Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act

Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 95 LGERA 353; Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 ; La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176 ; CASES CITED: Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ; Minister v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSLWR 665 ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685; New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) (The Tredega Claim) (1986) 59 LGRA 318 ; Worimi Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 72 LGRA 149

APPLICANT Mr M L Wright SOLICITORS Chalk & Fitzgerald

RESPONDENT Ms A Mitchelmore SOLICITORS Crown Solicitor's Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DORRIGO PLATEAU LOCAL ABORIGINAL LAND COUNCIL Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT Respondent

JUDGMENT Jagot J: A. The appeal 1 On 8 June 2004 Dorrigo Plateau Local Aboriginal Land Council (the Land Council) claimed land described as lot 6, section 2, DP 758378 known as the Old Bush Nurses Hospital at Ebor (the land), under Div 2 of Pt 2 of the Aboriginal Land Rights Act 1983 (the ALR Act).

2 The Minister refused the claim on 4 April 2006 on the grounds that the land was lawfully used and occupied by the Ebor Sports and Recreation Reserve Trust and was needed for the essential public purpose of "community purposes" when the claim was made. The Land Council has appealed against this refusal under s 36(6) of the ALR Act. The Minister no longer relies on the first ground but contends that the land is not "claimable Crown lands" by reason of s 36(1)(c) of the ALR Act, being land likely to be needed for the essential public purpose of "community purposes" when the claim was made (specifically, "the accommodation of community groups and community facilities for the people of Ebor"). In accordance with s 36(7) of the ALR Act the Court must order the transfer of the land to the Land Council unless the Minister satisfies the Court that the land is not "claimable Crown lands" on the ground now identified. Acting Commissioner Behrendt assisted in the hearing of this appeal.

3 The long title of the ALR Act identifies the background against which its provisions operate - namely, WHEREAS: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation: BE it therefore enacted … as follows:

4 Section 3 provides: The purposes of this Act are as follows: (a) to provide land rights for Aboriginal persons in New South Wales, (b) to provide for representative Aboriginal Land Councils in New South Wales, (c) to vest land in those Councils, (d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils, (e) to provide for the provision of community benefit schemes by or on behalf of those Councils.

5 Section 36(1) defines "claimable Crown lands". (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).

6 Under s 36(3), the Land Council may claim land within its area. Claims are to be made in accordance with s 36(4). The Minister's obligations with respect to claims are contained in s 36(5): (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

7 The right of appeal is vested in claimant land councils by s 36(6). Under s 36(7): The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. 8 Sections 36(5) and (7) of the ALR Act do not vest discretion in either the Minister or the Court. The ALR Act gives a right to a land council to have land transferred to it if the Minister, having made the inquiry required by the definition of claimable Crown lands in s 36(1), is satisfied that the land is claimable Crown lands or if, on appeal, the Minister fails to satisfy the Court that the land is not claimable Crown lands. As Hope JA observed in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685 at 692B the Minister "might make a wrong decision, but no question of discretion would be involved". Similarly, Hope JA confirmed that the use of the word "may" to describe the power of the Court on appeal in s 36(7) did not involve a discretion, but vested in the Court a power it would not otherwise have, the power being one the Court "is bound to exercise in favour of the claimant in the circumstances specified in" s 36(7) (at 693C).

9 It will be apparent that a fundamental prescription within this statutory scheme is that the identification of land as "claimable Crown lands" or not is to be carried out by reference to the date on which the claim was made (New South Wales Aboriginal Land Council v Minister at 691F). This requirement needs to be understood in the context of Parliament having expressly recorded the remedial purpose of the ALR Act in its long title by acknowledging "the importance which land has for Aborigines and the need of Aborigines for land" and accepting that "as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation". Parliament, through the ALR Act, has sought to redress those circumstances by vesting a right in an Aboriginal land council to have certain land transferred to it provided the land satisfies the definition of "claimable Crown lands". If the statutory definition did not establish the time when the claim was made as the controlling criterion then the rights of an Aboriginal Land Council would be contingent on whatever interest or view happened to prevail when the claim was determined. That would not achieve the objects Parliament identified and is not the scheme Parliament enacted.

10 Decisions of courts have identified principles relevant to the task of determining the status of land as "claimable Crown lands" or not. Those principles, insofar as relevant to the present matter, are as follows: (1) The question whether land is not needed, nor likely to be needed, for an essential public purpose is one of fact ( NSW Aboriginal Land Council v Minister at 691G-692A).

