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

Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act - [2008] NSWLEC 82 - NSWLEC 2007 case summary — Zoe

[13]

During the course of the hearing of this matter, the parties came to an in principle agreement about the resolution of issues 3, 4, 5 and 6 which were as follows: 3. Whether, at the date of the claim, the claimed land was "needed or likely to be needed" for an "essential public purpose", being for electricity supply, within the meaning of s 36(1)(c) of the ALR Act; 4. Whether, at the date of the claim, the claimed land was "needed or likely to be needed" for an "essential public purpose", being for water mains, within the meaning of s 36(1)(c) of the ALR Act; 5. Whether, at the date of the claim, the claimed land was "needed or likely to be needed" for an "essential public purpose", being for access to public roads, within the meaning of s 36(1)(c) of the ALR Act; 6. If the answer to issues 3, 4 or 5 is in the affirmative, whether the Court should grant the claim under s 36(5) subject to the imposition of a condition pursuant to s 36(5A) relating to the use of the land. 6 That agreement required the Minister to file further evidence specifying on a plan precisely where the activities and access to public roads, electricity supply and water mains were taking place. This has now been done in two affidavits of Mr Sartori, Manager Technical Services of the Council, dated 13 December 2007 and 20 December 2007. 7 Accordingly, the Court has to determine issues 1 and 2. Clarification of the boundaries of the claimed land has been provided in the affidavit of Mr Sartori, dated 13 December 2007, filed after the substantive hearing in accordance with Court orders. The area is that part of Reserve 86313 that was occupied by the Sir Joseph Banks Nature Park (the nature park), identified by line "D" on the plans attached to his affidavit. As identified in issues 1 and 2 the Minister is relying on occupation and use of the land by the Council to discharge his onus that the land is not claimable Crown land. Legislative framework 8 The Preamble of the ALR Act states that it is the intention of the legislation to provide a compensatory regime aimed at redressing the impact of dispossession on Aboriginal people in New South Wales as follows: 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:

[24]

19 An affidavit of Mr Rayner, Council officer, sworn 24 November 2007 was also read but concerns matters now agreed between the parties and I do not need to refer to this again. Creation of Crown reserve 20 A history of the claimed land based on the evidence relied on follows. Reserve 86313 for the purpose of "Preservation of Native Flora" was created on 23 June 1967 pursuant to s 28 of the Crown Lands Consolidation Act 1913. On 16 February 1968, the Council of the City of Bathurst was appointed as trustee of Reserve 86313. For the purposes of the Crown Lands Act 1989 (the CL Act) (which replaced the Crown Lands Consolidation Act 1913), a reserve trust called Bathurst City Council Crown Reserves Trust that included Reserve 86313 was established on 12 May 1995. The Council was appointed as trustee under s 92(3) of the CL Act "for the public purpose of preservation of native flora" and notified in the Government Gazette on 23 June 1967. Under s 92(5), the Council's appointment as trustee charged it with the care, control and management of the Reserve. Sir Joseph Banks Nature Park 21 The claimed land was used for a nature park known as the Sir Joseph Banks Nature Park that had been maintained and operated by the Council until shortly before the claim. The Council proposed the establishment of a flora and fauna reserve on the claimed land in 1968 (several letters in evidence refer to this in February and September 1968). A fence had been erected around the perimeter of the reserve which was to be that nature park in or around 1968 and it opened to the public in September 1971. According to a memorandum to the Council from the supervisor of parks and gardens dated 21 November 1974 it was fenced, had various trails constructed on it and various animal enclosures. The name "Sir Joseph Banks Nature Park" was gazetted on 11 April 1986. 22 In November 1986 a report from Dr David Goldney was received by the Council which detailed management problems with the nature park such as erosion and weed infestation. In April 1995 a report "Review of Objectives and Priorities for the Sir Joseph Banks Nature Park" was provided to the Council. It identified erosion as a major management problem. The report also identifies that: The facility, since its inception, has not only been greatly undercapitalised, but also development has been hamstrung by a lack of Revenue Finance, which only covers basic essential maintenance and minor improvements only. 23 From December 1997, members of the public were charged an admission fee for entry to the nature park. The park was open to the public from 9.00am to 3.30pm daily and Council staff were in attendance from 7.15am until 4.15pm.

