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

Aboriginal Land Rights Act 1983 LEGISLATION CITED: Land and Environment Court Act 1979 National Parks and Wildlife Act 1974

Adler v Director of Public Prosecutions [2004] NSWCA 352; Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 ; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 ; Avon Downs Proprietary Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353 ; Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 ; Bruce v Cole (1998) 45 NSWLR 163 ; Buck v Bavone (1976) 135 CLR 110; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 ; Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 ; Craig v The State of South Australia (1994) 184 CLR 163 ; Darkinjung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298 ; Darkinjung Local Aboriginal Land Council v Minister for Natural Resources (No.2) (1987) 61 LGRA 218 ; Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 82 ; Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325 ; Hill v Green (1999) 48 NSWLR 161 ; Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 ; Jago v The District Court of New South Wales (1989) 168 CLR 23; Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 ; Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd (No 2) [2006] NSWSC 856 ; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 ; Magrath v Goldsbrough, Mort and Company Limited (1932) 47 CLR 121; Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ; CASES CITED: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 ; Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 62 LGRA 27 ; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 ; New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 333; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685; Parramatta City Council v Hale (1982) 47 LGRA 319 ; Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ; Rogers v The Queen (1994) 181 CLR 251 ; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 ; Shergold v Tanner (2002) 209 CLR 126 ; Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198 ; The King v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 ; The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Tickner v Chapman (1995) 57 FCR 451 ; Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; Walton v Gardiner (1993) 177 CLR 378 ; Warringah Council v Edmondson [2001] NSWCA 1; Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 ; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149

APPLICANT Mr J E Griffiths SC with Ms S E Pritchard SOLICITORS Chalk & Fitzgerald Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr N Perram SC with Mr Stephen J Free SOLICITORS Crown Solicitor's Office

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JERRINJA LOCAL ABORIGINAL LAND COUNCIL Applicant

MINISTER ADMINISTERING THE CROWN LANDS ACT Respondent

JUDGMENT Jagot J: A. Introduction 1 By further amended notice of motion filed on 17 July 2007 Jerrinja Local Aboriginal Land Council (the Land Council) sought an order that the Minister Administering the Crown Lands Act (the Minister) be restrained from tendering certificates of final and conclusive evidence in five appeals.

2 On 14 February 2006, the Land Council appealed against the Minister's refusal of five claims for land at Jervis Bay on the south coast of NSW in accordance with s 36(6) of the Aboriginal Land Rights Act 1983 (the ALR Act). On 15 November 2006, the Minister issued certificates of final and conclusive evidence under s 36(8)(b) with respect to each land claim. The certificates state that land the subject of each claim "was on the date such claim was made needed for the essential public purpose of nature conservation". If tendered in the proceedings the certificates would defeat the Land Council's claims and result in the appeals being dismissed, as land needed for an essential public purpose when the claim was made is not claimable Crown lands as defined in s 36(1) of the ALR Act.

3 The Land Council claimed that the certificates exceeded the authority conferred on the Minister by s 36(8) of the ALR Act. Section 36(8)(b) of the ALR Act authorises the Minister to issue a certificate stating that any land the subject of a claim and specified in the certificate "is needed or likely to be needed for an essential public purpose", whereas the certificates issued by the Minister state that specified land the subject of a claim "was on the date such claim was made needed for the essential public purpose of nature conservation". The Land Council also submitted in consequence that the certificates were inadmissible, as they did not relate to any issue in the proceedings.

4 The Land Council claimed that the certificates were void for jurisdictional error as follows: (1) There was no proper objective factual foundation to support the Minister's statement that the claimed land is needed for the essential public purpose of nature conservation as at the date of the claims.

(2) In issuing the certificates the Minister failed to address the questions he was required to address in exercising the power under s 36(8) of the ALR Act, namely: (i) whether, when the claims were made, there was in existence either a decision at the Executive level of government or some other equivalent expression of political will that the claimed land was needed for the purpose of nature conservation;

(ii) the extent to which, if at all, the Minister was entitled to take into account facts which did not exist when the claims were made including the joint Ministerial decision in 1993 proposing the establishment of the Jervis Bay National Park, the Ministerial announcement to dedicate the Jervis Bay National Park on 15 March 1995 and the making of the Jervis Bay Regional Environmental Plan 1996 on 10 January 1997; and

(iii) whether the material the Minister was entitled to take into account established that, when the claims were made, the claimed land was needed for the purpose of nature conservation, as opposed to there being an interest in the land or that the land might be needed for that purpose in the future.

(3) The Minister failed to take into account relevant considerations when issuing the certificates, namely: (i) on the material before him, the Minister could not have determined that as at the date of the claims the land was needed for the essential public purpose of nature conservation;

(ii) relevant decisions of the Court of Appeal establishing authoritative legal principles affecting certificates under s 36(8) of the ALR Act; and

(iii) the effluxion of time since the making of the claims.

(4) The Minister took into account irrelevant considerations when issuing the certificates, being matters which arose up to a decade after the claims, namely: (i) the decision of Cabinet on 22 September 1993 to establish the Jervis Bay National Park;

(ii) the subsequent creation of the Jervis Bay National Park;

(iii) the decision of the Executive Government in 1997 to rezone the claimed land for national park; and

(iv) that land needed for an essential public purpose would be "lost to the public and the State…merely because a claim was lodged earlier in time to the need for the land being the subject of a government decision".

(5) The certificates were issued for an unauthorised purpose, namely: (i) to achieve the result that the tender of the certificates would defeat the rights of the Land Council to the claimed land in circumstances in which the Minister could not otherwise satisfy the Court that, as at the date of the claims, the land is needed for the essential public purpose of nature conservation; and

(ii) to attempt to establish that, as at the date of the claims, the land was needed for nature conservation purposes in circumstances where such need did not exist at the date of the claims and arose no earlier than approximately one decade after the date of the claims. (6) Section 36(8) of the ALR Act does not authorise the issuing of a certificate in circumstances where, as here, there was a lengthy delay in determining the claims and issuing the certificates.

(7) The Land Council was denied procedural fairness with respect to the issue of the certificates by reason of the lengthy delay in determining the claims and issuing the certificates.

(8) The Minister's decision to issue each of the certificates was Wednesbury unreasonable, having regard to each of the matters identified above. 5 Finally, the Land Council submitted that the certificates ought not be admitted into evidence as to do so would constitute an abuse of process having regard to the delay between when the claims were made and the issue of the certificates and the resulting injustice or unfairness to the Land Council if the certificates were admitted.

B. The statutory scheme 6 The long title of the ALR Act identifies the background against which its provisions operate - namely, WHEREAS: (1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines: (2) Land is of spiritual, social, cultural and economic importance to Aborigines: (3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land: (4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

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

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

9 Under s 36(2), the Land Council may claim land on its own behalf. Claims are to be made in accordance with s 36(4). The Minister's obligations with respect to claims are contained in s 36(5): (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

10 The right of appeal is vested in claimant land councils by s 36(6). Under s 36(7): The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council. 11 The certificate provision is contained in s 36(8), which is in the following terms: (8) A certificate being: (a) a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land, or (b) a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose, shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.

12 Section 36(14) enables a claimant land council to obtain information from the Minister about Crown land and provides: (14) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may request a Crown Lands Minister to supply or cause to be supplied to it such information in relation to the Crown land or dealings in Crown land as is specified in the request and the Crown Lands Minister shall, so far as is reasonably practicable, comply with that request.

13 Section 36A sets out special provisions with respect to lands that would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation. The section provides: (1) This section applies in relation to lands that: (a) are the subject of a claim by one or more Aboriginal Land Councils under section 36, and (b) the Crown Lands Minister is satisfied would be claimable Crown lands except for the fact that the lands are needed, or likely to be needed, for the essential public purpose of nature conservation. (2) If the Aboriginal Land Council or Councils making the claim agree to the imposition of the conditions that, before the grant of a claim to lands to which this section applies, the Aboriginal Land Council or Councils: (a) must negotiate a lease of the lands, that complies with the requirements of Part 4A of the NPW Act, with the Minister administering that Act, and (b) must agree: (i) to enter into a lease of the lands to the Minister administering the NPW Act in the terms negotiated in accordance with paragraph (a), and (ii) to the simultaneous reservation or dedication of the lands under the NPW Act, and (iii) to hold the lands as lands reserved or dedicated under the NPW Act, and (iv) to comply with the requirements of the NPW Act and, in particular, the requirements of Part 4A of that Act in relation to the lands, the Crown Lands Minister may, despite section 36 (5) (b), grant a claim to lands to which this section applies. Note. Part 4A of the NPW Act deals with lands, reserved or dedicated under that Act, that are vested in an Aboriginal Land Council or Councils and are leased by that Council or those Councils to the Minister administering that Act. (3) The Crown Lands Minister must not grant a claim to lands to which this section applies unless the Minister administering the NPW Act: (a) has agreed to the reservation or dedication of the lands under Division 4 of Part 4A of that Act, and (b) has notified the Crown Lands Minister in writing that a lease, negotiated in pursuance of subsection (2) with the Aboriginal Land Council or Councils concerned, is acceptable to the Minister and has been executed in escrow by the proposed parties to it. … 14 Under s 42 of the ALR Act: Notwithstanding anything in any Act, lands vested in an Aboriginal Land Council shall not be appropriated or resumed except by an Act of Parliament.

