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

Land and Environment Court (NSW)|2008-07-01|Before: Sheahan J, Dr J

Reported Decision : (2008) 161 LGERA 294 Pending Appeal - 040272/08

CITATION : Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188

APPLICANT PARTIES : Illawarra Local Aboriginal Land Council RESPONDENT Minister Administering the Crown Lands Act

Aboriginal Land Rights Act 1983 Coal Mines Regulation Act 1982 LEGISLATION CITED: Crown Lands Act 1989 National Parks and Wildlife Act 1974 Public Roads Act 1902

Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 Darkingjung Local Aboriginal Land Council v Minister Administering Crown Lands Act and Another (2006) 149 LGERA 162 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Dorrigo Plateau Local Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 155 LGERA 307 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 Housing Commissioner of New South Wales v Falconer and Others [1981] 1 NSWLR 547 Jerrinja Local Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 156 LGERA 65 Minister for Natural Resources v New South Wales Aboriginal Land Council and Another (1987) 9 NSWLR 154 CASES CITED: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No.2) (2001) 50 NSWLR 665 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (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 NSW Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 157 LGERA 18 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481 Waranuah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163

DATES OF HEARING: 17 and 18 December 2007; 4, 5 and 25 February 2008 (written submissions)

APPLICANT Dr J Griffiths SC with Ms G Wright SOLICITORS Chalk & Fitzgerald LEGAL REPRESENTATIVES: RESPONDENT Dr C Mantziaris SOLICITORS Crown Solicitors Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

ILLAWARRA LOCAL ABORIGINAL LAND COUNCIL v MINISTER ADMINISTERING THE CROWN LANDS ACT

1 His Honour. This is an appeal against the respondent Minister's refusal of part of a claim made by the applicant land council, in accordance with the regime prescribed by the Aboriginal Land Rights Act 1983 (NSW) ("ALRA"). I acknowledge the assistance of Acting Commissioner Edmunds in the determination of it.

2 The "claimability" of land under the ALRA must be assessed and determined as at the date the claim was lodged (ALRA s.36(1)). The Minister bears the onus of proving that claimed land is not claimable. If the Minister fails to discharge that onus, the Court, on appeal, must order that the land concerned be transferred to the Land Council, and can make such an order on certain conditions. 3 On 3 March 1986, the Illawarra Local Aboriginal Land Council lodged a claim over two portions of land at Tongarra Gap in the Parish of Jamberoo (Aboriginal Land Claim 2673). The land forms part of the Illawarra Escarpment. In the decade prior to the lodging of the land claim, the National Parks and Wildlife Service ("NPWS") had been investigating the possibility of establishing a national park that would cover parts of the Illawarra Escarpment, including the "Budderoo Plateau". In 1977, a NPWS report, the Conway Report, recommended the establishment of the Budderoo National Park that would include the areas later covered by the claim and for which the inclusion of the Minnamurra Falls Reserve, an area adjoining the eastern side of the claimed land, was considered essential. The Budderoo National Park was announced on 17 January 1986. It did not include the areas of the claim, which was lodged some six weeks later on 3 March 1986.

4 A key consideration in the final drawing of the boundaries of the Budderoo National Park was objections by the Department of Mineral Resources ("DMR") owing to the presence of coal seams. The presence of coal in this region had been known since the 1870s and small scale mining began in 1893. Mining operations ceased in 1965 (Exhibit M1, v4, tab 11; M1, v3, tab 22). However, the DMR objections remained in place on the basis of an exploration program being undertaken by the Electricity Commission of NSW ("Elcom") to determine the extent of economic coal (Exhibit M1, v3, tab 4). These objections did not relate to the catchment of the Minnamurra River, where the Minister for Mineral Resources had announced that coal mining would not take place (Exhibit M1, v3, tab 2). The area reserved for the Budderoo National Park at 17 January 1986 included the Minnamurra Falls Reserve and sections of the Budderoo Plateau free of DMR objections.

5 On 22 June 2006, twenty years after the lodging of the claim, the Minister for Lands wrote to the Illawarra Local Aboriginal Land Council rejecting the claim on a number of different grounds: (a) the part of the land shown by blue colour, being part of Lot 2 DP876868, comprised freehold land which is not vested in Her Majesty ; (b) the part of the land shown by orange colour comprised Crown public roads 20 metres wide and variable which are not able to be lawfully sold or leased under the Crown Lands Act 1989 ; (c) the parts of the land shown by green, pink and yellow colours were lawfully occupied under Mining Purpose Lease 1226 (Act 1906), Mining Purpose Lease 1361 (Act 1906) and Mineral Lease 1019 (Act 1906), respectively; (d) the parts of the land shown by blue hatching below a depth of 15.24 metres from the surface were lawfully occupied under Mineral Leases 1017, 1067 and 1369 (Act 1906), respectively; and (e) the parts of the land shown by red edges excluding blue colour were needed, or likely to be needed, for the essential public purpose of nature conservation . The Minister's rejection covered the entirety of the area of the claim, that is, including both portions. This appeal concerns both portions of the claim.

B. The Claimed Land 6 On 3 March 1986, the Illawarra Local Aboriginal Land Council ("LALC") lodged Aboriginal Land Claim 2673 ("the claim") in respect of land at Tongarra Gap, Parish of Jamberoo, County of Camden, in New South Wales. The letter from the Secretary of the LALC, Herbert J. Henry (Exhibit A1, folio 1), set out the purpose of the claim as: "It is envisaged that this land can be utilized and developed for the youth of the Illawarra, as there is paramount concern in our community, about our youths.

It is our members wish to establish an area, that is away from local Townships, which can be used for youth group activities, such as ie; camps and bush walks, (in the short term,) with youth accommodation and training facilities established and functioning, (in the long term,) when funds are available".

7 The claimed land is along the Illawarra Escarpment (topographical map - Annexure HJW2 to Henry Watkins affidavit of 13 December 2007) and is in two parts that have a total area of about 180 hectares. It is situated between McAndrew Falls and the Butter Track Pass on the southern side of Macquarie Pass and lies between Macquarie Pass National Park and Budderoo National Park. It is within an historic coal mining region and located within the "abandoned" Tongarra Colliery (All mining operations had ceased in the colliery in 1965). 8 The Budderoo National Park was proclaimed on 17 January 1986. It did not include the claimed area. The land claim was lodged less than two months later, on 3 March 1986. It is central to the Respondent's submissions that the claimed land was included in the initial proposal for Budderoo National Park, that it was always the intention of the Minister that it should be so included, and that its exclusion when the Park was proclaimed in early 1986 was the result of mining related objections and the political urgency to bring the Minnamurra Falls Reserve Area within the National Parks and Wildlife estate (Submissions for the Respondent, 5 December 2007, par 13). The Respondent argues that the 1986 boundaries represented only an "initial stage" or "initial core" of the proposed Park (par 3).

9 However, the boundaries of the Park were successively extended in 1994, 1998, and 2001. None of these extensions included the claimed land.

10 The 2001 extensions (the adjacent lands) sit close to the southern and south-eastern border of the eastern area of the claim but are separate from each other and from the main area of the Park (Affidavit of Peter Bowen, 27 July 2007, attachments 'D', 'E'). These adjacent lands are lands vested in the Crown. In 1999, the National Parks and Wildlife Service sought agreement from various stakeholder government departments on the reservation of a large number of Crown land parcels, including the adjacent lands, as part of the National Parks estate. The adjacent lands were considered available for reservation as they were (i) not subject to objections by the Department of Mineral Resources; (ii) were not subject to an Aboriginal land claim; (iii) were not subject to objection by any other department (Respondent submission 4 February 2008).

11 In 2007, the claimed land was still not included in the Park, but the Macquarie Pass State Conservation Area was reserved on 29 September 2004 and does include the western portion of the claim area (cf affidavit of Peter Francis Bowen of 27 July 2007; Notice of Reservation, Exhibit M1, v2, tab 27).

