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

Aboriginal Land Rights Act 1983 Aboriginal Land Rights (Amendment) Act 1986 Crown Lands Act 1989 s 11, s 32, s 33 LEGISLATION CITED: Crown Lands Consolidation Act 1913 Crown Lands (Continued Tenures) Act 1989 Interpretation Act 1987 s 33 Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 s 39

Buttsworth v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 169 Carltona Ltd v Commissioners of Works and Others [1943] 2 All ER 560 Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Daruk Local Aboriginal Land Council v the Minister Administering the Crown Lands Act [No 2] (1995) 89 LGERA 194 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 Goldberg v Waverley Council [2007] NSWLEC 259 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641 CASES CITED: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 New South Wales Aboriginal Land Council & Nambucca Local Aboriginal Land Council v the Minister for Land and Water Conservation [1997] NSWLEC 176 New South Wales Aboriginal Land Council (on behalf of Dubbo Ga Local Aboriginal Land Council) v Minister Administering the Crown Lands Act [1997] NSWLEC 157 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 13 Re Patterson, ex parte Taylor (2001) 207 CLR 391 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Connell; ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163

DATES OF HEARING: 29 November 2007 30 November 2007

APPLICANT Mr M Wright SOLICITOR LEGAL REPRESENTATIVES: Chalk and Fitzgerald RESPONDENT Ms R Pepper SOLICITOR Crown Solicitor's Office

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

30780 of 2006 Griffith Local Aboriginal Land Council v Minister administering the Crown Lands Act

JUDGMENT 1 Her Honour: On 6 August 2001, Aboriginal Land Claim 6605 (ALC 6605) was lodged by the Griffith Local Aboriginal Land Council (the Applicant) pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 (the ALR Act).

2 On 5 July 2006, the Minister for Lands refused ALC 6605. The grounds of refusal were that the land was lawfully used and occupied in terms of s 36(1)(b) of the ALR Act by Carrathool Council (the Council) for the purpose of effecting residential development; and that the land was needed, or likely to be needed, as residential lands in terms of s 36(1)(b1) the ALR Act. 3 The claimed land is portion 131 (now Lot 1 DP1016827) at Hillston, Parish of Redbank, County of Nicholson, Shire of Carrathool (the claimed land), excluding the portion comprised by Cowper Street. It is located at the northeast boundary of the village of Hillston. The approximate area of the claimed land is 2.75 ha.

4 On 1 September 2006, the Applicant lodged this appeal against the Minister's refusal of the claim pursuant to s 36(5) of the ALR Act. I thank Acting Commissioner Behrendt for her assistance during the hearing of this matter. Issues 5 The issues to be determined in respect of the claimed land are not identical to those in the letter of refusal and are:

1. Whether, at the date of the claim, the claimed land was "lawfully used" within the meaning of s 36(1)(b) of the ALR Act on the ground that it was lawfully used by the Council for the purposes of effecting residential development;
2. Whether, at the date of the claim, the claimed land was "lawfully occupied" within the meaning of s 36(1)(b) of the ALR Act on the ground that it was lawfully used by the Department of Lands (the Department) for the purposes of effecting its sale to the Council;
3. Whether, at the date of the claim, the claimed land was claimable Crown land, within the meaning of s 36(1)(b1) of the ALR Act on the ground that the Minister of Lands is of the opinion that the claimed land was needed or likely to be needed as residential land;
4. Whether, at the date of the claim, the claimed land was "needed or likely to be needed" for residential lands within the meaning of s 36(1)(b1) of the ALR Act; Legislative framework 6 The Preamble of the ALR Act states that it is the intention of the legislation to provide a compensatory regime aimed at redressing the impact of dispossession on Aboriginal people in New South Wales: 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:

7 The intention of the ALR Act as expressed in the Preamble has been articulated in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 by Kirby P as follows: The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgment, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia."

8 The ALR Act establishes a regime for the claiming of land as a mechanism to achieve the aims of the legislation in s 36. Section 36(1) of the ALR Act relevantly states: (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: … (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 … 9 Section 36(1) contains the definition of "claimable Crown lands" and includes, at s 36(1)(b), lands that "are not lawfully used or occupied" and, at s 36(1)(b1), lands that, in the opinion of a Crown Lands Minister, "are needed or are likely to be needed as residential lands." Section 36(1)(b1) was inserted by the Aboriginal Land Rights (Amendment) Act 1986 and commenced on 2 May 1986 (before the date of the claim in this case). 10 Section 36(5) of the ALR Act directs the Crown Lands Minister to determine the claim and grant it under s 36(5)(a) or refuse it under s 36(5)(b). Section 36(6) grants an Aboriginal land council a right to appeal to the Court against a refusal under s 36(5)(b). In such an appeal, the Minister bears the onus of satisfying the Court that the land is not claimable Crown lands, as per s 36(7); see also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 ("Winbar (No 3)"). 11 In the event that the Minister is unable to satisfy the Court that the whole or part of the claimed land is not "claimable Crown land", the claimant is entitled, under s 36(7), to have that part of the land that is claimable Crown land transferred to it. 12 In Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 (Deerubbin (No 2)) Spigelman CJ (Heydon and Powell JJA concurring) held at [53] that exceptions to the right to make claims should be narrowly construed given the beneficial intent of the legislation. Evidence 13 The Minister's tender bundle of documents (exhibit 1) concerned the history of the claimed land and the land surrounding it. Exhibit 1 included material referring to the removal of the reserve for public recreation from portion 131 (which includes the claimed land) and its relocation to the adjacent section 25 and to other steps taken towards effecting the compulsory acquisition of the claimed land by the Council, material relating to the purchase by the Council of the lands near the claimed land, material relating to the Council's intentions to review applicable planning instruments and material which post-dates the making of the claim. This is set out in more detail below. 14 Mr Kane, Manager of Environmental Services for the Council, swore an affidavit on 1 May 2007 which also dealt with the history of the claimed land from the Council's perspective.

Before the date of claim 15 On 30 January 1959 the claimed land was reserved for public recreation as Crown Reserve 81359. In September 1974, a review of Crown lands suitable for home sites in Hillston North was undertaken by the Department and the claimed land was identified as being within the proposed village boundary of Hillston. It was noted that two areas of vacant Crown land, being section 25 and part of section 16, were excluded from Council's proposed village "due to the fact that these sections have a formed road on one side only and sewerage and water are not available to every block". 16 On 26 March 1976 Interim Development Order No.1 - Shire of Carrathool was notified in the New South Wales Government Gazette and the claimed land remains under this order. Portion 131 was largely zoned non-urban. The part in Cowper Street was zoned "village or township". On 19 April 1984 Council resolved to investigate the subdivision of land on the western side of Lachlan Street with a view to permitting river frontage allotments, seek purchase of section 22, and seek relocation of the reserve for public recreation to section 25. A diagram of the Hillston sewerage reticulation system dated May 1974 and a plan of the Hillston sewerage system dated 15 August 1973 were in evidence.

17 On 1 May 1984, the Council wrote to the Department proposing that the dedication of the claimed land as a public reserve should be revoked. It proposed that the public reserve be relocated to section 25, Hillston, immediately south of the claimed land. The Council proposed that this be done so as to allow for the claimed land to be used for residential purposes immediately after the development of section 22. At the same time the Council wrote to the department in relation to section 22, the land immediately to the west of the claimed land, indicating it was the most suitable area of land to be next developed for residential purposes in Hillston and asking for a price for it. 18 On 7 March 1985 Departmental report 85/19 in relation to the proposed purchase by Council of section 22 was made. That noted that development costs would make disposal an uneconomic proposition "using Departmental Guidelines". It recommended disposal to the Council.

19 On 7 May 1985, Council wrote to the Department expressing interest in purchasing lots 11 to 18, section 16, for the purposes of future residential development. Section 16 is to the north of the claimed land. On 18 October 1985, Crown Reserve 81359 for public recreation over portion 131 was revoked.

20 On 8 May 1986, the Department wrote to the Council offering section 22 for sale to the Council by way of special purchase. Section 22 is to the immediate west of the claimed land. Lots 1 to 20, section 22, were granted to the Council under Special Purchase 1986-45. Approval was notified in the Government Gazette of 5 December 1986.

21 On 3 October 1986, the Department wrote to the Council offering lots 11 to 18, section 16, for sale to the Council by way of special purchase. The Council did not proceed with the sale.