15 The National Parks and Wildlife Service is constituted by s 6 of the National Parks and Wildlife Act 1974 (the NPW Act). Under s 30A of that Act land may be reserved as national park by notice of the Governor published in the NSW Government Gazette. On 15 March 1995 the notice of the Governor constituting the Jervis Bay National Park was published in the NSW Government Gazette.

16 Pt 4A of the NPW Act establishes a scheme for the reservation under the NPW Act and lease to the Minister administering that Act of lands referred to in s 36A of the ALR Act. Pt 4A provides for negotiations about such a lease with the claimant land council for lands within Sch 14 and s 36A. Under s 71AE rent is payable under any such lease, negotiated or fixed in accordance with the section. Jervis Bay National Park is one of the areas identified in Sch 14 to the NPW Act.

C. Facts 17 The parties agreed a statement of the facts and tendered a bundle of documents relevant to resolution of the Land Council's claims.

18 The Land Council lodged five claims under s 36(3) of the ALR Act in relation to land in and around Jervis Bay on the south coast of NSW, being: - (i) claim 2756 lodged 27 June 1986, (ii) claim 2799 lodged 21 November 1986, (iii) claim 3148 lodged 6 October 1988, (iv) claim 3286 lodged 2 December 1988, and (v) claim 3476 lodged 25 August 1989.

19 On 21 December 2005 the Minister refused each of these claims under s 36(5) of the ALR Act. The Minister did so on the ground that the land (or the relevant part of the land) was needed for the essential public purpose of nature conservation (national park) (claims 2799, 3286 and 3476) or was needed or likely to be needed for the essential public purpose of nature conservation (national park) (claims 2756 and 3148), the relevant national park being the Jervis Bay National Park.

20 The Land Council appealed against these refusals under s 36(6) of the ALR Act on 14 February 2006. On 15 November 2006 the Minister issued certificates under s 36(8) of the ALR Act with respect to each of the claims certifying that the claimed land "was on the date such claim was made needed for the essential public purpose of nature conservation".

Circumstances around the time when claims were made (27 June 1986 to 25 August 1989)

21 The Minister admitted the following facts in response to a request for information from the Land Council under s 36(14) of the ALR Act: (a) [the Minister] was unable to say since when the claimed lands have been needed for an essential public purpose since he "did not determine the date on which the land was first needed for an essential public purpose and is therefore unable to answer [the question] beyond saying that, as at the date of claim, the land was needed for an essential public purpose";

(b) at no time between 1 January 1984 and 31 December 1990 was there a decision of either a Minister of the Crown or the Executive Government that all or any of the Crown land the subject of ALC 2756, 2799, 3148, 3286, or 3476 would be reserved, dedicated or otherwise set aside for nature conservation purposes;

(c) at no time between 1 January 1984 and 31 December 1990 was there any submission or request made by a Government Department to either a Minister of the Crown or the Executive Government that any of all of the Crown land the subject of ALC 2756, 2799, 3148, 3286 or 3476 would be reserved, dedicated or otherwise set aside for nature conservation purposes;

(d) at no time prior to 21 December 2005 did the Minister for Lands determine that any or all of the Crown land the subject of ALC 2756, 2799, 3148, 3286, or 3476 was needed for the purpose of nature conservation;

(e) at no time prior to 21 December 2005 did the Minister for Lands determine that any or all of the Crown land the subject of ALC 2756, 2799, 3148, 3286, or 3476 ought be reserved, dedicated or otherwise set aside for conservation purposes.

22 The parties also agreed that between 27 June 1986 and 25 August 1989: (a) no steps had been taken to reserve any of the claimed land as national park, State Recreation Area or nature reserve pursuant to s 33, s 47B or s 49 of the National Parks and Wildlife Act 1974 (NSW);

(b) no steps had been taken to reserve any of the claimed land for conservation purposes under the Crown Lands Consolidation Act 1913 (NSW) (the predecessor to the Crown Lands Act 1989 (NSW));

(c) there was no referenced proposal for a Jervis Bay National Park;

(d) nor was there any formulated proposal capable of being referenced.

23 The parties agreed that the only documents put before the Minister predating the land claims were the 1985 and 1986 reports of Mr Hitchcock, the Chief Resources Officer of NPWS.

24 The 1985 Hitchcock report formed part of a larger document. The relevant part is headed "N.P.W.S. Interests in the Jervis Bay area ". This section contained the following statements: General

Apart from a scatter of bayside villages along the western shore of Jervis Bay, the greater part of the Jervis Bay foreshores and environs are in an essentially natural condition and so potentially of value for national park/nature conservation purposes.

N.P.W.S. proposal has not been finalised and not yet referred to Government departments. Purchase of the freehold land would be beyond the Service budget for the foreseeable future.

Summary of N.P.W.S. Interest in the Jervis Bay area

There are extensive areas of land around Jervis Bay which have significant or important conservation values. Much of the area has been identified by the Service as being suitable for national park or nature reserve.

The National Trust is presently promoting a national park and a nature reserve proposal in the area. In general terms at least, the Service would endorse the National Trust proposals.

Constraints on implementation of national parks 1. None of the areas has yet been referenced to Government departments. 2. The large freehold component would be very expensive to acquire. 3. None of the important coastal lands are protected by the Coastal Lands Protection Scheme. 4. It is unlikely that the Crown Lands Office would agree to the transfer of the Vacant Crown Lands given (i) Aboriginal land claims (ii) a general current policy of the C.L.O. which results in objections to transfer to Crown lands to the Service.

25 In a section headed "Options for the future" the report continued: Some possible options to improve the conservation of natural environments in the Jervis Bay area are: 1. Include important coastal and bayside lands in Coastal Protection Scheme.

2. N.P.W.S. to reference park and reserve proposals to Government departments.

3. Consider placing some form of restriction over clearing and change of landuse in area to prevent speculative developments and activities.

4. Undertake Regional Environmental Planning exercise to ensure orderly and considered approach to transfer of navy.

5. Seek Commonwealth reaction to proposal for its early acquisition of necessary lands and the transfer of buffer zones and surplus lands to the state for national park or nature reserve purposes.

26 The 1986 Hitchcock report is headed "Identified Interests of the National Parks and Wildlife Service (NSW) in the Jervis Bay Region of N.S.W.". This report observed in its introductory statement that: The National Parks and Wildlife Service had conducted only preliminary field investigations of the Jervis Bay area. Some additional information regarding the natural resources of the area has been determined from other sources.

27 The 1986 Hitchcock report continued with a general statement as follows: General Statement

There are a series of major national parks located in the South Coast hinterlands (Morton, Budawang, Deua, Wadbilliga). These afford a high level of permanent protection of the foothill and escarpment environment of the South Coast. On the other hand, there are comparatively fewer and smaller parks and reserves located on the coastal lowlands. As a consequence a number of coastal environments are very inadequately conserved. For example freshwater coastal wetlands, saltmarsh, estuarine wetlands generally, shallow water marine environments and some forest communities are poorly conserved.

The Jervis Bay are offers important opportunities for greatly improving the conservation of the poorly conserved environments.

28 Under the heading "Specific Interests" the 1986 Hitchcock report observed: Specific Interests

Based on available information the Service has determined that a strong case exists for establishment of a national park or nature reserve(s) in the immediate vicinity of Jervis Bay. The general extent of the Services interests is illustrated on the appended diagram. The boundaries of the proposed park are tentative only and will be progressively refined as new resource information comes to hand.

29 The 1986 Hitchcock report included a summary and conclusion as follows:

Important nature conservation values have been identified in the Jervis Bay area. A case can be made for extensive reservation of lands as national park or nature reserve, including marine extensions.

The proposed fleet bases, armaments depots, armament loading facilities and associated transport facilities would have definite impacts on conservation values in the area.

Irrespective of which of the Jervis Bay options are finally adopted, there will be an overall greatly increased risk of environmental impact, especially on the marine and wetlands environments. In this regard, the overall risk potential for impact on wildlife and the natural environment will be very much greater than the maintenance of existing facilities in Sydney Harbour.

Providing there is an appropriately high level of environmental analysis, co-ordination and co-operation, it should be possible for the environmental impacts of the proposed military installations to be minimised.

30 The Department of Lands investigated ALC 2756 shortly after it was lodged. A letter from the then Secretary to the Department of Lands to the Premier's Department of 31 December 1987 recorded that information to date had not disclosed that the land was needed for any essential public purpose, but sought clarification of the Commonwealth's position.

31 NPWS described its position in October 1987 in the following terms: Reservation under the National Parks and Wildlife Act, 1974. As stated previously the Service has yet to formalise any conservation packages. Once formulated these proposals would be referred in the normal way to other government authorities, Council and any affected landholders for full discussion and negotiation before action is taken to purchase and/or reserve land. The Service would, in the short term only consider reservation of available Crown lands. … As stated previously, the Service regards Jervis Bay and its environs to be of truly national significance and, as the state government authority with the responsibility for conservation of the natural and cultural heritage of the State, will strive to ensure that this important resource retains its high status.