12 On 22 June 2006, the claim was refused by the Minister for Lands. The grounds of refusal are set out in par [5] above. 13 On 25 August 2006, the ALC filed an application in the Land and Environment Court pursuant to s.36(6) of the ALRA appealing the Minister's refusal of the Claim. On 6 October 2006, the Court granted leave to the Applicant to file the Class three application in relation to the Minister's refusal of ALC 2673 out of time. The Applicant was to advise the Respondent in writing of any part of the Minister's refusal of the claim which is not disputed by the Applicant. On 4 December 2006, the Applicant advised the Minister that it did not contest the Minister's refusal in so far as it relates to the part of Lot 2 DP876868 (part (a) in the Minister's reasons for refusal) that was said to comprise freehold land. C. The Statutory Regime

14 The Preamble to the ALRA 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".

15 The intention of the Act as expressed in the Preamble has been articulated in Minister for Natural Resources v New South Wales Aboriginal Land Council and Another (1987) 9 NSWLR 154, by Kirby P, in these terms:

"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". (at 157)

As a result of this beneficial and remedial character " exceptions to the right to make claims on Crown land should be narrowly construed " ( Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No.2] (2001) 50 NSWLR 665 (" Maroota ") at 674; NSW Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 157 LGERA 18 (" Wagga Wagga ") at [21] and [25]).

16 Section 36 of the ALRA establishes a regime for the claiming of land as a mechanism to achieve the aims of the legislation.

17 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)(c), lands that "are not needed nor likely to be needed, for an essential public purpose."

18 Section 36(5) of the ALRA 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). In the event that the Minister is unable to satisfy the Court that the whole of the claimed land is not "claimable Crown land", the claimant is entitled to have that part of the land that is claimable Crown land transferred to it; the Court is bound to transfer that land to the Land Council (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 ("Winbar"), per Hope JA at 692D-693D). 19 Section 36(6) grants an Aboriginal Land Council a right to appeal to the Court against a refusal under s.36(5)(b). On such an appeal, the Minister bears the onus of satisfying the Court that the land is not claimable Crown lands (s.36(7)) (Winbar).

20 Section 36(5A) provides for a claim to be granted in whole or in part, on conditions acceptable to the LALC, in order to enable the public purpose needs for the land to be met. This subsection commenced on 2 May 1986. The power is available to the Court on appeal (Darkingjung Local Aboriginal Land Council v Minister Administering Crown Lands Act and Another (2006) 149 LGERA 162 ("Darkingjung")). It can be exercised in the case of a claim submitted earlier, given the beneficial character of the ALRA: Waranuah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163, at [100]-[104] per Lloyd J; Winbar at 694-6.

21 For the land to be "occupied" for the purposes of s.36(1)(b), there must be some physical occupancy over at least part of the land, as opposed to constructive occupation. It must be occupied to more than a notional degree (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ("Daruk")). Mere proprietorship is insufficient (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ("Tweed Byron")). Likewise, the mere exercise of control over or maintenance of the land without any occupation is insufficient (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 ("Department of Education"); Darkingjung). However, "continuous physical presence on every part of the land does not have to be shown to establish occupation." (Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 ("Nowra Brickworks")).

22 "Use" for the purposes of s.36(1)(b) must be to more than a notional degree (Daruk; Nowra Brickworks). 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). Something more is needed, and the Court has to be satisfied that there was actual use at the date of the claim, that is, not just a contemplated or intended use (Wagga Wagga). 23 Land can be used or occupied for the purpose of mining under ALRA, s.31(1)(b). Sheller JA said in Nowra Brickworks at 117: "The scheme is plain. Crown lands not being used for any purpose, mining or otherwise, when a claim is made, may be claimable Crown lands. Crown lands lawfully used for any purpose including mining purposes when a claim is made cannot be".

24 Judicial consideration has been given to the phrase "essential public purpose" in s.36(1)(c) of the ALRA with particular reflection upon the inclusion of the word "essential" in the statutory standard.

25 In Maroota Spigelman CJ stated: "The reference to 'essentiality' of the public purpose sets a high standard. The restriction implied in the use of the word 'essential' is a significant one. It is not enough that the public purpose to be served is 'desirable' or even that it is 'highly desirable." (at [55]).

26 The purpose of nature conservation is an essential public purpose. Section 36A of the ALRA, which concerns special provisions concerning certain Crown land having nature conservation value, contains a legislative confirmation of this proposition when it refers (at subsection (1)(b)) to: "The essential public purpose of nature conservation".

Spigelman CJ, in Maroota at [5] states: "In the Land and Environment Court, and in this Court [NSW Court of Appeal], it was common ground that the use of land for the purposes of national park, variously expressed, was, in the circumstances of this case, use for 'an essential public purpose' within the meaning of s 36(1)(c) of the...[ALRA]. Accordingly, the issue to be determined by the Land and Environment Court was whether or not the land was "needed or likely to be needed" for that purpose as at the relevant date..." 27 As nature conservation is an essential public purpose, the Court's task under s.36(1)(c) is to determine whether the government needed or was likely to need the subject land for that essential public purpose. 28 "Needed" means "required" or "wanted". The Court does not have to "second guess" the government. The only question is whether the purpose was an essential public purpose and, if so, whether the government "required" or "wanted" the subject land for that purpose (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ("Castlereagh Nature Reserve") at 254D). 29 "Likely" means "real or not remote chance" or "real chance or [real] possibility", not "more probable than not". The essentiality required by s.36(1)(c) counter-balances the implication of a beneficial construction to which the ALRA would be otherwise entitled (Maroota; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481 at [17]). 30 The question of whether land is not needed or not likely to be needed for an essential public purpose is one of fact (Winbar), which "is essentially a question of the view held by the government on the day the claim was made" (Castlereagh Nature Reserve per Meagher JA (in dissent on other grounds) at 252C). The relevant search is for an "expression of political will" to declare an area to be a national park (Maroota at [62], [73] and [74]). Likewise, the question of whether the claimed land was, at the relevant time, lawfully used or occupied is a question of fact (Department of Education). 31 The relevant time when the conditions of s.36(1) must be met is at the time the claim is made (Winbar; Castlereagh Nature Reserve; Maroota). As Jagot J has observed in Dorrigo Plateau Local Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 155 LGERA 307 ("Dorrigo") at [9]: "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". 32 Post claim evidence may be logically probative in determining whether the land was needed or likely to be needed for an essential public purpose. This evidence may be used subject to the Falconer principle, in that such evidence may not be used to "prove a hindsight, but to confirm a foresight" (Housing Commissioner of New South Wales v Falconer and Others [1981] 1 NSWLR 547 at 558 ("Falconer")).