[30]

34 As at July 2001, according to the oral evidence of Mr Roach, the Council had projected operating expenses of $55,220 in respect of the nature park for the 2001/2002 financial year. Similar expenses were projected for the financial years to 2005/2006. 35 On 2 July 2001 the nature park was closed to the public. It has not been reopened since except briefly for some form of motor race in 2003. On 4 July 2001, Mr Navin provided to the General Manager a timetable for the implementation of the closure of the nature park. Mr Navin proposed that from July onwards: it is intended to relocate the animals to other licensed facilities as swiftly as possible … Further, it is intended to relocate infrastructure such as the barbecues, picnic tables and shelter sheds to other parks within the City where they will be well utilised by the community. The staff of the Nature Park will remain at the facility to carry out daily feeding of the animals, stocktake the assets to be disposed of and generally assist in the transition of the present facility to a woodland area. The above process may take until the end of 2001 to finalise. 36 Also on 4 July Mr Navin recommended to the Council in the "City Engineer's Report to the Policy Committee Meeting Held on Wednesday 4 July 2001" that it take part in a community tree planting project organised by Conservation Volunteers Australia. Three areas were nominated as preferred which did not include the nature park. The Report stated: It is believed that Council could have the opportunity to add or delete sites if necessary which can include the Sir Joseph Banks Nature Park site, where funding could be sourced. 37 On 16 July 2001 Director of Corporate Services, Mr Sherley, wrote to Mr Navin: It is considered that a planting regime should be put in place to accelerate the actions that are currently occurring at this facility. I understand that discussions have been held with Conservation Volunteers. Please provide current status and likely start time. 38 On 15 August 2001 Mr Navin reported to a meeting of the Council: …Further, the picnic shelters sheds, picnic tables/seats and barbecues from within the Sir Joseph Banks Nature Park are to be re-located to other parks within the City area, with the largest shelter shed and 2 barbeques to be re-erected within the Macquarie River Bicentennial Park. The other shelter sheds are to be re-erected on land adjacent to the old Ranken's Bridge, Eglinton. It is anticipated that other seating and picnic tables will be sited in other parks within the City for the benefit of the public

[37]

46 On 19 December 2001 the General Manager of the Council, Mr Perram wrote to the DLWC in relation to ALC 6616. Mr Perram stated that the decision to close the fauna section of the park does not "alter the gazetted use of the area which is for the preservation of native flora". He also stated: "The site offers unique recreational facilities, public amenities and due to its topographical significance and proximity to the Mount Panorama Motor Racing Circuit and camping facilities, the reservation of the land should reflect the broader purposes for which the land has been, and must continue to be used. The Council intends that the land is used as open bush land for the benefit of the public at large, while maintaining the facilities and recreational amenities of the site…" Mr Perram suggested that if the Council were to cease being the trustee of the claimed land it would " require areas of land to be excised from the reserve (per hatched map, attached):

Access to the track adjacent to the northern boundary of the Reserve,
Access to the land, be restricted during race times,
Forest Elbow required for future track access and spectator amenities 47 On 21 December 2001 Mr Navin advised the General Manager of the Council that the relocation of the animals is complete. Mr Navin stated that the relocation of the animals "negates the need to have staff on duty there for the purposes of feeding the animals. The two staff members will now transfer to positions with in the Parks and Reserves Section…" 48 From that date, the Council considered a range of options including the possibility of converting the site into a reserve for native flora. Part of the documents provided in the tender bundle included correspondence between the Department of Lands and the Council concerning the claim. Given that they were produced after the claim date and therefore prepared with knowledge of the claim, I consider these have limited weight (see also Dorrigo Plateau Local Aboriginal Land Council v Minister Administering Crown Lands Act [2007] 155 LGERA 307 per Jagot J at 320). The letters to the Department after the claim such as the letters of 4 and 19 December 2001 must also be read in light of the fact the Council had knowledge of the claim and stated what they wished to depend on. 49 On 21 March 2002, the Sunset Working Party resolved to "adopt Conservation Volunteers Australia's proposal as a possible vision for the park, including an indigenous centre."

[45]