32 On 15 December 1987 the officer in charge of ALC 2799 recommended that part of this claim be granted subject to verification of the requirements of the Department of Defence.

33 By April 1989 a memorandum prepared by NPWS recorded its position about the "Jervis Bay New Area proposal" in these terms: BACKGROUND * The Service has had a longstanding interest in the Jervis Bay area and has established Gurumbi Nature Reserve and proposed the Beecroft Peninsula National Park prior to its transfer to the Commonwealth.

• Many surveys have been carried out over the marine environments of the Bay and its hinterlands. These studies have demonstrated the very high conservation status of many of its communities and species.

• The Service publicly foreshadowed the preparation of conservation proposals for the Jervis Bay area at a symposium convened by the Australian Marine Science Consortium in October 1987.

• The Director has indicated that he wishes to consider the Jervis Bay proposal prior to its referencing. …

• The whole proposal is unlikely to be achieved due to anticipated objections from the Department of Mineral Resources and Forestry Commission and the amount of privately owned land in the proposal.

34 "Referencing" is an administrative process undertaken by NPWS before land is reserved under the NPW Act. It involves referring a proposal for reservation to interested agencies and people in order to consider their comments and, if possible, resolve objections.

35 A Department of Lands' memorandum of 21 March 1989 about ALC 3286 noted that part of the land claimed (Abraham's Bosoms reserve) was needed for public recreation and an adjoining area for residential expansion and public recreation, particularly if the Department of Defence's proposals proceeded. On 13 April 1989 a submission to the Minister about ALC 3286 recommended refusal of part of the claim on the basis that part was Commonwealth land and part was otherwise lawfully used and occupied in accordance with s 36(5)(b) of the ALR Act. Neither this submission nor the consequent letter to the Land Council refusing the claim referred to any national park proposal with respect to the land. A letter to various Departments on 11 May 1989 about ALC 3286 noted that while part of the land was required for future public purposes (which I infer to be a reference to the matters referred to in the 21 March 1989 memorandum), another part had not been identified as required for any essential public purpose.

36 In May 1989 the Director of NPWS prepared a paper for the Minister for the Environment headed "Jervis Bay Conservation Options". This paper recorded that: The National Parks and Wildlife Service has not, until now, attempted to comprehensively review these proposals or develop its own package of conservation measures. The Service prepared a Beecroft State Park proposal in 1970, a Lake Wollumboola proposal in 1977 and proposed extensions to Gurumbi Nature Reserve in 1978. … The National Parks and Wildlife Service will pursue the following strategies: * Negotiation with Crown Lands Office to secure reservation under National Parks and Wildlife Act of vacant crown land within the National Parks and Wildlife Service area of interest, including marine and intertidal areas of highest conservation value.

• Protection of conservation values of terrestrial areas in N.S.W. by negotiated voluntary conservation agreements with landowners. Shoalhaven City Council has just resolved to work with the Service to prepare such an agreement for part of its Comberton Grange property. Any acquisition of land by the Defence Department for naval purposes might also provide an opportunity for conservation management within buffer zones around Navy facilities.

• Progressive acquisition by the National Parks and Wildlife Service of terrestrial areas which have high conservation value by negotiated agreement with landowners, subject to funding.

37 A temporary project officer within NPWS prepared a memorandum on 3 July 1989 to "stimulate interest and comment among NSW NPWS officers about opportunities for NPWS involvement in conservation at Jervis Bay". This memorandum recorded that while NPWS had a long-standing interest in the conservation of Jervis Bay "no reservation proposals have been referenced in this area". The "multitude of options" available for NPWS identified in the memorandum included doing nothing, referencing a formal NPWS interest in terrestrial Crown land, referencing a broad area of terrestrial interest, and referencing terrestrial Crown land and areas proposed for acquisition by the Navy. The memorandum concluded that the conservation of natural ecosystems and cultural heritage at Jervis Bay could not be achieved by reservation under the NPW Act as an integrated approach to land use planning was required and there remained a need for NPWS to formalise its interest in land and marine management at Jervis Bay through the referencing process.

38 In late 1989 the land subject to ALC 3148 was part of a study area for various development proposals arising out of a taskforce established in May 1989 to consider boat harbour and tourist facilities at Huskisson. The study area was described as the major development land resource in Jervis Bay given the environmental, defence and community constraints on the balance of the available land. The work of this task force continued through 1989 and 1990.

39 The parties agreed that, between 27 June 1986 and 25 August 1989, there were unresolved and competing land use issues in relation to the claimed land. These included: - (i) using the land as State Forest, (ii) placing part of the land under the control of the Forestry Commission, (iii) the Council constructing a by-pass road across part of the land, (iv) using part of the land for a sewerage treatment works, (v) establishing a caravan park on part of the land, (vi) the Department of Defence's proposed naval establishment, and (vii) using part of the land for a marina, sports fields, residential expansion and public recreation purposes.

40 A memorandum within NPWS dated 20 December 1989 recorded the Commonwealth's recent announcement that the Navy would not be relocating to Jervis Bay, thereby removing a land use conflict and enabling NPWS to "once again express its interest in the conservation of the natural and cultural resources of Jervis Bay". This memorandum noted that the position of other agencies could not be known until the "referencing process" had occurred, but it was anticipated that this process would "substantially limit reservation options due to objections over crown and freehold land". Hence it could not "be assumed that any of the reserves suggested for the Jervis Bay area will be achievable". Draft letters to other agencies were attached to this memorandum to commence the referencing process. These draft letters referred to areas NPWS had identified as "suitable for reservation", noting that the reference was of an "area of interest" rather than a discrete national park proposal.

41 On 27 April 1990, when the Land Council complained about the delay in resolving ALC 3148, the Minister responded that this land had been the subject of various approaches to the Department of Lands over the years and was regarded as a very valuable resource. This had led to the establishment of a task force to determine the best possible uses for the land. The task force was still exploring future development options for the study area, including the land within ALC 3148, in October 1990.

42 In December 1990 the Manager of the Aboriginal Land Claims Unit recorded that in 1988 the view of the Department was that part of ALC 2756 could be considered for grant subject to advice from the Commonwealth Government, with the balance needed for forestry purposes and public recreation.

43 In 1990 the Department of Planning, NPWS and Shoalhaven Council were involved in a study of the Jervis Bay area, which resulted in a 1992 report "Jervis Bay Our Heritage Our Future ".

44 Despite the memorandum of 20 December 1989 NPWS did not in fact refer any reservation proposal to other agencies for comment until 1992, when it prepared a report "Proposed NSW Jervis Bay National Park" for submission to the NSW Government. The proposals in this report were based on the "Jervis Bay Our Heritage Our Future" report.

45 In 1993 three Ministers (for Land and Water Conservation, Planning and the Environment) submitted a Cabinet minute proposing the establishment of the Jervis Bay National Park over an area of about 6000 hectares of land, including the claimed land. This minute was entitled "Jervis Bay - An Integrated Planning and Management Approach for Conservation and Development". The minute has a Cabinet reference number 1993-244, but the date of its referral to Cabinet and Cabinet's decision (assuming it considered the minute) is not known.

46 In April 1994 the Minister for the Environment announced the Government's intention to create this national park in Parliament. On 21 April 1994 the Council wrote to the Minister for the Environment and expressed its "deep concern" about the announcement having been made without any consultation with the Council or community, the Council's knowledge being limited to what it obtained from the media.

47 On 3 June 1994 NPWS wrote to the Department of Lands about the land claims. NPWS said that it was "conscious of the need for land claims to be determined in light of the Government's Jervis Bay decision…".

48 The Jervis Bay National Park was reserved on 15 March 1995, excluding the claimed land (by reason of the unresolved claims).

49 On 11 January 1996 NPWS provided the Department of Lands with a response to the land claims. NPWS's response focussed on the flora and fauna values of the claimed land and its physical relationship to the Jervis Bay National Park. This submission formed part of the material annexed to the briefing notes put before the Minister in December 2005 and November 2006.

50 The Jervis Bay Regional Environmental Plan 1996 was made on 10 January 1997. This REP zoned the claimed land as 8(b) Proposed National Park. Other lands within the national park were zoned as 8(a) National Park or Nature Reserve. The REP also required the Director-General of National Parks and Wildlife to acquire the land zoned 8(b) on request.

51 The Minister had before him a briefing note dated 5 December 2005 when he determined to refuse the claims on 21 December 2005. This briefing note, signed by the Minister on 21 December 2005, recorded in section 2 (Background) that: 2.2 The claims are still to be dealt with for a range of reasons, including competing, complex issues, protracted negotiations between this department (through its various former administrations) and other government and local government authorities, difficulties affecting negotiations with Jerrinja LALC as a consequence of it being placed under administration, and a need to interpret past decisions handed down by the courts.

2.3 Following careful consideration of all of the facts surrounding each of the claims, and after numerous discussions and meetings, with the Department of Environment and Conservation (formerly National Parks and Wildlife Service) and Shoalhaven City Council, it is considered that all of the claims should be refused for a variety of reasons (with the exception of Claim 3148 which is being recommended for part granting and part refusal).