D. ISSUES TO BE DETERMINED 33 The issues to be determined in respect of the claimed land are: (1) At the date of the claim, was the subject land not claimable Crown land within the meaning of s.36(1)(c) of the ALRA on the ground that it was needed for the essential public purpose of nature conservation ? Additionally or alternatively: (2) At the date of the claim, was the subject land not claimable Crown land within the meaning of s.36(1)(c) of the ALRA on the ground that it was likely to be needed for the essential public purpose of nature conservation ? (3) At the date of the claim, was the subject land not claimable Crown land within the meaning of s.36(1)(b) of the ALRA on the ground that it was lawfully used under Mining Purpose Lease 1226 (Act 1906), Mining Purpose Lease 1361 (Act 1906), Mineral Lease 1019 (Act 1906), Mineral Lease 1017 (Act 1906), Mineral Lease 1067 (Act 1906) and Mineral Lease 1369 (Act 1906)? Additionally alternatively: (4) At the date of the claim, was the subject land not claimable Crown land within the meaning of s.36(1)(b) of the ALRA on the ground that it was lawfully occupied under Mining Purpose Lease 1226 (Act 1906), Mining Purpose Lease 1361 (Act 1906), Mineral Lease 1019 (Act 1906), Mineral Lease 1017 (Act 1906), Mineral Lease 1067 (Act 1906) and Mineral Lease 1369 (Act 1906)? (5) At the date of the claim, was part of the subject land not claimable Crown land within the meaning of s.36(1)(a) of the ALRA on the ground that it comprised a Crown road and was not able to be lawfully sold or leased under the Crown Lands Act 1989? (6) At the hearing, the Respondent raised a further matter of the location of a power transmission line, arguing that that area would not be claimable on the basis of an electricity transmission line being an essential public purpose. This was not included in the Minister's letter of refusal, nor in the statement of facts (see T17.12.07, p.23 L10ff), but annexure H of J H Watkins of 20 July 2007, also refers to an easement for overhead power. However, counsel for the Respondent told the Court on 18 December (Day 2 of the hearing) that the issue had been resolved between the parties (T18.12.07, p.28 L52-3). (7) In addition (Applicant's Outline of Submissions section 3), whether a delay of over two decades by the Minister in making a decision is wholly inconsistent with the beneficial intent of the ALRA aimed at remedying the past dispossession of Aboriginal people and therefore invalidates the Minister's refusal of the claim or at least requires it to be resolved in favour of the Applicant.

34 Because of the delay in this matter, all the evidence in this appeal is documentary, with the one exception of supporting expert oral evidence given by John Henry Watkins.

Proposed Budderoo National Park - documentation predating the claim 35 NPWS interest in a proposed "Budderoo National Park" can be traced back to a document titled "Investigation of the Proposed Budderoo National Park" (Exhibit M1, v1, tab 2). Although this document is undated it is believed to have been produced in the 1970's. The document states that "[t]he area of primary importance to be acquired in this case is that of the sandstone tops extending north-west of Barren Grounds, including the Budderoo Plateau." (folio 6). The map showing these boundaries has not been preserved. The document concluded (at folio 7):

"The Budderoo Proposal, therefore, with its patches of relatively undisturbed forest on the foothills of this plateau must be preserved as a living museum of the Illawarra vegetation before this habitat is destroyed forever. It is hereby RECOMMENDED that the above report be reviewed, amended as necessary, and that action be initiated into the future dedication of this proposal as the Budderoo National Park." 36 On 16 August 1977, the NPWS commissioned Officer Conway to investigate a proposal for the formation of a National Park on the Budderoo Plateau (Exhibit M1, v1, tab 3). 37 An article by N H Robinson which appeared in Australian Zoology (19(2) 1977) (Exhibit M1, v1, tab 4) titled "The Need for Joining Illawarra Wilderness Areas" emphasised the value in linking conservation areas. The abstract states: "An examination of proposed and existing reserves between Royal National Park and the Shoalhaven River shows that each is ecologically valuable and contributes towards the preservation of existing flora and fauna. Due to the altering pattern of land usage and wide road construction, it has become apparent that a number of mammal species at present inhabiting the reserves may cease to do so when these reserves become small wilderness areas. A system of corridors is suggested to aid in making possible mammal movements between all reserves and other areas of significant biological value."

Proposed Corridor 2 " would link the proposed Illawarra Escarpment Park and M.W.S.D.B Catchments to Macquarie Pass National Park and the Barren Grounds Nature Reserve " ( folio 22 ). 38 The Conway Report (Exhibit M1, v1, tab 5) issued in later 1977 recommends certain areas be included in the proposed Budderoo National Park. It is noted that the "aesthetic values of the proposal area are high with panoramic views and sheer cliffs with associated waterfalls" (folio 30). The proposed boundaries of the park: "make it possible to provide continuous natural corridors between the north-eastern parts of Morton National Park and Macquarie Pass National Park. These corridors will provide links between existing natural areas, which are in danger of becoming isolated, thereby enhancing genetic exchange and continued viability" . ( folio 30 ).

In order to create the park, certain lands needed to be acquired and the report characterised a hierarchy of need as 1. Essential, 2. Important, 3. Necessary, and 4. Available. The Minnamurra River Catchment is thought essential to be protected, and essential for inclusion in the land adjoining " the Barren Ground Nature Reserve and estends (sic) around the sscarpment (sic) to the upper sections of the Minnamurra Falls Reserve " ( folio 42 ). There is disagreement between the parties as to whether the claimed land fell within the lands needed to create the park, probably a result of the map depicting the needed lands not being preserved. Regardless of this fact the claimed land does fall within the NPWS proposal in the following paragraph. 39 On 19 December 1980 the NPWS wrote to the Land Board Office ("LBO") (Exhibit M1, v1, tab 6) advising that the original proposal for the Budderoo National Park (depicted in yellow edging on the map at folio 117) had been modified and was now depicted in red edging on the same map (the red edging includes the claimed land). The letter sought clarification as to whether the LBO "has any objections to the proposed reservation." (folio 115) 40 On 22 June 1981 the NPWS again wrote to the LBO seeking concurrence for the proposed Budderoo National Park (Exhibit M1, v1, tab 7). Included is a parish map indicating the boundaries of the proposed Budderoo National Park in orange edging; land other than freehold in red edging; and reserves in green edging. The claimed land is included in the proposed Budderoo National Park. 41 A handwritten note appearing on the 22 June 1981 letter, initialled on 6 July 1981, states it "is his [NPWS Officer] understanding that the urgency refers to the whole proposal including Minnamurra Falls Reserve." A further handwritten note on the same letter, written and signed 13 August 1981, by District Surveyor Nowra, states "[t]here are no objections to the proposal." 42 On 6 July 1981 the LBO sent a letter to the NPWS noting a "telephone call from your Office [NPWS] that the Minister had directed urgent action towards the establishment of the National Park [and that] [t]he proposal includes the Minnamurra Falls Reserve" (Exhibit M1, v1, tab 8). The NPWS response (24 July 1981) (Exhibit M1, v1, tab 9) stated that although the Minister for Planning and Environment wanted to proceed expeditiously with the establishment of the Budderoo National Park, the NPWS was not in a position to proceed with the "reservation of the Vacant Crown Land which comprises the bulk of the proposal" (folio 121) as it had received objections from the DMR. 43 The NPWS also stated in the letter of 24 July 1981 that Kiama Municipal Council was the Trustee of Minnamurra Falls Reserve (an area "seen as an integral part of the proposed Budderoo National Park and is therefore important for eventual inclusion in that Park" - see folio 121) and that NPWS would seek "Council's consent to the eventual transfer of the reserve" (folio 122) discussions of which were only at a very preliminary stage. 44 On 10 August 1981 the NPWS wrote to the DMR urging a reconsideration of their objection to the proposed Budderoo National Park (Exhibit M1, v1, tab 10). 45 The LBO wrote to NPWS on 18 August 1981 (Exhibit M1, v1, tab 11) stating that: "This Department has no objections to the proposed Budderoo National Park boundaries being in accordance with those shown on the diagram submitted with your letter" [ie., area depicted in red edging on the map at folio 117. See par [39] above].

