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

Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act - [2010] NSWLEC 124 - NSWLEC 2009 case summary — Zoe

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JUDGMENT Introduction 1 His Honour: This judgment, on remitter from the Court of Appeal, deals again with an Aboriginal Land Council claim (No.2673) under the Aboriginal Land Rights Act 1983 ('ALR Act') for 182ha of land at Tongarra Gap on the Illawarra Escarpment, in the vicinity of Budderoo National Park. 2 The claimed land is situated north of an imaginary line ("the Schedule A line") drawn in 1985 to indicate a boundary between land included in the National Park as announced on 17 January 1986 (south of the line), and other land noted as desirable for addition to the park, but not included in that announcement. The announcement and proclamation in January 1986 covered all lands in the planned park area to which there was no extant objection from relevant government agencies, including that responsible for coal mining. 3 The claimed land falls within an area of the State associated with (underground) coal mining from about 1893, but conservation groups and government agencies concerned with national parks had expressed interest in the relevant area since at least 1973 (Exhibit M3, fol 1021). Its conservation values were verified, and establishment of the national park recommended, in 1977. The government of the day became interested in establishing a national park over the area in 1980-81. 4 The land claim was made on 3 March 1986. Section 36A(1)(b) of the ALR Act includes nature conservation as an essential public purpose. The Minister rejected the relevant parts of the claim on various grounds on 22 June 2006, and an appeal was lodged with this court ('LEC') on 25 August 2006. Judgment was delivered, largely in favour of the claimant, on 6 June 2008 ([2008] NSWLEC 188, now reported at 161 LGERA 294), and formal orders made in accordance with those reasons on 4 September 2008. 5 An appeal by the Minister to the Court of Appeal was heard on 15 May 2009, and a majority judgment in the Minister's favour was delivered on 11 September 2009 ([2009] NSWCA 289, now reported at 168 LGERA 71). 6 This court's decision of 6 June 2008 and its orders of 4 September 2008 were set aside by the Court of Appeal, and the matter was remitted to this court for further determination in accordance with that court's reasons. Essentially, the Court of Appeal decision to overturn the LEC decision turned on how I, as the presiding judge, had posed and addressed the key question. The Court of Appeal said (at [39]): "…the primary judge did not decide the correct question, namely whether the land was, as a matter of fact, likely to be needed for an essential purpose; but rather he addressed a question distorted by irrelevant considerations, namely whether any trajectory towards the existence of such need was itself at the appropriate government level, and whether the land had been included in Budderoo National Park up to the date of the hearing." 7 On this remitter the Minister has maintained the ground of refusal that the claimed land is/was "needed or likely to be needed for the essential public purpose of nature conservation", under s 36(1)(c) of the ALR Act. The question "likely to be needed" is "the sole issue before the court" (T7.12.09, p6, LL23-24). 8 Again, on the hearing and determination of this remitter, I gratefully acknowledge the assistance of Acting Commissioner Mary Edmunds. Approach on Remitter 9 The correct approach to take on a remitter to this court, authorised by s57(2)(a) of the Land and Environment Court Act 1979, was last considered by the Court of Appeal in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1.