22 On 21 February 1989 the Council resolved to prepare an updated draft Local Environmental Plan ("LEP") applying to the whole of Carrathool Shire. The LEP was never finalised in part due to policy changes at the Department of Planning.

23 On 30 August 1989, the Council wrote to the Department to request a purchase price for Lots 11 to 18, section 16. On 4 October 1989 the Department offered these for sale by way of special purchase at $6,000 per lot. On 17 October 1989 the Council resolved to purchase lots 11 to 18, section 16, Hillston. On 23 October 1989 Council advised the Department that it wished to purchase allotments of section 16. They were transferred on 12 June 1990 (notified in gazette on 9 February 1990).

24 On 1 December 1989, the Council wrote to the Department requesting that the designated residential subdivision over section 25 be relocated to the claimed land (portion 131). The reason for the request was that "the relocation of the residential subdivision will permit the servicing of the land with the sewerage system without the need for the installation of a costly pump." A draft land assessment was prepared by the Department for (i) the relocation of recreation reserve over subject land to section 25, and (ii) proposed residential development of the claimed land. The draft land assessment was gazetted in November 1991. It was available for inspection at the Council office from 4 December 1991 to 2 January 1992. 25 On 19 February 1992 the statutory land assessment identified portion 131 as being suitable for urban development and section 25, which had been reserved for residential development, as suitable to be reserved as recreation. On 20 March 1992 notification was given of the closure of a road running through section 25. On 14 August 1992 a swap of the recreation reserve on portion 131 to section 25 was gazetted. Section 25 was reserved for public recreation (R150047) and trustees were appointed. The Council made a request to the Department of Conservation and Land Management to acquire the claimed land in November 1992. The Department considered that compulsory acquisition under the Land Acquisition (Just Terms Compensation) Act 1991 (the "Just Terms Act") would be appropriate and in December 1992 informed the Council that the Minister would not object to the acquisition and would accept compensation based on a Valuer-General's valuation. The Council requested a valuation from the Valuer-General on 12 July 1994. The Department advised the Council it would accept the amount determined by the Valuer-General as full compensation. 26 A valuation of $25,000 was obtained by the Council from the Valuer-General in September 1994. The Council advised the Department it would accept the terms of acquisition on 7 September 1994. On 14 October 1994 the Council arranged for an historical search to be undertaken over the subject land with reference to native title issues. On 21 October 1994 an historical search was undertaken by the Department over the claimed land. These inquiries suggested native title may not have been extinguished (Department minute dated December 1994, Native Title Unit minute dated 16 January 1995). On 28 April 1995, the Department advised the Council that native title had been extinguished by previous pastoral leases, but a non-claimant application for a determination of native title was nevertheless required before the acquisition proceeded. On 20 September 1999 the Department advised the Council that acquisition would require prior subdivision to enable the "re-establishment" of Cowper Street as a public road, and that native title may not have been extinguished and either a non-claimant application for a determination of native title or a compulsory acquisition of native title might be required.

27 On 30 September 1996 the Department asked the Council whether it still wished to proceed with the acquisition. The Council advised that it did on 30 October 1996. In January 2000 the Council asked the State Valuation Office to quote on the provision of a new valuation.

28 Between January 2000 and the date of the claim (6 August 2001), the Council took steps towards acquiring the claimed land in anticipation of later making the land available for residential development. These included: (i) commissioning the preparation of a plan of subdivision of the claimed land into a single lot (Lot 1) and as a road reserve (Cowper Street) in accordance with a requirement of the department; (ii) obtaining the Department's consent to initiate that subdivision (February 2000); (iii) lodging a development application for the subdivision (also in February 2000); (iv) obtaining the State Valuation Office's valuation of the claimed land in June 2000 of $61,000; (v) taking steps to have the subdivision plan lodged for registration in August 2000; (vi) resolving to compulsorily acquire the claimed land from the Crown on 19 December 2000; (vii) obtaining concept plans for possible future subdivisions in March 2001; and (viii) seeking permission from the Department in July 2001 to enter onto the land to carry out preliminary engineering works in preparation for subdivision.

29 In February 2000 a draft report titled "Hillston Sewerage Augmentation Strategy Study" was published by the relevant section of the Department of Public Works and Services (DPWS) for the Council and the Department of Land and Water Conservation. It was an investigation of options for augmentation of the Hillston Sewerage Scheme and considered future population projections and potential demands therefore placed on the scheme. 30 On 19 September 2000, a Council minute from a report of the General Manager recommended the preparation of a draft LEP due to the expected growth of the urban areas of Hillston and Goolgowi, inter alia.

31 On 13 October 2000, the Council advised the Department of Urban Affairs and Planning of an intention to "upgrade planning instruments for the urban areas of Hillston and Goolgowi to provide for future growth in both urban centres" and "establish urban zones for the villages of Carrathool, Merriwagga and Rankins Springs". 32 On 29 March 2001 concept proposals for design of the subdivision were prepared for the Council. 33 The claim under the ALR Act was lodged on 6 August 2001.

After the date of claim 34 Material was filed in the Minister's tender bundle which was created after the date of the claim. Much of that dealt with correspondence concerning the land claim and is of limited relevance having been prepared with knowledge of the claim. Nor was it relied on in submissions. As I do not refer to it at all there is no need to include it in the judgment.

Planning evidence 35 Statements of evidence of Mr McFadden, town planner, relied on by the Minister, and Mr Sanders, town planner, relied on by the Applicant, were filed and they also gave oral evidence. The planners had prepared lengthy reports identifying the planning history and providing their opinion on different issues concerning whether the claimed land was "needed or likely to be needed" depending on what instructions they received.

36 According to Mr Sanders, section 2.2, Future Development, of the Hillston Sewerage Augmentation Strategy Study referred to a map of future development areas at p 5. The claimed land is generally outside the "village zone" and the areas identified as "future development areas" do not include the claimed land. The study identified the number of existing dwellings on zoned land (452) and 253 existing lots undeveloped. That provided an adequate supply of dwellings until 2117. According to Mr Sanders (report at par 3.30 p 12 exhibit A) the study identifies that adequate land was zoned to meet forecast dwelling needs in Hillston for more than 30 years, excluding the claimed land, based on a two per cent population growth. That is a reasonable planning period (as the planners agreed). 37 Mr McFadden considered that due to the availability of only 57 vacant allotments zoned for residential development within the "village or township" zone, a 2.1 per cent compound rate of growth to the 2001 Hillston population of 1217 persons, the need for 372 additional dwellings to meet population demand arose, the limited scope of the draft DPWS 2001 study which is not a land use study prepared by or for the Council, inter alia, at the date of the claim the claimed land was needed or likely to be needed over the subsequent 25-30 year period.

Issue 1 - Section 36(1)(b) lawful use by the Council 38 The first issue raised by the Minister as to why the claimed land is not claimable Crown land was its lawful use by the Council. General principles 39 There was agreement concerning the general principles in relation to lawful use that "use" for the purposes of s 36(1)(b) must be actual and to more than a notional degree. In determining whether land is being used to a more than notional degree the purpose for which it is being used must be considered. "The purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense"; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 ("Nowra Brickworks (No 1)") at 121E-F per Sheller JA (Priestley and Clarke JJA concurring); Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140.

40 The fact that land is reserved for a particular purpose is not sufficient to establish that it is lawfully used within s 36(1)(b); NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 (Wagga) [55] per Mason P. Something more is needed.

41 The Court has to establish that there was actual use at the date of the claim, that is, it cannot be just a contemplated or intended use; Wagga at [32].

Minister's submissions 42 The purpose of the use must be considered. There may be actual occupation or use notwithstanding that nothing is physically occurring on the land. For example, as held in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641 ("Nowra Brickworks (No 2)") at 649E: the answer to the question whether or not the ML2 land had been used within the meaning of s 36(1)(b) depended on whether the lands or the relevant part of the lands, taken as a whole, had been devoted to mining purposes rather than whether they were being immediately physically used for those purposes.

