Birrigan Gargle Aboriginal Land Council -V- Minister Administering Crown Lands Act [1999] NSWLEC 12

Land and Environment Court (NSW)|1999-01-28|Before: Mr J

INTRODUCTION 1. On 28 January 1999, at the conclusion of the hearing of the present proceedings, being an appeal pursuant to s.36(6) of the Aboriginal Land Rights Act 1983 (Land Rights Act) in respect of claims to fifteen (15) adjacent parcels of land situate in the vicinity of Wooloweyah Lagoon, a short distance from the township of Yamba on the State's North Coast, I announced my finding that the Respondent had failed to satisfy the Court that any of the lands claimed were not "claimable Crown lands" within the meaning of Land Rights Act on any of the several bases relied upon at the hearing in support of that contention. The legal consequence of that finding, as provided by s.36(7) of the Land Rights Act , was that the appeal must be upheld and the claimed lands be ordered to be transferred to the Applicant.

However, on the application of the Respondent, and with the concurrence of the Applicant, I agreed to briefly defer making final orders in the proceedings in order to allow the Respondent the opportunity to make out a case to the Court for a longer stay to enable the Respondent the opportunity to consider launching contemplated separate proceedings in the Supreme Court seeking to correct what it claimed to be erroneous entries in respect of eleven (11) parcels of claimed land in the Register maintained under the Real Property Act 1900, showing "the State of New South Wales" as the registered proprietor of each of those parcels. The prospect of such proceedings had been announced by the Respondent at the commencement of the hearing in the event of the Court rejecting the Respondent's submission that the 11 parcels of land were not relevantly "vested in Her Majesty" (and hence were not relevantly "claimable Crown lands") within the meaning of s.36 of the Land Rights Act. My finding was based, in part, upon my rejection of the Respondent's submission.

I now publish my reasons for my aforesaid finding announced at the conclusion of the hearing during which I had the assistance, pursuant to s.37 of the Land and Environment Court Act 1979, of Commissioner McDermott. It may be that after considering these reasons, the Respondent may be advised that instead of launching the contemplated separate proceedings in the Supreme Court, the present proceedings will themselves, provide the opportunity (by way of an appeal to the Court of Appeal pursuant to s.57 of the Land and Environment Court Act 1979) for the final adjudication of the question whether 11 of the claimed parcels of land were relevantly lands "vested in Her Majesty" for the purposes of the definition of "claimable Crown lands" in s.36 of the Land Rights Act. A consideration of this matter may have a significant bearing on the outcome of the Respondent's application for a stay of the present proceedings. I refer to the Respondent's application as a "stay" application rather than as an application for adjournment, originally made on the second day of the hearing, but thereafter by consent of both parties, modified to enable in the first instance, an adjudication by this Court of the Respondent's contention that the 11 parcels of land were not Crown lands. I should also note at the outset, that the Respondent's contention that the relevant lands were not Crown lands was raised only a short time (albeit with adequate notice to the Applicant) before the commencement of the hearing of the appeal. As will be seen, the Respondent's decision to refuse the land claims had not been founded on the ground that the lands were not relevantly Crown lands, but on the contrary, had been founded on grounds that implicitly acknowledged that the lands were "Crown lands" but were not relevantly "claimable Crown lands".

The present claims were made on 2 July 1984 (this being the date upon which the claims were lodged with the Registrar appointed under the Land Rights Act - vide Exhibit A document 10). As required by s.36(4)(c) of the Land Rights Act, the Registrar referred the claims to the Minister on 31 October 1984 - vide Exhibit A document 11. The Respondent's preparation of its case was on the basis that the latter date is the relevant date. However, nothing turns on the fact that the earlier date is properly to be regarded as the relevant date of the land claims.

The claims were duly recorded and numbered by the Respondent's Department. The claims were divided into three separate land groups and recorded and numbered in accordance with the following table:

Land Group Number Land Claim Number Portion number in the Parish of Yamba, County of Clarence I 741 72

810 34 II 751 ML 10 (part of Reserve 41805)

A copy of the Plan (being Exhibit 2), showing all of the claimed lands is annexed hereto and marked "A".

The aggregated area of all of the lands claimed is some 250 hectares.

By three letters (each dated 20 March 1996 - Exhibit 1), the Minister notified the Applicant that he had refused all of the claims.

His three letters deal separately with the three Groups of lands claimed that I have earlier described. The claim in respect of Group I Lands was refused because the Minister had "determined that when the claims were made, the claimed lands were needed for the essential public purpose of nature conservation" and that in consequence, the land was not "claimable Crown land" within the meaning of the Land Rights Act.

The claim, in respect of Group II Land was refused because the Minister had "determined that when the claim was made, the claimed land was needed for the essential public purposes of nature conservation and public access" and that in consequence, the claimed land was not "claimable Crown land" within the meaning of the Land Rights Act.

The claim in respect of Group III Lands was refused because the Minister had "determined that when the claims were made, the claimed lands were needed for the essential public purpose of nature conservation" and that in consequence, the claimed lands were not "claimable Crown lands" within the meaning of the Land Rights Act.

Following receipt of the Minister's three letters, the Applicant commenced the present proceedings on 24 May 1996. Although the sole issue presented by an appeal under s36(6) of the Land Rights Act is always whether the claimed lands are, at the date of claim, claimable Crown lands (New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation Act) (1988) 14 NSWLR 685) that issue can legitimately, in my opinion, be more narrowly formulated, conformably to s36(7) of the Land Rights Act, namely - whether the Minister satisfies the Court that the lands are not 'claimable Crown lands' at the date of claim: Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No.2) (1995) 89 LGERA 194.