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Exhibit M6 concerns " Exploration Licence application No.61 Wollongong ", in respect of the claimed land - it appears to have been received on 6 June 1990, and withdrawn by about 13 March 1992, and involved minerals other than coal. 16 The use of post-claim evidence always confronts the principle which takes its common name from the Court of Appeal decision in Housing Commission v Falconer ("Falconer") [1981] 1 NSWLR 547. As Basten JA put it (at [80]), the Minister submitted in the appeal in this matter that I had "inverted" the Falconer principle "so as to infer from an absence of post-claim executive activity, the absence of a likely need at the date of claim". 17 Before turning to reconsider this court's primary decision, the question of appropriately using post-claim evidence should be explored. The Falconer principle re post-claim evidence 18 As Basten JA noted (at [70]-[85]), the principle drawn from Falconer is often too simplistically summarised as requiring simply that post-claim evidence must be used not to "prove a hindsight but to confirm a foresight". I stated the principle in such simple terms twice in the primary judgment (at [32] and [70]), but, on appeal, the Minister submitted that I employed "hindsight to deny, rather than confirm, a foresight". 19 Although Basten JA dissented from the majority decision in the Court of Appeal to allow the appeal in this matter, he usefully traced the history of the evolution of the principle, including the factual circumstances of Falconer itself. The Falconer decision 20 Falconer was a case determining compensation for compulsory acquisition of land. At the resumption date, contracts were about to be entered by the owner for construction work on the resumed land. At the time of the hearing before the trial judge (Ash J) the dispossessed owner had purchased new land, and completed the first stage of a two-stage building programme on it. On a "case stated" to the Court of Appeal, Hope and Glass JJA considered the admissibility of evidence given of actual cost increases post-resumption to confirm what would have been foreseen by a properly advised hypothetical purchaser as at the date of resumption. 21 The so-called Falconer principle comes from the judgment of Hope JA, but needs to be seen in its proper context, as "risk … attaches to taking an aphorism out of context" (per Basten JA at [80]). To this end I quote at some length from the judgment of Hope JA (at 558-9): "However there are many decisions, including decisions of the High Court , in which it has been held that evidence of future events is admissible not to prove a hindsight, but to confirm a foresight : … An application of the principle namely, that 'The amount of compensation, being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts to the extent to which they throw light upon items of value which can properly be taken into account in the calculation, having regard to the circumstances existing at the date of acquisition': Minister for Army v Parbury Henty & Co Pty Ltd [Parbury Henty] (1945) 70 CLR 459, at p 514 is to be found in the decision of the Full Court of Queensland in Brisbane City Council v Thorpe (1965) 13 LGRA 31. In that case the council resumed land on which stood a part of a shop building, the other part standing on land retained by the owners. Two years after the date of resumption the council offered to move the existing shops back to the resulting new alignment. In his judgment Gibbs J, as he then was, with whom Hanger and Jeffries JJ agreed, said (at p 37): 'In the present case at the date of the resumption it was reasonable to expect that the council would offer to make the building available, since the purpose of the resumption was to widen a road and possession of a portion of a building could be of no use to the council. The fact that it has since made the offer may be regarded to show that as at the date of resumption the building would have been available.' If such a principle were to be applied to the present case then it would seem that as at the date of resumption in March 1974, a prudent purchaser, properly advised, would certainly have anticipated a significant rise in building costs. …. Accordingly a prudent purchaser would have taken into account the probability, indeed certainty, of increasing building costs. The Court would not be concerned here, as it has been in ordinary damages cases, to determine what the amount of those inflated costs would be; it would be concerned with what a prudent purchaser would do in the knowledge that there had been a sudden and very large growth of inflation which was likely to continue. ... [W]hat would have to be determined is what would be the attitude of a prudent person in the hypothetical circumstances which the cases have described; but the actual increases could be looked at in confirmation of what the hypothetical purchaser, properly advised at the time of resumption, would have foreseen. The extent to which foresight coincided with or approached fact must be a question of fact - assuming there is evidence to support a conclusion … [T]here are many reported decisions concerning compensation for disturbance where regard has been had directly to actual costs subsequently incurred, but those are cases where, because of different legislation, because of the shortness of the time span, because the assessment was not tied to any particular date, or for other reasons, no challenge was made to the way in which the evidence of what had in fact happened should be used. I do not think that these decisions affect the principles I have described." (emphasis added) 22 Hope JA cited several High Court cases from the 1940s including, as quoted above, Parbury Henty per Williams J. Basten JA in the appeal in the present case also referred to Parbury Henty and other cases, where later events were used to set a value at a particular date. That line of authority clearly informed Hope JA's articulation of the "principle". As Basten JA noted (in [67]), assessing "real value" of shares as at a past date "required the valuer to speculate as to the temporary nature of factors (in that case a war) which may have tended to depress the value of the business", and (in [80]), Hope JA intended to draw a distinction "not between confirming or denying a foresight, but between evidence which could relate to a foresight and that which merely constituted a hindsight". 23 Also in Falconer, Glass JA said (at 563F): "Special value is that additional sum over and above the market price which the owner would give for the land sooner than fail to obtain it at the time of the hypothetical sale assumed to have occurred at the date of resumption….