This position was confirmed in a follow up letter from the LBO to the NPWS on 24 December 1982 ( Exhibit M1, v1, tab 12 ). 46 On 30 September 1983 Shellharbour Local Environmental Plan No 16 was gazetted (Exhibit M1, v1, tab 13). Parts of the subject land were zoned 7(e) - Environmental Protection (Escarpment) (See maps at folio's 200-201). The objective of the 7(e) land is "to protect various areas which are environmentally sensitive and which enhance visual amenity" (folio 132). 47 On 20 January 1984 the Minister for Mineral Resources wrote to the then Minister for Planning and Environment (Mr Bedford) (Exhibit M1, v1, tab 14) informing him that investigations were continuing as to the limits of coal resources in Authorisation Area No. 231 which covered part of the proposed Budderoo National Park. The Department said it would review its objections after those tests were complete, probably by June 1984. 48 I, as Minister for Planning and Environment, wrote to the Member for Kiama on 12 December 1984 (Exhibit M1, v1, tab 15) informing him that the exploratory drilling on the Budderoo Plateau was nearly complete, and once the results were known further consideration could be given toward including that area in the proposed Budderoo National Park. Agreement was also given in principle that "Minnamurra Falls Reserve be transferred to the National Parks and Wildlife Service to be reserved as the first stage of the proposed Budderoo National Park...I have instructed the Director of National Parks and Wildlife to initiate all necessary steps, to establish the first stage of Budderoo National Park over the Minnamurra Falls Reserve". ( folio 203 ) 49 Meanwhile, on 11 October 1984 the District Surveyor of Nowra Lands Office created a 'District Surveyor's Report' (Exhibit M1, v1, tab 16) which attached a map showing the proposed Budderoo National Park which included the claimed land (folio 206; a larger version of this map is Exhibit M4). The report recommended writing to NPWS "requesting that the establishment of the Park be expedited" (folio 205). Such a letter was sent 20 December 1984 (Exhibit M1, v1, tab 17). The NPWS replied on 20 February 1985 (Exhibit M1, v1, tab 18) advising that although the Minister agreed with the NPWS's "recommendation that it proceed with establishing the first stage of the National Park over the Minnamurra Falls Nature Reserve" (folio 208) it had been delayed by circumstances "outside the direct control of the Service", namely negotiations with Kiama Council, and waiting on the evaluation of coal deposits by Elcom. 50 On 6 March 1985 a Ministerial Memorandum was sent by the new Minister for Planning and Environment (Mr Carr) to the NPWS (Exhibit M1, v1, tab 19) asking for "detailed advice on the current status of the proposed Budderoo National Park", the Minister being "keen to expedite the reservation...[with it being] important that all the Minnamurra Falls Reserve be included in the Park." (folio 209) 51 An undated NPWS document titled "proposed Budderoo National Park Reference Statement" attaches a map depicting the proposed boundary of the Park (Exhibit M1, v1, tab 20). The claimed land falls within that boundary. The reference statement notes that any "reservation of available Crown Lands as Budderoo National Park will depend on the concurrence of other Government departments. Action toward this end is currently underway." (folio 211) 52 An "instruction" was provided by the Assistant Director of NPWS on 22 March 1985 (Exhibit M1, V 1, tab 21) reiterating the reasons for delay in reserving the proposed Budderoo National Park outlined in the NPWS's letter of 20 February 1985 (see par [49] above). 53 A NPWS briefing note dated 26 March 1985 on the "proposed Budderoo National Park" (Exhibit M1, v1, tab 22) notes that the reservation of the land known as "Minnamurra Falls Reserve" is subject to a $40,000 compensation claim from Kiama Council, as well as "the need for augmentation of staffing and funds to provide effective management of the area." (folio 216) 54 A further briefing note of 27 March 1985 (Exhibit M1, v1, tab 23) notes that the NPWS: "is currently preparing a detailed submission to the Premier on staffing and funding requirements for the establishment of the Budderoo Park...[and that the] Government is committed to the Budderoo National Park proposal and the Minister is particularly concerned to ensure that all of the Minnamurra Falls Reserve is included in the Park". ( folio 219 ) 55 An undated NPWS document talks of a meeting of 23 May 1985 (Exhibit M1, v1, tab 24). Representatives of Mineral Resources, Office of the Minister for Mineral Resources and Energy, Elcom and NPWS were present. The document notes that the DMR "is prepared to withdraw its objections to dedication of the vacant Crown land except for the approximate area shown in green on the attached map" (folio 221). The claimed land is within that green area. 56 In a letter dated 26 August 1985 to the Minister for Planning and Environment (Exhibit M1, v1, tab 25) the Minister for Mineral Resources and Energy states: "I am...pleased to advise that there are no objections to the proclamation of the Budderoo National Park to the south of a line defined on the attached schedule 'A'".

The Schedule "A" line, as it is known, is, put simply, a line two hundred metres back from the cliff line (exact coordinates are found at folio 223 ). Attached to an affidavit of Henry John Watkins, sworn 12 July 2007, is the Schedule A line transposed on to a map of the relevant area ( exhibit B to that affidavit ). The claimed land is to the north of the Schedule A line (this is confirmed in the oral evidence of Mr Watkins - transcript of 17 December 2007, p21, lines 6-20 ). 57 On 2 September 1985 the Minister for Planning and Environment wrote to the Member for Kiama (Exhibit M1, v1, tab 26) explaining that "it is not possible for the National Parks and Wildlife Service to expend funds on this area [Minnamurra Falls Reserve] until such time as the Budderoo National Park is established, thereby vesting care, control and management in the Director" (folio 224). The letter also stated that "You may be assured that the establishment of the Budderoo National Park is a high priority of the Government and is being vigorously pursued" (folio 225). 58 A NPWS "briefing note" of 6 November 1985 (Exhibit M1, v1, tab 27) states the present position of the proposed Budderoo National Park: "An initial core area, comprising all available Crown Lands from which mining objections have been lifted, is now available for reservation. Reservation of the balance of the park proposal will require a very substantial amount of officer time and funds to resolve issues outside the core area, and to purchase environmentally important lands not yet available" ( folio 226 ). 59 In a document dated 28 November 1985 (Exhibit M1, v1, tab 28) the NPWS refers the 'Proposed Budderoo National Park' to the "relevant Ministers, advising that reservation action will shortly take place, unless Ministerial objection is raised..." (folio 228). The following is recommended:

"1. approval in principle be given to the establishment of Budderoo National Park, shown by red edge in diagram "X". [Diagram "X" is attached to this briefing note and is found at folio 230] 2. the Minister sign the attached Ministerial letters. 3. subject to no Ministerial objections, the area shown by blue edge in diagram "X" be reserved as Budderoo National Park under the provisions of the National Parks and Wildlife Act, 1974".

The claimed land falls within the red edge on diagram "X' but not within the blue edge. 60 On 29 November 1985 the Minister for Planning and Environment wrote to the Premier (Exhibit M1, v1, tab 29), Minister for Mineral Resources and Energy (tab 30), Minister for Public Works, Ports, and Roads (tab 31), Minister for Natural Resources (tab 32), and Minister for Local Government (tab 33) advising of the "reservation of the area of about 5,500 hectares shown by red edge in diagram "T" [which is attached to the above letters at folios 232, 234, 236 and 238] to enable active management of that area to commence." The letters noted that all "relevant affected landuse authorities" have given their concurrence, and asked that any impediment to the taking of action immediately to reserve that area as Budderoo National Park should be communicated immediately. The claimed land does not fall within the red edge on diagram "T". 61 A NPWS briefing note dated 6 December 1985 (Exhibit M1, v1, tab 34) notes that "an initial core area, comprising available Crown lands from which mining objections have been lifted, is now available for reservation, subject to the following steps being taken": 1. Reference to nominated ministers;

Written confirmation from DMR regarding boundaries of the mining interest zones;

