Deerubbin Local Aboriginal Land Council -V- The Minister Administering The Crown Lands Act [1999] NSWLEC 82

Land and Environment Court (NSW)|1999-04-01|Before: Bignold J

Land and Environment Court of New South Wales CITATION: Deerubbin Local Aboriginal Land Council -V- The Minister Administering The Crown Lands Act [1999] NSWLEC 82

PARTIES APPLICANT Deerubbin Local Aboriginal Land Council

RESPONDENT The Minister Administering the Crown Lands Act

LEGISLATION CITED: whether land needed for the essential public purpose of nature conservation

DATES OF HEARING: 02/22/1999; 02/23/1999; 02/24/1999; 02/25/1999

DATE OF JUDGMENT DELIVERY: 04/01/1999

APPLICANT: Mr. J. Basten QC

Solicitors: Andrew Chalk Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr. J.B. Maston, Barrister

Solicitors: State Crown Solcitor

A. INTRODUCTION 1-8 B. THE RELEVANT HISTORY OF THE CLAIMED LAND UP TO THE DATE OF THE LAND CLAIM 9-44 C. FACTS OCCURING AFTER THE DATE OF LAND CLAIMS 45-67 D. THE RELEVANT LEGAL PRINCIPLES 68-79 E. CONCLUSIONS 80-109

IN THE LAND AND Matter No. 30059 of 1996 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 1 April 1999

This is an appeal pursuant to s.36(6) of the Aboriginal Land Rights Act 1983 (the Land Rights Act) against the refusal by the Minister of five separate land claims made by the Applicant in 1985 and 1989 in respect of separate adjacent parcels of land having an aggregated area of more than 4,000 ha situate at or near Glenorie in the vicinity of the former Maroota State Forest.

Two of those land claims (numbered respectively 3438 and 3462) made on 18August 1989 in fact relate to that former State Forest and constitute the vast majority of the aggregated areas of the land claims.

In the course of the hearing of the appeal, the land claims other than those involving the former State Forest have been settled - either by virtue of the Applicant no longer pressing its claims (recognising that the lands are not relevantly claimable Crown lands) or by the Minister agreeing to grant the claims (recognising that the lands are relevantly claimable Crown lands).

For convenience, I shall simply refer to the lands comprising the former Maroota State Forest as "the claimed land". Similarly, when referring to "the date of the land claim" I am referring to the claims made on 18August 1989, when the claims to that land were lodged.

Accordingly, the only matter in dispute and requiring adjudication concerns the Applicant's two claims (numbered respectively 3438 and 3462) in respect of the lands that formerly comprised the Maroota State Forest. These claims were made on 18 August 1989 and were refused by the Minister's determination dated 15 March 1996 as communicated in his letter of that date to the Applicant advising that the land was not claimable because "it was needed for the essential public purposes of nature conservation and public recreation". The Minister's letter continued:

This land has been identified by the National Parks and Wildlife Service for some considerable time as being needed for these purposes and it is proposed to be established as Maroota National Park.

By letter dated 18 June 1998, the Crown Solicitor advised the Applicant's Solicitors that the Minister no longer intended to rely upon the reason that the land was needed for the purposes of "public recreation".

In the light of these circumstances the present appeal raises but one issue requiring adjudication by the Court pursuant to s.36(7) of the Land Rights Act, namely whether the Minister has proved that as at 18 August 1989 the claimed land was needed for the essential public purpose of nature conservation: see paragraph (c) of the definition of "claimable Crown lands" in s.36(1) of the Land Rights Act. At the hearing, the Minister presented an alternative case, namely that the claimed land "was likely to be needed" for that purpose.

In hearing and determining this appeal I have had the assistance of Commissioner McDermott pursuant to s.37(2) of the Land and Environment Court Act 1979.

B. THE RELEVANT HISTORY OF THE CLAIMED LAND UP TO THE DATE OF THE LAND CLAIM

The relevant history commences with the fact that the Maroota State Forest No. 978 comprising an area of 4284 ha came into existence on 24 February 1961 by virtue of the publication in the Government Gazette of that date of the Governor's declaration pursuant to s.18 of the Forestry Act 1916.

On 16 July 1976 by Notice published in Government Gazette No. 52 of that date, the Governor, pursuant to s.19 of the Forestry Act 1916 revoked the dedication of the Maroota State Forest.

The effect of that revocation as provided by s.19 of the Forestry Act 1916 was that the land "became Crown land within the meaning of the Crown Lands Consolidation Act 1913".

Prior to the publication of the Notice of revocation, the Governor had, conformably to s.19(a) of the Forestry Act laid on the table of each House of Parliament the proposal for such revocation and both Houses had resolved that the proposal be carried out.

