Mr McCotter is that the area of the lease that is part of the claimed land is comprised of old workings that are not likely to be actively mined again in the future. There is no evidence of how old the workings are or precisely how extensive they are in relation to the claimed land in this proceeding.

66. Previous cases have considered the relationship between mining and the Land Rights Act. In The Minister v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106, Sheller JA said (at 117):

The scheme is plain. Crown land not being used for any purpose, mining or otherwise, when a claim is made, may be claimable Crown lands. Crown lands lawfully used for any purpose including mining purposes when a claim is made cannot be.

67. In the same case Sheller JA also said (at 119):

“Occupied” in paragraph (b) must have a more limited meaning. His Honour chose the meaning “actually occupied” in the sense of being occupied in fact and to more than a notional degree as opposed to constructive occupation… Occupation is not synonymous with legal possession or proprietorship. On the other hand continuous physical presence on every part of the land does not have to be shown to establish occupation… “Used” in section 36(1)(b) was governed by the same consideration as “occupied” and therefore meant “actually used” in the sense of being used in fact and to more than a notional degree.

68. In my opinion the mining activity in this case cannot be said to be merely notional. The mining activity on the land may not be active at present but there has been substantial mining in the past; and since the land must be rehabilitated, the current status can be regarded as a hiatus within the whole mining cycle, with future activity required by a positive legal obligation to carry out remediation works, which obligation is a continuing one on the part of leaseholder.

69. In The Minister v New South Wales Aboriginal Land Council [No.2] (1997) 42 NSWLR 641, Sheller JA said (at 649):

His Honour (at 23-24) concluded that in that case the evidence made it abundantly clear that the land was acquired and kept for the purpose of using it in conjunction with land earlier acquired. “It became part of an entire area which was wholly devoted to the purpose of quarrying and brick making and was used for that purpose immediately before the appointed day. It follows that in my opinion the respondent was entitled under clause 32 to continue to use the whole of the land for quarrying and brick making.” Use is not confined to physical use, but does not include contemplated or intended use.

70. In my opinion the use in the present case is not merely contemplated or intended. The future use is an outstanding positive obligation for remediation which is imposed on the leaseholder. I also bear in mind that the right to mine is in force until 2007 and no evidence was presented to prove that the leaseholder has relinquished the lease or the right to mine in any way. The possibility remains, however slight, that remaining reserves may be extracted. There is also the similar possibility that new technology will enable the reworking of the existing old workings.

71. Another question to be considered is the degree of control exercised over the land. Muswellbrook Coal Company Limited still has the right to mine the subject land and, as already noted, also a responsibility in relation to the subject land which is substantiated by the outstanding security deposit to secure the remediation works. In The Minister v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133, Clarke JA said (at 140):

In this context I would agree the mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question....

What is, in my view, more to the point is whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land.

72. In New South Wales Aboriginal Land Council (on behalf of Dubbo GA Local Aboriginal Land Council) v The Minister, I said:

In applying the words “occupied” in the forgoing sense, I do not regard the council’s mere trusteeship of the reserve as anything more than a constructive occupation. That is not sufficient. There must be an occupation in fact. The only evidence of an occupation in fact is the act of survey in June 1995 and again in August 1995 and of digging test holes on the land in July 1995 with a view to determining its suitability for the contemplated use. These, it seems to me, are extremely tenuous acts of occupation.

73. That case was concerned with a public reserve that was proposed for redevelopment as a sporting complex. Very little physical work had occurred on the land and the proposal had not received development approval. In contrast, the subject land in this case has had substantial mining activity within it and the future activity of rehabilitation is a compulsory obligation imposed upon the leaseholder.

74. In The Minister v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106, Sheller JA said (at 121):

The question is whether the lands or the relevant part of the lands, taken as a whole, have been devoted to mining purposes rather then whether they are being immediately physically used for those purposes. But the use must be more than notional and be present use when the claim is made rather than contemplated or intended use: Parramatta City Council v Brickworks Limited (1972) 128 CLR 1 (at 21)...

I do not think that it is possible to determine whether the lands are being lawfully used within the meaning of section 36(1)(b) without taking into account the purpose for which it is claimed they are being used. The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more then a notional sense.