The note states " it is strongly recommended that the proposals not be announced before about the last week in January to enable all of the above matters to be finalised. " ( folio 243 ) 62 On 11 December 1985, in response to the Minister for Planning and Environment's letter and proposal of 29 November 1985 (see pars [59]-[60] above), the Crown lands office notified its concurrence to the "proposed establishment of Budderoo National Park..." (Exhibit M1, v1, tab 35). On 16 December 1985 the Minister for Natural Resources concurred in the 29 November 1985 proposal (Exhibit M1, v1, tab 36). Likewise, the Minister for Local Government on 30 December 1985 expressed "no impediment to the reservation of the area" (Exhibit M1, v1, tab 37). 63 In a letter received 2 January 1986 the Minister for Mineral Resources and Energy raised the fact that the northern boundary of diagram "T" was not in accordance with the area previously agreed to (Exhibit M1, v1, tab 38). A new map had been produced and there are no objections to the proposed Budderoo National Park as outlined by blue edge on the map attached to the letter (which unfortunately has not been filed in evidence). 64 The Minister for Public Works, Ports and Roads, on 14 January 1986, advised "that there [was] no impediment" to the 29 November 1985 proposal (Exhibit M1, v1, tab 40). 65 In early January 1986 the Minister for Planning and Environment wrote to the Premier seeking funding for the conservation package which included the proposed Budderoo National Park and several nature reserve proposals in the Kiama-Nowra area, which, it was suggested, could be announced in mid-January. (Exhibit M1, v1, tab 41) 66 A press release of 17 January 1986 records that the Premier had announced "the establishment of a new National Park and two Nature Reserves on the South Coast" (Exhibit M1, v1, tab 42). A newspaper article in the "New Leader" of Friday 24 January 1986 reported on the establishment of the park and reserves (Exhibit M1, v1, tab 43). The claimed land did not form part of the national park or reserves as announced. Mining Interests - documentation predating the claim 67 A poorly reproduced document bearing the date 26 May 1982 (Exhibit M1, v4, tab 2) reports that there "has been considerable deterioration of the surface facilities since the...report...[of] 20 November 1980, and would now appear to be beyond redemption despite the efforts of the residential caretaker." There appears, at least up until the date of this document, to have been a residential caretaker in that area. However, the exact area to which this document relates cannot be ascertained from the document itself. 68 A document dated October 1984 reports that mining ceased on the Tongarra Colliery on 6 February 1965 (Exhibit M1, v4, tab 3). 69 ALC 2673 was lodged over the subject land (Exhibit M1, v2, tab 1) on 3 March 1986. Evidence post the date of claim 70 Evidence postdating the claim is permissible to a limited extent - it may be logically probative of need or likely need of the land for an essential public purpose, and may be used subject to the so-called Falconer principle, that such evidence cannot be used to "prove a hindsight, but to confirm a foresight". 71 On 15 July 1986 the DMR wrote to the Lands office objecting to part of the claimed land (Exhibit M1, v2, tab 2), covered by blue hatching (within in the claimed land) on Diagram "B" attached to the letter (folio 265), which was part of the Tongarra Colliery Holding held under lease. These mining leases appear to be 'MPL 1226' and 'MPL 1361' (see attached map - Tongarra Gap ALC 2673 - Plan 1, to the Minister's supplementary submissions filed 4 February 2008). Elcom was carrying out feasibility studies in the area south of Tongarra gap, and may have required access "to those resources and also for the construction of pit top coal preparation and transport facilities" (folio 264). 72 On 3 November 1986 the Forestry Commission wrote to the Lands Office (Exhibit M1, v2, tab 3) repeating that on 12 May 1981 the Commission had expressed no objection to the inclusion of the lands which now form part of ALC 2673 as part of Budderoo National Park (this advice is not in evidence). The: "Commission considers that these lands should be retained in public ownership and that claim No. 2673 be rejected due to the general community interest in its landscape and its conservation values. If, however, the decision is to grant the claim, the Commission would urge the attachment of a covenant to safeguard the vegetation cover". 73 In a report dated 17 October 1986 produced by the Lands Office, Nowra (Exhibit M1, v2, tab 4) the views regarding ALC 2673 of the various Government departments were summarised as follows: · The Council of the Municipality of Shellharbour is opposed to the claim as it will prejudice the development of an alternative route to Macquarie Pass, and is contrary to the objectives and recommendations for the escarpment management. · The Illawarra Region of Councils is opposed to the claim for the same reason as Shellharbour, and that the land should be retained for public purposes. · The Department of Main Roads "has requested postponement of the determination of the eastern section of the claim pending completion of the investigations into the Caloola Pass route down the escarpment" (folio 272). · The DMR opposes the claim for the reasons outline in par [71] above. · The Electricity Commission "opposes the claim because of: (a) The transmission line on the east of the claim adjacent to the Butter Track Pass. (b) The Commission is considering the purchase of Tongarra Colliery and granting of the claim would seriously restrict mining activities ( folio 273 ). · The Public Works department has no interests in the land affected by the claim. · The Forestry Commission is finalising its reply. No Reply is received from the Department of Environment and Planning, NPWS, or The National Trust of Australia. 74 On 2 April 1987 the Nowra Lands Office receives a letter from NPWS (Exhibit M1, v2, tab 5) indicating the Service's view that ALC 2673 should be refused as the land is required for essential public purpose as "[t]he area claimed is a highly significant wildlife corridor between Macquarie Pass National Park, and Budderoo National Park". 75 A decade later, a paper presented by G.L.Worboys during a Conservation Congress (October 13-23 1996) titled "Conservation Corridors and the NSW Section of the Great Escarpment of Eastern Australia" ("Draft" in Exhibit M1, v2, tab 7) talks of the Great Escarpment of Eastern Australia. It states that the escarpment is 2800Km long and that the "very southern section of the Great Escarpment, a continuous corridor is most in danger of being disrupted in the Macquarie Pass National Park area...". The paper recommended "that policy decisions to be made by Government by 1999 achieve a conservation corridor system for NSW public lands along the Great Escarpment" (folio 425). 76 In 2000 166ha of the claimed land, known as Tongarra Reserve, was dedicated for the purpose of public recreation, conservation and mineral and petroleum exploration (Exhibit M1, v2, tabs 8-9). 77 The DMR wrote to NPWS on 4 October 2002 stating that Tongarra Reserve should not become a State Conservation Area ("SCA") but rather remain as a Crown Reserve (Exhibit M1, v2, tab 10). 78 A NPWS briefing note of late 2002 (Exhibit M1, v2, tab 11) notes that only "two small gaps remain to further link over 600km of the Great Escarpment conservation corridor from the Victorian border to the Hunter Valley in central eastern NSW" (folio 433), with one of the gaps being the 'Jamberoo Gap' which "consists of a Crown Reserve (Tongarra Reserve managed by NPWS), two small areas of National Park, Crown land and freehold land." The Aboriginal land claim is noted, as is the observation that the DMR "is less likely to object to the establishment of State conservation areas than to the establishment of National Parks due to presence of coal underlying some parts of this area" (folio 434). 79 On 26 February 2003 the Department of Lands and Water Conservation wrote to NPWS (Exhibit M1, V2, tab 13) noting the proposed additions to Budderoo National Park (see Exhibit M1, v2, folio 442 - regarding lands which comprise part of ALC 2673). The department's view was that no action should be taken until ALC 2673 is finalised. 80 In a press release of 8 March 2003 (Exhibit M1, V2, tab 12) the Carr Government promised to add 36 000 hectares to the Illawarra Escarpment if re-elected. Part of the proposal was to expand Budderoo National Park by "around 150 hectares to link with Macquarie Pass National Park" (folio 438). 81 In an email of 1 September 2003 the DMR informed NPWS that Tongarra Crown Reserve had no current titles and supported the change from Crown Reserve to SCA (Exhibit M1, v2, tabs 14). This position is confirmed in a NPWS briefing note of 5 September 2003 (Exhibit M1, v2, tab 22). On 10 September 2003 NPWS wrote to DMR for their concurrence to change the status of Tongarra Reserve from a Crown Reserve to a SCA (Exhibit M1, v2, tab 23). 82 On 23 December 2003 the NPWS wrote to State Forests of NSW (Exhibit M1, v2, tab 15) advising that the DMR now supports Tongarra Reserve changing status from a Crown Reserve to a SCA and that arrangements between the Department of Environment and Conservation ('DEC') and Department of Lands were being finalised in order to gazette Tongarra Reserve, among others, as a SCA. Gazettal was to occur in early 2004. On the same day NPWS wrote to the Department of Lands (Exhibit M1, v2, tab 16) seeking confirmation of their concurrence with the arrangements for the transfer. On 13 January 2004 Department of Lands wrote to DEC advising there are no objections to the Tongarra Reserve proposal (Exhibit M1, v2, tab 18). 83 NPWS wrote to the Department of Lands and Rural Affairs on 19 February 2004 (Exhibit M1, v2, tab 19) seeking information on the status of the land subject to the election promise of 8 March 2003 (see par [80] above), ie "the Tongarra Gap area between Macquarie Pass and Budderoo National Parks..." (folio 452). In response the Department of Lands stated, in a briefing note of 10 March 2004 (Exhibit A1, folio 12), that a suitable response had been prepared and attached (folio 14). That letter is dated 15 March 2004 and stated that the "Claim has not yet been determined and remains under the investigation by the Department of Lands." There was some discussion as to the evidence needed to successfully refuse the claim under the ALRA. When the announcement of additions to Budderoo National Park was made, the existence of ALC 2673 was said to be unknown (It is not stated who was unaware of it - pars [71]-[79] above evidences the knowledge of several Government departments). A NPWS briefing note dated 22 June 2004 notes that should "the claim be granted, then the DEC will need to consider its options which may include acquisition or a Voluntary Conservation Agreement." (Exhibit M1, v2, tab 20). 84 A NPWS briefing note of September 2004 (Exhibit M1, v2, tab 24) advised that a "number of lands acquired by the DEC are now ready for gazettal" including Macquarie Pass SCA (formerly Tongarra Reserve (Exhibit M1, v2, tab 17)). NPWS sought approval for Macquarie Pass SCA from Minister for Environment (Exhibit M1, v2, tab 25). The Executive Council approved the reservation (Exhibit M1, v2, tab 26), and the land was subsequently reserved on 29 September 2004 (Exhibit M1, v2, tab 27) and gazetted on 1 April 2005 (NSW Government Gazette No 38 - Exhibit M1, v2, tab 28). 85 ALC 2673 was refused on 22 June 2006 (Exhibit M1, v2, tab 29 - the reasons of refusal are set out in par [5] above). Mining Interests - documentation post-dating the claim 86 A progress report for the period ending 17 September 1986 (Exhibit M1, v3, tab 21) indicated that coal prospecting had occurred under Authorisation No. 231 (in which area part of the claimed land falls). A document dated 16 February 1987 (Exhibit M1, v3, tab 26) stated that coal drilling was taking place in the Huntey/Robertson area and could take up to seven months to complete. The Electricity Commission notified the District Inspector of Coal Mines of the location of the planned drilling within Authorisation No. 231/298 on 3 February 1987 (Exhibit M1, v2, tab 27). 87 A document dated 27 March 1987 (Exhibit M1, v3, tab 22) reveals that a Mines Inspector report of 7 December 1966 indicates that "mining has been discontinued but men were still employed on a care and maintenance basis." 88 BP Coal Australia wrote to DMR on 1 May 1987 objecting to ALC 2673 (Exhibit M1, v3, tab 31) on the basis that Tongarra Colliery was a registered Colliery Holding with current mining leases. Mining feasibility studies had recently been undertaken for the reopening of Tongarra Colliery. A June 1987 report titled 'Tongarra Project - Options for the Redevelopment of the Tongarra Colliery' produced by BP Coal canvassed the reopening (Exhibit M1, v4, tab 1). On 28 May 1987 DMR wrote to Crown Lands Office objecting to ALC 2673 in the same terms (Exhibit M1, v3, tab 33). 89 A report of a Senior Technical Officer dated 29 November 1989 (Exhibit M1, v4, tab 6) titled "Tongarra Colliery - Rehabilitation" commented on a visit of 2 days earlier. The officer stated that "the amount of growth that has taken place is amazing...Most buildings at the Tongarra seam end have deteriorated further except possibly the bathroom" (folio 820). A similar report was produced on 28 March 1990 reporting a visit of 6 days earlier (Exhibit M1, v4, tab 7). It stated that the site had not changed since the report of 29 November 1989, and that it "would appear that the only real option is to fully rehabilitate the site and sell the land" (folio 822). The security deposit on the land should be increased to $200,000 (or $50,000 if the mining company rehabilitates the land within 12 months under a rehabilitation plan). The DMR sent Kembla Coal and Coke (the mining company) a letter on 9 April 1990 (Exhibit M1, v4, tab 8) canvassing the creation of a rehabilitation and management plan and the possible increase in security deposit. Subsequently such a plan was submitted. 90 A minute paper of 7 November 1990 by Senior Inspector of Coal Mines (Exhibit M1, v4, tab 10) indicates the acceptance of the rehabilitation and management plan for Tongarra Colliery provided by Kembla Coal and Coke. That plan is attached (Exhibit M1, v4, tab 11). The plan was also approved by the State Pollution Control Commission (Exhibit M1, v4, tab 15, folio 858), Department of Conservation and Land Management (folio 859) and Shellharbour Council (folio 857). However, the sealing off of the mines needed approval under s121(b) of the Coal Mines Regulation Act (1982). DMR prepared a letter dated 27 November 1991 to send to Kembla Coal and Coke advising of that requirement (Exhibit M1, v4, tab 15). Kembla Coke and Coal informed DMR on 19 April 1993 (Exhibit M1, v4, tab 16) that it had sought approval from the District Inspector to seal the mine entries; will do so upon authorisation; plan to undertake the work in May and June 1993; and, plan to relinquish Tongarra Coal lease (CCL 769) when site restoration is complete. 91 Kembla Coal and Coke forwarded a document tiled "Report on the Rehabilitation of Tongarra Colliery Site" (dated August 1993) to DMR on 20 August 1993, seeking confirmation that the work had been completed satisfactorily (Exhibit M1, v4, tab 18). On 6 September 1993 the Inspector of Coal Mines recommended that the "process for relinquishment of the lease [CCL 769] may now be commenced." (folio 866). Tongarra Colliery Holding was removed from the Register of Colliery Holdings on 5 June 1997 (Exhibit M1, v4, tab 19). 92 On 16 August 1991 DMR lifted its objection to the eastern part of the claim provided a depth restriction of 15 metres is applied. The western sections were still objected to (Exhibit M1, v3, tab 38).