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33 The Minister bears the onus of proof (ALR Act s 36(7)), and his/her case was that the January 1986 national park announcement, made just prior to the land claim, represented only the "initial stage" of the establishment of the park - action being urgently required at the time to protect the Minnamurra Falls, and some political imperatives and pressures being then in play. 34 The claimed lands were not included in the park, due to objections from the DMR dating back to 1980, and some issues with the local Council. The claimed lands were in fact excluded from consideration for inclusion in the park proclamation from late 1985, the only opponent to their inclusion then being the DMR. The DMR position could not be described as outright opposition to the park proposal - nor, indeed, after March 1986, to the land claim - but it objected in 1985-86 on the grounds that a national park would preclude the exploitation of "economic" coal, and/or prevent access to it. (National Parks and Wildlife Act 1974 ("NPW Act") s 41, and ALR Act s 45(12), as at the date of claim). 35 Appropriate testing was again carried out in 1986-87 to evaluate the "economicality" of coal reserves in the area. Such testing had been inconclusive in 1984-85, and, as a consequence, although the "Schedule A line" was drawn on the map in August 1985 to delineate areas to its north not included in the park, those areas were to be managed, while further considered, according to National Parks principles/guidelines. (There is no evidence as to what those guidelines entailed). The NPWS, from August 1981, was concerned only to conserve the park lands to a depth of 15.24m, and the DMR, apart from access issues, seems to have been concerned only about "economic" coal below that depth (see T8.12.09, p5, LL32-43). 36 Active mining of the claimed land had ceased in 1965, and maintenance work on mining installations in the area had ceased in 1966. Elcom wanted to reserve its position on access requirements in 1986 "for ten years or more", but the pitheads were sealed in 1993, as part of long planned rehabilitation works. Tongarra Colliery was officially abandoned in 1997, and Elcom renounced all interest in the area by 1999, having first considered purchasing Tongarra in 1986.

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41 The passage in the primary judgment, which the Court of Appeal majority identified as manifesting error, comprised pars [115]-[118], especially par [117]. I set out the whole passage for completeness: "[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 [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 Minister Administering 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."