At the trial, the Respondent has relied upon the following bases or grounds in support of his contention that the claimed lands were not at the date of claim, claimable Crown lands:

(A) Group I Lands (i) they were not lands vested in Her Majesty; (ii) they were needed for the essential public purpose of nature conservation.

(B) Group II Land (i) it was needed for the essential public purpose of nature conservation and of public access; (ii) it was lawfully used or occupied for the provision of access between Angourie Road and the adjacent ocean beach.

(i) they were needed for the essential public purpose of nature conservation.

It will be convenient to separately consider each of these grounds or bases for the Respondent's contention that the claimed lands are not claimable Crown lands and I shall do so by answering the following questions: (i) Were the Group I lands relevantly "vested in Her Majesty" at the date of the land claims? (ii) Were all of the lands needed for the essential public purpose of nature conservation? (iii) Was the Group II land needed for the essential public purpose of public access? (iv) Was the Group II land "lawfully used or occupied" by providing public access between Angourie Road and the adjacent ocean beach?

All these questions are relevant to the definition of "claimable Crown lands" contained in s36(1) of the Land Rights Act which materially provides:

"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…

… … (c) are not needed, nor likely to be needed, for an essential public purpose, and

There is no dispute as to the relevant facts which can be summarised as follows: (i) On 26 November 1971 by Notification published in Government Gazette No.137 the lands were resumed for the purposes of the State Planning Authority Act 1963 and vested in the State Planning Authority of New South Wales (the SPA). (ii) On 2 May 1973 the Registrar General in response to a resumption application lodged by the SPA pursuant to s31A of the Real Property Act 1900 made recordings in the Register in respect of the lands, all of which was land under the provisions of the Act, to give effect to the resumption. (iii) On 2 July 1982 a Notification was published in Government Gazette No.92 pursuant to s25A of the Crown Lands Consolidation Act 1913 in respect of the lands. (iv) On 22 July 1982 the Registrar General recorded in the Register in respect of the lands "the State of New South Wales" as being the registered proprietor of the lands. The Register contains an endorsement referring to the page within the Government Gazette upon which the s25A Notification was published. (v) As at the date of the land claim the Register under the Real Property Act in respect of the land was materially unchanged from the recordings made therein on 22 July 1982.

The Respondent relies on an affidavit sworn on 11 December 1998 by Warren Leslie Wright, a Senior Legal Officer employed in the Land Titles Office which includes the following paragraphs (which were admitted subject to the Applicant's objection and relevance):

"12. I am the officer charged with reviewing the Real Property Act Register ("the Register") in relation to declarations made under s.25A of the Crown Lands Consolidation Act 1913. 13. I have not been able to ascertain why it appears to have been the practice that the registered proprietor, The State Planning Authority of New South Wales', was crossed out on the First Schedule to folio of the Register, Volume 12456, Folio 4, Folio 5 and Folio 6 and later recorded as The State of New South Wales'. 14. The Registrar-General has powers under s12(1)(d) of the Real Property Act 1900 to correct errors on the Register. 15. The Registrar-General is considering the correctness of recordings made by him in the Real Property Act Register pursuant to notifications made under section 25A of the former Crown Lands Consolidation Act 1913. At this time the Registrar-General will not take any action in regard to any folios of the Register until the proceedings are concluded."

Based upon the foregoing facts the Respondent submitted that the Court in determining whether the land was relevantly vested in her Majesty "would not rely upon an erroneous entry in the Register". The Respondent invited the Court to find that the recording in the Register of the State of New South Wales as the registered proprietor involved an "administrative error" and was not supported in law by the Notification made pursuant to s25A of the Crown Lands Consolidation Act 1913 in respect of the claimed lands. At the date of the Notification, s25A(1) relevantly provided as follows:

"25A (1) Notwithstanding the provisions of any other Act it shall be lawful for the Minister in respect of any land that before or after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, was or is-

… … (b) appropriated or resumed and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of any Statute,

by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of this Act, and upon the publication of the notification in the Gazette the land may be so dealt with."

It is common ground that the SPA was relevantly "a public authority" for the purposes of s25A(1), a declaration to that effect having been published by the Minister in Government Gazette No. 114 of 20 September 1974.

The Respondent submitted that in these circumstances it could not be said that the lands were "lawfully" vested in the State of New South Wales. Rather, so it was submitted, they remain vested in law in the true owner, being the current successor of the SPA (there having been a series of successors).

The Applicant's competing argument is founded upon the provisions of the Real Property Act 1900 commonly referred to as the "indefeasibility of title" (or the "conclusiveness of the register") provisions, namely sections 40 and 42. The relevant provisions of s40(1) and (1A) should be noted as follows:

"40(1) A manual folio shall be received by all Courts or persons having by law or consent of parties authority to hear, receive and examine evidence as evidence of the particulars therein recorded and shall be conclusive evidence that any person recorded in the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of the estate or interest and that the land comprised in that folio has been duly brought under the provisions of this Act.

(1A) Where a computer folio certificate is issued in respect of a folio of the Register: (a) the certificate is evidence of the particulars recorded in that folio, and (b) it shall be conclusively presumed that:

… … (iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest."