(2) "Needed" in s 36(1)(c) means "required or "wanted" ( Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D per Handley and Powell JJA).

(3) The exception in s 36(1)(c) of the ALR Act is expressed in terms of an essential public purpose. This reference to "'essentiality' sets a high standard" and involves a "significant restriction" on the exception from "claimable Crown lands". The reference ensures that it "is not enough that the public purpose to be served is 'desirable' or even that it is 'highly desirable'" ( Minister v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSLWR 665 at [55]). In Deerubbin [No2] Spigelman CJ also referred at [56] to various decisions explaining this requirement for essentiality as something: · "which is indispensable or at least material and important" ( New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) (The Tredega Claim) (1986) 59 LGRA 318 at 331-332; · "necessary or indispensable" ( Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 163); · "fundamental" as distinct from something merely "desirable" or "suitable" ( La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 183); and · "necessary and indispensable" ( Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 at 361). (4) Because of this significant and important limitation by reason of the essentiality of the public purpose, the word "likely" in s 36(1)(c) takes the meaning of a "real or not remote chance" and not the extended meaning of "more probable than not" ( Deerubbin [No2] at [57]). (5) Evidence of events after the making of the claim may be logically probative of the issue whether land was not needed or likely to be needed for an essential public purpose when the claim was made. Evidence may not be used to "prove a hindsight, but to confirm a foresight" ( Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 558, referred to in Deerubbin [No. 2] at [69] - [71]).

D. Evidence 11 The Minister sought to discharge the requirements of s 36(7) of the ALR Act by reference to certain documents and affidavits.

12 The evidence shows that the community of Ebor built the structures on the land some time in the 1920's when it was used as a bush nursing home. The land was then reserved under the Crown lands legislation in 1938 for the purposes of a hospital and a reserve trust (the Ebor Hospital Reserve Trust) appointed. The hospital purpose was not fulfilled. By September 1986 the Department of Lands was aware that the building on the land had been rented for a considerable period as a private residence. The Department wished to ensure that the land satisfied a community need and informed the trust that disposing of the land or transferring it to another trust was otherwise a distinct possibility. The Department observed that the land was most unlikely to be used for a hospital so the purpose of the reservation must change and raised the possibility of use as a community health clinic.

13 The terms of appointment of the trustees expired in December 1987. On 5 February 1988 the reservation for hospital purposes was revoked and replaced with a reservation for "community purposes". The Ebor Community Purposes Reserve Trust was also established and appointed at the same time. Thereafter, the annual reports of this trust show that between 1987 and 1996 the land continued to be rented out for the purpose of a private residence. The trustees' terms of appointment expired in December 1995. Nobody applied to be a member of this trust from then on.

14 The Department approached another reserve trust, the Ebor Sports and Recreation Reserve Trust, to take over management of the reserve in November 1997. The Department identified the advantages to the community of Ebor in doing so. Nothing seems to have happened in response.

15 Nearly a year later the local member informed the Department that he supported the disposal of the land provided the proceeds of sale stayed within the local community. This letter of 19 October 1998 must have been in response to overtures from the community. This inference is confirmed by the fact that on 19 November 1998 a public meeting at Ebor resolved that the land be sold with the money to be used for community purposes in the Ebor area.

16 By 15 February 1999, the Department recorded that its attempts to have a new board of trustees appointed had been unsuccessful, the "general feedback from members of the community being that the reserve was now superfluous". The Department's Regional Director noted that Ebor had a population of about 100 people, with a primary school, freestanding hall and multi-use recreation reserve to support, and was finding the drain on its resources beyond it. He recommended sale of the land. He also noted that as the community built the buildings it would be equitable to have the sale proceeds put back into the community and applied to the multiple use recreation reserve which he described as a sportsground and social recreation centre benefiting the whole Ebor community. This facility includes a fenced arena, stock yards, marshalling yards, a two storey pavilion, squash court, and hall with kitchen, toilet and showers.

17 The local member wrote to the Minister again on 1 March 1999 expressing the community's concern that the land had not yet been sold. An internal Departmental memorandum of May 1999 noted that a recommendation had been made for sale but not yet been approved and said the building should be let for residential purposes in the interim. The Minister responded to the local member in June 1999 to the effect that the Department was considering the sale and would take the views of community members into account.