Minister's submissions (i) Lawful occupation 61 The Minister contends that at the date of the claim, the Council occupied the claimed land as a nature park and it was therefore lawfully occupied under s 36(1). The Council, as the manager of the reserve trust of Reserve 86313, was the authorised occupant of the land and the Council acted in accordance with its reservation as trust land. 62 Reliance was placed on Clarke JA at 141 in Tweed Byron. While in Daruk it was held that legal custody alone is not sufficient to establish occupation, Tweed Byron confirms that the existence of legal custody is a relevant step in any inquiry. Vesting of land in the Council also confirms, if there be any doubt, that Council's occupation of the reserve was "lawful" occupation, see Nowra Brickworks (No 2) at 653. 63 The Council had erected structures on the land and had maintained and improved the land, including the tracks and access roads. It had also erected animal enclosures. It maintained flora on the land, including by weed control and the cultivation of new plants. Two people were employed as a regular presence at the nature park and were still working there at the time of the claim after the nature park had closed. The Council controlled public access to the land, including enclosing it with a fence maintained by Council staff. 64 The location, physical features and operation of the nature park are best described in the affidavit of Mr Navin sworn 21 November 2006, as well as in a letter from the General Manager of the Council to DLWC dated 19 December 2006. Photographs of the nature park dating from around May 2002 are reproduced in the Minister's tender bundle. A tourist map and information brochure for the nature park, dating from July 2000, is reproduced in the Minister's supplementary tender bundle. 65 The evidence indicates that in the period before and including 21 August 2001, the nature park was operated as a flora and fauna park. It was completely fenced and contained extensive improvements and infrastructure for the amenity of visitors and Council staff situated at the nature park. The nature park, as at 21 August 2001, housed various native animals in enclosures. From December 1997, members of the public were charged an admission fee for entry to it.

[55]

80 There is no documentary evidence of the Council carrying out weed control around the date of the claim and there is no evidence of the fencing being repaired or maintained after the Council closed the nature park. The presence of a few animals on the land and daily visits by two Council staff merely to tend to these animals should be seen as insufficient to constitute occupation of the land, in order to defeat an Aboriginal land claim. In oral evidence Mr Navin stated that the maintenance of the roads after the date of claim was to ensure the safety of staff attending the land to feed the animals. 81 The presence of a few animals and daily visits by two staff to tend to them are not sufficient activity to give rise to occupation of the land. The fencing and improvements took place a long time before the claim and are not evidence of actual occupation at 21 August 2001. That the area was fenced and closed to the public at that date is not evidence of an actual act of control by the Council. Rather it reflects the decision of the Council to abandon the use of the land as a nature park and to cease its occupation for that purpose. There were minimal physical acts of occupation, no actual exercise of control by the Council and no evidence of maintenance of the land related to the purpose of the reserve for the preservation of native flora. Rather this is evidence of a decision to abandon the use of the land as a nature park and to cease to occupy it for that purpose. 82 The circumstances here are not equivalent to those in Tweed Byron as the Minister argued but rather fall short of the activities considered in Tweed Byron and also in Daruk. The Department of Education case is also important to consider on the issue of occupation. In that case the activities relied on were held not sufficient to amount to occupation in circumstances where a building which could house 900 people was now occupied by six people in a very small part of it at the time of the claim. In Dubbo Ga the council was the manager of a reserve and intended to establish a sporting complex. Its preparatory work of preparing budgets, lodging a development application, terminating a temporary licence granted over the reserve and digging holes for surveying purposes on the land was held by Lloyd J not to amount to occupation in fact. 83 The Minister argued that the purpose for which the land was to be used was undergoing a transitional stage to flora reserve at the date of the claim. The resolution to close the nature park on 20 June 2001 referred to its closure and stated that the area would revert to a woodland area open to the public. 84 Matters after the date of the claim should be generally disregarded as the issues have to be decided on the basis of what occurred at the date of the claim. In limited cases matters after the event can be referred to where they confirm a hindsight but not to prove a foresight; the Maroota case at 677. 85 The Minister relied on several documents after the date of the claim including a Council staff minute dated 14 September 2001 that once all the animals and associated infrastructure had been relocated/removed the nature park would revert to an area of bushland accessible to the public. A working party was established for twelve months on 19 September 2001 to advise the Council of future directions for the area, preservation of remnant woodland, and the creation of a woodland area open to the public, inter alia. If these events are considered they confirm that at the date of the claim the claimed land was not being occupied for any purpose other than closing the nature park.

[60]

