Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act

Nor was there sufficient evidence of activities to constitute "use" for the purposes of the sub-section. The mere fact that the land was designated as Crown-timber lands is insufficient to establish that it was, at the date of the claim, used by the Forestry Commission to the standard required by s.36(1)(b).

The Applicant further relies on the fact that the Respondent did not invoke s.36(1)(b) as a reason for rejecting the claimed land until 1993. Up until that time, the Respondent relied on s.36(1)(c) of the ALRA to support its refusal of the claim. In any event, had the Crown Lands Minister so desired, he could have exercised his powers well before the claim was made and dedicated the Crown-timber lands as State Forest.

The activities that the Respondent relies upon to support its claim that it used the land all took place before the date of the claim. The construction of Bolaro Mountain Road took place in 1979 and 1980, and the bushfire activities were undertaken in 1981, 1982 and 1984. In relation to the actual logging activities, there was only the evidence of Mr Massey-Reed (which the Applicant submits is very unreliable) about the cyclical nature of forestry activities, and scant documentary evidence about the logging of any of the three compartments.

The Applicant relies on various decisions of the Court of Appeal and of this Court to submit that the Forestry Commission's failure to comply, in terms, with s.111 of the EP&A Act renders any of its activities on or regarding the land as an "unlawful" use of it. It relies on Mr Conacher's evidence that, had an appropriate s.111 assessment been done, the Forestry Commission would have determined that its activity would negatively impact upon the environment. See Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 (1986) 7 NSWLR 353; Jarasius v Forestry Commission of NSW [No.1] (1988) 71 LGRA 79; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200; Prineas v Forestry Commission of New South Wales and Others (1983) 49 LGRA 402 at 415, 418; F Hannan Pty Ltd v Electricity Commission of New South Wales [1983] 3 NSWLR 282; and Helman v Byron Shire Council and Another (1995) 87 LGERA 349 at 358-359).

As the Applicant's written submissions say (at par 109): This case is about being lawfully on the land in the first place; not about what is done once lawfully on the land. In this case, the Forestry Commission had no lawful authority to be on the land other than to log and for purposes incidental thereto. That authority is subject to the prerequisite, or condition precedent, of compliance with the obligations in the EP&A Act. Absent prior compliance with Part V of the EP&A Act, there can be no lawful use within the meaning of s 36(1)(b) of the ALRA.

The Applicant submits that timber production is not an "essential public purpose", in the sense of its being a "purpose of the administration of government" (see Tredega at 331, per Stein J), and points out that there has been no case to date in which a land claim has been refused on the grounds that the land was needed or likely to be needed for the essential public purpose of "timber production". Although the revenues flowing from timber production may be desirable, or even highly desirable, timber production is neither a public purpose nor essential (see also Maroota at 674 per Spigelman CJ).

Further, there is no evidence of the requisite expression of political will, at the date of the claim, to support the essentiality of the claimed land for the purpose of timber production by the government agency concerned about the production of necessary timber. The Applicant submits the Executive Government took no action to have the claimed land dedicated as part of the Bolaro State Forest. Officer-level consideration of such a proposal never progressed to the stage of a formal Executive Government decision.

The Applicant submits that the Court should disregard the Regional Forest Agreement 2002 as evidence of any government policy to pursue the dedication of the claimed land, given that it postdates ALC 1431 by seventeen years, and cannot be evidence of relevant political will at the time of the claim. Delay in bringing a proposal to fruition has been held to be relevant to determining the questions of need, likely need, and essentiality (see La Perouse at 182-3, and Maroota at [61]). Coupled with the evidence of some lack of conviction among Forestry Commission and Lands Department officers as to the quality and quantity of "merchantable timber" on the claimed land, the delay in finalising the dedication of the land, it is submitted, defeats the assertion by the Respondent that there was, at the date of the claim, a "real and not remote chance that the land was needed or likely to be needed for the essential public purpose of timber production" (Applicant's submissions par 146, and the evidence cited therein). "Highly desirable" perhaps, but not "essential".

The Applicant submits that, if a finding were made by the Court that the claimed land was needed or likely to be needed, it should exercise its discretion under s.36(5A) of the ALRA to grant the claim subject to the imposition of a condition relating to the use of the land for the purpose of timber production.