18 In or about 2001 Ms Gladys Hembrow, the Land Access Manager, North Coast within the Department, became aware that the land was on the Department's disposal list. From this I infer that the Minister approved the sale of the land but it had not yet been sold. Ms Hembrow inspected the land and thought that the Ebor Sports and Recreation Reserve Trust (which managed the multi-use facility described above) should assume management of the land. She suggested to the Manager for Crown Lands that it could be used for accommodation for the National Trail or something similar. The National Trail is a horse trail from Queensland to Victoria that runs through Ebor. The Manager for Crown Lands said that if there was value for the community the land could be removed from the disposal list.

19 The chairman of the Ebor Sports and Recreation Reserve Trust was also the postmaster. Ms Hembrow had some conversations with him about that trust taking over the management of the land given the limited community facilities in Ebor. On 29 January 2002 this trust wrote to the Department noting that it had resolved to be responsible for the land's management and would "explore how best to utilise the hospital reserve for the continuing benefit of the people of the Ebor community". In the meantime the Council was concerned that the overgrown state of the land presented a fire risk and required vegetation to be cleared.

20 On 10 April 2002 Ms Hembrow approved the dissolution of the Ebor Community Purposes Reserve Trust and the transfer of responsibility for the land to the Ebor Sports and Recreation Reserve Trust for community purposes. The dissolution and transfer were published in the Gazette on 13 September 2002.

21 In or about April 2004 the Ebor Sports and Recreation Reserve Trust applied for financial assistance with respect to the building on the land with the intention to complete a makeover of the bathroom and the kitchen, carry out plumbing and water storages works, and paint the inside and outside. This application described the value of the work to the community as: A family home within village for rental close to school facility or other worthwhile projects. 22 This application noted that the trust could not repay the loan without rental income. The trust said the application would not have wide community benefits and would not benefit special community groups. It also said that the trust proposed the exclusion of access as the house was to be renovated and rented out as a residence. The additional information the trust provided said: An aged building that has been vacant for some time. An extensive makeover would put these premises on the high level of renting prospects for a worthwhile project. 23 The Department acknowledged this application in May 2004. On 8 June 2004 the Land Council made its claim for the land. The Department informed the trust on 2 July 2004 that its application for financial assistance could not be dealt with until the land claim was settled. It rejected the application due to the unresolved claim and so notified the trust on 14 January 2005.

24 Ms Lorraine Osborn has lived in Ebor since 1983. Ms Osborn has been the Secretary to the Ebor Progress Association since 2005. She was also a member of the Ebor Community Purposes Reserve Trust between 5 February 1988 and 31 December 1990. In January 2007 Ms Osborn was appointed to the board of the Ebor Sports and Recreation Reserve Trust.

25 Ms Osborn was instrumental in establishing a project known as the "VillageLink-VillageView Community Development Project" and was appointed by the Council as the project officer for this proposal from July to December 2006. This project began in 2001 as an initiative of the Ebor Progress Association to obtain funding for a footpath in the village. In 2005 Ebor was awarded funding as part of the State and Regional Development's Small Towns and Villages Futures Program to establish community priorities and a 5 year strategic plan. The "VillageLink-VillageView Community Development Project Draft Action Plan 2006-2010" was an outcome of this funding and has been approved by the community and awaits adoption by the Council.

26 From her involvement in the "VillageLink-VillageView project Ms Osborn observed that Ebor has a population of about 128 people (about 60 in the village and 68 in the surrounding area). There are two vacant homes in the village and three new homes under construction. The primary school has eight students. There is no high school. A bus takes three students to high school in Dorrigo. There are four pre-school age children. The nearest town, Dorrigo, is about 50 km away. A round trip takes about 80 minutes. Other than the school bus there are no public transport services between Ebor and Dorrigo. Ms Osborn observed that the building on the land is presently vacant. The Ebor Sports and Recreation Reserve Trust pays the Council rates on the land.

27 On 27 January 2005 the Ebor Sports and Recreation Reserve Trust forwarded a letter to the Department noting that the trust wanted to renovate and then rent out the building to create income to put back into various community projects. The trust also emphasised the significance of the land and building to the Ebor community and recorded the view that the building was an "essential public building with a long term plan, for providing a self funding community based building to benefit the community facilities".