75. In this case, as already noted, the occupation and use is for the purpose of mining. The subject land has already undergone significant mining activity; and there is an existing right to further mine the land at any time until 2007 when the lease expires. Additionally, as also previously noted, at some time before the lease expiries the lessee is required to carry out rehabilitation works.

76. In The Minister v New South Wales Aboriginal Land Council [No.2] (1997) 42 NSWLR 641, Sheller JA said (at 654):

The Mining Act 1906 provided the means by which the holder of ML2 obtained the right lawfully to occupy or use Crown land for specified mining purposes (section 23). That right of occupation or use was for the purpose of mining for brick clay and purposes connected with such mining, being mining purposes within the Mining Act, and for no other purpose.... Condition12 required the lessee to observe and comply with the conditions set out in the instrument of allowance of appeal. Although there was no substantial commencement, there is nothing to suggest that the lessee failed to observe or comply with those conditions to the extent required in the circumstances...

In my opinion, at the time of the Land Council’s claim the ML2 land was being lawfully used.

77. In my opinion, the present case is analogous to that case. The mining lease exists as evidence of substantive occupation and use. The control that the leaseholder exerts over the land is particularly evident in the reasonably onerous and unfulfilled obligation to rehabilitate the land. Moreover, there is no evidence to suggest that the leaseholder would not go back into the old mine workings and, with the aid of new technology, extract additional material therefrom. For these reasons I regard that part of the claimed land which is subject to the coal lease, namely the land that is below 15.24 metres below the surface to be non-claimable land because it is lawfully occupied and used. It is thus excluded from the definition of claimable Crown lands by paragraph (b) of that definition. I note, however, that the lease expires in the year 2007, at which time the applicant may make a further claim for the land.

The Trigonometrical Station

78. The Minister refused part of applicant’s claim on the ground that the land was needed for the essential public purpose of trigonometrical purposes (being an area of 115 metres by 55 metres) and for access thereto (20 metres wide). There is and was at the relevant date a trigonometrical station (“the trig station”) on part of the claimed land know as Muswellbrook Trigonometrical Station.

79. Mr P R Harcombe, Deputy Surveyor-General of New South Wales, describes in an affidavit the basis for claim made by the Surveyor-General’s Department regarding the need for the trigonometrical station as an essential public purpose. The Surveyor-General’s Department responded to the applicant’s claim by requiring the retention of the trig station and a certain proportion of the land in public ownership for the essential purpose of survey, mapping and other spatial reference purposes.

80. Mr Harcombe referred to the extensive use of the trig station for various departmental mapping and survey purposes, as well as by other authorities and private organisations. The area of land required to preserve sightlines is 115 metres by 55 metres around the trig station. An additional requirement for the surrounding area of the trig station would involve the preservation of an unobstructed view of the sky from 15 degrees above the horizontal in all directions. Moreover, there is a need for physical access to the trig station. There are two options for such access: option one is more direct route and option two would involve a less direct but also a less steep route.

81. I have noted (in paragraph 10 above) Mr Robinson’s submission that the Court has no power to make a conditional grant, such as the reservation of an easement for the trig station or an easement for access, because of the structure of section 36. In his submission this places a heavier onus on the Court to accept or reject the land claim as made. As noted (in paragraph 10 above) Mr Robinson submits that section 36(6) does not give to the Court identical powers to those possessed by the Minister, because sub-section (5A) gives to the Minister alone the power to grant a claim subject to an easement or other conditions. It is then a question for the claimant Land Council whether it will agree to any conditions which may be imposed by the Minister.

82. In Mr Robinson’s submission the land required for the trig station is not, in any event, suitable for an easement because it is a special trig station. It is frequently used by surveyors and currently has good access. Mr Robinson describes this particular trig station as “ideal” in comparison with alternatives and submits that the area required by the Surveyor-General’s Department and access thereto should be excised from the grant. In his submission this particular trig station is needed for an essential public purpose. It is at present protected by virtue of the fact that it is on Crown land. If it were not on Crown land, he argues there would be nothing to ensure the preservation of the necessary open space surrounding it.