93 The Court has had the benefit of expert evidence from relevantly qualified witnesses, Henry John Watkins and Peter Francis Bowen, and has considered affidavit and oral evidence from Mr Watkins, and affidavit evidence from Mr Bowen. 94 Maps have formed a crucial part of the evidence and submissions. The affidavit evidence from Mr Bowen consists of a series of maps relating to the Tongarra Gap area, including the claimed land and the Budderoo National Park boundaries from 1986 to the present. The maps were produced for use in these appeal proceedings in response to a request made in April 2007. The affidavit and oral evidence from Mr Watkins is also related to maps relevant to the appeal. There are no issues of disagreement between the two.

95 The Respondent submitted (Respondent's Submissions, 5 December 2007, p2) that, on the basis of the pre-claim evidence relating to the formation of the Budderoo National Park, the claimed land had, at the date of claim, been needed or, at the very least, was likely to be needed, for the purposes of nature conservation. The Respondent submits that Budderoo National Park as announced in early 1986 was only the "initial" part of the proposals (drawing support from various documentation referring to "the first stage", "the initial reservation", and "initial core area"). This was a result of the "urgent need to proclaim Budderoo NP in early 1986, so that the politically sensitive Minnamurra Falls Reserve Area could be bought within the NPWS estate". It is further submitted that "areas of land surrounding the claimed land have been reserved for conservation, and a bridge has been formed between Macquarie Pass National Park and Budderoo NP along the line of the escarpment. The claimed land is the arch stone in this bridge." (p7)

96 The Respondent invoked the concept of a "trajectory" to support the submission that post-claim material confirmed foresight rather than hindsight.