28 Ms Osborn became aware of the land claim at a meeting of the Progress Association. Ms Osborn contacted the Council and wrote a letter to the General Manager on 31 January 2005 on behalf of the Progress Association saying that the Ebor Sports and Recreation Reserve Trust wanted to retain and develop the land as a resource for the community but the trust's plans had been "put on hold for a number of years" due to the land claim. The letter noted that the land and buildings had heritage significance for the community. The community built the building. Many residents had connections with the building as family members had been born and died there. The building would be used for a number of community-based activities for families, the children and aged, and to raise funds for important community development projects. The Progress Association emphasised that it did not want this resource lost to and alienated from the Ebor community.

29 The Council wrote to the Department in February 2005 observing that the Ebor community was keen to take over the land again as it was one of the few remaining community facilities in the village but their efforts had been hampered by the land claim. The Council said that due to the limited public facilities in Ebor the land should be considered as providing an essential public purpose and needed to remain in community ownership to fulfil those needs.

30 The Progress Association wrote to the local member to similar effect in July 2005. The local member informed the Progress Association that representations had been made to the Minister for Lands to have the land claim resolved as soon as possible. The local member provided the Progress Association with a copy of the response from the Minister for Lands noting that the investigation of the land claim was nearing completion.

31 In February 2006 the district office of the Department forwarded a memorandum saying that the actions of the community showed a "desire" on their part to keep the land and building as a community asset. It concluded that the land was lawfully used and occupied and thus not "claimable Crown lands" under s 36(1)(b) of the ALR Act. With respect to s 36(1)(c) of the ALR Act (land not needed, nor likely to be needed, for an essential public purpose), the district office said: There is no evidence to suggest that the land is needed for an essential public purpose. 32 On 23 March 2006 Ms Osborn forwarded an email to the Department's Manager, Aboriginal Land Claim Investigations, recording the community's connections to the land and concern about losing another community resource (having already lost a hall some 6 years ago). The community had plans to use the building for community meetings and believed the land belonged to them so it would be a great injustice if the land were taken from them.

33 The Department's Manager, Aboriginal Land Claim Investigations, reported to the Minister on 24 March 2006. The Manager said in this report that the district office had not canvassed the question of the need for the land for an essential public purpose. In fact, the district office had concluded that there was no evidence to suggest that the land was so needed. In any event, the Manager recorded his view that "the land is needed for the essential public purpose of 'community purposes'". His reasons were, first, that the land and building had been used to raise revenue for the maintenance of this and other community assets and was still needed for this purpose. Secondly, the numerous communications to the Manager from the Progress Association and local member was said to demonstrate the significance of the land and building to the community. Thirdly, the management of the land and building enabled the community to raise much-needed funds for other community facilities. The Manager also considered that the land was lawfully used and occupied under s 36(1)(b). He recommended that the Minister refuse the claim on these two grounds. The Minister did so on 4 April 2006.

34 Although the Minister did not concede in this appeal that raising revenue could never be an essential public purpose within the meaning of s 36(1)(c), the Minister did not suggest that such a purpose was an essential public purpose on the facts of this case. Instead, the Minister relied exclusively on the likely need of the land when the claim was made for the purpose of "community purposes", specifically, "the accommodation of community groups and community facilities for the people of Ebor".

35 On 20 April 2006 the Department contacted the trust inviting a further application for financial assistance. In this letter the Department noted that such an application would assist in case the Land Council lodged an appeal. The trust responded by lodging the further application. This application said that the community fully supported the reclamation and restoration of the building and its development as a community centre. It referred to repairs to allow the building to be used in the first instance by a visiting community nurse. It recorded that there would be no exclusion of access to the land or building. It said the project would have wide community benefit and benefit special groups by reason of "community nurse, meeting place". Further information accompanied this application referring to various proposals (such as use as a community centre, inclusion in the "VillageLink-VillageView Development Plan" for this purpose, a facility for meetings, use by health and welfare service providers, use by playgroups and classes of various kinds).

36 Ms Osborn included in her affidavit a submission by various community associations within Ebor to be taken into account in the appeal. This submission also identified that the land was needed for residential lands and for an essential public purpose (describing the land and building as integral to the successful outcome of the "VillageLink-VillageView" development project, as needed for a community centre, meetings of community groups, playgroups and visiting health and welfare service providers).