2.4 At the dates of claims all of the claimed lands were needed for all or some of the following essential public purposes:- nature conservation, … 52 The briefing note continued: 2.5 Attachments numbered 1 to 8 deal with each claim individually, with a brief explanation of the reasons the Minister should be satisfied the claimed lands are not claimable Crown lands within the meaning of the Aboriginal Land Rights Act 1983. Basically, the nature conservation values are common to each of the claims.

2.6 Most of the lands are being recommended for refusal on the grounds that they are required for the essential public purpose of nature conservation. In this regard the importance of Jervis Bay for the protection of flora and fauna has been well documented over the years and attempts to have all of the area conserved has been ongoing since the early seventies.

2.7 There is evidence to verify that Jervis Bay has long (dating back to at least the early seventies) been recognised both nationally and internationally for its outstanding natural qualities, including its scenery. Its terrestrial and marine environments both contain a remarkable diversity of plant and animal species. The regional tourism, recreation and fishing industries depend upon the protection of these natural values.

2.8 In any case, it is important to note that in 1985, prior to the lodgement of the first of the Jervis Bay claims, senior executives of the then National Parks and Wildlife Service identified in a report the need for a national park at Jervis Bay which included all the lands currently under claim. This 1985 report clearly identified a future likely need and triggered the process that eventually culminated in the production of a Regional Environmental Plan (REP) for Jervis Bay in 1996. Consequently all of the lands are zoned "8(b), proposed national park" in the REP. 53 The briefing note contained a section headed "Nature Conservation Issues - History" as follows: 2.9 Unless stipulated in the relevant attachment dealing with a specific claim the following history in relation to conservation issues is relevant to all of the Jervis Bay Claims.

2.10 As mentioned above the importance of the lands already incorporated into the existing NSW Jervis Bay National Park and those proposed to be added (the majority of the lands subject to these claims) has long been identified and recognised.

2.11 In 1973 the Australian Littoral Society (Coast and Wetlands Society of NSW) proposed the conservation of the whole of the environment of Jervis Bay.

2.12 In 1975 the National Trust of Australia listed Jervis Bay in a classified category reflecting that the area includes components of the natural or cultural environment of Australia that have aesthetic, historic scientific or social significance or other special features valued for present and future generations.

2.13 In 1976 the National Trust (NSW) submitted a nomination for the Register of National Estate for the whole of Jervis Bay, which includes all of the areas under claim.

2.14 In 1988 the Australian Heritage Commission registered this area as part of the National Estate.

2.15 In 1985 the National Parks and Wildlife Service, in a report by its Chief Resources Officer (Hitchcock), identified extensive areas around Jervis Bay worthy of protection because of their outstanding conservation values - the subject lands were included in this report.

2.16 The Australian Conservation Foundation published a proposal in 1990 outlining a land and marine reserve which incorporated the majority of the Jervis Bay area and the lands currently under claim.

2.17 The then Department of Planning, in association with Shoalhaven City Council initiated a major planning exercise in 1990 which resulted in the discussion paper "Jervis Bay Our Heritage Our Future" (Department of Planning 1992). The discussion paper proposed areas for both conservation and urban expansion - a high proportion of the public submissions to this paper supported the establishment of a national park.

2.18 In 1992 the NP&WS's proposal for a national park was presented in the report "Proposed NSW Jervis Bay National Park" which was prepared for submission to the Government. The areas identified in the discussion paper "Jervis Bay Our Heritage Our Future" formed the basis for the proposed boundaries of the proposed NSW Jervis Bay National Park".

2.19 The plethora of investigations and reports by relevant government, local, semi and non government organisations charged with the responsibility of environmental conservation led to the drafting of a Cabinet Minute titled "Jervis Bay - An Integrated Planning and Management Approach for Conservation and Development".

2.20 This Minute, being Cabinet Minute 1993-244, was submitted jointly by three Ministers, being the then Ministers for Land and Water Conservation, for Planning and for the Environment. The Minute proposed the establishment of the NSW Jervis Bay National Park over an area of approximately 6000 hectares. The Minute also proposed all of the lands subject to the current claims be declared part of the national park, subject to the claims being evaluated.

2.21 Whether or note the above Minute was ever formally considered by Cabinet is uncertain (enquiries of The Cabinet Office have failed to produce any evidence of the Minute proceeding to determination), but the fact that three Ministers had signed off on the Minute and subsequent comments made by the then Minister for the Environment in Parliament, and recorded in Hansard, indicates the Government of the day's intentions to reserve the lands as national park.

2.22 In April 1994 the then Minister for the Environment, the Hon Chris Hartcher announced in Parliament the Government's intention to dedicate the NSW Jervis Bay National Park which was declared on 15 March 1995 and included all those Crown lands not under claim and for the lands under Aboriginal land claim to be added to the park once satisfactorily resolved.

2.23 The intention to ensure that the lands became national park is evidenced by the zoning of the lands on 10 January 1997 (the date on which a Regional Environmental Plan for Jervis Bay published in the Government Gazette) as 8(b) "proposed national park". 2.24 The REP not only zoned Crown land 8(b) "proposed national park" but also a relatively large area of freehold land. The effect of this zoning places a mandatory obligation on the Director General of the Department of Environment and Conservation (DEC) to acquire lands so zoned, if the owners request it. At a meeting between the former National Parks and Wildlife Service and the Jerrinja Local Aboriginal Land Council executive in 2000, the Land Council indicated that its preferred course of action, in the event that the lands were granted, would be to request the Government to acquire the lands.

2.25 In the event the claims were granted and subsequently acquired by DEC, the DEC would then be required to add the lands to the Jervis Bay National Park which would then be returned to the Jerrinja Land Council as the park is listed in Schedule 14 of the National Parks and Wildlife Act which is the schedule of national parks to be returned to traditional owners under the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996. In other words DEC could be required to purchase the lands from the land council, return them to the land council under the Aboriginal Ownership legislation, and then pay rent to lease them back for the national park.

2.26 Whilst the lands currently under claim have not been formerly valued, the DEC estimates that the value of the claimed lands would be in the vicinity of $15 - $20 million.

2.27 Shoalhaven City Council which owns similarly zoned land known as "Pacific City Estate" and other (Private landholders) have successfully pursued the DEC in the courts to compel it to acquire the lands, at very considerable cost.

2.28 The contents of paragraph 2.24, 2.25, 2.26 and 2.27 may not be taken into account by the Minister in determining the claims, as only the criteria set out in the definition of Claimable Crown Lands in Section 36(1) of the ALR Act are relevant for the Minister to consider in making a determination. The information set out in these paragraphs is to ensure the Minister is properly informed of the history and circumstances of the matter. 54 The briefing note addressed the procedures to be followed for the issue of certificates under s 36(8) of the ALR Act and recommended that the Minister consider the issue of certificates in this case "should the need arise".

55 The briefing note recommended that each of the five claims be refused on the grounds set out in paragraphs 2.1 to 2.23 and in the attachments relating to the claims, being attachments 1, 2, 4, 5 and 8. The attachments followed the same format for each parcel, repeating the history identified above and annexing related documents including the submission from NPWS lodged in 1996 in response to each claim.

56 The Minister's letters of refusal of each claim were issued on 21 December 2005. The letters identified the ground of refusal insofar as relevant to the land the subject of the appeals as that the land was needed for the essential public purpose of nature conservation (national park). With respect to two of the claims (claims 2756 and 3148) the Minister also relied on the claimed land being likely to be needed for that purpose. The refusals noted that the Minister was considering the issue of a certificate under s 36(8)(b) of the ALR Act, the effect of which would be that the Court in an appeal must accept the certificate as final and conclusive evidence of the matters set out therein. The Minister invited the Land Council to make submissions on the question of the issue of a certificate for each claim.

57 The Land Council commenced appeals under s 36(6) for each claim on 14 February 2006. It lodged a submission to the Minister about the issue of certificates on 10 March 2006. This submission was a lengthy document of 24 pages, with additional attachments. The submission included a summary of its key points as follows: 1.8 In summary, JLALC submits that:

(1) The Minister should not issue a s.36(8) Certificate in relation to any of the above claims.

(2) The issuing of the s.36(8) Certificate would cause a grave injustice to JLALC in circumstances where JLALC has waited two decades for the determination of the JLALC claims, and where a close examination of the Department's files indicate that the process leading to the decisions on the JLALC claims was fundamentally flawed.

(3) There is no prejudice to the Minister allowing the Land and Environment Court to hear and determine the JLALC Claims without resort to a s.36(8) Certificate.

(4) It is clear from the Department of Lands files that the refusal of the JLALC claims was in error. JLALC believes that the Minister was misdirected by the Department as to the appropriate legal considerations. Relevant information was not provided to the Minister and irrelevant material was included in the Minister's brief. In the circumstances, the issuing of a s.36(8) Certificate would compound both the errors and the injustice.