In addition, land which was not being physically used at all, but which had been held in reserve for many years for excavation when clay deposits on other lands were exhausted was nevertheless held to be actually used in more than a notional sense; Nowra Brickworks (No 2 ) above, at 646A and 647F. Thus a passive use may still amount to a "use" of the land for the purposes of s 36(1)(b). 43 The Council's actions in relation to the claimed land in seeking to buy it for the purposes of effecting residential development is a relevant use for the purposes of s 36(1)(b). The present case is distinguishable on its facts from the decision in Wagga. While a decision to sell will not generally by itself amount to a use of land under s 36(1)(b) in some circumstances it can be (Wagga at [65], [66] and [70]. Here there is a clear manifestation of the intention of the Minister to effect a sale to and acquisition by the Council of the land so that the Council could develop it for residential purposes to accommodate growth in the Hillston area. 44 Particular evidence that the land was being "used" in the requisite sense is evident from Mr Kane's affidavit and the documents attached which clearly demonstrate that, for example: (a) the Department had offered the land for sale to the Council (par 23); (b) the recreational reserve was relocated to section 25 in order to permit the development of the land for residential purposes (par 25 and 28); 45 The steps taken by the Council in preparation for buying the land are identified in the evidence, see par 27-28 in relation to the period January 2000 up to the date of the claim and prior efforts from 1984 - 1994 in par 15-26. This activity on the part of the Council, and hence the Department, is a lawful use of the claimed land under s 36(1)(b).

Applicant's submissions 46 Constructive use or occupation is not sufficient to amount to either use or occupation for the purposes of s 36(1)(b). Rather there must be actual use and occupation in fact and to more than a notional degree, Daruk per Priestley JA at 162. Nowra Brickworks (No 2) at 649E is not authority for the general proposition that passive use may still amount to use as the Minister submitted. The actions of the Council relied upon by the Minister do not amount to use of the land "in fact and to more than a notional degree." That the Council had taken steps to acquire the claimed land from the Department and that the Council also might, after it had acquired the land, subdivide it into residential lots, does not support the finding that the claimed land was used in fact. These actions amount to no more than the preliminary steps in anticipation of possible future action by the Department or future use by the Council once it acquired the land.

47 At the date of the claim, the Council had no proprietorship over the claimed land, had no statutory role in relation to the care, control and management of the claimed land, did not purport to control access by others to the land, saw itself as requiring the Department's permission to enter the claimed land to conduct preliminary engineering works, had no physical presence on the land and conducted no physical activities on, from or in relation to the land.

48 This activity was less than that undertaken by the Dubbo City Council in relation to the land claimed in New South Wales Aboriginal Land Council (on behalf of Dubbo Ga Local Aboriginal Land Council) v Minister Administering the Crown Lands Act [1997] NSWLEC 157 and in that case the activity was considered by the court to be "extremely tenuous acts of occupation" that did not amount to "occupation in fact".

49 Similarly, inspections and investigations in preparation of the compulsory acquisition of land were not sufficient use of the land for the purposes of s 36(1)(b). Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2006) 149 LGERA 162. This approach was adopted by the Court of Appeal in Wagga.

Finding on issue 1 50 The general principles both parties accept in relation to lawful use are identified at par 39-41 and are applied in this finding. As submitted by the Applicant, the passive use of claimed land as a general proposition is not supported by Nowra Brickworks (No 2). The extent of the use necessary to satisfy lawful use under s 36(1)(b) is determined by consideration of the purpose of the use; Nowra Brickworks (No 1) at 121E-F. The Minister argued that the Council has lawfully used the land to effect residential development. The evidence discloses that the Council had sought to buy the land from the Department over a lengthy period from 1984 up to 1994. The Department took steps at the request of the Council to facilitate the sale such as the transfer of the recreation reserve to section 25 from portion 131. No further action was taken by the Council until 2000 when further steps including survey work were undertaken up to the date of the claim in August 2001. The corollary of the Council seeking to buy the land to have it available for residential use is that the Department must agree to sell it. 51 In Wagga Mason P concluded (Tobias JA concurring) that the activity of selling the claimed land by a government department which no longer had a use for it did not amount to use of the land. Mason P held at [47]-[49]: At the highest level of generality, all Crown land is "able to be lawfully sold or leased" because the CLA contemplates that this can occur, subject to its detailed regime. But more needs to be shown by a claimant who relies upon the opening words of s36(1)(a) (referring to land " able to be lawfully sold or leased ") (see eg Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459). How much more does not call to be explored in depth because, as indicated, it is common ground that sufficient steps had been taken under the CLA to show that the subject land was able to be lawfully sold as at the date of the claim. … The appellant's case is not answered by the respondent pointing out that sale of land has been an aspect of Crown land administration from the earliest days of the colony of New South Wales. Such conduct is part of the historical dispossession of the Aboriginal peoples that the ALRA set out belatedly to redress. Section 36(1)(b) has a context and the words it uses have been construed to require more than notional use or occupation. 52 At [57] Mason P continued: Section 36(1) requires conditions (a), (b), (b1), (c), (d), and (e) to co-exist at the time the claim is made if land is to be claimable. The question at issue is the scope of the word " used " in para (b). If the capacity to sell is one factor that shows land to be claimable, it would be internally contradictory for the Act to be construed so that this capacity also constituted lawful use that precluded the claim. I do not overlook the respondent's reliance upon steps having been taken to implement the decision to sell. In my view, this just restates the conundrum. [58] The conclusion I have reached does not mean that Crown land becomes claimable whenever its sale is put in train. The vendor may continue to use and/or occupy land until the time for completion of a contract for sale. If such use (as in Department of Education ) and/or occupation is of a nature and quality to repel s36(1)(b) of the ALRA then the Crown land will not be claimable. 53 While agreeing with the conclusions of the majority, Giles JA provided separate reasons. His Honour held at [65]-[66]. It may be that sale of land can in some circumstances be a use of the land, for example if it is sale by an entrepreneur whose business is buying and selling land. The Crown is generally not such an entrepreneur, and was not in the present case. But the conduct of government involves buying and selling land, typically but by no means only in providing working accommodation for those providing governmental services. Section 36(1)(b) of the Aboriginal Land Rights Act 1983 ("the Act") refers to land "not lawfully used or occupied", the alternatives of use and occupation meaning that use is different from and does not require occupation. The use of land to accommodate public servants can include its sale if, for example, the government department has outgrown the accommodation and there is sale of the land and purchase of other land with a prompt transition. That is, a decision to sell land and steps taken to do so can be part of its use; but on the other hand, if land is held for a period unused, and then sold, the sale is antithetical to use and itself will not suffice for use of the land.

The question is not whether sale of land is use of the land for the purposes of s 36(1)(b) of the Act. Sale of itself, and action to sell, will usually not be a use of Crown land. The question is whether at the relevant time the land is being used, and action to sell the land may or may not be part of use found in wider circumstances.

54 The Minister is relying on the Council's activities in seeking to buy the land for residential use as constituting lawful use of the land. The Minister has argued that the facts of this case are distinguishable from those in Wagga. In Wagga the Department which occupied the land was seeking to sell it as it no longer needed it. The circumstances relied on for this part of the Minister's case are different from Wagga which focussed on the actions of the Department. The Minister sought to distinguish the facts of this case from those in Wagga on the basis that the sale to the Council was to enable use of the land for residential development and that is the activity in which the Department as the manager of Crown land was engaged. Hence the purpose underlying the sale to the Council was said to be the proper management of Crown land through its release for residential purposes. I can more readily understand such an argument in the context of issue 2 in relation to the occupation of the land by the Department, but I do not consider the Department's purpose as the manager of Crown land (about which there is little evidence before me) can support the lawful use of the land by the Council, a third party wishing to buy the land, for the purposes of s 36(1)(b). 55 As stated by the Applicant (at par 47), at the date of the claim the Council had no statutory entitlement to own, occupy or control the claimed land. It sought the consent of the Department to undertake investigations on the land in July 2001 (par 28(viii)). It expressed a wish to the Department to acquire the land for residential purposes and undertook steps to achieve this in 2000 and 2001. Those steps are referred to in the Minister's submissions at par 45 and are identified at par 28. While the Council had taken steps to buy the claimed land, this cannot constitute use of the land for the purposes of s 36(1)(b). Even if extensive steps to buy the land by the Council have been taken I do not consider this constitutes a "use" of the land. Support for this conclusion is found in Darkinjung in which I held at [94] that preparatory works for the compulsory acquisition of the claimed land the local council undertook in that case did not amount to the lawful use of land under s 36(1)(b). In Darkinjung, as in this case, the council did not have any legal entitlement to occupy the claimed land. In reaching that conclusion I relied on Lloyd J in Dubbo Ga where he held that preliminary survey works to determine the suitability of a site for a sporting complex were tenuous acts of occupation. In that case the council was the trustee of the land reserved for public recreation so that the issue was occupation rather than use but that distinction does not negate the relevance of his Honour's findings. 56 Given that the Council has no legal entitlement to occupy the land I do not consider the circumstances of this case are relevantly different from those in Darkinjung. In accordance with my finding in that case and in conformity with Dubbo Ga I consider the land is not being lawfully used by the Council for the purposes of s 36(1)(b). This conclusion is further supported by analogy with Wagga where the relevant Department's own activities to sell land were held not to be lawful use or occupation under s 36(1)(b). The findings of Mason P at [47] - [49] and [57] (see par 51, 52 above) and particularly Giles JA at [65] - [66] (par 53) set out their Honours' reasoning in reaching that conclusion. Such reasoning suggests it is even less likely that a third party taking steps to buy Crown land is not use of the land for the purposes of s 36(1)(b).