According to the Hansard record, the proposal laid upon the Table of each House related to 15 State Forests (including the Maroota State Forest) and each proposal was included in a table format which included a column headed "Reason for Revocation". In the case of the Maroota State Forest, this column stated contained the following reason:

In the Legislative Council, Sir John Fuller MLC in moving the Motion that the House agree to the revocations of the dedications (Parliamentary Debates 25 March 1976 pp4774/4775) said in relation to the Maroota State Forest:

"The final revocation listed on the schedule relates to the whole of Maroota state forest, having an area of about 4284 hectares and being situated near Galston. The Forestry Commission considers that the future of this area lies in recreation and that development for such purposes should be left to the National Parks and Wildlife Service and the Department of Lands, the latter having already agreed to set aside the area for public recreation purposes. Since dedication of the forest in 1961 some 2500 cubic metres of timber have been removed and the area is now virtually cut out. All the areas proposed to be revoked have been given very careful consideration by the various departments concerned and by the Government in terms of existing and alternative uses. I assure the House that the public interest has been closely watched at all times. I commend the motion to the House."

It is to be noted that s.19 of the Forestry Act did not contain any provision automatically translating a revocation of a dedication as State Forest into a fresh dedication for some other purpose, e.g. as a National Park.

Rather, as I have indicated, s.19 relevantly provided as follows:

"On any such revocation the land shall become Crown land within the meaning of the Crown Lands Consolidation Act, 1913, or the Western Lands Act of 1901, as the case may be, and shall be dealt with under those Acts respectively or any Act amending them, and until so dealt with shall be reserved from sale or lease under any Act."

The status accorded the claimed land by s.19 of the Forestry Act 1916 upon the revocation of the dedication of the Maroota State Forest remained unchanged as at the date of the land claim, and as at the date of hearing (although as noted earlier, the Minister in his letter dated 15 March 1996 refusing the land claim, advised that the land "is proposed to be established as Maroota National Park", that proposal not being implemented, I infer, while the land claim was the subject of the present proceedings).

The extensive documentary evidence (which comprised the principal evidence adduced at the hearing) indicates an interest in the claimed land shown by the National Parks and Wildlife Service (the Service) once it had become aware of the decision by the Forestry Commission first announced in 1974 that the Maroota State Forest was no longer required for further timber production.

On 23 August 1974, the Forestry Commission had notified the Department of Lands of its decision proposing the revocation of the dedication of the Maroota State Forest and sought the Department's views as to whether it had any objections to the proposal and as to the future use of the land. The Lands Department replied in October 1974 offering no objection to the proposed revocation and stating:

"Upon revocation, the greater part of the area would be set aside for public recreation with small areas of suitable land which adjoin existing Crown Land proposed for subdivision being disposed of in conjunction with the subdivisions at some future date".

Following receipt of that advice, the Forestry Commission notified the Service of its proposed revocation of the dedication of the State Forest and seeking advice concerning the Service's interest in the land.

On 9 July 1975, the Director of the Service advised the Forestry Commission, Metropolitan Land Board Office, the Lands Department, the Planning and Environment Committee, other Departments of State and the Baulkham Hills Shire Council of the Service's "proposal that the land be reserved", advising that "(T)he classification of the area as a Nature Reserve or National Park will not be determined until completion of more detailed investigation of the area in relation to its future use". The letter enclosed a one page statement "outlining the importance of the area for reservation under the Service's control". That statement included the following passages:

"The Maroota proposal is a significant area of naturally vegetated land that constitutes part of the Cattai Creek and Kelly's Arm Creek systems. The proposal is an important nature conservation area as well as being significant for aesthetic and sociological reasons. It covers an area of typical Sydney sandstone country and consists of a series of ridge and valley systems. The vegetation structure varies with the topography, and typically the level ridgetops area associated with an open shrubby woodland, the steep sided valleys with open forests, and the valley floors with open shrubby forests."

"Its position in relation to the urban complex of Sydney is one of the more important justifications for the Maroota proposal. To maintain a viable diverse population of fauna and flora that is characteristic of the Sydney area, a significant area of land is needed. Thus the Maroota proposal is important in that it adds an area of natural land to the natural areas already in existence nearby. (i.e. Muogamarra Nature Reserve, Marra Marra Creek National Park Proposal and Ku-ring-gai Chase National Park). It will therefore be part of a continuum of natural land to the north of Sydney, and will assist in providing an additional area for nature conservation and outdoor recreation purposes, a compatible aim when analysed with the needs of the growing Sydney Urban Area."

Prior to so advising the Forestry Commission and the various Departments, the Service had commissioned its Ku-ring-gai Chase National Park personnel to undertake a "resources investigation" of the land.

This investigation gave rise to the Report of Mr Russel Lee dated 19 August 1975 which yielded the following recommendations:

"On the basis of the valuable resources and the conservation value described in the preceding report, it is recommended that the Maroota State Forest described in the report be considered for dedication as a National Park.

The close proximity of the Maroota State Forest area to the Proposed Marra Marra National Park may warrant merger of the two areas.

The Maroota State Forest Proposal, as a Nature Reserve has been discarded, because of recreational pressures that are liable to be exerted on Parks in the Sydney region, and hazardous boundaries in regard to protection and management."

Mr Lee's Report was considered by the Service's Senior Investigators Officer (Mr Peter Hitchcock) whose response thereto in his memorandum dated 25 September 1975 while commending the Maroota proposal, offered the following comment:

"Although the actual justification or need for this national park on a regional basis to me is debatable, Lee's report certainly appears convincing from a rational use of land approach. Much of the proposed park area is basically undevelopable though not totally so. If it is the decision of the respective land use planning authorities (Council and Planning and Environment Commission), to retain much of this open space then it is essential that future management is facilitated by taking early action to prevent a compromising or deterioration of the resource.