Reliance was placed by the Applicant upon the following passage from the judgement of Barwick CJ in Breskvar v Wall (1971) 126 CLR 376 at 385/6:

"The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void. The affirmation by the Privy Council in Frazer v. Walker [1967] 1 A.C. 569 of the decision of the Supreme Court of New Zealand in Boyd v. Mayor & c., of Wellington [1924] N.S.L.R. 1174. At p. 1223, now places that conclusion beyond question."

In my judgment the "conclusiveness of the register" provisions of the Real Property Act 1900 are determinative of the issue in dispute and operate so as to require the conclusion in these proceedings that the lands were relevantly "vested in Her Majesty" as at the date of the land claim.

In so concluding the Court has not been invited by the Applicant to determine the legal effect of the Notification made pursuant to s25A of the Crown Lands Consolidation Act. The Respondent has submitted that that effect was not to render the lands "Crown land". Since the Applicant's competing submissions do not involve any challenge or rebuttal of this submission, it is not necessary for the Court to adjudicate upon it. Rather my conclusion that the issue is determined by the "conclusiveness of the register" provisions of the Real Property Act means that the Respondent's submission on the legal effect of the Notification given pursuant to s25A of the Crown Lands Consolidation Act may (for present purposes) be assumed to be correct.

However I should deal with some related submissions advanced by each of the parties because they bear upon my aforesaid conclusion based upon the provisions of the Real Property Act. Firstly there is the submission made by the Respondent that the recording in the Register by the Registrar General on 22 July 1982 of the State of New South Wales as becoming the registered proprietor of the lands involved an "unrequested administrative action" by the Registrar General. That submission entirely overlooks the power and the duty expressly conferred upon the Registrar General by s13H(1) of the Real Property Act 1900 which at the relevant time provided as follows:

"Where the Registrar-General becomes aware that land (whether it is land to which this Part applies or not) comprised in a folio of the Register has become Crown land within the meaning of the Crown Lands Consolidation Act, 1913, he shall make such recordings in the Register as he considers appropriate and may cancel, or make such recordings as he considers appropriate upon, any relevant certificate of title or duplicate registered dealing when it becomes available to him."

This statutory provision provides ample warrant for the action taken by the Registrar General. (In so concluding, I am not deciding whether the lands had, in law, become Crown lands by virtue of the s.25A Notification but obviously that had been the Registrar-General's understanding of the Notification.)

Secondly there was the submission made by the Applicant that the Court lacks the jurisdiction or power to examine how the State of New South Wales came to be the registered proprietor of the land. Although I have accepted the Applicant's argument based upon "the conclusiveness of the register" provisions of the Real Property Act, I would not accept the Applicant's submission as to lack of jurisdiction if it were taken as travelling beyond the operation and effect in the present case of those relevant provisions of the Real Property Act. In my judgment the Court has plenary jurisdiction to determine whether land is relevantly "vested in Her Majesty" within the meaning of the expression "claimable Crown lands" in terms of the Land Rights Act because that there be such vesting is an essential element of the statutory definition. Indeed my conclusion that the lands are relevantly vested in Her Majesty, based upon the operation of the "conclusiveness of the Register" provisions of the Real Property Act, is the result of the exercise by the Court of its undoubted jurisdiction to determine whether claimed lands are relevantly "claimable Crown lands". 28. For all the foregoing reasons I reject the Respondent's contention and hold that the Group I lands were relevantly "vested in Her Majesty" at the date of the land claim.

F. WERE ALL OF THE CLAIMED LANDS NEEDED FOR THE ESSENTIAL PUBLIC PURPOSE OF NATURE CONSERVATION?

I preface my consideration of this question by emphasising the crucial time factor built into it, namely "when the land claim was lodged". That relevant date is 2 July 1984. However, the factual enquiry is not confined to that fleeting instant in time, but analogously to established principles of town planning law concerning "existing-uses" (e.g. see Rosenblum v. Brisbane City Council (1957) 98CLR 35) will involve a consideration of prior facts, contemporary facts and possibly past facts, relevant to the question whether the claimed lands at the date of claim were needed for the essential public purpose of nature conservation. However, as I will later explain, past facts which are in the nature of hindsight are not admissible.

The evidence adduced by the parties relevant to this question was principally documentary material concerning facts pertaining to the claimed lands and neighbouring lands falling into three separate time frames, namely: (i.) facts predating the land claims; (ii.) facts contemporaneous with the land claims; and (iii.) facts postdating the land claims.

Included in the last mentioned category are the Respondent's determinations made in March 1996 refusing the land claims nearly 12 years subsequent to the date of claims. By any standard, this is an extraordinarily protracted period for the investigation and determination of the land claims and not surprisingly, the Applicant invited the Court to infer that the Respondent's determinations refusing the land claims had inevitably been influenced by the existence of facts post dating the land claim, in the nature of hindsight.

Somewhat surprisingly, the mass of documentary material adduced in evidence did not include any Departmental Report to the Respondent concerning his ultimate determination of the claims. In consequence, the Court is left with the Respondent's determinations refusing the land claims for the stated reasons but without the benefit of any exposition or explanation for the determinations that would ordinarily be expected to exist in the form of Departmental memoranda or advice to the Minister.

However, it is both possible and reasonable to infer from the documentary evidence, and I do so, that the Minister's determination that all of the lands were needed for the essential public purpose of nature conservation was based upon the views and advices of the National Parks and Wildlife Service (NP&WS) as communicated to the Respondent's Department.