83. In deciding whether the trig station is an essential public purpose I adopt what was said in the joint judgment of Handley and Powell JJA in The Minister v Deerrbbin Local Aboriginal Land Council, to which I have previously referred. I note that the station is and has been used extensively for both private and public survey purposes. Surveying and mapping of land is the foundation of almost every modern land use, including other essential public purposes such as transport and electricity. In my opinion the evidence clearly shows that the existence of this particular trig station is an essential public purpose for which the relevant part of the claimed land is needed. Moreover, access to this important reference point is also essential.

84. This conclusion means that both the area required for trig station and its access are outside of the definition of claimable Crown lands, being land needed for an essential public purpose. If, however, the Court has the power, contrary to Mr Robinson’s submission, to make a conditional grant under sub-section (5A) of section 36, then I would be inclined to the view that the need for the public purpose could be met by the grant of the applicant’s claim subject to an easement for both the required area around the trig station and for the access thereto. I shall presently consider the question of whether the Court possesses such power.

The electricity transmission line

85. The evidence shows that the transmission line in question was constructed in 1987. At the time it was constructed the only user of the line was Muswellbrook Coal Company Limited. When the land claim was made, on 18 September 1992, that part of the claimed land which the transmission lines traversed was part of the electricity works maintained and administered by Energy Australia, a statutory state-owned corporation under the State-Owned Corporation Act 1989. It was then needed for the transmission of electricity. It now supplies electricity to Muswellbrook Shire Council’s rubbish depot and recycling plant. The transmission line is the only available electricity supply to that depot and plant.

86. There is no doubt that the land traversed by the electricity transmission line was, at the time when the claim was made, needed for an essential public purpose, namely electricity distribution. It continues to be so needed. It is thus excluded from the definition of claimable Crown lands.

87. Mr Robinson informed the Court that the Minister had made an offer of a conditional grant with an easement for electricity transmission, to which the applicant Land Council has not responded. In the light of his submission that the Court has no power under sub-section 36(5A) to impose a condition reserving an easement, the Court, in his submission, is bound to reject this part of the applicant’s claim.

88. Although the transmission of electricity is an essential public purpose, the small area of land required for that purpose may be protected by the provision of an easement. This is particularly evident because the Minister had previously made an offer to grant the land subject to an easement. As with the question of the trig station and access thereto, I shall presently consider the question of whether the Court has the power under sub-section (5A) of section 36 to grant the applicant’s claim subject to a condition that an appropriate easement be provided.

Permissive occupancies

89. Schedule 4 of the Land Rights Act is headed “Savings, Transitional and Other Provisions”. Clause 8 of Schedule 4 provides as follows:

8. Claimable Crown lands

Where, but for this clause, any lands would be claimable Crown lands as defined in section 36, those lands shall not, if they were on the appointed day, the subject of a lease, licence or permissive occupancy, be claimable Crown lands as so defined until the lease, licence or permissive occupancy ceases to be in force .

The “appointed day” for the purpose of clause 8 is 10 June 1993. Mr Wright conceded that the Minister during the hearing had discharged the onus of proof in relation to the permissive occupancies, which were in existence on both 10 June 1993 and the date of the claim, 18 September 1982.

Whether the Court has power to grant the claim subject to conditions pursuant to sub-section 36(5A)

90. Mr Robinson’s submission (noted in paragraph 10 above) was that the Court has no power under section 36(5A) to grant the claim subject to conditions. He referred to the judgment of Bannon J in La Perouse Local Aboriginal Land Council v The Minister (1991) 74 LGRA 176 at 181:

Further, in my opinion, s 39(2) of the Land and Environment Court Act 1979 (NSW) is not apt to enable this Court to exercise any discretion vested in the Minister under subs (5A) as regards applications lodged prior to its enactment and, indeed, possibly in any case. The appeal to this Court given under section 36(6) has always been limited to the refusal of an application under s 36(5)(b), which with minor changes, has always been in the Act. To construe s 39(2) of the Land and Environment Court Act as extending the court’s powers to deal with a new power vested in the Minister by subs (5A), appears to be fraught with the difficulties mentioned by the Court of Appeal in Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; 55 LGRA 310.

91. The views of Bannon J are only decisive of cases in which the application date is earlier than the enactment of sub-section (5A). His Honour’s expression of opinion regarding the Court’s power in cases with a later application date must be regarded as obiter.