97 The Respondent submitted also (p2) that the post-claim evidence: (a) confirms that the DMR objections (relating to coal mining) to the inclusion of the claimed land in Budderoo National Park were only temporary, pending the conduct of some drilling investigations; and

(b) demonstrates that subsequent land acquisition programs by the NPWS in the area confirm the original intention that Budderoo National Park link up with Macquarie Pass National Park along the line of the escarpment.

98 The Respondent submitted (p2) that, at the date of claim, parts of the claimed land were lawfully used or occupied for the purpose of discharging onerous and unfulfilled obligations under the mining leases to rehabilitate the land. Crown Road

99 The Respondent submitted that part of the claim was dedicated as a Crown road and therefore not claimable under the ALRA.

100 In a supplementary written submission of 5 February 2008, the Respondent proposed an alternative argument relating to the two different sections within the road portion: (i) a triangular section that had been freehold but was resumed and opened as a road by notice published in the Gazette dated 22 November 1935; and

(ii) an elongated section that was Crown land and created as a Crown road through an official approved survey plan.

101 The submission asserts that the issue for the Court to determine is under which statute the land corresponding to the road portion fell to be administered (par 18) and concludes that the relevant statute remains the Public Roads Act 1902 ("Public Roads Act"). The road portion is, therefore, not subject to the Crown Lands legislation and s.36(1)(a) therefore does not apply.

102 The Applicant submitted that the evidence at the time of the lodgement of the claim supported only an intention of the Executive Government to establish the Budderoo National Park over the area of the proclaimed boundaries. "It is to be remembered that the national park could not be created without the approval of the Executive Government...In this case, there is simply no evidence that the Government of the day had even considered (let alone approved) any further expansion of the Budderoo National Park" (Applicant's Outline of Submissions, 11 December 2007, par 5.7). The Applicant refers to the statement of Meagher JA in Castlereagh Nature Reserve (at 252C) that the question whether land was needed, or likely to be needed, is "essentially a question of the view held by the government on the day when the claim was made". Further support is mustered from the Court of Appeal's comments on 'Executive Government' approval in Maroota (at [62]-[64]).

103 The Applicant further submitted that the objections of the DMR to the area north of the Schedule A line (see par [56] above) were consistent and maintained, including some which have never been withdrawn, and (T18.12.07, p31) that the trajectory argument put forward by the Respondent to support its case on need or likely need had hit "political gravity" (i.e. opposition by various entities to the proposed Budderoo National Park).

104 The Applicant submitted (p26) that the Respondent's case on lawful use and occupation is based solely on the existence of an obligation to rehabilitate the land and that, at the date of the claim, there was no mining activity whatsoever on the subject land.

105 The Applicant further submitted that what little rehabilitation might have been carried out prior to the date of the lodgement of the claim would have been undertaken under s.121 of the Coal Mines Regulation Act 1982 No67, requiring the closing of shafts and outlets within 30 days of the mine ceasing to be used. The Rehabilitation Plan, therefore, came into existence many years after the claim (p26) and does not support the requirement for land to be used.

106 The Applicant acknowledged that a caretaker remained in residence on the mining area, but only up to around 1982, and submitted that the deterioration of the land and infrastructure at the time of the inspection in 1982 does not support that the land continued to be occupied. Crown Road

107 The Applicant submitted on 18 December 2007 that the first stage of the road (generally referred to by agreement as the 'triangular' section (denoted by blue stripes in the affidavit of Henry J. Watkins (20 July 2007), annexure D) was resumed but never dedicated, and that this portion of the subject land remained at all time Crown land able to be lawfully sold or leased under the Crown Lands legislation. However, in a subsequent submission of 25 February 2008, the Applicant conceded that land that was resumed for a road is dealt with under the Public Roads Act, and is not able to be dealt with under the provisions of the Crown Lands legislation. The Applicant accepts, therefore, that the triangular portion is not claimable under the ALRA.

108 In the submission of 18 December 2007, the Applicant argues that the second portion of the road - the 'elongated' section denoted by orange stripes in the affidavit of Henry J. Watkins (20 July 2007), annexure G - was never publicly exhibited or otherwise published, and therefore remains claimable land under the ALRA. This position was maintained in the submission of 25 February 2008. Delay by the Minister

109 The Applicant also submitted that the delay of over two decades in the Minister's making a decision is wholly inconsistent with the beneficial intent of the ALRA, and raises a number of significant issues for the Court in determining the claim. First, the Court is required to consider the state of facts at the time of claim, that is, some 21 years ago, subject to the Falconer principle (Applicant's Outline of Submissions, 11 December 2007, par 3.2), and this causes difficulties in the preparation of a case. Secondly, the delay allows subsequent information and values to be brought into consideration (pars 3.6-3.7) and to influence the interpretation of the evidence as it stood at the time of the claim. The Applicant applied these concerns to both the Respondent's argument that the land was likely to be needed for addition to the essential public purpose of nature conservation and to the evidence as to rehabilitation obligations in respect of mining tenements over the claim area.

110 The following matters are no longer in contention: (i) The area referred to in paragraph (a) of the Minister's letter of refusal is freehold land and, therefore, not available for claim under the ALRA .

(ii) The road portion is smaller than that originally denoted in the Minister's letter of refusal, and comprises only the area of land denoted as "public road" in the affidavit of Henry J. Watkins annexure N (sworn 20 July 2007) (Respondent's submission 5 February 2008 par 10).

(iii) The triangular portion of the road area comprised Crown land as at the date of claim (Applicant's submission 25 February 2008 par 3), and is subject to the Public Roads Act. As it is not able to be dealt with under the Crown Lands legislation, it is not available for claim under the ALRA (Applicant's submission 25 February 2008 par 4).

111 The Respondent argued a thorough and consistent interpretation of the evidence and the law, and I have concluded that the evidence supports those arguments in part. However, on the bulk of the evidence and competing submissions, I have concluded that I should prefer the Applicant's submissions as more consistent with the evidence.

112 There is evidence to support a desire or intention by the NPWS to include a larger area of land in the Budderoo National Park, and to link it with the Macquarie National Park by a conservation corridor. However, the evidence at the time of the declaration of the Park and the lodgement of the claim does not support that it was any more than a desire, or that there is a clear "trajectory" at the level of "political will" to achieve it and include the claim areas. 113 As noted above, the claimed land did not form part of the newly established Budderoo National Park or the two nature reserves announced on 17 January 1986. Even though the original proposal(s) for the Park included the claimed lands, by late 1985 the claimed land had been excluded from the proposal. This is clearly shown by the so-called Schedule A line and the evidence as outlined in par[56]ff. There is no dispute between the parties that the claimed land did not form part of the Budderoo National Park as announced on 17 January 1986, but the Respondent submits that this was the result of the "urgency" of reserving Minnamurra Falls area, and that this announcement reflected only an "initial" stage of the Park. 114 The Applicant rejects this submission, arguing instead that the dispute with Kiama Council over compensation and staffing issues (see par [57] above) was a cause of delay in announcing the park and not cause for acceleration in its announcement. According to the Applicant, the reservation of the Budderoo National Park included lands that were considered "available" (e.g., Minnamurra Falls Reserve and areas south of the Schedule A line - areas to which no DMR objections exist), and the Applicant rejects the submission that this was an "initial" stage of the park. 115 The boundaries of the Park were extended in 1994, 1998 and 2001 (see maps attached to the Affidavit of Peter Bowen sworn 27 July 2007). Yet, as of 2007, none of the claimed land forms part of the Budderoo National Park (see pars [9]-[11] above). The western part of the claimed land, as of 29 September 2004, forms part of the Macquarie Pass SCA. 116 Up to and including the date of claim the NPWS had the desire to include the claimed land for the essential public purpose of nature conservation. However, this desire, even with the concurrence of various other departments, was frustrated by DMR objections and issues with Kiama Council. This desire, although supported by other departments, does not satisfy 'needed' for the purpose of s 36(1)(c) of ALRA (see Deerubbin Local Aboriginal Land Council v The Minister Administering the Crown Lands Act [1999] NSWLEC 82 at [82]; Maroota at [61]-[64]). 117 Turning now to the question of whether the land was likely to be needed for the essential public purpose of nature conservation, the relevant question, at the date of claim, is was there a real (or not remote) chance or real possibility that the claimed land was needed for nature conservation? As already discussed, the evidence demonstrates that the NPWS had a desire, admittedly a strong desire, to control the claimed land for the purpose of nature conservation. This desire was supported by some departments but opposed by others. The post claim evidence reveals continued objection by the DMR to inclusion of the area into National Parks because of underlying coal. The DMR toward the end of 2003 supported Tongarra Reserve becoming a SCA, despite its initial opposition, and this occurred in September 2004. Budderoo National Park has increased in size since the claim was lodged and still does not include the claimed land. As a whole the post claim evidence reveals the expansion of Budderoo National Park and SCAs when appropriate land became available, and does not support a "trajectory", at the appropriate Government level, to include the claimed land in Budderoo National Park or reserve it for nature conservation. The "trajectory" was that of the NPWS, which changed course because of DMR (and other) objections. There was not a real chance (or a not remote chance) or real possibility that the claimed land was likely to be "needed" for the stated essential public purpose at the date of claim. 118 The Act requires the Minister to prove that, at the time of the claim, the land was needed, or likely to be needed, for an essential public purpose, in this case, for nature conservation. After considering all the arguments, I have concluded that the Minister has not discharged that onus. Was the claimed land lawfully used at the time of lodgement?