Herein lies a fundamental difficulty in the Respondent's case because, as will be shown, the views and advices of the NP&WS, as communicated to the Respondent's Department, significantly and dramatically changed from its initial position (reflected in its letter dated 8 February 1985) of raising no objection to the land claims except for claims 777, 778 and 779 (the Group III Lands) to its final position (reflected in its letter of 30 January 1996) objecting to all of the land claims "on the ground that the land is required for the essential public purpose of nature conservation".

Over a period of 11 years, the NP&WS is obviously entitled to change its position in relation to the land claims. However, the crucial question is whether its changed position can legitimately be related back to the date of the land claim, in the sense that it can be fairly said that at that time, the claimed lands were needed for the essential public purpose of nature conservation. In my judgment, the evidence of the changed position of the NP&WS in 1996 (some 11 years after it had expressed its views contemporaneously with the date of the land claim) does not support a finding that the claimed lands were needed for the essential public purpose of nature conservation. This conclusion is not immediately relevant to land claims 777, 778 and 779 (i.e. the Group III Lands) because in respect of those claims, there is no changed position of the NP&WS. It will be necessary for me to give some separate consideration to the question under discussion in relation to the Group III Lands.

On the hearing of the appeal, the Respondent, not surprisingly, did not found his case on the evidence concerning the changed position in relation to the land claims of the NP&WS. Rather, he placed principal reliance upon contemporary facts, and in particular, upon the existence of the Government's proposal for a major tourist development of coastal lands (including the claimed lands) then known as the "Yamba Waters Project". The history of the Yamba Waters Project is well documented in the evidence. It originated in 1970 with a proposal by the Development Corporation of New South Wales (the Development Corporation) for the Government to seek the establishment by private developers of a major tourist resort situate on the coastline between Yamba and Angourie (a few kilometres south of Yamba).

The proposal gave rise to the resumption in 1971 by the SPA of the Group I Lands and for the setting aside of neighbouring Crown lands for the purposes of that proposal. The proposal was publicly announced in May 1971. A Prospectus was issued in November 1973 inviting private developers to lodge development proposals for the lands set aside for that purpose. Four proposals were forthcoming but they lapsed because of the economic recession experienced in 1974.

The Development Corporation reviewed the proposal in 1977 but concluded that economic conditions remained unfavourable.

In 1980, the Minister for Industrial Development and Decentralisation directed a Departmental review of the earlier proposal. This led to the commissioning of architect/town planner consultants to prepare a concept plan for the proposal.

In June 1981, the written proposal in the form of a Prospectus was launched both locally and overseas by the Premier and the responsible Minister under the title "Yamba Waters Project". Some 24 organisations (local and overseas) registered an interest in the proposal. In mid 1982, State Cabinet selected Ipoh Garden Australia Pty Ltd to undertake feasibility studies and to prepare detailed development plans.

However, in October 1983, Ipoh Garden Australia Pty Ltd advised the Department that following its investigations, it did not wish to proceed any further with the Project.

Following Ipoh's withdrawal of interest, other interested companies were invited to make submissions by May 1984. However, only one company made a submission which was appraised by the Development Corporation as not being feasible.

Against this background, in June 1984 (just one month before the Applicant lodged its land claims) a report was prepared for the Development Corporation by Mr M.T. Sandow, Chairman of the Yamba Waters Sub Committee of the Development Corporation which report, after traversing the origins and history of the development proposal, recommended that the Yamba Waters Project be abandoned. The complete set of recommendations made by Mr Sandow and subsequently accepted by the Development Corporation and approved by the Premier (with an important qualification concerning aboriginal land claims presently to be mentioned) were as follows:

"a) that the proposal to develop a major tourist resort on the Yamba Waters site be abandoned; b) that control of the land (which is Crown land) revert from the Department of Industrial Development and Decentralisation, to Lands Department; c) that the land, with the exception of the two general areas mentioned in d) and e) below, be regarded as a land bank' to permit the future gradual residential and tourist development of Yamba. In the knowledge that it contains some areas of flood free land (such land being scarce in the general area), it is recommended that it be regarded as likely to be required for essential public purposes'; the intention of this being to preclude possible extension of aboriginal land claims greater than the area covered in the draft `land claim'.

The Lands Department would consider appropriate use of this land, where environmental studies show this as possible, in accordance with its normal practices - ie it would consider, as appropriate, possible sub-divisions, private proposals for development of tourist facilities and other uses as it sees fit; d) that the draft aboriginal land claim' (assuming a formal land claim is lodged) be considered in accordance with the Government's legislation, while ensuring public access to the beachfront is retained; e) as the National Parks and Wildlife Service desires to add the area to the south of the Angourie-Wooloweyah Road to Yurayaygir National Park, this could be permitted conditional on sealed road access being provided into the northern part of Yuraygir National Park to permit greater access to the Park by tourists. Appropriate tourist facilities should be provided in the Park to encourage use of the area. This would serve to enhance the attraction of the general area to tourists and promote the gradual growth of Yamba. Consideration could be given to upgrading the Park's facilities by utilising, if possible, Youth Corps employment funds. This part of the recommendation envisages preserving small areas adjacent to the Wooloweyah and Angourie villages to permit their future expansion; and f) that the Government investigate the concept of Favoured Coastal Tourist Development Areas' on the North Coast as a means of planning development for the future."

On 18 October 1984 the Minister of Industry and Decentralisation wrote to the Minister for Planning and Environment advising that the Premier had accepted the recommendations of the Development Corporation concerning the abandonment of the Yamba Waters Project and had requested consideration by the Minister for Planning and Environment in consultation with the Minister for Natural Resources in respect of recommendation (c) made by the Development Corporation and in consultation with the Minister for Tourism in respect of recommendation (f) made by the Development Corporation.