92. In contrast to the views of Bannon J, Stein J appears to have accepted that the Court has the power to conditionally make a grant of land pursuant to sub-section 36(5A). In Tweed Byron Local Aboriginal Land Council v The Minister (1990) 72 LGRA 177, his Honour made such a grant. Stein J said (at 184):

In my opinion the claimant Land Council is entitled to have that portion of the claim to the south, constituting the disused quarry site, transferred to it in accordance with s 36(7) and (9) of the Aboriginal Land Rights Act. The application is therefore upheld in part and I propose to make the order transferring the land to the claimant when an appropriate and sufficient description is provided to the Court. In view of the evidence it is also appropriate that the title to be granted to the Land Council be impressed with a covenant ensuring a continuation of public access over the old quarry site to Dreamtime Beach via the track and that the land be maintained by the claimant for the purposes of public recreation.

93. Stein J’s decision in Tweed Byron was overturned on appeal (The Minister v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133). The fact that Stein J made a conditional grant was not considered by the Court of Appeal because the land was found to be lawfully used and occupied. The Court of Appeal did not decide whether the Court could exercise the power of the Minister under sub-section 36(5A). The only reference to the matter in the Court of Appeal was by Clarke JA (with whom Samuels and Meagher JJA agreed) at 135:

The portion which his Honour held that the Tweed Byron Local Aboriginal Land Council was entitled to have transferred to it in accordance with s 36(7) and s 36(9) of the Act was that portion of the claim in the southern section which included the disused quarry site. His Honour thought, however, that the title should be impressed with a covenant ensuring a continuation “of public access over the old quarry site to Dreamtime Beach via the track and that the land be maintained by the claimant for the purposes of public recreation”. In the final order made by his Honour he allowed the appeal in part and noted the undertaking of the applicant that it would consent to the imposition pursuant to s 88E of the Conveyancing Act 1919 (NSW) of a restriction on the user of the land transferred to it by the order in favour of the Crown.

94. Reference was made to sub-section 36(5A) by Meagher JA in The Minister v Deerubbin Local Aboriginal Land Council (at 251) in describing the Minister’s discretionary power to make a conditional grant:

The Minister conceded that the other requirements of s 6(1) were satisfied. Unless the Minister proceeds to grant a claim in accordance with s 36(5A) the claim must be refused. Section 36(5A) allows the Minister to avoid the statutory prohibition to granting a claim where “the lands are needed or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted...subject to the imposition of a condition...relating to the use of the lands” and the relevant Aboriginal Land Council agrees to the condition. Such a conditional grant is wholly discretionary and one which, in the present case, the Minister chose not to exercise. Nothing much turns on this issue in these proceedings.

95. It is clear that the decision whether to make a “conditional grant” of land pursuant to sub-section 36(5A) instead of refusing the grant outright is a discretionary power that lies with the Minister. The rationale is that the Minister, on determining that an area of land is requires for an essential public purpose, must then determine whether that need can be accommodated by the imposition of a condition on the land, or whether the land must remain in public ownership in order to fulfil the need. The question of whether or not the Court, in hearing and determining an appeal from the Minister’s refusal of a grant, has the power to similarly make a conditional grant has not been decisively dealt with by the authorities, although Stein J made such a grant in the Tweed Byron case.

96. The proviso in the sub-section, that a conditional grant may only be made “where the condition is agreed to by the Aboriginal Land Council making the claim” should not be interpreted as implying a negotiated transaction between the claimant Land Council and the Minister. Conditional grants, by their very nature, restrict the use of land and some conditions may create obligations, such as the requirement in the Tweed Byron case for the maintenance of the land for public access and recreation. A claimant Aboriginal Land Council may feel that a certain condition or certain conditions attached to a grant would be too onerous a burden to bear, or there may be other reasons why a Land Council might not agree to a condition. Where a claimant Aboriginal Land Council does not agree to a condition, the finding that the land is required for public purpose must still be given effect because section 36(1)(c) deems such land to be not claimable Crown lands.