The location of the Maroota proposal relative to the Sydney urban area, access routes and existing service routes means that there will always be potential for conflict in land use."

Except for the Lands Department and the Department of Mines, all the public authorities that had been advised of the Service's "proposed reservation" raised no objection. Indeed, the Planning and Environment Commission welcomed it. Subsequent dialogue between the Service and the Department of Mines appeared to resolve that Department's concerns. This left outstanding a favourable response from the Department of Lands. Following receipt of the Service's proposal for reservation, the Lands Department investigated the proposal, Senior Surveyor Frost, in his report dated 3 September 1976, recommending that most of the area "be approved in principle for dedication as a National Park".

However, the Acting Metropolitan District Surveyor was not "in complete agreement" with that recommendation. He made the following comment:

"Having in mind the enormous areas of land already set apart for the N.P.& W.S. it may now be appropriate to consider limiting future additions to minor areas unless strong reasons can be advanced for additions. Many future public needs both for recreation and development which are not now apparent are likely to arise in the future and assets should be retained to meet these."

However, he decided to refer the matter to the Metropolitan District Surveyor upon his return to duty. The latter considered the proposal in his memorandum dated 24 February 1978 which included the following comment:

"There is a very heavy demand in the Metropolitan Land Board District for Crown land for a variety of purposes all of which are incompatible with use as a National Park. These include camping sites for Boy Scouts, Girl Guides etc., pony clubs, gun clubs, dog clubs, trail bike areas and a host of other similar purposes. The majority of requests have merit and the Department has traditionally been involved in assisting in provision of land. This has allowed groups of people, young and old, to pursue recreational or educational activities.

The subject land accommodates a basalt plug together with certain shale and sand deposits its surrender to the interests of the National Parks and Wildlife Service may not be in the public interest.

The National Park and Wildlife Service has plans for a National Park on the eastern side of the Old Northern Road in the Hornsby Shire. The subject area is located in a different catchment area than the Marra Marra Park proposal and is not essential to its fulfilment.

A resources survey has been undertaken by the National Parks however this survey gives scant treatment to the area as a venue for providing raw material (sandstone, bushstone, clay and shale) and for meeting the demand on Crown Land, for community purposes.

Please review the resource survey with a view to submitting alternative uses for all or part of the Area. There may be justification for retention of at least part of the area."

This inconclusive (though clearly unfavourable) response or reaction by the Department of Lands to the Service's proposal was to continue for an extraordinarily prolonged period, extending well past the date of the Applicant's land claims. Ultimately, in 1994, some five years after the date of the land claims, the Department was to express itself in the statutory land assessment that it carried out in terms of the Crown Lands Act 1989 (which came into force on 1 May 1990, nearly 12 months after the date of the Applicant's land claims). That assessment concluded that the claimed land was suitable for environmental protection and nature conservation.

An apt commentary on the considerable period of inaction in relation to the Service's proposal is provided by the following extract from the letter dated 26 May 1992 from the then Minister for the Environment to the then Premier in response to representations made to the latter by the Applicant protesting at the environmental degradation being caused to the land, the subject of its land claim:

"At the present time further action on the national park proposal is stalled, and has been for the past 16 years, in anticipation of the results of the Department of Conservation and Land Management's land assessment study. The Service has received no indication of when this is likely to be finalised. The area's poor soils and rugged topography, however, would present severe impediments to any viable alternative land use. A proposal in early 1992 for an international standard shooting range complex was strongly opposed by the Service and appears since to have died, as did an earlier proposal for a waste disposal site."

Nearly two years previously, the same Minister had written to the National Parks Association of NSW in response to that body's representations to the Premier seeking his support for the dedication of the proposed Maroota National Park. In his letter dated 14 August 1990 , the Minister had said:

"As you know, the state forest was revoked in 1976 specifically for national park purposes, and all departments referenced at that time, with the exception of the Department of Lands, have concurred with the proposal. The Department of Lands has so far withheld its consent on the grounds that its other possible uses have not yet been fully explored. I have directed the National Parks and Wildlife Service to renew its efforts at bringing this longstanding national park proposal to fruition, and will if necessary continue these discussions at ministerial level in the hope of resolving the outstanding issues. I have already given Baulkham Hills Shire Council my assurance that I will be closely monitoring the situation."

The Minister's reference, in his letter dated 26 May 1992 to the Premier, to two earlier proposals for use of parts of the claimed land for a waste disposal site and for an international standard shooting range need to be noted, since those proposals were either in existence or about to come into existence, at the date of the Applicant's land claim in August 1989. As such, they were contemporary alternative proposals for use of the claimed land obviously incompatible with any proposed national park.

The waste disposal proposal emerged in February 1989 when the Metropolitan Waste Disposal Authority sought a permissive occupancy for exploration purposes in respect of three sites including a site comprising 492 ha in a north-eastern section of the claimed land.