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44 His Honour found (at [33]-[42]) that this court had misapplied the Maroota principles in this case, and had taken into account irrelevant considerations (1) in terms of the asserted "trajectory", and (2) consideration of all the additions made to the park, of lands other than the subject lands, between the date of claim and the LEC hearing. His Honour said (at [33]-[39] and [41]-[42], with emphasis added by me): "[33] The contention of the Minister was that the subsequent history confirmed what was foreseeable at the date of the land claim , namely that it was unlikely that DMR objections would prevail over the strong reasons supporting the establishment of a continuous chain of areas reserved for nature conservation, particularly in the area of the escarpment covered by Budderoo National Park and Macquarie Pass National Park and the intervening Gap, and the strong desire of NPWS supported by the Minister for Environment that this happen. It was put that this was particularly so in circumstances where the purpose of nature conservation could be achieved without precluding mining at a depth below 15 metres , as proposed by NPWS in 1981 and progressively accepted by DMR in 1987 (as regards part of the western part of the claim) and in 1991 (as regards the eastern part of the claim). I would add that another relevant matter is that, as early as 26 August 1985, the Minister for Mineral Resources agreed that even the area over which it had objections "would need to be managed in accordance with National Park guidelines" (Blue 222). [34] In my opinion para [117] of the judgment does disclose errors of law in dealing with this contention. [35] First, it shows that the primary judge considered that any "trajectory" that might support a finding that the land was likely to be needed had to be "at the appropriate government level". In my opinion, this is a misapplication of what was said in Maroota . The question of whether land was needed must be decided with reference to what the Government requires, and that of course means a requirement at the level of executive Government. However, where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement; and if this is addressed by considering whether there is a trajectory at the relevant time, this need not then be a trajectory existing at the appropriate Government level, but only a trajectory towards a requirement at the appropriate Government level. [36] Second, para [117] particularly read with para [115] indicates that the primary judge considered it was relevant that the claimed land still had not been included in Budderoo National Park. The submission of the Minister was that, because the land claim precluded inclusion, this consideration could not be relevant; but we were not referred to any statutory provision which had that effect, and I am not aware of any such statutory provision. [37] However, in my opinion , it appears from the history I have given that , at least from March 2003, the existence of the land claim was recognised and given effect to as a practical obstacle to inclusion of the land in Budderoo National Park (although this was apparently overlooked in the 2003 election undertaking); so that non-inclusion of the land in Budderoo National Park between March 2003 to the hearing (December 2007) could not be relevant, except conceivably in a tenuous and highly indirect way not suggested in the primary judge's reasons (that delay by the Minister in determining the claim between March 2003 and December 2007 somehow bore on the question whether, as at March 1986, the land was likely to be needed for nature conservation). [38] As regards the period from March 1986 to March 2003, the position is less clear: it is not apparent that the land claim was an operative factor in the non-inclusion of the land during that period. However, apart from the land claim, the only matter standing in the way of inclusion of the lands in Budderoo National Park (both when it was originally established and thereafter) was opposition from DMR; so it was the likelihood (as at the date of the claim) of the persistence and success of this opposition, on which some light could be shed by what happened in relation to DMR opposition after the claim, that was relevant, and not the bare fact of subsequent non-inclusion of the land. So in my opinion, while reference to non-inclusion of the land in Budderoo National Park from March 1986 to March 2003 would not itself have manifested error, in its context and in combination with the other matters I have mentioned, it does do so. [39] In my opinion, having regard to these considerations, the primary judge did not decide the correct question, namely whether the land was, as a matter of fact, likely to be needed for an essential purpose; but rather he addressed a question distorted by irrelevant considerations, namely whether any trajectory towards the existence of such need was itself at the appropriate government level, and whether the land had been included in Budderoo National Park up to the date of the hearing. … [41] The appeal to this Court in this case is against a decision with respect to a question of law; and what is being challenged is not the exercise of a discretion but a determination whether or not a state of affairs satisfies a statutory description . In relation to such challenges, I accept that a finding that a judge has taken into account irrelevant considerations may in some circumstances not involve an erroneous decision on a question of law, but may merely be an error in reasoning on a question of fact. However, in the present case the primary judge's reliance on irrelevant considerations does, in my opinion, show that he was misapplying the statutory description and thus was making an error of law. [42] The next question is whether the errors I have identified were material to the primary judge's decision. In my opinion, they were: there is a reasonable possibility that, but for those errors, the decision could have been different ." 45 It can be seen that Hodgson JA, speaking for the Court of Appeal's majority, noted (at [33]) that the Minister relied on subsequent events to confirm a foresight at the date of claim that DMR objections were unlikely to prevail over the argument in favour of executive reservation of the claimed and other lands to establish a "continuous chain of areas" (or a "corridor" as some of the research described it) for nature conservation, particularly in the area of the escarpment already in national park. 46 The majority then held (in [35]) that "where the question is whether the land is likely to be needed, it is a question as to whether it is likely that there will in the future be a Government requirement…and…this need…be…only a trajectory towards a requirement at the appropriate Government level." Hodgson JA's majority judgment dealt with the period March 1986 to March 2003, a period of 17 years (in [38]), and concluded (in [39]), on the basis of all the circumstances, including that history, that in my primary judgment I had framed and answered the wrong question. 47 It should be noted that for much of this 17 year time period the existence of the outstanding land claim was simply overlooked (see the Lands Department's contradictory correspondence in February 2003 regarding the transfer of the eastern lands to National Parks - Exhibit M2, fols 440-1). There are hints in Basten JA's judgment (at [77]), that 17 years might be an "impermissible" period. Consideration