"For your information, control of the Yamba Waters site now reverts from my Department to the Lands Department.

In accordance with the Premier's request, I will shortly issue a statement to the effect that much of the site will be retained by the Government for future development purposes and will mention that the Development Corporation's recommendations have been referred to relevant Ministers for consideration.

In view of the relative scarcity of land suitable for development purposes in the Yamba area, the Premier agrees it would be preferable to hold the land described in recommendation (c) for development in accordance with normal environmental planning considerations. However, it would not be appropriate for the Government to attempt to preclude aboriginal land claims by formally declaring the land to be required for `essential public purposes'.

Consequently, I will bring to the attention of the Minister for Natural Resources the concerns of the Development Corporation in regard to that land, so that they might be considered in the event of a subsequent land claim by Aborigines, and also the Corporation's recommendation (d) concerning beachfront access and the draft Aboriginal land claim."

In his report to the Development Corporation, Mr Sandow had made the following comments on the draft Aboriginal land claim:

Shortly after the launch, the local aboriginal community lodged a `draft land claim' over a major part of the site. This could not be resolved prior to the Government's Aboriginal Land Rights Legislation (1983). Ministerial attempts to show that the Government was acting in good faith toward the local aboriginal community included supporting a request for 10 ha of additional Crown land to rebuild their existing houses with Commonwealth funds, providing them with a copy of the archaeological study funded by the Department, and several Ministerial discussions, including one accompanied by the Minister for Aboriginal Affairs. Departmental staff accompanied by the Secretary of the Ministry of Aboriginal Affairs were later advised at a hostile meeting in 1983, attended by prominent aboriginal activists, of the community's outright opposition to the Yamba Waters project, and determination to press ahead with the land claim. A local Aboriginal Land Council, a pre-requisite for lodging a formal land claim, has only recently been formed."

The Minister attempted to overcome the aboriginal land claim' problem by agreeing to a suggestion made by Ipoh Garden to consider development in the southern part of the site (an area originally proposed as an extension to the National Park). It was recognised that there would be opposition to such a proposal from various quarters. National Parks, on receiving the revised concept during the second round' stage, advised that it would object to such a proposed change (pending any submissions being lodged) and would seek that the land be added to the National Park as originally proposed."

Some elaboration is necessary in respect of the reference to "the aboriginal land claims" in the recommendations of the Development Corporation and in the Minister's letter following the Premier's acceptance of the recommendations, to distinguish them from the Applicant's land claims, the subject of the present proceedings..

As earlier noted, the Report of Mr Sandow predated by about one month the lodging by the Applicant of the present land claims. However, before the present claims were lodged (and before the Land Rights Act came into force on 10 June 1983), a "draft land claim" had been lodged by the Yamboora Aboriginal Corporation in respect of lands in Yamba, including a major part of the Yamba Waters Project site being a section of the coastal strip of some 180 acres south of Barri Point and including the Group II Land (a subject of the present claims).

Notwithstanding the contemporaneous abandonment of the Yamba Waters Project with the lodgment of the present land claims, the Respondent sought to rely upon features of the Concept Plan for Yamba Waters Proposal contained in the 1981 Prospectus as evidencing a need for the essential public purpose of nature conservation of the claimed lands.

That feature is the recommended "Preservation Zone" as shown on the Master Plan, a copy of which is annexed hereto and marked "B". A comparison of that Plan and the map showing the claimed lands (Annexure "A") indicates that the Preservation Zone on the northern side of Wooloweyah Lagoon includes the Group III Land and six or seven of the eleven parcels comprising the Group I Lands.

In the Prospectus, the development site is described as having an area of 675 hectares but that "to ensure the greatest degree of harmony with the local environment, the Government is offering for development about 230 hectares within specified areas".

The Prospectus envisaged a development consisting of the following components:- · a 600 unit international standard hotel · 1000 hillside housing units and street apartments · 400 villa housing units set in parkland and oriented towards sporting facilities; · 200 villa housing units set in high quality bushland · a 300 unit lakeside holiday village · 200 caravan sites · 300 camping sites · a host of associated facilities including shops, restaurants, parks, sporting/beach club with sauna, gymnasium etc., a golf facility close to Yamba golf course, tennis courts and an international standard convention centre.

The text accompanying the Concept Plan includes the following passages:

"The main body of the site consists of two main ridges running parallel to the seashore and lakeshore. The eastern ridge terminates at Angourie Headland at the southern end of the site. These ridges afford superb views both inland over the lake and to the ocean.

Mature Eucalyptus and Angophora forest lie along the eastern border of the lake while Melaleuca forest occupies the low lying north-western portion of the site on the northern shore of the lake. This variety of vegetation types and land forms gives the site potential to be developed to the highest standards of environmentally sympathetic design."

"The concept plan has evolved from the consideration of various environmental factors such as water, climate, vegetation and topography. Specific portions of the site have, by this process, been designated as building areas' or preservation areas'. The high ground on the coastal ridge is mot suited to development. The areas of high natural quality or where physical constraints are present, should be managed in a largely unchanged state."

"Two major areas within the site would be retained as natural preserves.