The Metropolitan Lands Office, by letter dated 23 August 1989 (five days after the date of the Applicant's land claims) notified the Metropolitan Waste Management Authority that it had no objection to granting a permissive occupancy over the Maroota site, but suggested that the Authority liaise with appropriate authorities (including the Service and the Baulkham Hills Council) during the investigatory stages. At the same time the Metropolitan Lands Office informed the Service of the proposal and suggested that any matter it wished to raise be taken up with the Metropolitan Waste Disposal Authority.

The waste disposal proposal was promptly put paid to by the announcement in Parliament by the Minister for the Environment (Parliamentary Debates 25 October 1989 p11880) that the Government did not intend to use the Maroota site for a garbage disposal facility saying that to do so would be "an act of environmental vandalism". By 16 February 1990, the State Cabinet had decided that the Maroota site was no longer being considered for waste disposal purposes.

The international standard shooting range proposal for the Maroota site was proposed in the Report dated November 1990 of a Task Force established in May 1990 by the Minister for Sport and Recreation with the agreement of the Premier, to report on the preferred location for development of an International Standard Shooting Complex. The task Force was represented by the following organisations:

"Department of Sport, Recreation and Racing Premier's Department Department of Planning Department of Lands Police Department State Pollution Control Commission Property Services Group, Department of Administrative Services New South Wales Shooting Association"

The Task Force recommended Maroota as the preferred site option and recommended that a detailed feasibility study be undertaken in relation to the preferred site.

In its Report, the Task Force made the following comments on the Service's proposal for a National Park:

"At the time the State Forest was revoked in 1976, the National Parks and Wildlife Service put forward a proposal to dedicate the area as National Park. This action was not pursued by the Government of the day.

More recently the Government proposed to set a portion of the land aside for putrescible waste. This proposal has apparently been rejected by the Government.

While there has been some local support for the concept of a National Park the National Parks and Wildlife Service does not have a proposal before the Government for dedication of the land as National Park. The Service have advised the Task Force that such a proposal is being prepared."

Although it was not represented on the Task Force, the Service was consulted by the Task Force and provided comment. It opposed investigation of the Maroota land as a possible development site. Its specific comments on Maroota concluded by noting that "notwithstanding the above problems" (i.e. the existence of a gas pipeline traversing the State Forest and the illegal dumping therein of toxic wastes) "the Service is still interested in reserving areas of the former State Forest, where conservation values are unchanged. Investigations are proceeding".

In January 1991, the Premier notified the Minister for Sport and Recreation that he had endorsed the Task Force's "provisional selection of Maroota as the site for such a facility subject to a detailed feasibility now being commenced".

However, it appears that in December 1990, the NSW Shooting Association had advised the Premier that the Maroota site was not considered suitable because of its location and topography.

At all events, nothing more was to develop in 1991 with the shooting range proposal which appears to have been abandoned early in 1991.

The foregoing narrative summarises the primary facts that emerge from the documentary evidence of relevant facts in existence at the date of the Applicant's land claim, or within a short span of time thereafter.

It is these facts that are the principal facts upon which, or by reference to which, the sole issue raised by the appeal is to be determined, namely whether the claimed land as at the date of claim was either needed or likely to be needed for the essential public purpose of nature conservation. That issue is itself a question of fact, upon which the Minister carries the legal and evidential burden of proof.

Before deciding whether the Minister has discharged that burden, it is necessary to briefly note (i) the evidence of facts and opinions coming into existence after the date of the Applicant's land claims and (ii) the relevant legal principles that have been established by the decided cases.

Evidence concerning facts and opinions coming into existence after the date of the Applicant's land claims falls into two distinct categories:- (i.) the documentary evidence that revealed the relevant facts up to the date of the land claims continuing past that date down to March 1996 when the Minister determined the claims by refusing them; and (ii.) expert opinion evidence based upon ecological studies and field inspections conducted on, and in relation to, the claimed land, after the date when the Minister had refused the claims.

The latter category of evidence doubtless came into existence for the purpose of the present litigation (the Applicant having filed its appeal against the Minister's determination on 10 May 1996).

Mr Lembit, who is an Environmental Consultant specialising in vegetation survey and management, conducted a survey of the claimed land for two days in October 1996. His written report contains his findings and his opinions on the conservation significance of the plant communities existing on the claimed land. His conclusion was that the claimed lands "support a wide diversity of plant communities, several of which are either restricted to the Sydney region, or which have a distinct floristic composition when compared to those conserved elsewhere in reserves such as Marramarra, Kur-ring-gai Chase and Blue Mountains National Parks".

He identified 12 distinct plant communities on the claimed land, including a diversity of rare, threatened and significant plant species in terms of the Threatened Species Conservation Act 1995.

In his opinion, "(P)reservation of the site as a National Park is essential to ensure protection of the significant plant communities and species which occur over the claimed lands".

Dr Engel, an Ecological Consultant, specialising in fauna and habitat assessment, conducted a survey of the claimed land over a period of three days in February 1997.