94 The physical occupation of the land asserted in this case by the Minister is by the Council's conduct of the nature park. It was submitted that the purpose of the nature park was as a reserve for native flora and fauna. 95 The Minister has the onus of establishing that at the date of the claim there were activities occurring which supported his submissions that the occupation was for the purposes of, firstly, the nature park and, secondly, the flora reserve aspects of the nature park. 96 The Council has managed the claimed land in its role as manager of the trust body since 1967. The nature park was opened in 1971. While there is a long history of the use of the land for the nature park, I do not have a great deal of information about how the nature park operated over its history and the extent to which flora protection was part of its activities. The extent to which it was dedicated to the protection of native flora is disputed by the Applicant which argued that the nature park focused on the display of native fauna and effectively operated as a zoo. The limited evidence that is available about the operation of the park over some 30 years includes the Goldney report "Future Scenarios for the Sir Joseph Banks Nature Park" dated July 2001. That states that the park was established nearly three decades ago as an attempt to conserve native flora and fauna and make it possible for regional people to view a range of native animals under semi-natural conditions or in cages. Also in evidence is the brochure prepared in 2000 by students of Charles Sturt University which focuses on the presentation of native fauna in the park in a bushland setting. There are references to maintaining vegetation and weed control in the Council's documentary evidence and to tree planting by volunteers such as the Friends of Sir Joseph Banks Nature Park. The dominant activity in terms of the Council's activities in the few years before the date of the claim appears to have been the care and display of native fauna in enclosures and in a natural bushland setting. 97 The history of the nature park which was first laid out in 1967 is identified in the section above at par 21 and beyond. That history shows that there were concerns raised from at least 1998 concerning the under capitalisation of the park. Expenditure on the ongoing maintenance of the park greatly exceeded income received from park visitors. The evidence also shows that the Council did not choose to make capital improvements in the nature park from at least 1995. A 1998 bequest of over $95,000 to the nature park was not spent on it. Nevertheless, substantial sums were expended by the Council on the nature park over its lengthy operation. Mr Roach estimates that over $600,000 was spent between 1995 and 2001. It is difficult to determine on the evidence how much of this was directed to the care and upkeep of the animals rather than the preservation of flora. 98 Following the Goldney Report, option (3) of closing the nature park and allowing it to revert to a woodland area, was adopted in June 2001 by the Council. It is necessary to consider the evidence relied on to establish physical occupation as at the date of the claim. By the date of the claim, namely 21 August 2001, public access had ceased on 2 July 2001. The area was fenced. A number of activities had also been undertaken that were designed to facilitate the closure including the relocation of all caged animals and the relocation of improvements such as barbeques and picnic tables to other places in Bathurst (reports of Mr Navin dated 4 July 2001 and 15 August 2001). Very shortly after the claim was lodged the Council decided that it would not remove all the infrastructure such as picnic tables from the nature park. The intention to close down the nature park in relation to native fauna was realised by 25 December 2001 when all animals were removed and the two dedicated staff moved elsewhere. 99 While Mr Navin identified in his affidavit at par 11 and 12 the numerous activities undertaken by staff at the nature park from 1994 to Christmas 2001 including controlling weeds and planting and maintaining vegetation, that general evidence does not establish the extent to which, at the date of the claim, his instructions to the staff focused on the nature park as a flora reserve. At par 13 of his affidavit he stated that at the claim date staff undertook weed control and fence repairs, inter alia. I agree with the Applicant's submissions that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintaining the roads to ensure the safety of staff when visiting, according to Mr Navin's oral evidence. That is confirmed by the two dedicated staff being moved in December 2001 elsewhere after all the animals were removed. Regardless of whether the nature park was fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards. This view is also confirmed by the evidence of Mr Roach which establishes that there was a very substantial decrease in expenditure on the nature park in the 2000-2001 financial year after its closure compared to previous years. The estimate of expenditure for the five years after 2001 was approximately $10,000 per year. The expenditure in the two years before the nature park was closed was about $117,000 per year. 100 As to the aspects of the nature park which focused on flora reserve (for the sake of argument I am assuming here that the Minister established there was some activity related to a flora reserve conducted up to the date of the claim) there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve. The only evidence of occupation after December 2001 was the continuing presence of the fence, the remaining structures such as a visitors' centre identified in Mr Navin's affidavit and the exclusion of the public from the fenced area. While there is a Council staff minute of 16 July 2001 stating that a planting regime should be put in place to accelerate the actions currently occurring there is no evidence of this being physically implemented at the date of the claim. There is reference in the evidence several months after the date of the claim to possible planting by volunteers from Conservation Australia. 101 After the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the park which included its reversion to a woodland area open to the public. That suggests that the woodland area was a future use rather than a current use at the date of the claim and not therefore the subject of activity which could support a finding of occupation on that basis.

[62]

103 The Applicant argued that this occupation is analogous to the situation in the Department of Education case where Stein J found that the majority of the furniture and equipment in the building that was the claimed land had been removed and a small area on the first floor and another on the eighth floor remained occupied by six staff of the Department of Education. Up until the date of the claim, services to the building, including lifts, electricity, telephone, air conditioning and gas had been maintained. The building was cleaned regularly and had a caretaker and was patrolled by a security service. In the circumstances, Stein J, at 198, found that, as a matter of fact, the occupation was "so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)." 104 I agree with that analogy. If the purpose of the occupation of the land was the nature park, it was clear that the activities being undertaken were of the type identified in that case and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises. In this way, these activities fall into the category of being "so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)" as described by Stein J. The exercise of control by the Council demonstrated by the fence around the perimeter does not in the circumstances of this case give rise to the physical act of occupation by the Council. 105 I agree with the Applicant that the Minister has not discharged his onus under s 36(7) of establishing that the lands were lawfully occupied under s 36(1)(b) of the ALR Act. (b) was the claimed land lawfully used? 106 General principles concerning lawful use are identified at par 57-59. The purpose of the use will dictate the degree of immediate physical use of the land required to establish use, as a matter of fact, in the circumstances of each particular case. The claimed land must be used in more than a notional sense; Nowra Brickworks (No 1).