57 If the evidence of the Council's activities shows an intended possible future use for the claimed land and the taking of certain steps to bring about that use, a contemplated or intended use of the land cannot amount to use for the purposes of s 36(1)(b); Nowra Brickworks (No 1). Further, I have already held the Council's actions cannot constitute use of the land. I consider the Minister has not succeeded on issue 1. Issue 2 - s 36(1)(b) - lawful occupation by Department of Lands Minister's submissions 58 The Minister contended that at the time of the claim, the land was being used by the Department for the purpose of effecting its sale to the Council. He also contended that the sale was a clear manifestation of the intention of the Minister to effect a sale and acquisition by the Council of the land so that the Council could develop it for residential purposes.

59 To support this, the Minister submitted that residential development would be cheaper on portion 131 than on section 25 because sewerage services could be provided by gravitation and without the need for a pump. This demonstrated that Council wanted to acquire more land to accommodate residential growth in the Hillston area.

60 I note that while the Minister's written submissions tended to refer to use rather than occupation, issue 2 as pleaded relates to the occupation of the claimed land by the Department. The Minister's oral submissions proceeded on the basis of occupation. The Minister submitted that the claimed land was lawfully occupied by the Department for the disposition and acquisition of land for residential development to accommodate growth. "Actual occupation" as opposed to "constructive occupation" of the kind that arises where a sovereign asserts sovereignty, dominion, possession or occupation in relation to land is required; "… the better reading of 'occupied' in its context in par (b) is 'actually occupied' in the sense of being occupied in fact and to more than a notional degree"; Daruk at 162E. The same is true of use: Daruk at 164D. 61 This approach is supported by New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 which held that the land can be lawfully used without occupying it and also that is permissible to look at the cumulative facts to determine occupation. The sale of land to accommodate public servants can constitute a use (based on Wagga at [65]) and the sale of land to a council to enable residential development is also amounting to occupation of land as part of the functioning of government. Steps taken to effect such a sale constitute the occupation of land. While the Crown is not in the business of buying and selling land, it nevertheless is in the business of releasing Crown land for residential development in order to accommodate growth within the state. 62 The Minister submitted that Wagga in the Court of Appeal is distinguishable on its facts. In that case the relevant department had no use for the land and actively took steps to dispose of it. Here the land was kept in abeyance not because the Department no longer had any use for it but to enable its release (albeit through compulsory acquisition by the Council) to accommodate growth in Hillston. Applicant's submissions 63 The occupation of the land by the Department relied on by the Minister does not amount to the actual or present occupation of the land to more than a notional degree. The history of the land shows only preliminary steps made in anticipation of possible future action by the Council. 64 The Applicant submitted that Wagga is not distinguishable on its facts from this case. That case held that a decision to sell land is not a "use" of land for the purposes of s 36(1)(b) and preliminary steps taken to achieve the sale of land cannot constitute a lawful use under s 36(1)(b). The Department's acquiescence in the Council's wish to acquire the land by compulsory acquisition does not amount to occupation. The reason for the Council's wishing to purchase the land is immaterial. 65 The Department acquiesced in the Council's requests and actions in relation to the claimed land and took administrative steps, over many years, to allow that to occur. Those steps were: (i) to relocate a reserve for public recreation affecting portion 131 to the adjacent section 25, (ii) revoke the reservation affecting portion 131 in October 1985, (iii) undertake a land assessment of portion 131 and section 25 in 1991-92 in response to the Council's request in December 1989 to relocate the former unused residential subdivision on section 25 to portion 131 which would "permit the servicing of the land with the existing sewerage system without the need for the installation of a costly pump station", (iv) offer no objection in December 1992 to the compulsory acquisition of the land by the Council, (v) conduct an historical search of the claimed land at the Council's request in April 1995 to determine if native title had been extinguished, (vi) advise in September 1999 that it required a subdivision of portion 131 in order to re-establish that section of Cowper Street that had been in portion 131, (vii) In February 2000 consent to the Council's proposed subdivision of lot 131 into a single lot and road and give consent in July 2001 to the Council for access to the claimed land to allow preliminary engineering works in preparation for subdivision. 66 Further, the acquiescence of the Department to the request from the Council to purchase the land, inter alia, does not permit any relevant intention to be imputed to the Minister.

Finding on issue 2 67 This issue as stated at the outset by the Minister was that the occupation by the Department of the claimed land was for the purpose of effecting its sale to the Council, the Minister's counsel also stated it was the Minister's intention to effect the sale and this was also suggestive of occupation. In relation to reliance on the Minister's intention, I observe that whether the Minister relies on the activities of the Department which acts under his delegation, or separately argues that his intention to sell the land is manifested in the actions of the Department, is not a relevant distinction that I can appreciate in the context of this part of the case. The arguments focussed on occupation of the claimed land by the Department, which was the primary argument advanced and the basis on which I will consider this issue. 68 The Minister's arguments emphasised that it is the sale of land for a purpose which must be considered and that is why this case is distinguishable from the facts of Wagga. As already identified at par 53, Giles JA in the Court of Appeal held that the sale of land alone is not a use of land for the purposes of s 36(1)(b) of the ALR Act. 69 The Minister argued that the Department as the manager of Crown land was in the business of releasing Crown land for residential development in order to accommodate growth within the state. There is no evidence that that is the role of the Department apart from submissions to that effect from the Minister's legal representative. I consider that the Department can be distinguished from Landcom, by way of example, which undertakes land development for residential purposes, inter alia, and has existed in various forms since the 1970s, becoming a state owned corporation in 2002 and operating as a development arm of the New South Wales Government. An important function of the Department is, inter alia, to conduct the management of Crown land in accordance with the requirements of the Crown Lands Act 1989 ("the CL Act") (and its predecessor the Crown Lands Consolidation Act 1913) as delegated to it by the Minister. The recognition of the administrative necessity for the Minister to delegate his or her functions is found in the Carltona principle (Carltona Ltd v Commissioners of Works and Others [1943] 2 All ER 560). 70 The particular history of the claimed land relevant to this issue is identified in par 23-27. Activities undertaken include that in August 1989 the Council made a request to the Department to have the residential use of section 25 relocated to the claimed land. A land capability assessment was undertaken by the Department in relation to the claimed land in 1991 (par 24). This resulted in portion 131 being identified as suitable for urban development and the recreation reserve on that lot was moved to section 25. The Council requested the purchase of portion 131 and was told to compulsorily acquire the land under the Just Terms Act in 1992 and some steps were undertaken in 1994 by the Council. Further steps were taken by the Council from 2000 up to the date of the claim (par 28). 71 There are, appropriately, delegations of responsibilities such as the conduct of land assessments under Part 3 of the CL Act by the Minister to officers in the Department. Section 32 (assessment of the capabilities of land) includes the assessment of the land's use for many purposes which include environmental protection, nature conservation, water conservation, forestry, recreation, tourism, grazing, agriculture, commerce, industry or mining as well as residential purposes. Under s 33 (identification of uses) when identifying certain uses of land regard must be had to, inter alia, the particulars of the land, the assessment of the land's capabilities and the principles of Crown land management, identified in s 11. The processes undertaken by the Department on behalf of the Minister, as required by the administration of the CL Act, do not support the submission that the Department was engaged in the purpose of releasing Crown land to accommodate growth in the state in the absence of any evidence to suggest that the Minister had so directed it. The Department must act on the Minister's directions or delegations to it. No direction or delegation from the Minister to that effect has been provided. I do not accept the Minister's submission that the Department's activities required to be undertaken under the CL Act give rise to occupation of the claimed land under s 36(1)(b). 72 The Applicant's characterisation of the Department's behaviour as acquiescing in the Council's approaches to it in relation to acquiring the claimed land is accurate when the evidence is considered. There is no basis on which the decision in Wagga can be distinguished on its facts from this case, contrary to the submissions of the Minister. The activities undertaken in relation to the sale of the land do not give rise to the occupation of the land under s 36(1)(b1). 73 The Minister is unsuccessful on issue 2.