The extensive Melaleuca forest in the north-west corner of the site, extending from the highway in the north to the lake shore in the south and, crossing the access road, to the high dune in the east, would be the largest preserve. The area includes ecologically important estuarine habitats associated with the lake. Accordingly, access would be restricted to bicycle and pedestrian trails. Where the forest intersects the road an attractive palm stand will present a `tropical' entry to the development area.

The second preservation area is at the southern extremity of the site and comprises a water catchment area running towards the National Park. This heathland will become a valuable extension to the National Park, thus enhancing the natural value of the area. The contiguous lakeside Eucalypt/Angophora forest and nearby wetland extend this second preservation area northward along the lake shore and also link it with the site's open space network."

The Respondent, in reliance upon the 1981 Prospectus identifying the majority of the claimed lands in the Proposed Preservation Zone for the Yamba Waters Project, submitted that the Court would find that "the Government was actively proposing the preservation of all the land as nature reserve or its equivalent". This submission was directed to the circumstances prevailing on 2 July 1984 when the Applicant's land claims were lodged. (A slightly different submission was advanced if the relevant date of the land claim be regarded as 31 October 1984 by which time the Government had decided to abandon the proposed Yamba Waters Project).

In my judgment, this submission must be rejected as not being supported by the relevant evidence. Indeed, it is contrary to the evidence inasmuch as at the date of the land claim, the Concept Plan propounded in the 1981 Prospectus had already (in November 1983) been significantly revised by confining development to the southern section of the development site (not including any of the claimed land) because of the existence (i) of the "draft aboriginal land claim" (so as to avoid conflict between that claim and the development proposal) and (ii) environmental constraints on the development site revealed by technical studies undertaken following the publication in 1981 of the Prospectus.

Moreover, as earlier noted, by the date of the land claim, the Development Corporation had recommended to the Government the abandonment of the Yamba Waters Project (and within 3 or 4 months, this recommendation had been accepted by the Government).

In these circumstances, the fact that part of the claimed land had been included in a Preservation Zone in the original Concept Plan contained in the 1981 Prospectus for the Yamba Waters Project does not provide evidence that the claimed land as at the date of the land claim (when that Concept Plan had been materially revised and the Development Corporation had recommended to the Government the abandonment of the Yamba Waters Project) was needed for the essential public purpose of nature conservation.

In any event, I am utterly unpersuaded by the evidence relied upon by the Respondent in support of its submission. Even if, at the date of the land claims, the original Concept Plan had not been materially revised or the Yamba Waters Project had not been recommended to the Government for abandonment, I would not have been satisfied that the Preservation Zone proposal in the original Concept Plan evinced a need of the claimed land (or so much of it as was included in the proposed Preservation Zone) for the essential public purpose of nature conservation. This is because the original Concept Plan was a plan for a very major tourist development, and in that context, the proposed "Preservation Zones" were merely ancillary and subservient features of that tourist development. There is simply no suggestion in the Concept Plan or in the 1981 Prospectus that the "Preservation Zone" proposal enjoyed any independent status. This is an unexceptional fact in view of the obvious purpose and nature of the Prospectus for the Yamba Waters Project, namely the encouragement of a very major tourist development on the coastline, just south of the town of Yamba.

The Respondent's further submission based upon the Yamba Waters Project was directed to the circumstance that the relevant date of the land claim was 31 October 1984 when the claim was referred to the Minister. It was to the effect that the abandonment by the Government of the Yamba Waters Project did not affect the conclusion, that was said to be open on the evidence, that the Government maintained the opinion that the claimed land was needed for the essential public purpose of nature conservation.

I must entirely reject this submission principally for the reason that there is simply no evidence that the Government was of the opinion that the claimed land was needed for the essential public purpose of nature conservation. The Respondent's reliance upon the action taken at Ministerial level following the Premier's decision to accept the Development Corporation's recommendations for, and in consequence of, the abandonment of the Yamba Waters Project, simply is misguided and overlooks a most significant feature of the Government's decision following its acceptance of the Development Corporation's recommendation for the abandonment of the Yamba Waters Project. This concerns the previously alluded to fact that although the Development Corporation had recommended that the majority of the development site (including all of the lands the subject of the present land claim) be regarded as "a land bank" to permit future gradual residential and tourist development of Yamba, it also had recommended that such land be regarded as "likely to be required for essential public purposes" with the clear intention of precluding any extension of the area covered by the then current draft aboriginal land claim (see recommendation (c) of Mr Sandow's Report earlier recited). The Premier, while accepting the "land bank" concept expressly rejected the allied recommendation that action be taken to preclude further aboriginal land claims (see the earlier recited extract from the letter dated 18 October 1984 from the Minister for Industry and Decentralisation to the Minister for Planning and Environment).

For all the foregoing reasons, I would reject the Respondent's contentions based upon the Yamba Waters Project and the Government's decision in October 1984 to abandon that Project.

This leads me to a consideration of the documentary evidence concerning facts that occurred prior to the date of the land claims.

For obvious reasons, the Respondent did not place much reliance upon this evidence, because in large measure whatever indications it may have contained concerning the question whether the claimed lands were needed for the essential public purpose of nature conservation, were essentially countermanded or negated by the subsequent emergence, progression and ultimate abandonment of the Government's Yamba Waters Project.