(5) The issuing of a s.36(8) Certificate is inappropriate because: (a) the 18-20 year delay in the issuing of a certificate under s.36(8) has prejudiced the ability of JLALC to be able to respond to the proposal; (b) it is clear from the Department of Lands files that there is not relevant documents which show that the lands were in fact needed or likely to be needed for the stated essential public purpose at the date the JLALC claims were lodged; and (c) it is clear that if there is a need or likely need for the stated essential public purpose, it manifested itself no earlier than 1994 - some 8 years after the first of the JLALC claims were lodged and 5 years after the last of those claims were lodged.

(6) It is inappropriate for the Minister to issue a s.36(8) Certificate stating that land is needed for an essential public purpose when such land was not needed for the essential public purpose at the date the claim was lodged.

(7) The issuing of a s.36(8) Certificate in the above circumstances would be inappropriate because the Minister is now aware through this submission, that the lands were not in fact needed or likely to be needed for the essential public purpose of nature conservation at the date the JLALC claims were lodged.

(8) It is inappropriate for the Minister to purport to issue a s.36(8) Certificate with retrospective operation. 58 On 22 May 2006 the Minister signed a second briefing note, the purpose of which was to consider the Land Council's submission and a draft letter to the Minister for Aboriginal Affairs consulting that Minister as required by s 36(8)(b) of the ALR Act. The background section of this second briefing note (section 3) recorded: 3.1 The Minister will recall that on 21 December 2005 the Minister determined that the land comprised in the above mentioned claims (and which had not been the subject of a previous determination) was not Claimable Crown Land when the claims were lodged. In each case the Minister's determination was based on evidence that enabled him to be satisfied that the land was needed for the essential public purpose of nature conservation, that is, as an addiction [sic] to a reserve established under the National Parks and Wildlife Act at Jervis Bay. In the case of some of the land comprised in the claims, the land was not Claimable Crown Land for other reasons.

59 The same section also recited the terms of s 36(8) of the ALR Act, noting that the effect of issuing the certificates would be that the Land Council's appeals against refusal of the claims must fail.

60 In the section headed "Current Situation" (section 4) the second briefing note described the Land Council's submission as a "very comprehensive" document and annexed it for the Minister's consideration. The same section also reproduced the Land Council's eight summary points as set out above. This section of the second briefing note continued: 4.3 The Land Council's submission attempts to establish that the claims should never have been refused on the grounds that the lands were needed for the essential public purpose of nature conservation when the claims were lodged. It argues that the absence of a decision of the Executive Government to that effect before the claims were lodged means that the claims could not have been refused on that basis and cites the Court of Appeals' decisions in the Castlereagh State Forest case and in the Maroota case in support of that argument. A precie of the decisions in these cases is attached and marked "C" for the Minister's information. The Solicitors go on to argue that because the Minister could not have determined that the land was needed for an essential public purpose on the evidence, he cannot issue a section 36(8)(b) certificate in respect to the lands .

61 Section 5 of the second briefing note is headed "Observations". It referred to the Land Council's submission (prepared by the Land Council's solicitors) and commented as follows: 5. OBSERVATIONS

5.1 The Solicitors' argument ignores the very real question of why Parliament enacted section 36(8), if in order to issue a certificate the Minister required the same evidence as he would need to successfully defend any appeal in the court on a hearing of the evidence.

5.2 There is a strong argument that Parliament in enacting section 36(8) intended that the Minister would be the ultimate authority to decide whether or not land was needed (or likely to be needed) for an essential public purpose and that such a decision could be made not withstanding that the need had not been the subject of an Executive Government decision before the claim was made. To conclude otherwise would be to accept the proposition that Parliament was prepared to see land needed for an essential public purpose lost to the public and the State and the purpose for which it was required, therefore not implemented, merely because a claim was lodged earlier in time to the need for the land being the subject of a Government decision. This is particularly so having regard to protection against the compulsory acquisition of Aboriginal Land for a public purpose contained in section 42 of the Act. The above argument recognises the fact that it is very often the case that the lodgement of a land claim (or other land use proposal), acts as a catalyst and results in the land being investigated to determine whether it is needed for an essential public purpose. It is proper to note that when introducing amendments to section 36(8) in 1986, the then Minister for Aboriginal Affairs is reported in Hansard as saying that the amendments were "intended to ensure that the issue of such a certificate is final". It is conceded that arguments outlined in this paragraph can be seen as being in conflict with the decisions of the Court of Appeal in the Castlereagh case and in particular in the Maroota case where the Court held that land was not needed for the essential public purpose for nature conservation if the Executive Government had not determined that it was needed before the claims were made. With due respect to the Court of Appeal the decisions do not take into account the practicalities of Government decision making, and argued herein are not relevant to the Minister issuing section 36(8) certificates.

5.3 In the present case a decision was made by the Executive Government to make a Regional Environmental Plan and zone the subject lands for national park in 1997, some ten years after the claims were made. That decision was pivotal in a process that had commenced before the claims were made when the land was first identified as worthy of preservation. Admittedly that process proceeded in fits and starts and from time to time the need to allocate some of the land to other land uses was considered (and for the most part rejected) by the Government but by 1996 the Government had decided that the land was required for national park and zoned the land accordingly. It should be noted that the zoning not only applied to the subject lands but also to freehold land and included a provision which required the Director General for National Parks to acquire the land if called upon to do so by an owner of land affected by the zoning.

62 The "Castlereagh case" and the "Maroota case" as referred to in paragraph 5.2 above are the decisions of the Court of Appeal in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 and Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 respectively.

63 Section 6 contained the submission of the author of the second briefing note to the Minister as follows: 6. SUBMISSION 6.1 It is submitted that on the basis of the documents marked "A" and the documents contained in the bundle marked "D", in particular the Jervis Bay Regional Environmental Plan 1996 made by the Minister for Urban Affairs and Planning on 10 January 1997, and after considering the Land Council's submission contained in the document marked "B", the Minister may and should issue certificates under section 36(8)(b) of the ALR Act in the form of the draft certificates attached and marked U, V, W, X, Y, subject to the Minister consulting with the Minister for Aboriginal Affairs before the issue of any such certificate. 6.2 It is suggested that the Minister may consider undertaking the necessary consultation with the Minister for Aboriginal Affairs in writing and a draft letter has been prepared for that purpose. 6.3 If after consultation with the Minister for Aboriginal Affairs the Minister issues section 36(8)(b) certificates then those certificates will be filed in court as conclusive evidence of the facts stated therein. It is open to the Land Council to challenge the validity of the certificates as to form and compliance with the legislation and the law.

64 Section 7 of the second briefing note made recommendations to the Minister consistent with the submission in section 6.

65 On the same day, 22 May 2006, the Minister forwarded a letter to the Minister for Aboriginal Affairs requesting views on the issue of certificates under s 36(8) of the ALR Act. Part of this letter recorded: In my view the retention of the subject land in public ownership so that the land can be reserved as national park is essential, and that section 36(8) was included in the Act to enable Crown Lands Minister to ensure that land needed for essential public purposes is retained in public ownership and remains available to be used by the Government for the essential public purpose identified. This is especially so having regard to the protection afforded to Aboriginal lands against compulsory acquisition by section 42 of the ALR Act.

The expansion of the Jervis Bay National Park has been a long standing policy of the Government, firmly established by the making of the Jervis Bay Regional Environmental Plan 1996 in January 1997. That plan zoned the subject lands "as proposed national park." The lands zoned included both public land and private land and the State is in the process of acquiring the private land involved.

It should also be noted that the Jervis Bay National Park is one of the national parks listed in Schedule 14 of the National Parks and Wildlife Act 1974 (NPW Act) which under Part 4A of that Act is destined to be transferred to the JLALC to hold the land on behalf of the Aboriginal owners with a lease back to the Crown subject to a market value rent.

66 The Minister for Aboriginal Affairs responded on 6 November 2006 to the effect that he had consulted the New South Wales Aboriginal Land Council and had been advised that issuing certificates after a delay of 20 years was unreasonable and inconsistent with the remedial purpose of the ALR Act, causing unfair prejudice to the Land Council. Accordingly, the Minister for Aboriginal Affairs advised that he was unable to support the issue of the certificates.

67 On 13 November 2006 the Minister signed a third briefing note, the purpose of which was to consider whether certificates should be issued under s 36(8) of the ALR Act in respect of the claimed land.

68 Section 3 of this third briefing note, headed "Background", reminded the Minister of the second briefing note and letter to the Minister for Aboriginal Affairs, copies of which were attached.

69 Section 4 of the third briefing note observed that the response from the Minister for Aboriginal Affairs was similar to the Land Council's submission. Further, that s 36(8)(b) required consultation with the Minister for Aboriginal Affairs, but not that Minister's consent or agreement to the issue of the certificates. Accordingly, the "fact that the former Minister for Aboriginal Affairs does not support the issue of certificates does not mean that the requirements of the section have not been met".