Dr Engel's Report was based upon the results of his three day field work and his review of the relevant literature(upon which he significantly relied owing to the time constraints he experienced his limited field work). He concluded that the claimed land contained a very high diversity of native fauna species involving a total of some 274 species compared with 115 species in the adjacent Marramarra National Park comprising an area of 12,000 ha (compared with some 4,000 ha of the claimed land) and compared with 229 species in Ku-ring-gai Chase comprising an area of 15,000 ha.

Dr Engel concludes his Report with the following comment:

"Based on the findings of the literature review, discussions held with community groups, government bodies and other interested parties and the results of the present field survey, it is considered that the biodiversity of the study area is similar, or equivalent to, that which was present prior to 1985 and 1989 In our opinion, for the reasons discussed, the need for the conservation of the study area for the benefit of the State is arguably at least as pressing as the need to conserve the other National Parks which occur within the Sydney region.".

Both Mr Lembit and Mr Engel acknowledged the existence of previous native fauna and flora studies or surveys or investigations undertaken in respect of the claimed land. The only such flora study in existence prior to the date of the Applicant's land claims referred to by Mr Lembit was Mr Lee's 1975 "resource investigation report". All other previous studies post dated the Applicant's land claims.

Dr Engel's reference to previous fauna studies that were in existence prior to the date of the Applicant's land claim were (i) Mr Lee's 1975 Report; (ii) Burrell (1976-1986) in relation to both mammals and birds; and (i) Burrell and (ii), Webb (1983) in relation to both reptiles and amphibians.

Much of Mr Lembit's and Dr Engel's evidence was admitted subject to the Applicant's objection based upon relevance. What is the relevance of this expert evidence to the sole issue raised in these proceedings, whether the claimed land was as at 18 August 1989 needed, or likely to be needed for the essential public purpose of nature conservation?

Recently, in Birrigan Gargle Aboriginal Land Council v. The Minister (1999) NSWLEC 12, I considered the question of how facts subsequent to the date of a land claim may be relevant to the question whether the land was, at the date of claim, needed for an essential public purpose, holding that subsequent facts, if in the nature of hindsight, could not have any logical relationship to the facts existing at the relevant anterior date (i.e. the date of the land claim).

However, I went on to observe that although much of the evidence concerning the ecological values of the claimed lands had come into existence subsequent to the date of the land claim, it nonetheless was admissible as confirming the ecological attributes possessed by the land at the date of claim.

I would similarly regard Mr Lembit's and Dr Engel's evidence in the present case i.e. by holding that it is admissible to the extent that it establishes the high ecological and conservation values of the claimed land, which values were at least ascertainable at the date of the Applicant's land claim to the same extent as revealed by the subsequent studies undertaken by Mr Lembit and Dr Engel.

I do not however, accept as being relevant Mr Lembit's and Dr Engel's opinions concerning the need for the claimed land to be dedicated as a National Park. These opinions are inevitably in the nature of hindsight, and in my opinion are not relevant to the issue that requires adjudication in the present proceedings.

I should also mention the evidence given by Mr Martin Smith, a Service Ranger, who has been employed by the Service since 1986. His report (annexed to his affidavit) essentially recapitulates the history of the Service's interest in the claimed land from the time when the Forestry Commission notified the Service of its decision to revoke the dedication of the Maroota State Forest. It also contains a detailed outline of the type of management function that the Service would undertake if the claimed land were to become a dedicated National Park. Finally, it contains Mr Smith's opinions of the importance of the land becoming a National Park. Mr Smith's Report concludes with the opinion that the Service recognised the need for the claimed land to be set aside for the public purpose of nature conservation under the professional management of the Service "as much in 1989 as it is at the present time".

I intend no disrespect to Mr Smith in saying that his evidence adopts a strong and passionate advocacy for the Service's interest in the land in similar fashion to the Report that he prepared in 1991 for the Service in opposing the international shooting range proposal for part of the claimed land and in seeking to re-activate the Service's claims to that land.

The first category of evidence of facts subsequent to the date of the Applicant's land claim is the documentary evidence leading up to the Minister's determination in March 1996 refusing the land claims. I have already referred to some of it when narrating the relevant facts in existence at the date of the Applicant's land claims e.g. the Lands Department's 1994 land assessment and the representations made in 1990 by the National Parks Association to the Premier for the dedication of the Maroota National Park.

The further evidence includes the Service's opposition to the Applicant's land claims and the Department of Lands' investigation of those claims culminating in the Minister's determination refusing the claims.

Another important fact revealed by this category of evidence is the Australian Labor Party's "Nature Conservation Strategy" document dated February 1995 released prior to the March 1995 State Election which resulted in a change of Government in NSW. That Strategy document included the announcement that the Labor Government would establish in its first year in office 24 new national parks. These new parks were specifically identified and included the former Maroota State Forest.

The influence on the Service's proposal of the new Government's announced Nature Conservation Strategy was both pronounced and immediate, as is shown by the Service's letter to the Department of Lands dated 25 July 1995 regarding the Applicant's land claims where it is stated:

"The land covered by these claims is in an area of long standing Service interest - specifically the Service's proposal for Maroota National Park. As a direct result of the Government's Nature Conservation Strategy (1995), the establishment of Maroota National Park has become a priority to be fulfilled in the immediate future."