Issue 3 - opinion of Minister that land needed or likely to be needed for residential land 74 The first fundamental matter that arises is how s 36(1)(b1) should be applied. Depending on how that is answered determines what other matters need to be considered in relation to issue 3. Issues 3 and 4 both raise the application of s 36(1)(b1). Depending on how I determine issue 3 overall, issue 4 may not arise for consideration.

(i) Application of s 36(1)(b1) Minister's submissions 75 The Minister submitted that, under s 36(1)(b1), if the Minister forms the opinion that lands are needed or are likely to be needed as residential lands, then by dint of that opinion, those lands are not claimable Crown lands. The decision in Daruk Local Aboriginal Land Council v the Minister Administering the Crown Lands Act [No 2] (1995) 89 LGERA 194 (the Londonderry claim) is incorrect and should not be followed.

76 Section 36(1)(b1) has different wording and a different legislative history to other parts of s 36(1). Unlike every other element of the definition of "claimable Crown lands", (b1) is expressed to turn upon an opinion of the Minister. Unlike every other element of the definition, subsection (b1) was inserted subsequent to the enactment of the ALR Act, by legislation whose inevitable and intended consequence was to narrow the scope of claimable Crown lands. It is submitted that those differences should be reflected in the construction to which the section is given: "a court construing a statutory provision must strive to give meaning to every word of the provision": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71]; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679.

77 If the Minister forms the opinion that lands are needed or are likely to be needed as residential lands, then by dint of that opinion, those lands are not claimable Crown lands. This construction gives effect to its ordinary grammatical meaning. It means that the task of the Court, in determining the statutory appeal pursuant to s 36(6) and (7), is to determine whether the Minister's opinion was properly formed - principally, was it formed reasonably upon material before him or her: R v Connell; ex parte Hetton Bellbird Collieries Ltd [No 2] (1944) 69 CLR 407 at 430 and 432; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34].

78 So to construe s 36(1)(b1) accords not merely with the language, but with the stated intention of the Minister. On 16 April 1986 the then Minister for Aboriginal Affairs presented a bill to amend the ALR Act to add s 36(1)(b1). The second reading speech said (emphasis added): Further amendments will bring the Act into greater conformity with government policy by allowing claims in the Western Division to be granted lease; by removing residential land from the category of claimable Crown Land ; and by resolving outstanding questions involved in the issuance of certificates under section 36(8) of the Act." (Legislative Assembly, 16 April 1986, p 2042)

79 The explanatory memorandum to the bill stated: The conditions under which claims to Crown Land (proposed sections 36(1) and (b1)) are made will, in future, be varied. It is intended that land earmarked for residential development be made non-claimable. This is a scarce resource and access to it should be through normal channels in accordance with government policy. …

80 Of course, a court will construe s 36(1)(1b) purposively, so as to promote, not defeat, the evident purpose of the legislature: Interpretation Act 1987, s 33. Legislative context is to be considered "in the first instance": Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [11].

81 The foregoing submissions depart from Daruk (No 2) at 203. That reasoning, the Minister submitted, is incorrect for three principal reasons: (a) his Honour relied upon what Hope JA had said in Winbar (No 3) as "the principal reason" for his construction. What Hope JA there said was in the context of s 36 in its original form (see at 689A), prior to the introduction of (b1). The ratio of the case is that the claimant land council was entitled to have its appeal determined as if the law had remained the same as it was at the time when its appeal was instituted (at 696F). In any event, Hope JA's analysis supports the Minister's construction, and is inconsistent with that applied by Bignold J, for the task of this Court pursuant to s 36(7) is to determine whether the statutory definition is, or is not, satisfied; (b) his Honour considered that accepting the Minister's submission would deprive s 36(8)(a) of all effect. That does not follow, for at least two reasons: (1) the s 36(1)(b1) opinion is nonetheless judicially reviewable; and (2) the position may have changed materially between rejection of a claim and issuing of a certificate. His Honour seemingly described part or all of the argument set out above as "ingenious", and rejected it, but gave no reasons for either the description or the rejection; and (c) although his Honour was (with respect, properly) conscious of the difficulty in a construction which rendered the words "in the opinion of a Crown Lands Minister" tautologous, that was, expressly, the effect of his Honour's construction.

82 Those reasons do not warrant this Court following an approach so plainly contrary to the language and purpose of s 36(1)(b1). Applicant's submissions 83 Relying on the decision in the Londonderry claim, the Applicant submitted that the Court is not bound by the Minister's opinion formed under s 36(1)(b1). The approach in that case has been followed in numerous cases of this Court since then and is long standing. The appeal is a full merits appeal. Section 39(2) of the Land and Environment Court Act 1979 makes the Court's powers in this regard clear: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

84 The specific powers conferred on the Court by virtue of s 36(7), the remedial nature of the legislation, the fact that specialist commissioners sit with a judge to hear the matter, all point against any intention for a limited interpretation of s 39(2) to be applied in the context of Aboriginal land claims, see by analogy Goldberg v Waverley Council [2007] NSWLEC 259 per Biscoe J at [59]-[60]. 85 Under this wider view of s 39(2) courts have several times assumed the power to exercise discretions phrased to rely on the satisfaction of a decision-maker in much the same way as held by Bignold J in the Londonderry claim: see North Sydney Municipal Council v P D Mayoh Pty Ltd (1988) 14 NSWLR 740 at 746 per McHugh JA, Codlea Pty Ltd v Byron Shire Council [1999] NSWCA 399 at [28] per Stein JA, Buttsworth v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 169 per Talbot J at [15].

86 Bignold J's construction of s 36(1)(b1) ensures consistency within the terms of s 36 of the ALR Act. Were a different interpretation adopted there would be an inconsistency between the terms of s 36(8)(a) which requires the content of a certificate merely to state that land is "needed or is likely to be needed as residential land" without reference to an "opinion". The appeal to the Court is an appeal de novo, it is not a limited form of judicial review directed at nothing more than an enquiry as to the reasonableness of the Minister's opinion. 87 The Minister's construction fails to take into account the concept of "need" as a critical component of s 36(1)(b1) of the ALR Act. The Court itself is required to be satisfied of whether land is needed or likely to be needed for residential use. This was considered a relevant consideration in Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163 at [16]. Consideration of "reasonable futurity" which has been considered by the Court in relation to residential land. On the Minister's construction, if he forms an opinion that claimed land was "needed" for those purposes at some point in the distant future the Court would be bound to hold that the land was not claimable. This would not fulfil the objects of the ALR Act. Finding on application of s 36(1)(b1) 88 At the time of the hearing in this matter NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 13 (the NSWLALC 2008 case) had not been determined. The Minister's counsel advised during the hearing that the same arguments put in this case on this issue also arose in that matter. In that case, Jagot J found at [71] -[75] as follows: 71 I accept the Minister's submissions that the approach to s 36(1)(b1) of the ALR Act in The Londonderry Claim is clearly wrong for three reasons: - (i) it is inconsistent with the ordinary meaning of s 36(1)(b1) and does not give effect to all of the words of the provision, (ii) it does not readily accord with the remedial and beneficial purpose of the ALR Act, and (iii) the reasons for adopting the approach are not persuasive. It is not necessary to have recourse to the second reading speech for this purpose (particularly in recognition of the fact that s 36(1)(b1) does not say that residential land is not claimable Crown lands. See also the observations in Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 at [83] that it is the intention of the legislature as disclosed in the statute, not the words of the Minister, that must govern its construction).