119 The evidence does not support the ongoing use or occupation of the land for mining, viz: (1) the evidence of ongoing overgrowth and deterioration of land and equipment over two decades prior to the land claim; (2) the failure to follow up on the results of the drilling, or carry out any further work on any of the land subsequent to the land claim; and (3) the extreme tardiness of any attempts at rehabilitation over the whole four decades from the end of mining in 1965. 120 At the date of claim no active mining was occurring within the claimed lands, mining having ceased in the Tongarra Colliery on 6 February 1965. Since that time there has been considerable deterioration of the land in the area (see par [67] above). Post claim evidence confirms this situation (see par [89] above). DMR objections to the inclusion of what it saw as land involving mining interests was constant. The objections revolve around investigations into coal resources (see par [78]ff above). These investigations continue after the claim is lodged. 121 The Minister puts a limited case on the fact that the claimed lands subject to the current mining leases were lawfully used or occupied for the purpose of discharging onerous and unfulfilled obligations to rehabilitate the land. The evidence would suggest that no such rehabilitation had been done prior to the date of claim, or at least no substantial rehabilitation. The authorities establish that use must be actual at the date of claim (not just a contemplated or intended use) and must be to more than a notional degree (see par [22] above). It would appear that unfulfilled, and un-commenced, obligations to rehabilitate the land (obligations that arise in order to ensure the return of a security deposit) and investigations into coal resources do not amount to "use" under s.36(1)(b) of ALRA.

Was the claimed land lawfully occupied at the time of lodgement?

122 The evidence reveals the presence of a resident caretaker up until 1982 but not subsequently. There must be some physical occupancy over at least some of the land, with that occupation being to more than a notional degree. Unfulfilled rehabilitation obligations and investigations into coal reserves do not amount to occupation under s.36(1)(b) of ALRA.

Did the land comprise a Crown road and was not able to be lawfully sold or leased, or reserved or dedicated for any purpose under the Crown Lands legislation?

123 For land to be claimable under the ALRA, it must be capable of being dealt with, by sale or lease, under the Crown Lands legislation. Powers, including sale or lease, under various other Acts, such as the Public Roads Act, are not exercisable by the Minister responsible for the Crown Lands legislation, and so are not within the ALRA (Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459). I agree with the Respondent that the relevant issue for consideration here, therefore, is under which statute the land corresponding to the road portion fell to be administered (Respondent's supplementary submission, 5 February 2008, par 18).

124 The "creation" of a road must be distinguished from the "dedication" of a road under the Public Roads Act . Both areas of road - the "triangular" and the "elongated" - were "created" as "road" in 1935, but the Respondent concedes it was not "expressly dedicated" (5 February 2008, par 18). However, the Respondent also argues that the elongated section also falls under the administration of the Public Roads Act by virtue of its publication in official plans (5 February 2008, par 16) and because there has been no notification of an intention to close the road portion (par 26).

125 In response to this argument, the Applicant maintains that there is insufficient evidence that the map depicting the purported road (Annexure I to the Affidavit of Henry J Watkins, 13 December 2007) "was ever publicly exhibited or otherwise published" and that the "elongated" portion of the road is therefore still claimable under the ALRA. I think that, like property registers, the cataloguing of maps in official records open to inquiry amounts to exhibition and publication. I, therefore, find that both portions of the road, though smaller than the area originally indicated on the map fall under the Public Roads Act, and are, therefore, not claimable under the ALRA.

Is a delay of over two decades by the Minister in making a decision wholly inconsistent with the beneficial intent of the ALRA?

126 With reference to the impact of delay in this matter, I find myself in agreement with Jagot J's comment that: "No land council should have to wait for twenty years for its land claim to be determined" (Jerrinja Local Aboriginal Land Council v Minister Administering Crown lands Act (2007) 156 LGERA 65 at [124]). As I commented in Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at par [89]: "Such delays cause serious evidentiary problems for all parties, and can thus frustrate the beneficial and remedial legislative intention of the ALRA to return land to Aboriginal people". 127 In this case, the adverse impact of the delay on the Land Council can be seen in the Affidavit of the Illawarra LALC's Secretary, Beverley Armer (25 August 2006). I note that the Respondent acknowledged that, since the case is "a documentary case", "we are as disabled in the respondent's position as the applicant by the passage of time" (T17.10.2007, p9, L 35ff) in compiling complete documentary evidence from the files. 128 I accept the Applicant's submission that "any ambiguity arising from the difficulty of establishing relevant matters with the passage of time must be resolved in favour of the Applicant" (12 December 2007, par 3.4).

K. Conclusion and Orders 129 For the reasons set out above, I find that the following areas of land are not available for claim under the ALRA:

(1) the area referred to in paragraph (a) of the Minister's letter of refusal that is freehold land;

(2) both portions of the road, though smaller than the area originally denoted in the Minister's letter of refusal, fall under the Public Roads Act to be administered and not under the Crown Lands legislation as required by the ALRA .

130 On the balance of the claimed land, however, I find that the Minister has failed to satisfy the Court to the requisite level of proof that the claimed land was not "claimable Crown land' within the meaning of s.36(1) and s.36A of the ALRA.

131 Accordingly, the appeal must be upheld and that balance of the claimed land transferred. 132 As early as 3 November 1986 the Forestry Commission (Exhibit M1, v2, tab 3) was suggesting that if the claim were to be granted, a covenant should be negotiated to "safeguard the vegetation cover". In June 2004 the NPWS suggested the possibility of a "Voluntary Conservation Agreement" (Exhibit M1, v2, tab 20 - see par [83] above). These historical views of relevant conservation agencies raise the prospect that s.36(5A) could be considered by the parties, but that question was not before the Court. 133 I direct the parties to bring in short minutes of orders appropriate to give effect to this decision. 134 The exhibits may be returned.

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.

(2008) 161 LGERA 294

(2006) 149 LGERA 162

(2007) 155 LGERA 307

(2001) 113 LGERA 163

At a glance

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Judgment (85 paragraphs)

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Legislation Cited (1)

Cases Cited (16)

Cited By (5)