This evidentiary material predating the land claim involved the following specialist reports (listed in chronological order):- (i.) the 1968 Report of the Committee of Enquiry on the difference and conflicts between the interests of parks and conservation authorities, scientific bodies and mining companies (Exhibit C); (ii.) the 1969 Report of the Scientific Committee on Park and Reserve Projects for the Coastal Areas of NSW (Exhibit 12); (iii.) the 1970 Report of the State Planning Authority of NSW on North Coast Tourist Development Yamba to Red Rock (Exhibit 11); (iv.) the 1973 Report of the State Planning Authority of New South Wales on the Protection of Coastal Lands in New South Wales (Exhibit 4); (v.) the 1975 Report of the Inter Departmental Committee on the Protection of Coastal Lands in NSW (Exhibit 7).

I have considered each of these sources and find that they do not provide evidence that the claimed lands were needed for the essential public purpose of nature conservation either before (which can only be indirectly relevant) or as at the date of the land claims.

The first mentioned Report had recommended the creation of a number of coastal national parks, including one immediately south of Angourie Point. The second mentioned Report had endorsed the earlier report but recommended that larger areas be included in the recommended national parks, including the one situate immediately south of Angourie Point. The suggested enlarged national park at Angourie included some of the lands included in the present land claims. This is the "high water mark" in favour of the Respondent's contention, provided in the evidence pre-dating the land claim. However, the recommendation was not adopted by the Minister or the Government, and as I have earlier noted, the Yamba Waters Project Proposal which was promoted throughout the 1970s and into the 1980s before the Government abandoned the project in October 1984, essentially negated the 1969 recommendation of the Scientific Committee by including the coastal lands situate to the north of Angourie Point in the available development site for the Yamba Waters Project. In the meantime, the Government had established the Angourie National Park in respect of the coastal strip immediately south of Angourie Point (later to be renamed Yuragir National Park).

Finally, I come to consider the documentary evidence of facts occurring subsequent to the date of the land claims including events culminating in the Respondent's decision in 1996 refusing the land claims on the ground that all of the land was required for the essential public purpose of nature conservation.

In my judgment, much of this material is clearly irrelevant to the factual issue to be decided, namely, whether as at the date of the land claim, i.e. 2 July 1984, the lands were needed for the essential public purpose of nature conservation. This is because the factual issue requires a determination of facts existing as at the date of the land claim. In this respect, the occurrence of subsequent facts, if in the nature of hindsight, simply cannot have any logical probative relationship to the facts existing at the relevant anterior date, (i.e. the date of the land claim) for reasons analogous with the established principle that in estimating the market value of land compulsorily acquired what is relevant is the opinion of value of the land as at the date of compulsory acquisition and that fact cannot be assisted by subsequent facts or events in the nature of "hindsight" e.g. see Gosford Shire Council v. Green (1980) 48LGRA 201.

In the subsequent decision of the Court of Appeal in Housing Commission of NSW v. Falconer (1981) 1NSWLR 547, Hope JA, after stating the fundamental principle at 557, acknowledged that beyond that point the decided cases "dissolve into uncertainty". His Honour, after reference to Green's case goes on to refer at 558 to many decisions (including decisions of the High Court of Australia) which have held that "evidence of future events is admissible, not to prove a hindsight, but to confirm a foresight".

In the present case, I am of the firm opinion that most of the documentary material of facts and opinions coming into existence at times appreciably subsequent to the date of the land claim are truly in the nature of hindsight, and as such, are not relevant to the ultimate question whether as at the date of the land claim the lands were needed for the essential public purpose of nature conservation.

Nowhere is this more clearly revealed than in the letter dated 30 January 1996 from the NP&WS to the Respondent's Department (which I have earlier referred to) in which the Service radically changes its position by objecting to all of the present land claims, justifying its changed position as "a reflection of the availability of resources in the area and the subsequent ecological knowledge gained of the subject land" (page 1) and concluding by stating its objection to the granting of the land claim

"on the grounds that this land is needed for the essential purposes of nature conservation" (my emphasis) and noting "these claims correspond to the Services' proposed additions to Yuragir National Park"

(which proposals did not manifest themselves until 1992-1995 at least 8 years subsequent to the lodgment of the land claims.)

For all the foregoing reasons, I find that none of the documentary material (whether of facts and opinions (i) predating the land claim, (ii) contemporaneous with the land claim, or (iii) subsequent to the land claim) provides evidence that the land was as at the date of claim needed for the essential public purpose of nature conservation and that in relying upon that evidence, the Respondent has failed to satisfy me that the claimed lands were so needed.

This conclusion applies globally to all of the lands claimed. However, as earlier noted, it is necessary to separately examine the position in relation to the Group III Lands because of the contemporaneous fact that the NP&WS did object in February 1985 to the grant of that claimed land on the ground "that these areas are to be included in the proposed Micalo Island Nature Reserve".

The documentary evidence indicates that in February 1980, the NP&WS promoted a Nature Reserve Proposal known as the "Micalo Island Nature Reserve" covering an area of some 490 hectares and including the land that was to become the Group III Lands of the present land claim. The purpose of the promotion was "to reference the proposal to appropriate land use authorities". (Significantly, the NP&WS chose not to inform the local Council.)

Thereafter, the Micalo Island Nature Reserve proposal remained relatively quiescent in the provenance of the NP&WS, initially at least, because it appears to have been overtaken by the promotion of the Yamba Waters Project. In that context, the NP&WS continued to make representations to Committee responsible for that Project but it seems was ultimately content to lend its support to the Preservation Zones proposed in the Concept Plan contained in the 1981 Prospectus for the Yamba Waters Project. (Its representations to that Committee appear to have concentrated greater attention on the more southerly proposed Preservation Zone, which the NP&WS was seeking for addition to the existing Yuragir National Park).