The documentary evidence unmistakably indicates that the Minister's determination refusing the Applicant's land claims was entirely based upon the objections raised by the Service. Moreover, as I have earlier noted, in notifying the Applicant of his refusal of its land claims on the ground that the land was needed for the essential public purposes of "nature conservation and public recreation", the Minister additionally advised that the land was proposed to be established as Maroota National Park.

This additional advice clearly indicates that by this stage, a decision at Executive Government level had been taken that the claimed land would become a dedicated National Park. Significantly, this is the first occasion since the Service first proposed reservation of the land in 1975 that the proposed National Park had received approval at the level of Executive Government.

The relevant legal principles for the required adjudication in the present case have been established by two decisions of the NSW Court of Appeal, namely (i) NSW Aboriginal Land Council v. Minister Administering Crown Lands (Consolidation) Act (1988) 14NSWLR 685 and (ii) Minister Administering the Crown Lands Act v. Deerubbin Local Aboriginal Land Council (1998) 98LGERA 99.

In the first mentioned case Hope JA, in giving the judgment (agreed in by the other members of the Court) identified the statutory tasks to be respectively undertaken by the Minister and on appeal, this Court, in the following passages at 691 and 692:

"The first matter to be noticed is that the definition of `claimable Crown lands' in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the lands is made. It does not require the conditions to be satisfied at some later time, as, for example, when the Minister investigates the matter or when the court, on appeal, investigates it. What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim.

The nature of his inquiry was not affected by the circumstance that the resolution of the question might be difficult or might involve questions of judgment. Thus the nature of the question whether the land is likely to be needed for an essential public purpose as at the date of the claim is a question of fact, even though different persons may arrive at different conclusions. This is in no way different to a decision which a court may have to make as to whether a defendant in an action for damages was negligent, or whether an applicant in a Workers' Compensation application has suffered an injury arising out of his employment. If the conditions were in truth satisfied at the time the claim was made the investigation of them by the Minister and his satisfaction in respect of them would be no different in substance from an investigation by a court as to whether facts existed at some prior date giving rise to a right in a party making a claim to that right before it. The Minister might make a wrong decision, but no question of discretion would be involved.

However that is only the first step provided by the section. If the Minister refuses to grant the claim, there is an appeal to the Land and Environment Court which shall hear and determine' the appeal and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands…be transferred to the claimant…'. The function of the court again is simply to determine whether the conditions in the definition of `claimable Crown lands' are satisfied, again as at the date the claim was made, the onus being on the Minister to prove that they were not so satisfied."

In the second mentioned case, the majority judgment of Handley and Powell JJA, after quoting much of the foregoing passage from the judgment of Hope JA in the earlier case, "as stating the relevant principles" went on to explain the function of this Court in determining an appeal where the issue is the same as that raised by the present appeal:

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

The competing cases have proceeded on the common assumption that nature conservation (including, more particularly, the establishment of a National Park) is relevantly an "essential public purpose".

The Land Rights Act contains no definition of the expression "essential public purpose". Nor does it define "public purpose", a significant term that is employed in the Crown Lands Consolidation Act see especially s.24 - being a term that has oftentimes been the subject of judicial consideration by the High Court of Australia e.g. see Williams v. Attorney General of NSW (1913) 16CLR 404; Randwick Corporation v. Rutledge (1959) 102CLR 54 and Bathurst City Council v. PWC Properties Pty Ltd (1998) 157ALR 414.

Whereas the expression "public purpose" logically would suggest that there may be "public purposes" that are not essential public purposes (cf. the defined term "essential service" in the Essential Services Act 1988) there is no issue raised in the present case whether "nature conservation" relevantly is an essential public purpose. (The presence in the Land Rights Act of s.36A (inserted by Act No. 142 of 1996) may, in any event, prove decisive if such issue were to arise for decision in the future.)

Another matter not requiring adjudication in the present case, but which may nonetheless be noted in passing, concerns the context of the statutory concept of "needed for an essential public purpose". It concerns the fact that in the definition of "claimable Crown lands" paragraph (a) recognises that lands are claimable even if they are, inter alia, reserved or dedicated for any purpose under the Crown Lands Act, including dedication for a public purpose pursuant to s.24 of the Crown Lands Consolidation Act e.g. for a public park or national park. In such circumstances, although land so dedicated "permanently" ceases to be "Crown lands" within the definition of that term provided in s.5(1) of the Crown Lands Consolidation Act, nonetheless it qualifies as "claimable Crown lands" in terms of paragraph (a) of the definition of that term in the Land Rights Act.

This statutory context strongly suggests that the proper interpretation of paragraph (c) of the definition of "claimable Crown lands" is one that accords to the concept of "need" a meaning that necessarily transcends the fact that the land is permanently dedicated for a public purpose. In other words, "need" of the land for the essential public purpose of nature conservation involves something more than the mere permanent dedication of the land for that purpose.