I have gone through the evidence and the competing submissions in this case with some care and in some detail as the matter is quite complex. I have concluded that I should prefer the Applicant's submissions as more consistent with the evidence, and I find myself in agreement with Jagot J's recent comment that: "No land council should have to wait for twenty years for its land claim to be determined" (Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577 at para [124]). Such delays cause serious evidentiary problems for all parties, and can thus frustrate the beneficial and remedial legislative intention of the ALRA to return land to Aboriginal people.

The first issue for the Court to determine is whether the land was "occupied" for the purposes of s.36(1)(b) of the ALRA at the time the claim was lodged.

It is significant that a clear decision by the legislature was made to grant a different set of powers to the Forestry Commission under the Forestry Act in relation to Crown-timber lands than it gave it in relation to State forests, timber reserves and flora reserves. The failure to extend the powers for the "control and management" contained in s.11(1)(a) of the Forestry Act must be taken as an indication of an intent to give the Forestry Commission significantly lesser powers over Crown-timber lands than the other categories of land referred to in the Act. From this it must be concluded that the Forestry Commission did not have "control and management" of the claimed land at the time of the claim.

It is well established that occupation under s.36(1)(b) of the ALRA must be more than incidental. While there is evidence that the Forestry Commission entered on to the land to undertake planning and other activities, such as timber stand improvement work to improve the condition of the land, and fire protection activities, its activities were sporadic and I cannot conclude that they constitute occupation to the requisite level needed to satisfy s.36(1)(b). This is so even though the Court accepts that it may be necessary to leave the land to regenerate after logging as part of the cyclical nature of forestry activity.

The Court is not concerned with what happened before or after the date the claim was made; the date of the claim is the focus of its inquiry. In the circumstances of this matter, the Court accepts that there was incidental occupation, but insufficient occupation to satisfy s.36(1)(b) of the ALRA.

Given my finding that the claimed land was not "occupied" for the purposes of s.36(1)(b), it falls to the Court to consider whether it was "used" at the date of the claim (Tweed Byron).

In determining whether lands are being (lawfully) used, it is necessary to consider the purpose for which they are being used. The purpose will then dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense (Nowra Brickworks).

While there is clear evidence that logging activity had taken place on the claimed land in both the 1960s and in the early 1980s, there is also clear evidence that this had ceased at the date of the claim.

Mr Massey-Reed's evidence has been comprehensively attacked by the Applicant, but I am satisfied that he did his best to assist the Court in a frank manner, despite the passage of so many years since relevant events. While he was clear on standard Forestry Commission procedures and practices at the time of the claim, and gave evidence of the land being included in forestry planning cycles, he also conceded that there were some things that he could not remember clearly. He was, for example, unable to recall accurately the actual location and boundaries of compartments 238, 239 and 240.

Overall I am not satisfied, on the evidence presented, and to the standard of proof that the Minister is required to meet, that, at the date of the claim, the claimed land was "used" in the sense required by s.36(1)(b) of the ALRA.

(c) Was any use or occupation of the Claimed Land "Lawful"?

Despite my having determined that the land was neither used nor occupied in the relevant sense, I should make the following observations about the submission made by the Applicant that, due to a failure to comply, in terms, with the EP&A Act, the land was not "lawfully" used or occupied for the purposes of s.36(1)(b) of the ALRA.

The Court has made the distinction between "unlawful" use by a squatter or trespasser and the breach of town planning laws. In Tweed Byron (at 142) Clarke JA said: The qualification that the user must be lawful has been, I think, introduced to distinguish between cases where a person uses the land without any lawful right to do so (the trespasser or squatter) and the person who enjoys a licence or permit which, while not constituting that person an occupier, render the use a lawful one.

I do not think that the definition of claimable Crown land is concerned with nice distinctions of town planning laws nor do I accept that a court charged with determining whether a user is lawful is concerned to investigate whether the actual use conforms in every respect with the minute detail of particular town planning schemes or ordinances. What the court is concerned with is whether the user of the particular Crown land is legally authorised.