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49 In this case it might be thought that there was a collision of several "essential public purposes", namely (1) proactive nature conservation by land reservation, (2) the facilitation of the exploitation of valuable coal reserves, and (3) reinstatement of appropriate lands to aboriginal custody. 50 However, as Mr Kirk observed, "competing imperatives … were entirely reconcilable" as at 3 March 1986 because of the 15m policy, and the "only real potential conflict between national park or land claim on the one hand and mining on the other was access" on "half of the western claim" (see T8.12.09, p10, LL46-9, and p13, LL28-32). 51 As the coal mining could be restricted to levels more than 15m below the surface, it could coexist with aboriginal custody or nature conservation on the surface, but the need for appropriate access and pit-head infrastructure on the surface would be incompatible with achieving either of those other two essential public purposes. 52 During the twenty years that elapsed between the land claim and its refusal, the focus was on the clash between the NPWS desire for the lands to be added to the park and the concern of DMR that mining not be excluded - much of the evidence suggests that the land claim was largely ignored or overlooked ([47] above), and it was clearly overlooked when Premier Carr gave his March 2003 election undertaking to link the two national parks on the escarpment (to form the long-envisaged "Greater Illawarra Escarpment National Park"). However, there is no reason to believe that the DMR objection to the land claim would be any different from its objection to the park proposal (T7.12.09, p28, LL48-50, c.f. T7.12.09, p49, LL3-6). 53 In any event, the dealings among relevant government agencies appear to have been quite cordial. NPWS accepted the "economic coal" imperatives driving DMR opposition, and the DMR accepted the conservation value of the land. Both were far from inimical to the land claim, as it was capable of coexistence with mining, or native conservation. 54 The Minister's submissions (pars 41-2, and 76) say that the threshold for establishing "likely to be needed" is "low", but there is no authority advanced for that proposition. It seems to me to be contrary to the beneficial spirit of the legislation, and to Maroota ([43] above), which established that the word "likely" in s36(1)(c) "conveyed the notion of a substantial, that is, a real and not remote chance", but also identified the question of essentiality, that "it was not enough that the public purpose within s36(1)(c) be desirable or highly desirable - it had to be essential" (see [55] and [57]). In the present matter the Court of Appeal talked of "substantial chance" - as Dr Griffiths said (T7.12.09, p52, LL4-5): "It's not easy to reconcile the notion of a substantial chance … with the description of a low threshold". I agree with that observation. 55 The Minister's submissions present the argument that the DMR objection was always of a "contingent" nature (see T8.12.09, p7, LL42ff), and (in par 42) they assert that the threshold, "low" or otherwise, is satisfied by virtue of three factors: " Had there been no possibility or only a remote possibility that the DMR would consent to the inclusion of the northern lands in the proposal: (a) The DMR would not have made its position conditional on the outcome of the drilling tests; it would have opposed the proposal outright; (b) The DMR would not have agreed to put the area subject to the drilling tests under a management plan to be administered conjointly with the NPWS in order to protect the conservation values of the area; (c) The DMR would not have subsequently entered into dialogue with the holders of exploratory interests (Coal Authorisations) to ascertain their precise surface level access needs (if any) from the claimed land into coal seams located in contiguous areas". 56 The Minister goes on to suggest (at par 44) that the DMR objections had disappeared, or would have disappeared, by 1993: "To the extent that this post-claim evidence is relevant, it confirms that the objections were, at the date of claim, conceived to be of a temporary and provisional nature, and ultimately evaporated. The resolution of almost all mining related objections by 1987-1989, and their complete disappearance by 1993, strengthens the probability that, as at the date of claim, the claimed land would have been required at a point in the future, for the purpose of nature conservation."