It was subsequent to the Government's decision to abandon the Yamba Waters Project that the NP&WS notified the Respondent's Department of its objection to the land claim in respect of the Group III Lands on the grounds that they were to be included in the proposed Micalo Island Nature Reserve.

However, apart from the expressed reason for its objection to the grant of the land claim in respect of the Group III Land, the documentary evidence does not reveal what, if anything, thereafter occurred in respect of the NP&WS proposal for the Micalo Island Nature Reserve.

In my judgment, the bare fact of the NP&WS objection to the grant of the land claim for the Group III Land on the stated ground, provides very insubstantial evidence relevant to the question whether the Group III Lands were needed, as at the date of claim, for the essential public purpose of nature conservation.

Moreover, the objection raised by the NP&WS does not stand by itself because it is to be recalled that the Government's decision to abandon the Yamba Waters Project also included its decision to retain the majority of the development site as a "land bank" for gradual future residential and tourist development.

In other words, the force or validity of the NP&WS objection to the grant of the land claim in respect of the Group III Land would have to be evaluated in the light of the Government's decision to retain the majority of the Yamba Waters Project land as a "land bank" for future development.

The evidence does not indicate that such an evaluation was ever undertaken, principally so it seems, for the reason that the several competing proposals for the lands comprising the site of Yamba Waters Project that were to unfold in the years following the Government's abandonment of that Project, ultimately were resolved in the mid 1990's by the decision to add the Yamba Waters Project lands to the existing Yuragir National Park.

For all the foregoing reasons, I have not been persuaded by the bare fact of the NP&WS objection to the granting of the land claim in respect of the Group III Land that those lands were needed for the essential public purpose of nature conservation. That fact, being the only distinguishing feature concerning the Group III Lands in the overall evidence relevant to the ultimate question whether all of the claimed lands were needed for the essential public purpose of nature conservation, my evaluation of the lack of cogency and persuasiveness of that distinguishing feature, necessarily means that my global conclusions, earlier stated in respect of all of the claimed lands, also apply, particularly to the Group III Lands.

For all the foregoing reasons, I would find on the evidence, that none of the claimed lands was, as at the date of the land claims, needed for the essential public purpose of nature conservation. In so concluding, I have not hitherto found it necessary to refer to the voluminous evidence concerning the ecological values of the claimed lands because, except for the Group II Land, they have not really been in contest. It is sufficient, if I now record my finding that the evidence clearly establishes the ecological values (including nature conservation) of the claimed lands (with some doubt concerning the Group II Land (which had been the subject of mineral sand mining in the years before the land claim was lodged) . Although much of the evidence concerning those physical attributes and values of the lands has come into existence post the date of the land claims, I am satisfied that, speaking generally, the lands possessed those same attributes and values as at the date of the land claims. However, the fact that the lands possessed (and continue to possess) relevant attributes and values of ecological significance does not establish that they were needed as at the date of claim for the essential public purpose of nature conservation.

G. WAS THE GROUP II LAND NEEDED FOR THE ESSENTIAL PUBLIC PURPOSE OF PUBLIC ACCESS?

The Group II Land, the subject of claim 751 is part of Mining Lease 10 (formerly permitting mineral sand mining) and comprises a thin strip of coastal dune land running parallel to Mines Beach for a distance of a little more than one kilometre.

In refusing the Applicant's claim to this land, the Minister did not distinguish between the two stated essential public purposes ((i) nature conservation and (ii) public access) for which the land was needed. Nor did the Minister delineate any separate section of the claimed land in respect of which the essential public purpose of access, though it is obvious, having regard to the configuration of the land and its relationship to the adjacent ocean beach that not all of the land would, or could, be needed for the purpose of public access.

The evidence that the Respondent relied upon at the hearing in support of his contention did not elucidate these matters. Moreover, I found the evidence to be entirely unsatisfactory and notably unpersuasive.

The evidence does not suggest that access to the ocean beach across the Group II Land was necessary. Rather, it shows that the beach was, and is, accessible from the north and from the south, without traversing the Group II Land.

Based upon the sparse and flimsy evidence adduced by the Respondent, I find that the Group II Land was not needed for the essential public purpose of public access.

H. WAS THE GROUP II LAND LAWFULLY USED OR OCCUPIED BY THE PROVISION OF ACCESS TO THE OCEAN BEACH?

This contention which was advanced by the Respondent at the trial had not been relied upon by the Minister in refusing the land claim.

The evidence in support of this contention was, in my judgment, even less persuasive than was the evidence relied upon in support of the Respondent's related contention that the land was needed for the essential public purpose of public access.

Based upon this evidence, the Respondent has failed to satisfy me that at the date of claim, the land was relevantly lawfully used or occupied, and I find that the land was not relevantly lawfully used or occupied by the provision of access to the ocean beach.

For all the foregoing reasons, the Respondent has failed to satisfy the Court that any of the lands claimed were, at the relevant date, not claimable Crown lands. This finding carries the legal consequence, earlier mentioned, of requiring the claimed lands to be transferred to the Applicant pursuant to s.36(7) of the Land Rights Act. --------------OoO--------------

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 40 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF HIS HONOUR MR JUSTICE N R BIGNOLD.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Land and Environment Court of New South Wales CITATION: Birrigan Gargle Aboriginal Land Council -V- Minister Administering Crown Lands Act [1999] NSWLEC 12 This judgment revised on: 18/02/99 PARTIES APPLICANT Birrigan Gargle Aboriginal Land Council

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