70 The third briefing note contained a submission to the Minister in section 5 as follows: 5. SUBMISSION - It is submitted that:-

5.1 Having regard to the contents of the submission tabbed Z1 and of this submission the Minister should, on the basis of the documents marked "A" and the documents contained in the bundle marked "D" (attached to the submission tabbed Z1), in particular the Jervis Bay Regional Environmental Plan 1996 made by the Minister for Urban Affairs and Planning on 10 January 1997, and after considering the Land Council's submission contained in the document marked "B" (attached to the submission tabbed Z1) and the contents of the letter tabbed Z4, the Minister should issue certificates pursuant to section 36(8)(b) of the ALR Act in the form of the certificates attached and number 1, 2, 3, 4, and 5.

71 Some translation of these references is necessary. The submission tabbed Z1 is the second briefing note the Minister signed on 22 May 2006. The bundle marked "D" is the bundle containing the original briefing note signed by the Minister on 21 December 2005, the attachments relating to each claim and the letters of refusal. The document marked "B" attached to the submission tabbed Z1 is the Land Council's submission on the certificates lodged on 10 March 2006. The letter tabbed Z4 is the letter from the Minister for Aboriginal Affairs dated 6 November 2006. The documents marked "A" referred to in this and the earlier briefing note signed by the Minister on 22 May 2006 appear to be the documents held by the Department of Lands about the processing of the land claims. In any event, the parties proceeded on the common basis that all documents before the Minister were in evidence on the hearing of the Land Council's motion.

72 Section 6 of the third briefing note contained a comment to the effect that the diagrams attached to each of the certificates "illustrate only that land that is considered needed or likely to be needed for the essential public purpose of nature conservation". The recommendation in section 7 of the third briefing note was to the effect that the Minister sign the attached certificates and the Crown Solicitor be instructed to enter them as evidence in the five appeals.

73 On 15 November 2006 the Minister issued five certificates under s 36(8) of the ALR Act in accordance with the recommendation in the third briefing note signed by the Minister. The certificates are in the same terms but for the descriptions of the land and attached maps. The operative part of each certificate reads as follows: In pursuance of section 36(8) of the Aboriginal Land Rights Act 1983, I Anthony Bernard Kelly, Minister for Lands, the Minister for the time being administering the provisions of the Crown Lands Act 1989, after consultation with the Minister who administers the Aboriginal Land Rights Act 1983, DO HEREBY STATE AND CERTIFY that the land specified in the Schedule hereunder (which Schedule forms part of this certificate) being land the subject of a claim under section 36 of the Aboriginal Land Rights Act 1983, being a claim in writing made by the Jerrinja Local Aboriginal Land Council and lodged on 27 June 1986 with the Registrar appointed under the Aboriginal Land Rights Act 1983, was on the date such claim was made needed for the essential public purpose of nature conservation. D. Other evidence

74 Jason Behrendt, the solicitor with the carriage of the matter on behalf of the Land Council, gave evidence. Mr Behrendt had prepared the Land Council's submission to the Minister lodged on 10 March 2006. Mr Behrendt referred to the need to deal with all of the documents and events over the period of 20 years, not just the documents and events in existence when the claims were made. If the claims had been dealt with promptly the Land Council would not have had to deal with those subsequent events and documents and the Minister could not have considered those matters either. Mr Behrednt identified, for example, that NPWS's submission about the land claims focused on the impacts of the claims on the boundaries of the national park. The national park did not exist when the land claims were made.

75 Mr Behrendt accepted that where a document disclosed its date the Land Council could submit that the document post dated the claims. However, he observed that they were trying to deal with Ministerial briefing notes that used information from across the whole 20 year period, where later documents were used to give meaning to earlier documents. NPWS documents created in, say, 1996 are quite different from what NPWS could have created between 1985 and 1989. Later documents are also informed by the context of the rezoning and the financial costs associated with the operation of Pt 4A and Sch 14 of the NPW Act. Moreover, people's positions and attitudes change over time. Those changes cannot be unravelled from the conclusions ultimately drawn. Attitudes to nature conservation dramatically altered between 1985 and 1996.

E. Do the certificates exceed the authority of s 36(8)(b)?

76 The Land Council submitted that the certificates exceeded the authority of s 36(8)(b) on their face because the section authorises a certificate "stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose" whereas the certificates state that the claimed land "was on the date such claim was made needed for the essential public purpose of nature conservation". Because of the draconian effect of a certificate in an appeal, the power in s 36(8)(b) must be strictly construed. The certificates speak to the past but the section requires certificates to be expressed in the present tense. Hence, the certificates are not certificates within the meaning of s 36(8)(b) and do not operate as final and conclusive evidence of the matters set out therein.

77 The Minister submitted that the temporal requirements of the scheme in s 36 may create difficulties of construction, but it is clear from the definition of claimable Crown lands that the assessment relates to the time when the claim was made. It is inevitable that the Minister and the Court on appeal will determine the status of the land as claimable Crown lands or not after the date when the claims were made. Accordingly, the assessment will always be retrospective. For a statement in a certificate to be relevant to an appeal the statement must operate at the time the claim was made. For the Minister to state in a certificate that "land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose" when a claim is or was made makes no sense as a matter of ordinary English. The Court has rejected the same argument in obiter in Darkinjung Local Aboriginal Land Council v Minister for Natural Resources (1985) 58 LGRA 298 at 301-302 and New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 333 at 336-338.

79 A certificate that stated nothing more than what appears in s 36(8)(b) would be final and conclusive evidence of a matter irrelevant to the definition of claimable Crown lands and thus irrelevant to the resolution of the appeals, as s 36(7) discloses. Within this statutory scheme a certificate must relate the statement about the land to the time when the claim was made to be relevant to the key statutory definition of claimable Crown lands and thus an appeal. This necessarily involves the statement relating to the past. In this context, I cannot conclude that a certificate framed in the past tense is outside the statutory description.

80 This conclusion also disposes of the Land Council's related argument that the certificates, not being authorised under s 36(8)(b), cannot be relevant to any issue in the appeals. F. What is the scope for jurisdictional error? Introduction

81 The parties agreed that any jurisdictional error by the Minister in issuing the certificates would not be protected by the privative provision in s 36(8). They also agreed that, in this context, jurisdictional error embraced all the errors of law identified in Craig v The State of South Australia (1994) 184 CLR 163 at 179, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], and Plaintiff S 157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83] (but see also the observation by Spigelman CJ in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [70]). However, the conflicting positions about the operation of s 36(8) of the ALR Act that emerged in their oral submissions led the parties to different conclusions about the potential for the Minister to have made any reviewable error. It is necessary to deal with this conflict before turning to the jurisdictional errors alleged by the Land Council.

82 The Land Council made the following submissions: (1) The absence of any constraint on the Minister's power to issue a certificate under s 36(8)(b) of the ALR Act does not mean that the Minister's power is unconfined. Fundamental principle dictates that the Minister's power under s 36(8)(b) is limited by the "subject-matter, scope and purpose of the statute" ( Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40). This is particularly so having regard to beneficial and remedial purposes of the ALR Act ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [54] and the cases cited therein).

(2) The subject-matter of a certificate under s 36(8)(b) is a statement by the Minister that claimed land is needed or likely to be needed for an essential public purpose. This is identical to the subject-matter of s 36(5) under which the Minister must grant the claim if satisfied the land is claimable Crown lands as defined in s 36(1) and, in particular, s 36(1)(c) (the land is not needed, nor likely to be needed, for an essential public purpose). Section 36(8) does not enlarge or expand the Minister's powers by authorising the Minister to certify a statement that could not otherwise be lawfully made (see, by analogy, Plaintiff S157/002 v Commonwealth (2003) 211 CLR 476 at [62] - [64]).

(3) The identity of subject-matter means that the Minister, in making a decision to issue a certificate under s 36(8)(b), is bound by the same statutory obligations as bind the Minister when reaching a state of satisfaction (or not) as to whether the land is claimable Crown lands as required by s 36(5).

(4) Accordingly, s 36(5) and the definition of claimable Crown lands in s 36(1) set the relevant parameters for testing whether the Minister committed a jurisdictional error in issuing a certificate under s 36(8)(b). Moreover, if the Minister has erred under s 36(5), then that error affects the function under s 36(8) and cannot be cured.

(5) Contrary to the Minister's position there is no need to challenge the validity of the Minister's state of satisfaction under s 36(5) of the ALR Act in order to make good the Land Council's claims. Section 36(6) vests a right of appeal in the Land Council against the Minister's decision. Under s 36(7) the Minister bears the onus of satisfying the Court that claimed land is not claimable Crown lands. If the Minister fails to discharge that onus the Court must make an order requiring the transfer of the land ( New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685 at 692 - 693). The Court may, as part of such an appeal, determine the validity of certificates issued by the Minister under s 36(8), consistent with the decisions in Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 62 LGRA 27 at 31 and Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 161. The Minister's submission that the Land Council needed to stay the appeals and commence separate proceedings in Class 4 of the Court's jurisdiction to set aside the Minister's decision under s 36(5) is inconsistent with these authorities. It fails to recognise that the Minister seeks to rely on certificates issued some 11 months after the appeals were filed. The fact that the Court may find the Minister's decision under s 36(5) unlawful in the course of dealing with the Land Council's notice of motion in the appeals does not affect the validity of the appeals (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 315, 336 - 337 and 343). 83 The Minister made the following submissions: (1) The remedial and beneficial purpose of the ALR Act cannot alter the confines of its text ( Khoury v Government Insurance Office of New South Wales (1984) 165 CLR 622 at 638 and Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260 at [33]).