However, the Court believes that there are significant public policy reasons as to why compliance with the environmental assessment provisions of the EP&A Act itself should be held at a higher standard than town planning schemes and ordinances.

Section 111 of the EP&A Act stipulates the duty of a determining authority, in its consideration of an activity (as defined by s.110), to take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. Section 112 requires environmental impact statements to be undertaken before certain final decisions are made by determining authorities to undertake certain activities. Clause 56 of the Environmental Planning and Assessment Regulation 1980 sets out the matters to take into account when considering the likely impact of an activity on the environment. Clause 57 prescribes the form and matters to be included in an environmental impact statement.

A breach of s.111 or s.112 can be identified in a matter concerning the ALRA, without any separate Class 4 proceedings. A failure to observe those provisions might be so serious as to render the activities undertaken on the land "unlawful" to the extent that it could affect a finding to be made under s.36(1)(b) of the ALRA. In such a case, the Court would have to consider whether the Respondent examined and took into account to the fullest extent practicable all matters affecting or likely to affect the environment by reason of the activities concerned (Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155).

Mr Conacher and Mr Lembit differ in their conclusions about the likely environmental impact of forestry activity on the claimed land but they were required to reach their conclusions on the basis of scant evidence and their observations on recent visits. On the other hand, Mr Massey-Reed. had a clear and credible recollection of the departmental policies and practices at the time of the claim in relation to environmental assessments under the Forestry Act. In particular, his affidavit of 30 October 2007 detailed the environmental considerations that would have been taken into account as standard practice at the relevant time in relation to the claimed land.

Were it necessary to determine the question of lawfulness, if adequate use or occupation had been found, the Court could well have been satisfied, on the evidence, that no breach of the EP&A Act had occurred.

Failure to comply with the provisions of the EP&A Act may in an appropriate case be so serious and significant that it may render relevant activities "unlawful" for the purpose of s.36(1)(b) of the ALRA, but this is not such a case.

(d) Was the Claimed Land Needed or likely to be needed for an Essential Public Purpose?

The Applicant's argument that "forestry" or "timber production" is not a public purpose and that no land claim has been refused on that basis cannot be sustained. Whether it is or is not an "essential public purpose" is a matter to be determined by reference to the factual situation as at the date of the claim.

The evidence noted in detail above indicates that both the Forestry Commission and Department of Lands, in 1987 and 1988, considered that the timber in the claimed area was of "low merchantable quality" and the claim that it was "essential" was not supported (see, especially, par 87 above). The departmental views firmed, in terms of essentiality only after the claim was made, but the political and economic situation in 2002, when the Regional Forest Agreement is made, does not tell the Court much about the situation in 1985.

While this is evidence of the opinion of departmental staff and not the Ministers, it provides for the Court some information which would then have been placed before Ministers and would so have formed the basis for ministerial decisions at relevant times. The evidence supports a finding that, at the date of the claim, the claimed land was not required for an essential public purpose.

The departmental correspondence of 4 March 1983 (Exhibit M6, tab 50 - see par 24 above) shows a general governmental intention to build up the stock of forest lands, after the decision to stop logging in some rain forest areas, and the desire to maintain full employment in the timber industry as a result of that decision. While this explains government policy at the relevant time, and shows a general attitude about Crown-timber lands, it is not evidence of a specific government intention in relation to the claimed land. If at the time of that pressure on the industry the dedication of the claimed land was "essential" to advance the timber production of the State, one would anticipate firm steps to have been taken by the government to achieve it before this claim was lodged (see par 75 above).

The Minister has failed to satisfy the Court to the requisite level of proof that the claimed land was not "claimable Crown land" within the meaning of s.36(1) of the ALRA, by reason of s.36(1)(b) and (c).

Accordingly, the appeal must be upheld and the subject land transferred.

In that circumstance, I do not need to consider whether or not the Court could or should make an order under s.36(5A) of the ALRA, despite the possible acceptability of such an arrangement in the case of this land (Exhibit B4, fol 128).

I direct the parties to bring in short minutes of the orders appropriate to give effect to this decision. The exhibits may be returned except Exhibit M2, Exhibit M4, and Exhibit M10.

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