The decision of the Court of Appeal in Daruk Local Aboriginal Land Council v. Minister Administering the Crown Lands Act (1993) 30NSWLR 100 demonstrates that land which is a dedicated "public reserve" may nonetheless be held to be "claimable Crown land", (in that case a claim that the land was needed for an essential public purpose had been rejected by this Court and that decision was not challenged on appeal).

I trust that I have not laboured the point (only to be made in passing) which I think can be simply stated - dedication of land as a National Park does not, per se, render the land unclaimable. A corollary of that proposition is that such dedication does not, per se, render the land "needed for an essential public purpose".

However, in view of the way in which the sole issue raised in the present proceedings has been presented, it is not necessary to further explore or expound the relationship between paragraphs (a) and (c) of the definition of "claimable Crown lands" in s.36(1) of the Land Rights Act.

The competing cases can be properly adjudicated upon simply by determining whether the Minister has satisfied the Court that the claimed land was (i) needed (or "required": Deerubbin or "wanted": Wijeyesekera v. Festing (1919)AC 646) or (ii) "likely to be needed", for the essential public purpose of nature conservation, as at the date of the Applicant's land claims (i.e. 18 August 1989).

In my judgment, the Minister has failed to satisfy the Court that the claimed land was on 18 August 1989 relevantly needed or likely to be needed for the essential public purpose of nature conservation.

The Minister's case is founded on the following proven facts: (i.) the Service's proposal in 1975 that the claimed land be reserved; (ii.) the consistent maintenance by the Service of that proposal from 1975 to 1996; (iii.) the reasons given in the NSW Parliament in 1976 for the revocation of the dedication of the Maroota State Forest, namely nature reserve or national park; (iv.) the high conservation and ecological values or attributes of the claimed land originally (if embryonically) revealed in Lee's 1975 Resource Investigation Report and more comprehensively revealed, by way of confirmation, in recent times (post the date of the Applicant's land claims); (v.) the widescale support for the Service's proposal from all relevant State Departments and the Baulkham Hills Council, except for the solitary resistance, if not opposition, from the Lands Department.

In my judgment, these facts (whether taken individually or collectively) fall far short of demonstrating that the claimed land was relevantly "needed" or "likely to be needed" for nature conservation. It establishes that the Service being principal statutory authority in NSW having responsibility for national parks and nature conservation, had a desire or an objective that the land become a National Park under its control and management, but that this desire or objective was never translated into anything like fulfilment or realisation throughout a continuous period of more than 20 years.

The evidence sheds light on why this indefinite and inconclusive state of affairs continued for such a protracted period of time. Firstly, and principally, there was resistance to the proposal from the Lands Department, based upon its view that more than enough available Crown land in Sydney had become National Parks. That opinion was probably most immediately informed by the fact of the then contemporaneous proposal for what was to become the Marramarra National Park, being an area of some 12,000 ha situate immediately adjacent to the claimed land. Significantly, it was the Lands Department that administered the claimed land as Crown land under the Crown Lands Consolidation Act with a far more diverse and broader responsibility for the administration of Crown lands than the particular and specialised responsibility vested in the Service whenever Crown lands became the subject of the National Parks and Wildlife Act 1974 e.g. by being dedicated as a National Park.

Although the evidence reveals that the principal cause for the delay in fulfilment or realisation of the Service's proposal for the claimed land was the Lands Department's delay in carrying out necessary land suitability and capability assessments or investigations of the former Maroota State Forest lands, that is not, in my opinion, the only cause in the failure of the Service's proposal to be realised.

Beyond the bureaucratic delay tactics employed by the Lands Department, lay the plain fact that for whatever reason, the Service chose not to bring the obvious impasse it had reached with the Lands Department, to a decisive head, and in particular, did not submit the matter for decision at the level of Executive Government.

The evidence of the exchange of correspondence in 1979 between the two Ministers separately responsible for the administration of the Crown Lands Act and the National Parks and Wildlife Act satisfies me that the Ministers' involvements were very limited, and largely dictated by bureaucratic advice.

Counsel for the Minister submitted that the Court would draw no adverse inference from the fact of the inordinate delay experienced in the realisation of the Service's proposal because the claimed land was by virtue of s.19 of the Forestry Act, Crown land reserved from sale or lease pending dealings with it under the Crown Lands Consolidation Act, and hence was under no real threat. This submission is directly contrary to the evidence of environmental degradation being caused to the land because of lack of proper management.

However, the delay cannot, in my opinion, be so easily ignored because although the relevant question of the need of the land for the essential public purpose is to be addressed by reference to the facts obtaining at the date of the Applicant's land claim, what is significant in the present case is the fact that the Minister's case really musters no additional cogency or justification beyond the Service's proposal as promoted in 1975. In these circumstances, the delay in the Service positively advancing its proposal for some 14 years prior to the date of claim must inevitably bear upon the question of the suggested need of the claimed land. If the need at the date of claim traces back to the Service's proposal in 1975, and gains no additional cogency or justification in the intervening 14 years, the inference to be drawn from the fact of the delay must surely substantially erode or weaken the Minister's case that the land was needed or was likely to be needed for the essential public purpose as at the date of claim. I am prepared to draw that inference (assuming that there was a need in 1975 and that need was the same need as found by the Minister to exist in August 1989).