72 Section 36(1)(b1) is the only provision within s 36(1) including reference to a state of mind ("in the opinion of a Crown lands Minister") as part of the relevant factual condition. The ordinary meaning of s 36(1)(b1) is clear. To qualify for the exception from claimable Crown lands provided for in that section the land must not be land which, in the opinion of a Crown lands Minister, is needed or likely to be needed as residential land. This factual condition is to be tested by reference to the time when the claim was made in accordance with the fundamental prescription in s 36(1) ("claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division…"). As the Land Council submitted, if it were otherwise land could be claimable Crown land at all times after a claim until the Minister formed an opinion. This would be inconsistent with the requirement that the status of the land be determined by reference to the time when the claim was made. Further, the reference to "a" Crown lands Minister reflects the fact that the Minister who formed an opinion may be different from the Minister determining the claim.

73 The required opinion is an opinion of a Crown lands Minister that the land was needed or likely to be needed as residential lands. The ordinary meaning of s 36(1)(b1) is inconsistent with an approach in which the Court may substitute its own opinion for that of a Crown lands Minister. Enabling the Court to do so gives no effect to the words "in the opinion of a Crown lands Minister". Under s 36(5), the obligation of the Minister determining a claim is to find whether there was or was not the required opinion when the claim was made. The function of the Court under s 36(7) (supplemented by s 39(2) of the Land and Environment Court Act) is to make that finding about the required opinion for itself on the evidence, having regard to the onus cast by that section on the Minister. Section 39(2) does not give the Court any function with respect to the forming of the primary opinion because that is not a function of the Minister under s 36(5) (which is the decision the subject of the appeal).

74 Giving s 36(1)(b1) its ordinary meaning is consistent with the beneficial purpose of the ALR Act. The long title to the ALR Act and s 3 disclose that Aboriginal people have been deprived of land in the past without compensation by reason of government decision-making. The fundamental prescription in s 36(1) ensures that the status of land as claimable Crown lands or not operates by reference to the time when the claim was made. The statute thus protects against any potential effects of expediency in the Minister determining the claim. It requires the Minister, in accordance with s 36(5), to do nothing more (or less) than make a finding about the factual circumstances prescribed by s 36(1)(a) to (e) at the time when the claim was made, irrespective of any matter or circumstance existing at the time when the claim is determined. The result (whether the land must be transferred to a land council or not) follows from the factual finding without involving the Minister in any discretionary exercise. On appeal under s 36(7) the Court is in the same position as the Minister under s 36(5) (albeit with the Minister bearing the onus of establishing the factual circumstance prescribed by s 36(1)(a) to (e) relied upon). If part of the factual condition in s 36(1)(b1) (the opinion of a Crown lands Minister) is able to be found by reference to the time when a claim is determined (either because of an opinion of a Crown lands Minister or the Court at that time) then this important protection in the statutory scheme would be lost.

75 The reasons that led to the contrary conclusion about s 36(1)(b1) in The Londonderry Claim (at 201 - 202) are not persuasive. The fact that the Court must determine whether the factual conditions in the definition of claimable Crown lands are satisfied (as stressed by Hope JA in The Winbar Claim ) supports the ordinary meaning of s 36(1)(b1). Hope JA did not suggest that the Court could recast part of any of the factual conditions. The Winbar Claim was also decided before s 36(1)(b1) was inserted into the ALR Act. Giving s 36(1)(b1) its ordinary meaning does not give a decision under s 36(5) the same effect as a certificate under s 36(8)(a) because the certificate cannot extend to the existence of the required opinion.

89 Her Honour's summary of the parties' respective arguments is found at [64] - [67] (Minister) and [68] (Applicant). The arguments put to her Honour by the Minister were in very similar terms to those I have heard and summarised above at par 75-82. The Applicant's arguments are briefly summarised in her Honour's judgment. The Applicant made lengthy submissions in this matter, summarised above, which relied on s 39(2) of the Court Act (par 83-85), the potential inconsistency with s 36(8)(a) of the ALR Act concerning the issuing of a certificate (par 86) and the importance for "need" to be considered under s 36(1)(b1) (par 87) as reasons why the Minister's construction should not be adopted. 90 While judicial comity generally suggests that a judge at first instance should follow another judge's decision unless he or she considers it to be wrong, I have conflicting judgments of this Court before me. Jagot J has addressed the arguments relied on by the parties in the matter before me and has generally although not entirely preferred the Minister's argument on construction. In relation to the Applicant's argument in this case, Jagot J refers at [73] to the operation of s 39(2) of the CL Act and at [75] in relation to the certificate referred to in s 36(8)(a). The issue of "need" is not considered in this part of her Honour's judgment but is considered elsewhere in her judgment. Having reviewed her Honour's thorough reasoning I agree with her findings, particularly given that her Honour's primary reason is to give the specific wording in s 36(1)(b1) its ordinary meaning. It follows that I accept the Minister's arguments on this aspect of this case except that I note that Jagot J did not consider that it was necessary to rely on the second reading speech in reaching her conclusion at [71]. Her findings at [71] suggests that the Minister's submissions made in reliance on the second reading speech at par 78 above were not accepted in that the Minister's intention is to be found from the statute not the second reading speech. I therefore consider the approach to s 36(1)(b1) in the Londonderry claim is incorrect. 91 The Court is required to review whether the Minister formed an opinion under s 36(1)(b1), to be determined by looking at the evidence up to the date of the claim (about which I shall say more shortly).

92 Related matters arise for clarification or determination in this case because of the arguments raised by the parties. At [68] Jagot J noted the position of the land council in the NSWLALC 2008 case was that: (a) the relevant opinion under s 36(1)(b) had to exist at the date of the claim; and (b) the relevant opinion could be held by a Crown Lands Minister or a delegate. Further at [107] her Honour held: I am satisfied that the steps carried out by the Department with respect to its home sites program in the Grafton area from the early 1980's onwards were carried out by or on behalf of the Minister. That is an obvious inference from the correspondence between the Minister and the Council in late 1981. Accordingly, those steps may evidence an opinion of the Minister for the purpose of s 36(1)(b1) (particularly having regard to the common position of the parties on the capacity for a delegate to form the opinion, and that the ALR Act and Crown Lands Act both authorise the Minister to delegate functions in s 249 and s 180 respectively).

(ii) Minister's opinion to be held at date of claim? 93 One matter to clarify is the time at which the Minister's opinion has to be held. The subsection itself does not specify when this is to occur but the preamble to s 36(1) refers to "when a claim is made". Hope JA in Winbar (No 3) also referred to the importance of matters under s 36(1) being determined at the date of the claim in order to give effect to the beneficial intent of the legislation, at 691E-F. 94 While the Minister's counsel stated there were two possibilities, firstly that the opinion must exist at the date of the claim and secondly, that it could be formed after the date of the claim, albeit based on matters up to the date of the claim, it was ultimately submitted that a beneficial interpretation of legislation, which is also in conformity with the operation of the other subsections in s 36, is that the opinion must be formed at the date of the claim. The Applicant argued that only an opinion in existence when the claim is made could be relevant. I intend to adopt such an approach as that conforms with the wording of s 36(1). Jagot J in the NSWLALC 2008 case at [74] also took that approach as it ensured that the beneficial intent of the legislation was served and I also adopt her reasoning in that regard.