37 The Minister submitted that there was a real and not remote chance of the land and building on it being needed as a community facility when the claim was made. "Public purpose" should be given a broad meaning, particularly given the further limitation of "essentiality" (by analogy to the reasoning in Deerubbin [No 2] on the meaning of "likely"). Accommodating community groups and community facilities for the people of Ebor was a public purpose given the location and characteristics of that village. There was a real need for such a facility in Ebor. Consideration of alternative uses over time did not indicate to the contrary. Nor did the community's resolution to sell the land years before. The time taken for the trust to lodge its funding application was not unreasonable given that the trust members were all volunteers. The application referred to "other worthwhile projects". The material after the claim did not involve impermissible hindsight. The land was already reserved for community purposes. The material after the claim supported this reservation and illustrated the real and not remote chance of the land being needed for the community purpose when the claim was made.

38 The Land Council submitted that the evidence could not even support a finding of a desire for the land when the claim was made. The true position when the claim was made was disclosed by a number of facts. For most of the time the land was rented out as a private residence. Attempts to find a new trust interested in managing the land were fruitless between 1995 and 1997. Attempts to interest the Ebor Sports and Recreation Reserve Trust in the land were also unsuccessful despite the Department's best efforts between 1997 and 2001. In the meantime, the community clearly wanted to sell the land as its resolution in 1998 showed. When Ms Hembrow renewed efforts with the Ebor Sports and Recreation Reserve Trust it confirmed its willingness to manage the land on the basis of exploring how it could best benefit the community, but without any specific purpose, let alone an essential purpose, in mind. When appointed in September 2002 the trust took until April 2004 to apply for financial assistance. Its application focused on use of the land as a rental property for a private residence. The reference to "worthwhile projects" disclosed no particular purpose or need for the land. The land claim was lodged only two months later. Everything that came later was a response to the land claim itself and the prospect of transfer of the land to the Land Council as provided for in the legislation.

39 Nevertheless, even in January 2005 the trust's position was that it wished to rent out the land. This use is not a public purpose or essential. The one other specific use mentioned before the claim (the National Trail) was never mentioned again after. The community's submissions after the claim respond directly to the land claim and are properly characterised as advocacy to retain the land. The Minister's suggested public purpose is vague, uncertain and has no actual substance or content. Importantly, despite the so-called need for the land for meetings of various community groups there is no evidence of a single application, request or inquiry by any group about the availability of the land for a meeting before or after the claim. Similarly, there is no evidence that any health or welfare service provider or nurse or any government provider of services to the community wished or wishes to use the land.

40 The suggestion that the land claim prevented development of the community's proposals is inconsistent with the chronology of events. Further, the community submissions relate to matters that cannot be relevant to resolution of the land claim (such as sentimental attachment to the land and building). In any event, none of these proposals confirm a foresight. They involve ideas about the possible use of the land after the claim was made and are thus irrelevant to the application of the statutory definition of "claimable Crown lands".

41 The highest the Minister's evidence goes is that the community should not be deprived of the land by reason of the claim being upheld. If the Minister succeeded on these facts, then it is difficult to imagine any case in which a land council could succeed when faced with a suggestion that land was likely to be needed for an essential public purpose when the claim was made.

F. Decision 42 One matter should be noted immediately. The Court has no discretion to exercise in favour of the Land Council or the Minister. The provisions of the ALR Act bind the Court, just as they bind the Minister. The Court's function is prescribed by s 36(7) of the ALR Act. That section requires the Court to answer one question - has the Minister satisfied the Court that the land is not "claimable Crown lands". If the Minister has not satisfied the Court to that effect then the Court must order that the lands be transferred to the Land Council. If the Minister has satisfied the Court to that effect then the Court must dismiss the appeal.

43 Accordingly, this appeal does not involve the Court in assessing or ranking the relative merits of the interests of the Land Council or the Ebor community. It involves the Court in making a finding of fact in accordance with s 36(7) of the ALR Act. As noted, in this case, the sole ground on which the Minister relied to submit that the land was not "claimable Crown lands" was that when the claim was made the land was likely to be needed for the essential public purpose of community purposes, specifically "the accommodation of community groups and community facilities for the people of Ebor".

44 I have emphasised above the fact that the ALR Act requires this question to be answered by reference to the time when the claim was made. To ensure that this statutory requirement is fulfilled the courts have distinguished between material after a claim that permissibly confirms a foresight and impermissibly provides hindsight. Material in this latter category cannot be logically probative of any fact relevant to resolution of the status of land as "claimable Crown lands" or not. As I have said, if it were otherwise the fundamental purposes of the ALR Act as set down by Parliament would be undermined.