The entrenched bureaucratic stalemate between the Service and the Lands Department continued into the new administration in NSW following the change of Government at the March 1988 election, again without involving any resolution at Ministerial level. Indeed, as demonstrated by the evidence concerning the alternative proposals for use of parts of the claimed land as a waste disposal deposit and as a shooting range, at Ministerial level, the realisation of the Service's proposal became even a more remote possibility, at least during the currency of those proposals which coincides with the date of the Applicant's land claims.

Indeed, as I have earlier held, it was not until the election of the new Labor Government in March 1995 and its decision to implement its Nature Conservation Strategy that the first and only decision at the level of Executive Government was taken in 1996, to dedicate the claimed land as a National Park.

In my judgment, this is a telling fact against the Minister's case that the claimed land was needed, or likely to be needed, for nature conservation in August 1989.

In so concluding, I have had regard to the relevant provisions of the National Parks and Wildlife Act 1974 concerning the respective roles of the Director and the Executive Government in respect of the creation of national parks and nature reserves.

The Director's powers to consider and investigate proposals for the reservation of any new national park or nature reserve, conferred by s.8(1) are to be exercised by the principles enunciated in s.8(2).

The power to create national parks or nature reserves is vested in the Governor in Council: vide ss.33 and 49.

The evidence reveals no submission to Executive Government of the Service's proposal for the National Park until after the Labor Government was elected in March 1995. This is despite the fact that in a briefing note to the then Environment Minister, some time between April and July 1991, the then Director of the Service had stated that "(T)he Service is currently preparing a major submission to the Minister on the natural and cultural heritage values of the Maroota proposal, including a Financial Impact Statement".

The documentary evidence did not include this anticipated Ministerial submission and I can only proceed on the basis that it was never made.

A significant point to note concerning the content of the National Parks and Wildlife Act is that there is no express provision regarding "the need" for the creation of national parks or nature reserves and the like. Clearly, the policy of the Act is to leave such decisions to the policy of the Executive Government of the day.

The only evidence in the present case of any relevant policy of Executive Government throughout the period 1974 to 1996 is the 1995 policy on Nature Conservation of what was to become the Labor Government, following the March 1995 General Election in NSW.

In the light of the foregoing facts, I am not satisfied by the Minister's case that as at the date of the Applicant's claims in August 1989, the claimed land was either needed or likely to be needed for the essential public purpose of nature conservation.

That need or likely need was in truth not manifested until after the Labor Government came to office following the March 1995 General Election. There is no justification either in the evidence or in terms of principle, to relate that manifested need back to the date of the Applicant's land claims. That manifestation of the need of the claimed land for the essential purpose of nature conservation, was simply too remote temporally from relevant facts that existed at the date of the Applicant's claims, as to exert any influence on those facts.

The foregoing reasons are principally directed to the fact of the Service's proposal in 1975 that the claimed land be reserved and to the fact that the Service consistently maintained its proposal throughout the ensuing 20 years without ever seeing its proposal realised or fulfilled.

I should now briefly express my findings on the other facts relied upon by the Minister, namely (i) the fact that when the proposed revocation of the Maroota State Forest was considered by both Houses of Parliament, the tabled documents indicated that the former Forest would become a national park or nature reserve and (ii) the high ecological and conservation values and attributes of the claimed land.

The first matter can be readily disposed of, since it is clear from other evidence, that the relevant suggestion for the revocation of the dedication in the documents tabled in the Parliament, was not an accurate statement since the clear reason for the revocation was the fact that the Forestry Commission no longer required the land, because most valuable timber resources had been removed during the preceding 14 year period that the land was harvested.

The second fact, is I think more significant. It raises the question whether the intrinsic ecological qualities or attributes of the claimed land, generate of their own force a need or a demand for conservation, independently of any appraisal of need by human agency.

In Birrigan Gargle I expressed the following view (paragraph 83):

"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."

I adhere to that opinion and find in the present case, that the undoubtedly high ecological significance of the claimed lands does not itself demonstrate a need for the land and does not justify an inference being drawn of the existence of such a need. Our system of jurisprudence and the evolving environmental law in particular, has not, as I would understand it, reached a point in its development where the ecological significance of a parcel of land is sufficient in and of itself (i.e. without the intervention of human agency making informed evaluation and value judgments) to demand protection and conservation . Accordingly, the fact of the ecological significance of the claimed land does not justify a finding of the requisite "need".

The legal consequence of my finding that the Minister has failed to discharge his onus of proof is that pursuant to s.36(7) of the Land Rights Act the claimed land must be transferred to the Applicant.

For all the foregoing reasons, the appeal must be upheld.

However, because some of the undisputed claims have in part been abandoned and some of the undisputed claims have in part been conceded by the Minister, it is preferable that I defer making final orders until the whole of the proceedings can be disposed of. Accordingly, I direct the parties to bring in short Minutes to give effect to the Court's decision on the only matter ultimately in dispute, and to the agreements otherwise reached by the parties.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT OF THE HONOURABLE 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.

At a glance

Court

Decision date

Before

Source

Judgment (154 paragraphs)

Cited By (6)