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57 The DMR objections related not just to the areas of land under claim, but to all the lands north of the Schedule A line. The Minister's proleptic assertion about the ultimate evaporation of these objections is not supported by either the pre-claim or the post-claim evidence. On the basis of what the Court of Appeal said (see [31] above), the evidence of the position 17 years post-claim confirms the foresight at 1986 that DMR objections would continue to prevent proclamation of the claimed lands as park. In 2003, with the then Premier's announcement, it became politically imperative to resolve those objections once and for all. However, there is no evidence of the Government or its officers putting in place any process aimed at - or likely to result in - the resolution or removal of DMR objections to clear the way for park proclamation of the claimed land. 58 It was only after the 2001 change in the NPW legislation that DMR's position changed, as mining became theoretically possible on conserved land. The Minister submits that it remained very difficult to achieve. The essential public purpose of nature conservation at no stage required inclusion of all relevant lands in National Parks. As at the date of claim some degree of nature conservation was also achievable by declaration of "Crown Reserves", and, since 2001, an amendment to the NPW Act, has allowed for the establishment of "State Conservation Areas" ('SCAs') as an addition/alternative to National Parks. Management arrangements (or guidelines) were always negotiable. 59 The new DMR position was not withdrawal of its opposition to the addition of land north of the Schedule A line to the Budderoo National Park; it was to support "the change from Crown Reserve to SCA" for a number of Crown Reserves, including Tongarra. Although this DMR support extended only to Crown Reserves where there were no active exploration licences, the amended NPW Act allows for future grants of mining interests under certain conditions. This DMR approval - not a withdrawal of its objections to reserving the land as national park - was noted by the NPWS in a letter to State Forests in December 2003 (Exhibit M2, fol 446). 60 There is no question that the decisions to declare the Budderoo National Park, and define its boundaries to exclude the claimed lands, were decisions of the Executive Government, albeit that they were taken in accordance with a ministerial concurrence (or consensus) protocol, agreed upon by Cabinet in 1979, rather than by a meeting of Cabinet. Ministers can signify their commitment to a park proposal outside a formal meeting. The final stage of the consultation among Ministers followed the decision by the sponsoring Minister to exclude the claimed lands from the proposal. 61 Parks are proclaimed by the Governor on the motion of a Minister (not a government official or agency) to the Executive Council. Most of the background correspondence in evidence is authored by officials, and cannot automatically be taken to express the policy or decisions of the Executive Government. The position of the Executive Government as to whether that reserved area was only a "first stage", "initial reservation", or "initial core area" is less clear. NPWS certainly held the view that the reserved area was a first stage only and clearly there was within the government an aspiration to reserve as park the lands along the escarpment between Macquarie Pass National Park and Budderoo National Park. Minister Carr endorsed that aspiration in 1985, took forward what was achievable in 1986, and, as Premier in 2003, sought to fulfil the balance of it. 62 The NPWS view to that effect endured throughout the period surveyed in the case. It was expressed in the documents referred to in the Minister's submissions (par 40). Two letters from Ministers (Exhibit M1, fols 203-4 and 224-5) refer to "the first stage". Both Ministers were writing in their then capacity as Minister for Planning and the Environment to the local member for Kiama in response to concerns raised by him, not as representing a particular decision taken by the Executive Government. The other documents tendered reflect the position of NPWS, not the (whole of) government's position, that the declaration of Budderoo National Park in 1986 was a first stage only. The NPWS appears never to have shifted its position over the years since at earliest, 1985, but its view did not transform itself into a Government position. 63 The evidence supports an interpretation that the Minister for the Environment, as well as the NPWS, hoped in 1985-86 that there would, in the future, be a Government requirement for the claimed land to be needed for nature conservation, and that there was a real and "not remote" chance that this would be the case. However, this could not be realised without the consent of the Minister for Mineral Resources; without that consent, the hope could not become a requirement "at the appropriate Government level". As noted above, no mechanism was put in place to resolve the conflict between the positions taken by the respective responsible Ministers, either at the date of claim, or later. 64 The Minister, in his Submissions in Reply (par 12), suggests that "the ongoing discussions between government agencies" were "conducted in an entirely collegial way", and the evidence supports this view. However, the DMR objections were not withdrawn until after the amendments to the NPW Act in 2001 introduced the possibility of the co-existence of nature conservation and mining through the establishment of SCAs. Unlike national parks, SCAs "protect native vegetation and habitats while allowing coal, gas, petroleum and other mining, subject to appropriate environmental assessment and approvals". Under the amendment, SCAs may be revoked and the land reserved as a national park or nature reserve, but "only with the concurrence in writing of the Minister administering the Mining Act 1992". 65 The letter from the Minister for Mineral Resources and Energy of 26 August 1985 (Exhibit M1, fol 222), referred to by the Court of Appeal is not inconsistent with the DMR position taken once SCAs became possible. DMR's objections both pre-claim, and then up to 2003, were not hostile to the NPWS's desire to see the claimed lands managed in accordance with NPWS guidelines, although the Minister's letter refers specifically to the need in that regard "to protect the integrity of the Carrington Falls catchment". The DMR objections were to the reservation of the land such as to completely preclude mining or mining-related activities. Once that obstacle was removed, either by management under guidelines, or by introduction of SCAs, the DMR objections "evaporated". The letter in no way carried any sense of the Minister or DMR seeing those objections in 1985 as temporary or provisional or as likely to be speedily resolved by completing the testing. 66 The subsequent Government decision to reserve part of the claimed land for the purposes of nature conservation made the government requirement of the claimed land for nature conservation "not remote" after the 2001 amendments, well after the date of the claim. The balance of the claimed land in the eastern area was reserved for Future Public Requirements on 31 March 2006 (Exhibit M4, tab 7).

At a glance

Court

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Before

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Judgment (31 paragraphs)

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Cases Cited (7)

Cited By (3)