45 The evidence does not establish that the land was likely to be needed for an essential public purpose when the claim was made. It confirms, to the contrary, that at that time there was no such real or not remote chance. Specifically, the evidence discloses that: (1) At most times leading up to the claim the land was rented out as a private residence.

(2) In 1998 the clear desire of the community was to sell the land.

(3) In 1999 the Department accepted that the small size of the Ebor community meant that managing the land and its other assets was beyond the community's resources.

(4) Despite the Department's concerns and encouragement the Ebor Sports and Recreation Reserve Trust showed no interest in the land between 1997 and 2001.

(5) With Ms Hembrow's encouragement the Ebor Sports and Recreation Reserve Trust indicated its willingness to manage the reserve in January 2002. In so doing the trust acknowledged that it would then "explore" how the land could best be used for the community's benefit. This indicates that the trust had no particular public purpose in mind at this time, still less one capable of being described as an essential public purpose.

(6) By April 2004, the Ebor Sports and Recreation Reserve Trust had identified that it needed financial assistance to renovate the building so that it could be rented out as a private residence. Although its application also referred in the alternative to other "worthwhile projects" no such particular project was identified. Moreover, an unidentified worthwhile project is not necessarily an essential public purpose. Finally, the balance of the application discloses that the trust's only clear purpose was private rental because this is consistent with the trust's acknowledgment at that time that it would be excluding people from the land, the project would not have wide community benefit and would not benefit any special groups.

46 All of these circumstances before the claim was made in June 2004 arose in the existing context of the small size, relative isolation and limited other available facilities within the Ebor community. After the claim was made the Minister sought to rely on this context to support the asserted likely need. However, the material after the claim points firmly to the contrary conclusion. This material shows that, once aware of the claim, representatives of the Ebor community were very concerned about the loss of the land, had a strong desire to retain the land as a community asset and identified numerous potential uses of the land for community purposes. Those potential uses (other than renovation to enhance the prospects of a private rental), however, had not been identified before the claim was made. Further, had these uses been contemplated before the claim was made (which they were not) they would have been difficult to reconcile with the use the trust actually wanted to make of the land at that time - as a rental property.

47 The claim did not thwart or delay the community's proposals to use the land. As events recorded above disclose, the proposals for use other than as a private rental property arose in response to the land claim. Even in the most recent submission to the Court on the appeal, the first stated need for the land was residential land, not being a ground relied on by the Minister. The other grounds in that most recent submission refer to the land as essential to the "VillageLink-VillageView Development Plan". The draft action plan 2006-2010 proposing a community centre and museum on the land post-dates the claim. Reliance on this part of the document would involve impermissible hindsight. The Minister did not refer to this document other than as a source of some basic factual material about Ebor. The basic factual material about Ebor, which I accept involves no element of hindsight, cannot sustain the Minister's position in the face of the actual circumstances when this claim was made.

48 I do not accept that the reservation of the land for community purposes means that the expression of the community's wishes after the claim was made falls into the category of confirming a permissible foresight. The history of use of the land as a rental property for private residential purposes, the community's resolution in 1998 to sell the land, the difficulty the Department experienced in interesting the community in the use of the land for any community purpose, the terms of the application for financial assistance in April 2004, the passage of time before any particular use other than as a private rental property was identified, and the fact that all such uses as now proposed only arose after the claim was made, all contribute to the overwhelming weight of the evidence. This evidence demonstrates that the land was not likely to be needed for any essential public purpose when the claim was made. Specifically, the evidence does not support inferences that: - (i) there was a real or not remote chance when the claim was made of the land being used for any community purpose, or (ii) any of the purposes identified before or even after the claim was made are essential. The evidence indicates instead that: - (i) at all times up to the making of the claim the only use of the land contemplated as feasible was as a private residence, and (ii) the various community purposes identified after the claim was made represent the desires of the Ebor community at that time, but no earlier.

49 It follows that the Minister has not discharged the requirements of s 36(7) of the ALR Act. The appeal must be upheld and an order for transfer made. The parties are directed to file agreed draft orders reflecting this outcome within 14 days. If agreement cannot be reached, the proceedings should be listed for mention promptly thereafter. ****************************

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