(iii) Can the Minister delegate his opinion? 95 Another issue that was raised in submissions was whether the Minister could delegate the formation of an opinion to officers in his department. Exhibit 5 tendered by the Minister consisted of: (a) An extract from a document entitled "Section 68 - Manual of Procedures" dated 6 February 1989 which lists certain powers, including determining requests for concurrence in the appropriation of Crown lands, as having been delegated. It was not itself an instrument of appointment; and (b) An instrument of delegation dated 21 April 2006 whereby the Minister delegates, pursuant to s 180 of the CL Act, certain functions under that Act and the Crown Lands (Continued Tenures) Act 1989, including the functions under s 35(1) of the CL Act of "being satisfied … that land has been assessed under Part 3 for the purposes of Part 4 of the Crown Lands Act 1989". It was submitted a similar delegation would have existed at the date of the claim (but could not be located in time for the hearing). Minister's submissions 96 The Minister submitted that the characterisation of the delegation by the Applicant is far too narrow and would frustrate the purpose of the statute. A general delegation of the type, for example, in exhibit 5, would be sufficient to encompass the formation of the requisite opinion under s 36(1)(b1) of the Act. In any event the delegation may be inferred from the documentation and the interaction between the Council and the Department with respect to the subject land. 97 In addition to the reference to s 49 of the Interpretation Act (delegation of functions), the Minister noted that unlike the term "Crown Lands Minister", the term "Minister" is not defined in the ALR Act and upon a proper and purposive construction of s 243 of the ALR Act, does not preclude a reference to the Crown Lands Minister as being encompassed within the description of "Minister". 98 The documents in exhibit 5 enabled the delegation to be inferred from the totality of the departmental activity occurring in respect of the subject land (for example, the revocation and transfer of the reserve, the draft assessment, the preparation of the land for acquisition, the granting of permission for the Council to enter the land and subdivide). Given that the Applicant did not suggest that this activity was ultra vires, then it follows that it occurred pursuant to a delegation in respect of the land. Such a general delegation includes the formation of the requisite opinion. 99 To submit, as the Applicant in effect does, that there must be a specific delegation of the very opinion expressed in s 36(1)(b1), or in the absence of such a delegation that the opinion must be personally held by the Minister at the date of the claim, flies in the face of general administrative decision-making processes and would wholly frustrate the statutory purpose (see Carltona endorsed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 37-38 and Re Patterson, ex parte Taylor (2001) 207 CLR 391 at 449).

100 As the practical operation of s 36(1)(b1) and the Minister's (or Ministers') conduct of responsibilities under the CL Act and the ALR Act (Acts which might be administered by different ministers) in light of the fact that a minister cannot be expected to know when a particular claim will be filed and therefore of the necessity to form an opinion on or before the date of a claim, the Minister's opinion can be formed based on the action and opinions of departmental staff. Applicant's submissions 101 The Applicant argued that the opinion referred to in s 36(1)(b1) must be of a Crown Lands Minister. It accepted that the Minister's opinion could be informed by the advice of departmental staff. However the existence of someone else's opinion could not satisfy s 36(1)(b1). The Applicant challenged whether the evidence of delegation relied on in exhibit 5 was sufficient for the Minister to discharge his onus of proof. The only delegation that could possibly be relevant to the application of s 36(1)(b1), would be a delegation of the function of forming an opinion under that provision as to whether or not the land was needed or likely to be needed. A delegation of a function that the Minister may have under the CL Act could not be sufficient: It could have no bearing on the satisfaction of a requirement of the ALR Act. That this was the intention of Parliament is confirmed by s 7 of the CL Act.

102 Contrary to the Minister's submission, there is no indication in the ALR Act that the forming of this opinion, or any other functions of the "Crown Lands Minister" under the ALR Act (including the s 36(5) function), may be delegated. Section 243 of the ALR Act, which is identified by the Minister (in par 11 of his supplementary submission) as a source of authority to delegate is not relevant. That section empowers the "Minister" (i.e. the Minister administering the ALR Act, which is presently the Minister for Aboriginal Affairs), not the "Crown Lands Minister", to delegate his or her functions under the ALR Act.

103 There is nothing in any other Act that permits the delegation of the formation of the s 36(1)(b1) opinion or other functions of the Crown Lands Minister under the ALR Act.

104 The Minister has never purported to delegate the formation of this opinion or others functions under the ALR Act. The documents tendered by the Minister and which became exhibit 5, are, in the light of the submissions above, irrelevant. Finding on delegation 105 As identified in the Minister's submissions, s 36(1)(b1) refers to land which in the opinion of a Crown Lands Minister is needed or likely to be needed for residential use. A Crown Lands Minister is defined at the end of the section as the Minister for the time being administering the provisions of the Crown Lands Consolidation Act 1913 (now the CL Act, see CL Act Sch 8 cl 21(1)). That Minister may or may not be the same Minister who administers the ALR Act. Presently different Ministers administer the two Acts. The wording of the subsection does not suggest that the ALR Act requires that the formation of the opinion under s 36(1)(b1) must be specifically delegated, particularly as the Minister administering the ALR Act may not be the Minister administering the CL Act. The reference to a Crown Lands Minister confirms this view. 106 The practical necessity of Ministers delegating functions to their departments is recognised in the Carltona principle as referred to in the Minister's submissions (par 99) and I agree with those submissions. 107 I accept the Minister's submissions that the existence of a Crown Lands Minister's opinion can be inferred from the actions of his or her Department conducted up to the date of the claim pursuant to general delegations of statutory duty under the CL Act. The Minister does have the onus of proof of delegation if that is relied on in his case. The equivalent delegation at the date of the claim to that in Exhibit 5, referred to in par 95(b), has not been produced. The document in Exhibit 5, the procedures manual dated 6 February 1989, referred to in par 95(a), gives rise to an inference that such general delegations did exist as at the date of the claim.

(iv) Did the opinion that land was needed or likely to be needed exist at the date of the claim? 108 As there is no specific document from the Minister stating that he had the opinion referred to in s 36(1)(b1) I need to determine on the evidence whether an opinion was held by the officers within the Department that land was needed or likely to be needed for residential purposes at the date of the claim. 109 I should first consider what "needed or likely to be needed for residential purposes" means under the ALR Act. I must then consider if there was at the date of the claim an opinion of the Minister through his Department that the claimed land was needed or likely to be needed for residential land.

Minister's submissions 110 There is evidence to support the formation of an opinion by the Minister through his Department that the land was needed or likely to be needed for residential land. The Department in agreeing to switch reserves and to release the subject land at the Council's request must have exercised a discretion. The Department had to turn its mind to the reason for the requested revocation, reservation and release. That exercise of discretion required that an assessment be made as to whether the subject land was needed for residential lands. The Applicant suggests that the Minister by agreeing to the Council acquiring the land must have done so without consideration of the stated reason or purpose for those actions but that is administratively nonsensical. 111 Sections 36(1)(b) and (1)(b1) are distinct but the Applicant's case combines the two sections. Whether or not the Minister initiates any action to dispose of the land is irrelevant. All that is required is the formation of the requisite opinion, it need not be practically executed at the date of the claim. The Council identifies why it wants the claimed land in, for example, the letter to the Department dated 1 December 1989 which states it is so that servicing of the land can be done with the existing sewerage system without the need for the installation of a costly pump station. Other documents from the Valuer-General, inter alia, refer to there being market demand for this type of land. This evidence confirms that the subject land was in demand as it could easily and inexpensively be connected up to the existing sewerage system. The Minister acknowledges that the land assessment under the CL Act is a statutory requirement but the Minister had to exercise his discretion to adopt the assessment. 112 The two documents relied on by the Applicant (par 116 below), the 2001 draft Hillston Sewerage Augmentation Strategy Study, was not authored by the Council nor adopted by it. The unofficial undated "future village" map and its use by the Council is unknown. These two documents are not the best evidence. Applicant's submissions 113 The Applicant submitted that "needed" means required; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (Deerubbin (No 1)) per Handley and Powell JJA at 254 referring to s 36(1)(b1). It requires more than a desire or a demand for residential land in the area. The fact that it is zoned residential is not conclusive of the question of whether it is needed or likely to be needed as residential lands. That the land is part of a future land release strategy or covered by planning documents for future development does not of itself establish that the land is needed or likely to be needed for residential purposes. The fact that a local government body has made plans for future residential development or has sought permission to compulsorily acquire land for that purpose is not sufficient. These approaches are supported by the Londonderry claim, Wanaruah, and New South Wales Aboriginal Land Council & Nambucca Local Aboriginal Land Council v the Minister for Land and Water Conservation [1997] NSWLEC 176 (the "Nambucca Heads" claim). 114 The question requires that there be a determination of whether there is sufficient land available for residential purposes to meet anticipated population growth: Nambucca Heads. The detailed approach to the assessment of evidence taken in Wanaruah is correct. The phrase "needed or likely to be needed" was considered in La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 and Bannon J distinguished between land which was "needed" and land that was "considered desirable or suitable" at 183. 115 There is no evidence that any opinion was formed by the Minister that the claimed land was needed or likely to be needed for residential land at the date of the claim. There are three categories of documents relied on. Category (i): The Minister relied on documents in the tender bundle (exhibit 1) and exhibits to the Kane affidavit generally. That evidence suggests only the Council believed that it required more land to satisfy future demand for residential development in Hillston and considered that the claimed land was suitable (by inference) and convenient for that purpose. Over 17 years it took steps to acquire the claimed land and other lands in Hillston. Those steps are identified at par 18 and following. 116 The Department on behalf of the Minister did not initiate any action to dispose of the claimed land. Rather it acquiesced in what the Council sought. There is no evidence that the Council's desire to acquire the land resulted from a need for it to meet future demand for residential development in Hillston. Most relevant for determining the Council's views on the potential for the use of the land for residential purposes is the 2001 Draft Hillston Sewerage Augmentation Strategy Study prepared in consultation with the Council and the unofficial future village map referred to by Mr McFadden. Those documents show that in the Council's view there were clearly other lands available to meet future demand. 117 Further there is no evidence that the Minister or his Department had the same intention or desire as the Council in relation to future use of the claimed land nor that anyone formed the particular opinion that the land was needed or likely to be needed. An opinion that it was suitable does not satisfy the requirements of the ALR Act; The Londonderry claim at 203-204. 118 Category (ii): Further, the land assessment undertaken in 1991 as provided for by Pt 3 of the CL Act was not sufficient to demonstrate that the Minister had formed the opinion that the claimed land was needed or likely to be needed. That document required the Minister by virtue of s 35 of the CL Act to be satisfied that the assessment had been carried out before he could exercise his powers under Pt 4 of the Act unless satisfied the public interest did not require an assessment. A land assessment is undertaken of the capabilities of particular land, not whether it is needed or likely to be needed for the purposes of the ALR Act. This was specifically recognised by Spigelman CJ (Handley and Powell JJA concurring) in Deerubbin (No 2) at [73]. 119 Category (iii): Other documents relied on were official notifications bearing the Minister's name that the Minister relied on, being the 12 March 1992 notification of the proposed closing of a non-public road separating allotments 4 to 10 from allotments 11 to 17, section 25 at Hillston and the 14 August 2002 notification of the reservation of section 25 as Reserve 150047 for public recreation together with the establishment of a trust with the Council as trustee. These take the matter in the Minister's case no further.