(2) There are two circumstances in which the Minister may issue a certificate under s 36(8). First, the Minister may do so if the Minister has refused a claim under s 36(5) and has decided to defend an appeal on the same grounds as relied on in support of the refusal. Secondly, the Minister may do so if the Minister has refused a claim under s 36(5) and has decided to defend an appeal on some different or additional ground to that relied on in support of the refusal.

(3) Further, the Minister cannot issue a certificate under s 36(8) if in fact the Minister believes that the claimed land is claimable Crown lands. To issue or rely on a certificate in that circumstance would involve bad faith. These are the sole limits on the Minister's power under s 36(8) because: - (i) the decisions under s 36(5) and s 36(8) are separate and distinct, (ii) the Minister is not limited to the grounds on which the s 36(5) decision was based in attempting to satisfy the Court that claimed land is not claimable Crown lands under s 36(7), and (iii) the sole and proper purpose of the Minister issuing a certificate under s 36(8) is to facilitate the Minister's position in an appeal commenced by a land council under s 36(6).

(4) The consequence of this approach to s 36(8) is that there is no opportunity or occasion for the Minister to consider whether land is claimable Crown lands in exercising the function under s 36(8) to issue a certificate.

(5) The Court would not entertain a challenge to the validity of the Minister's decision under s 36(5) (whether directly or indirectly) in an appeal in Class 3 of its jurisdiction for two reasons. First, if a decision under s 36(5) is held to be invalid in Class 4 proceedings the consequence would be that the Minister must make the decision again in accordance with law. However, if the decision is held to be invalid in Class 3 proceedings the Court will determine whether the land is claimable Crown lands for itself. The Minister not having had the opportunity to make a lawful decision would subvert the structure of s 36. Secondly, there would be a logical problem for the Class 3 appeal. Once the Minister's decision under s 36(5) is found to be invalid then the jurisdictional basis of the appeal under s 36(6) will have been removed.

(6) For these reasons, the jurisdictional errors alleged by the Land Council could not arise. Decision

84 Four general observations should be made. First, the person authorised to issue a certificate under s 36(8)(b) is the Minister. Secondly, there is no avoiding the fact that the admission of a certificate into evidence makes the appeal right valueless. It does so in the context of a statute which expressly identifies one of its purposes as vesting land in land councils in recognition of the facts recorded in the long title to the Act, including that as "a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation". Recognising these matters does not involve any departure from the text of the ALR Act by reference to generalised ideas about the legislation being beneficial and remedial. They are clearly spelt out in the statutory provisions. Thirdly, s 36(8) of the ALR Act provides few direct and obvious clues about how it relates to the overall statutory scheme. Nevertheless, a certificate under s 36(8)(b) is not devoid of content. A certificate may contain a particular statement under that section. The final and conclusive effect provision operates by reference to "the matters set out in the certificate". In other words, in issuing a certificate the Minister makes a substantive statement about the status of the land. Fourthly, and as noted above, for a certificate to be relevant to any issue in an appeal the statement within the certificate must relate to the date when the claim was made (see the terms of s 36(7)).

85 The Minister's submissions, however, would mean that the function of issuing a certificate, to a large extent, would involve a mere formality. The Minister would do nothing more than ask whether an earlier decision had been made on a ground upon which a certificate under s 36(8) may be issued. Provided that earlier decision remains unchallenged and the Minister otherwise acts in good faith the certificate is effectively immune from review. This result does not sit comfortably with the statutory scheme and suggests that the Minister's submissions about the scope for jurisdictional error warrant careful scrutiny.

86 I do not consider that there was any necessity for the Land Council to challenge the Minister's decision under s 36(5) in order to make its arguments about the invalidity of the certificates. It is true that in any case where the Minister does not seek to rely on a certificate under s 36(8) then the validity of the Minister's decision (or state of satisfaction) under s 36(5) would be immaterial. This is because an appeal under s 36(6) of the ALR Act is allocated to Class 3 of this Court's jurisdiction (s 19(h) of the Land and Environment Court Act 1979 (the LEC Act)). Under s 39(2) of the LEC Act the Court is vested with all the functions and discretions the Minister had in respect of the subject-matter of the decision. The Court is to determine for itself on the evidence and in accordance with the onus cast on the Minister by s 36(7) whether the claimed land is or is not claimable Crown lands as defined in s 36(1) of the ALR Act. In this context, the validity of the Minister's decision under s 36(5) is immaterial. 87 Under s 22 of the LEC Act the Court is to determine all matters within its jurisdiction "completely and finally". If the validity of the Minister's decision under s 36(5) of the ALR Act is relevant to any issue in controversy between the parties in a Class 3 appeal then s 22 enables the Court to determine finally and completely that controversy. The Minister's submissions to the contrary are inconsistent with the observations of the Court of Appeal in Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 62 LGRA 27 at 31. Even without the observations of the Court of Appeal, the Minister's submissions about this issue are not persuasive. The statutory scheme established by s 36 of the ALR Act is consistent with that considered by the Full Court of the Federal Court in Brian Lawlor. The right of appeal vested in a land council by s 36(6) against a refusal by the Minister of a land claim under s 36(5)(b) must be understood as a reference to a refusal in fact irrespective of the legal efficacy of the refusal. Accordingly, whether or not the refusal is void or voidable, the right of appeal exists. Contrary to the Minister's submissions, the fact that the Court may, if relevant, find the Minister's original decision invalid in the course of determining the appeal does not have the effect of excluding the Minister from the decision-making process or subverting the statutory scheme. Nor does it have any effect on the validity of the appeal.

88 The legislation contains a number of indicators against the balance of the Minister's submissions about the scope for jurisdictional error in the exercise of the function under s 36(8) and thus for judicial review.

89 Section 36(8) has been described as "conceptually hostile" to the broader statutory scheme (Darkinjung Local Aboriginal Land Council v Minister (1985) 58 LGRA 298 at 392-303 and Darkinjung Local Aboriginal Land Council v Minister for Natural Resources (No.2) (1987) 61 LGRA 218 at 231). Nevertheless, a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and the relevant provision must be construed so "that it is consistent with the language and purpose of all the provisions of the statute" (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] and [69] respectively).

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

91 The provisions of s 36 follow a "logical and chronological sequence for the processing of land claims by the Minister and the Court on appeal" (Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 154). The Minister's power in s 36(8) to issue a certificate does not relate to claimable Crown lands generally or to each and every element of the definition of claimable Crown lands in s 36(1). Only two elements of the definition of claimable Crown lands may be the subject of a certificate. A certificate may state that land is needed or is likely to be needed as residential land (s 36(8)(a), which relates to s 36(1)(b1)) or that land is needed or likely to be needed for an essential public purpose (s 36(8)(b), which relates to s 36(1)(c)). The statement within the certificate, when the certificate is tendered in an appeal, operates as final and conclusive evidence of the matter stated (Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 62 LGRA 27 at 31).

92 The Minister is not limited to defending an appeal on the ground of refusal relied on under s 36(5). Accordingly, the Minister may issue a certificate under s 36(8) in reliance on s 36(1)(b1) or (c) when the Minister had considered neither ground when refusing the claim.

93 As the Minister submitted, the purpose of the Minister issuing a certificate under s 36(8) is to facilitate the Minister's position in an actual or anticipated appeal. This does not lead to the conclusion that the only limits on the Minister's power to issue a certificate are the existence of a decision to defend the appeal in reliance on s 36(1)(b1) or (c) and an honestly held belief on the Minister's part that the claimed land is not claimable Crown lands by operation of either of those subsections. The fact that the Minister may decide to rely on a ground in the appeal different from that relied on to refuse a claim under s 36(5), being a ground which may for the first time enliven the power to issue a certificate, is inconsistent with the Minister's approach. It indicates that the decision to issue a certificate involves considerations of substance about the statement that a certificate may contain.

94 One consequence of the Minister's submissions would be that if the Minister's decision to rely on s 36(1)(c) in defending an appeal is affected by material jurisdictional error the Minister would be advantaged by never being apprised of that fact. If never so apprised, the Minister may issue a certificate under s 36(8)(b) and thereby immunise refusal of the claim from successful appeal by a land council. If so apprised, however, the Minister could not issue a certificate in good faith. It is one thing to accept that the mistaken result of an exercise of statutory power may be valid if the power was exercised in good faith. It is another to construe the statutory scheme as enabling the Minister to issue a certificate and deprive a land council of the value of its right of appeal for so long as the Minister remained unaware that the decision being facilitated in the appeal was unlawful. The Minister's submissions are inconsistent with a statutory scheme that has as one of its central purposes vesting claimable Crown lands in land councils.