[64]

108 The activities on the land at the date of the claim were considered above in relation to occupation. The question now arises whether they are a more than notional use of the claimed land as determined by their purpose. While in the Department of Education case the same activities which were not sufficient to found occupation were found to be a sufficient use of the land, in the Wagga Wagga case (Court of Appeal) Tobias JA referred to the Department of Education case and notes that it was decided before Daruk and Nowra Brickworks No 1. Tobias JA refers to the reasoning of Stein J in relation to his finding of "use" relying in part on acts of occupation. As noted by Stein J questions of fact and degree must arise for consideration. 109 Evidence of contemplated or intended use is insufficient; Wagga Wagga at [32]; Dubbo Ga; Minister v New South Wales Aboriginal Land Council [No.2] (1997) 42 NSWLR 641 (Nowra Brickworks (No 2)) at 649. The Council resolution in June 2001 to close the nature park included that it revert to a woodland area open to the public. As referred to above at par 101, after the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the nature park which included its reversion to a woodland area open to the public. That evidence suggests that the woodland area was an intended future use rather than a current use at the date of the claim when the activity occurring at the date of the claim is considered. 110 I have determined already in relation to occupation that at the date of the claim there were insufficient physical acts to amount to occupation. The same activity by the Council in relation to the nature park is relied on by the Minister to establish use. I also do not consider that activity is sufficient to establish lawful use of the claimed land for the nature park. That applies to the nature park whether it was devoted to fauna displays only, about which there can be no doubt of a cessation of use, or shortly after the date of claim. To the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area, also for the reasons already discussed in relation to occupation at par 99-100 and in light of the substantially reduced expenditure on the area of the nature park, the evidence of use at or shortly after the date of claim does not establish lawful use for the purpose of s 36(1)(b). Material after the claim date 111 As noted above the actions of the Council immediately after the date of the claim confirm the intention to close the nature park with that process effectively completed in December 2001. Other activity concerning future planning for the area was also commenced such as the establishment of the working party in September 2001. Much of the material the Minister sought to rely on after the date of claim related to the Council's plans for the intended use of the land as a woodland area. The Minister argued that material is relevant because it confirms a hindsight namely that at the date of the claim the use was transitional, moving from nature park to woodland area. Even if considered on that basis it cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the nature park. Further issue - was Council's occupation and use of the reserve land for the nature park lawful? 112 Section 36(1)(b) requires that any use and occupation relied on must be "lawful". The arguments I have considered and ruled on above deal with the Minister's primary case and the Applicant's response to that case, namely that the occupation and use relied on by the Minister was the Council's occupation and use of the claimed land for the nature park. That consideration did not require me to have regard to whether the nature park was a lawful occupation or use of the claimed land. An alternative argument put by the Applicant was that the activity of conducting the nature park by the Council was not lawful. 113 The Applicant argued in relation to both lawful use and occupation that as the claimed land was required to be used for "the preservation of flora" under the terms of the trust for Reserve 86313 for which the Council is the manager of the trust entity, its use for the nature park was not lawful as that use did not comply with the terms of the trust. The Applicant argued that it was essentially a tourist attraction devoted largely to native fauna and that detracted from the purpose of the trust. It was submitted that the Council appears, up until at least 2001 and perhaps longer, to have conducted itself as though the nature park was not for the preservation of native flora but rather was a tourist facility for the display of native fauna. This is wholly inconsistent with the public purpose identified by the Minister in the creation of the Reserve. 114 As I have held that the level of occupation and use as a nature park does not satisfy the Minister's onus under the ALR Act (assuming that occupation/use for the nature park was lawful) it is unnecessary to consider this argument in any depth. I observe that there is little case law concerning the obligations of managers of trusts of Crown land referred to by the parties and further argument on this issue would have been necessary to enable a final determination of an important issue.

At a glance

Court

Decision date

Before

Source

Judgment (66 paragraphs)

Parties

Cases Cited (10)

Cited By (2)