Finding whether "needed or likely to be needed" 120 "Needed or likely to be needed" is referred to in s of 36(1)(c) in relation to whether land is needed or likely to be needed for an essential public purpose. The parties accepted the meaning applied to the phrase in that subsection would also be relevant to its meaning in s 36(1)(b1). The Court of Appeal has considered that phrase in relation to s 36(1)(c) in cases both parties have relied on, albeit with conflicting submissions. In Deerubbin (No 1) s 36(1)(c) was considered by Handley and Powell JJA who held at 254D that: 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.

121 Meagher JA (in minority in relation to the final issue in the appeal but the majority supported his reasoning) held similarly at 252C: All of these passages display a fundamental error. It is totally irrelevant in determining whether or not s 36(1)(c) has been satisfied to consider whether the essential public purpose could have been achieved in some other manner. It is not correct that lands cannot be "needed or likely to be needed" for the public purpose just because that public purpose may be (or is likely to be) achieved even if the lands are not in public ownership. On one view, that is the purpose of the insertion of s 36(5A). Similarly, it is irrelevant to inquire as to whether the best method of ensuring that the public purpose is achieved is keeping the lands in public ownership. The question is simply whether the land was, at the date of the claim, needed or likely to be needed for an essential public purpose. That question does not involve an extensive inquiry into whether the purpose can somehow otherwise be achieved; it is essentially a question of the view held by the government on the day the claim was made. 122 Deerubbin (No 2) considered the words "needed or likely to be needed" in the context of "essential public purpose" and Spigelman CJ considered there was no basis to give an extended sense to the word "likely", so that it should mean "real or not remote chance" at [57]. The Applicant relied on La Perouse which considered s 36(1)(c) but that case was determined before Deerubbin (No 2). The reasoning in that case contrasted "desire" and "need". In Deerubbin (No 2) Spigelman CJ suggests such a distinction is not appropriate. 123 Similar submissions were made before Jagot J in the NSWLALC 2008 case. As stated by Jagot J at [87] the requirement for an essential public purpose was important in construing s 36(1)(c) in Deerubbin (No 2). Her Honour concluded at [88] that Deerubbin (No 1) and Deerubbin (No 2) do not support a process of identifying evidence as showing a "mere desire as opposed to a need". Deerubbin (No 2) was decided after La Perouse. 124 In relation to the Applicant's submission that land could not be needed or likely to be needed as residential lands if the need could be fulfilled on other land, I note that Jagot J at [89] applied the reasoning of Meagher JA in Deerubbin (No 1) (dissenting in the result the majority agreeing with his reasoning) where he held that considering whether an essential public purpose could be achieved another way was irrelevant. Her Honour also rejected a submission at [90] that evidence of whether there was sufficient land to meet anticipated population growth on the basis of a reasonable area and time frame was relevant, because this did not reflect the terms of s 36(1)(b1). Her Honour considered at [90] that in Nambucca Heads 1997, the Londonderry claim or Wanaruah the Court did not pose for itself that question. To do so would transform the Court's role into undertaking an historical strategic planning exercise. Rather such evidence may be relevant if it bears on the necessary process of fact finding and the drawing of inferences relevant to the existence of the required opinion under the section. 125 I should adopt the approach to "needed or likely to be needed" identified in Deerubbin (No 1) and (No 2) and agree with Jagot J's approach in [87]-[90]. It is not appropriate to distinguish between evidence on the basis of whether it shows a "need" as opposed to only a "desire". I consider this matter can be determined on the basis of the history of dealing with the claimed land up to the date of the claim as referred to at par 15-33. It is not necessary to consider the expert town planning evidence of Mr Sanders relied on by the Applicant and Mr McFadden relied on by the Minister. The relevant questions required to be addressed in this case are not those addressed by the town planners. Expert opinion as to the suitability of the claimed land for residential subdivision compared to other existing or potential development sites in Hillston, or that there was an adequate supply of land within Carrathool Shire and the village of Hillston for residential purposes in sufficient quantity to meet expected population growth gave rise to their respective (conflicting) opinions about whether the claimed land was needed or likely to be needed. That exercise suggests "impermissible second guessing", as identified by Jagot J in the NSWLALC 2008 case at [124] and is essentially an historic strategic planning exercise which falls outside the scope of the issues I must determine. There are no additional issues of fact which require clarification which could be assisted by consideration of the town planners' evidence. 126 In considering the dealings of the Department with the claimed land identified in the evidence I accept the Applicant's submissions that there is no evidence that an opinion was formed by anyone within the Department acting under delegation from the Minister that the claimed land was needed or likely to be needed for residential use in relation to the three categories of evidence referred to in the Applicant's submissions at par 115-119. The first category of general documents is referred to at par 115 and I accept the Applicant's characterisation of that evidence at par 116. It follows that I do not consider those documents provide evidence of the formation of an opinion by a relevant officer within the Department that the land was needed or likely to be needed for residential land. 127 Category two refers to the land assessment under Pt 3 of the CL Act; par 118. Carrying out the functions as delegated to the Department such as the land capability assessment under the CL Act and the Minister accepting the recommendations of the statutory land capability assessment process under the CL Act, does not give rise to a finding that he or anyone else in the Department formed an opinion the land was needed or likely to be needed for residential use. As identified in the Applicant's submissions the limited role of such land assessment was specifically referred to in Deerubbin (No 2) by Spigelman CJ (Powell and Heydon JJA concurring) at [73]. 128 The other official notifications referred to in category 3 par 119 also do not demonstrate any formation of a view that the claimed land was "needed or likely to be needed" for residential use. It follows that I do not accept the Minister's submissions at par 110 and 111. The conduct of the Department in carrying out its usual functions in administering the CL Act does not give rise to any inference that anyone on behalf of the Minister formed an opinion that the land was needed or likely to be needed for residential land. Whether the Council had a view on that issue is not determinative of whether the Minister or someone with appropriate delegation formed the necessary opinion under s 36(1)(b1).

129 My conclusion on issue 3 means that issue 4 does not arise as the Court is not required to form its own opinion on whether land is needed or likely to be needed for residential development as that issue requires the Court to do. 130 I have determined that the claimed land is claimable Crown land and pursuant to s 36(7) of the ALR Act must be transferred to the Applicant. Orders giving effect to these findings should be agreed by the parties and provided to the Court so that the matter can be shortly finalised.

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.