97. The proviso in sub-section 36(5A) should be read in the light of the fact that the Land Rights Act is a beneficial legislation. In The Minister v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, Kirby P said (at 157)

The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgment, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia. A recent history by Professor H Reynolds catalogues the extent of that injustice, loss and deprivation: see H Reynolds, Frontier: Aborigines, Settlers and Land (Allen & Unwin, 1987). Against such a background, and given its purposes and context with other land rights and similar remedial legislation, the Aboriginal Land Rights Act 1983 should be given by the courts the most beneficial operation compatible with its language.

98. Moreover, in The Minister v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106, Sheller JA referred (at 117) to:

... the need, I acknowledge, to give the Act the most beneficial operation compatible with its language (Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157) and my consciousness of the legislative policy expressed in the recital to the Act and elsewhere to return land to the Aboriginal people of New South Wales as a form of economic compensation,...

99. It is not the intention of a beneficial act to impose onerous conditions upon a grant on unwilling recipients. The requirement that any condition must be agreed to by the claimant Land Council is simply “safety valve” to preserve the beneficial nature of any grant.

100. If the Minister imposes a condition which is not acceptable to the claimant Land Council, then the claim is one which must necessarily be refused under sub-section (5)(b). In that way section (5A) is subsumed into sub-section (5)(b) and is caught by the right of appeal under sub-section (6). There would appear to be an inconsistency if the Court could only then determine the appeal by reference and sub-section (5)(b) and not sub-section (5A).

101. Sub-section 36(6) must also be given the most beneficial operation compatible with its language. The purpose of sub-section (6) is to afford to the claimant Land Council a right of appeal to the Court against the Minister’s determination to refuse a claim. Sub-section (6) was enacted in full knowledge of the width of sub-section 39(2) of the Court Act:

39 Power of Court on appeals

(1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal

(An appeal under sub-section 36(6) is a proceeding in Class 3 of Court’s jurisdiction)

102. It would not be giving sub-section 36(6) of the Land Rights Act the most beneficial operation compatible with its language if one were to read down that sub-section so as to exclude the power of the Court in sub-section 39(2) of the Court Act. If that was the intention then one might expect to find some expression of it (such as, for example, the use of words like “notwithstanding sub-section 39(2) of the Land and Environment Court Act...”).

103. In my opinion, the Court, having in this appeal by force of sub-section 39(2) of the Court Act all the functions and discretions of the Minister, is empowered to offer a conditional grant pursuant to sub-section 36(5A) of the Land Rights Act. The claimant Land Council can then decide whether to accept the conditions of the grant, but if it does not so agree then that portion of the claimed land needed for an essential public purpose is not claimable.

104. I therefore propose to allow the appeal and grant most, but not all, of the applicant’s claim, and in particular the land that was said to be needed or likely to be needed as residential lands. The areas required for the trig station, access road and electricity transmission line are to be the subject to a conditional grant, namely a reservation of easements therefor, if the claimant Land Council agrees to such conditions. If the claimant Land Council does not so agree then the evidence satisfies me that such areas are needed for an essential public purpose in each case and are thus not claimable. The parties can agree on the most appropriate route for the access road to the trigonometrical station. I refuse so much of the appeal as relates to the sub-surface land covered by the mining lease which extends downwards from 15.24 metres below surface the as being not claimable pursuant to paragraph (b) of definition claimable Crown lands.

Conclusions

105. I have found as a fact that the claimed land is neither needed nor likely to be needed as residential land and thus is not excluded from being claimable. I have found as a fact that the land which is below 15.24 metres from the surface and which is within the Consolidated Coal Lease No. 713 is lawfully used and occupied pursuant to the lease and is thus not claimable. I have found as a fact that the trigonometrical station and its curtilage comprising an area of 115 metres by 55 metres, the access thereto and electricity transmission line are all needed for an essential purpose in each case and thus are not claimable, but pursuant to sub-section 36(5A) of the Land Rights Act the claim is granted subject to a condition that easements therefor be reserved out of the grant. I note the claimant Land Council’s concession that the respondent had, during the hearing, discharged the onus of showing that the permissive occupancies are not claimable. I refrain from making final orders to allow the claimant Land Council the opportunity of determining whether to agree to the conditions which I am inclined to impose on the grant. I direct the claimant Land Council to bring in short minutes of orders to give effect to this judgment by arrangement with my associate.

106. Finally, I acknowledge the assistance and input of Commissioner L C McDermott and Commissioner G Davison, who heard the case with me.

I