95 These considerations support the conclusion that there are two layers to the Minister's function under s 36(8)(b). The first layer concerns the substantive statement a certificate may contain. To issue a certificate under s 36(8)(b) the Minister, in the exercise of the function under s 36(8), must decide that the relevant statement can be made in accordance with that part of the statutory definition to which the statement relates, being s 36(1)(c). This first layer of the function under s 36(8)(b), like the Minister's function under s 36(5), does not involve any discretion. It is a decision of the kind considered in Avon Downs Proprietary Ltd v The Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] - [139]). Given that the statement relates to a specific statutory description (s 36(1)(c)) this aspect of the function does not involve a mere matter of "opinion or policy or taste" (Buck v Bavone (1976) 135 CLR 110 at 119). It is analogous to the circumstances considered in The King v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 where the power was conditioned on the existence of an opinion. Here the power is implicitly conditioned on the Minister being satisfied that a statement in a certificate (to the effect of that part of the definition of claimable Crown lands in s 36(1)(c)) can be made. Judicial decisions about the meaning and operation of s 36(1)(c), but not mere judicial resolution of the facts of a particular case, thus also must be applied by the Minister when deciding to issue a certificate under s 36(8)(b) (Federal Commissioner of Taxation v Indooroopilly Children Services (Qld) Pty Ltd (2007) 158 FCR 325 at [2] - [6] per Allsop J, with whom Edmonds and Stone JJ agreed at [1] and [48] respectively). Accordingly, I do not accept the Minister's submission that there is no opportunity or occasion for the Minister to consider whether land is claimable Crown lands in exercising the function under s 36(8). In issuing the certificate the Minister makes a substantive statement to the effect of either s 36(1)(b1) or (c). The Minister may do so whether or not those grounds were relied on under s 36(5). The content of the statement a certificate may contain means that the Minister must consider the substantive question in exercising that specific function, as explained above.

96 However, I also do not accept the Land Council's submission that a jurisdictional error by the Minister under s 36(5) can never be cured so that the Minister, having erred once, can never issue a certificate under s 36(8). In exercising the function under s 36(8) the Minister may or may not either continue a jurisdictional error that first arises under s 36(5), make a fresh jurisdictional error or make no such error at all. Deciding whether or not any such error has occurred involves the usual process of factual inferences in the particular case.

97 The second layer of the function under s 36(8)(b) is properly described as a discretionary decision. If the Minister is satisfied that the statement in the certificate can be made, then the Minister must consider whether a certificate should be issued in the circumstances of the particular case. This discretion falls squarely within the class described by Mason J in Peko-Wallsend Ltd at 39-40.

98 I have described these aspects of s 36(8)(b) as layers because I would not wish to be understood as suggesting that the one function must be mechanically exercised in two parts. There is a difference between the manner in which the one function may be exercised and the analysis of the exercise of the function for the purpose of resolving claims of jurisdictional error.

99 I consider this analysis creates a coherent statutory scheme and gives effect to the language of s 36(8)(b) in the context of all of the provisions of the ALR Act. In particular, it recognises: (i) the essential requirement in s 36(1) of the ALR Act that the status of land, and thus the rights of a land council under the statute, are to be determined by reference to the time when the claim is made, (ii) that in issuing a certificate the Minister makes a statement of substance about the status of land, which statement attracts the final and conclusive evidence provision in s 36(8), (iii) that the issue of a certificate may be the first occasion on which the Minister considers the status of the land in accordance with s 36(1)(b1) or (c) of the ALR Act, and (iv) that the issue of a certificate effectively deprives a land council of the benefit of the right of appeal the ALR Act otherwise vests in it, being an appeal in which the Act places an onus on the Minister.

100 These conclusions do not mean that the question of the validity of a certificate would require the same inquiry that the Court carries out to determine an appeal, being the very inquiry the certificate was intended to avoid (Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd (No 2) [2006] NSWSC 856 at [40]). In determining an appeal, the Court makes its own factual findings on the evidence in the appeal, which is not limited to the material the Minister considered. In determining the validity of the certificate, the focus is the Minister's decision-making process.

101 Insofar as it might be relevant, this analysis appears also to be consistent with the observations in the second reading speech (Hansard, 24 March 1983, p 5095) in which it was observed that the issue of a final and conclusive evidence certificate was: …not to say that Crown lands will not be successfully claimed. As demonstrated in the case of the notorious and reprehensible action of the Northern Territory Government in attempting to thwart Aboriginal land claims by extending planning boundaries of major Northern Territory towns, the Minister cannot make executive decisions without due consideration, nor without some judicial review.

102 The "reprehensible action" referred to is that considered by the High Court in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170. If the words "due consideration" embrace, as they must, a decision in accordance with law, then the Minister's submissions about s 36(8) in this case would tend to have the opposite effect if accepted. No matter how far the Minister might depart from the statutory requirements in deciding to make the statement in the certificate, the certificate would operate according to its terms provided the Minister had made an earlier decision which remained unchallenged, acted in good faith, afforded the land council procedural fairness and (presumably) consulted as required by s 36(8)(b). That is not consistent with the observations of the Court of Appeal in Minister for Agriculture, Lands and Forests v New South Wales Aboriginal Land Council (1987) 62 LGRA 27 at 31, despite the fact that the task confronting any party alleging jurisdictional error is "formidable".

G. No proper objective factual foundation? Submissions

103 The Land Council submitted that s 36(8) did not enlarge or expand the Minister's powers in determining land claims. Accordingly, the Minister cannot issue a certificate stating that land is needed or likely to be needed for an essential public purpose of nature conservation unless a "proper objective factual foundation" for that statement exists. Contrary to this obligation, the Minister acted on advice from his department that a certificate may issue where the factual basis for so doing did not exist. Accordingly, by implication, the Minister accepted that he could not determine in accordance with law on the material before him that the claimed land is needed for the essential public purpose of nature conservation when the claims were made. When asked what would constitute a proper objective factual foundation, the Land Council submitted that the facts, objectively assessed, must be such as to give the Minister a probability or high probability of success in the appeal.

104 The Minister submitted that it cannot be the case that the Minister may only issue a certificate under s 36(8) if, in fact, the claimed land is not claimable Crown lands. If that were so then in every case where the validity of a certificate is challenged it would be necessary to have the entirety of the debate about the status of the land which the issue of the s 36(8) certificate was intended to avoid. As Gzell J observed in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investment Pty Ltd (No 2) [2006] NSWSC 856 at [40], the purpose of a certificate is to exclude the inquiry that might otherwise have led to a more beneficial result. This claim involved an attack on the merits rather than any jurisdictional error and was thus precluded on principle ((see, for example, Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [527]) and by the privative provision within s 36(8). Contrary to the Land Council's submission, the Minister did not act on advice from his department that a certificate may issue where the factual basis for so doing did not exist.

Decision 105 This claim relates to the first layer of the Minister's function under s 36(8)(b). Aligning this claim with principle is difficult. The Land Council's arguments did not define this claim as a species of Wednesbury unreasonableness. Nor did it rely (at least explicitly) on the statutory context operating to require the Minister to reach a decision to make a statement in a certificate under s 36(8)(b) by a "process of logical reasoning" (Hill v Green (1999) 48 NSWLR 161 at [72] and the cases cited therein. Also Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59). Given that the Land Council did not frame its argument in this way, it is not appropriate to attempt to assess the arguments within that context. In any event, there is a difference between an obligation to make a decision not involving an unfettered discretion by a process of logical reasoning and an obligation to make a decision that most probably will be sustained by the Court on appeal.

106 Comparing the position of the Minister to that of the Court in an appeal exposes some of the difficulty with this claim. For example, it is by no means clear that the Court of Appeal could find an error of law by this Court merely because it is probable or even highly probable that it would have reached a different view on the facts. It is not clear why the Minister would be subject to a more onerous obligation in issuing a certificate than the obligation to which this Court is subject in resolving an appeal. Further, if the test for the existence of proper objective factual foundation is that the Minister had a probability or high probability of success in the appeal then the Court can only resolve the claim by hypothesising about the outcome of the appeal. Even if this hypothesis is to be carried out by reference to the material available to the Minister when the certificate was issued, the claim is difficult to reconcile with principle and seems inconsistent with the statutory scheme. For these reasons I accept the Minister's submissions about this claim, at least as specifically articulated by the Land Council.

107 The Land Council's claim that the Minister acted on advice from his department that a certificate may issue where the factual basis for so doing did not exist fits more readily within its more conventional claims that the Minister asked the wrong questions, failed to consider relevant matters and considered irrelevant matters. I deal with this issue below.

H. Wrong questions, relevant and irrelevant considerations? Submissions

108 The starting point for the Land Council's submissions was that the statement the Minister made in the certificates was confined to the claimed land being needed for the essential public purpose of nature conservation. The Minister did not state in the certificates that the claimed land was likely to be needed for that purpose. Further, the context made clear that the nature conservation purpose was the Jervis Bay National Park. These matters set the parameters within which the Minister's decision must be tested for jurisdictional error. I accept this submission.

109 The Land Council submitted that the ALR Act and exposition of that Act by the courts required the Minister, in issuing any certificate under s 36(8), to: (1) determine whether claimed lands are not needed for an essential public purpose as at the date when the claims are made and not some later date ( New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685 at 691F);

(2) disregard material which is not logically probative of the question whether claimed lands are not needed for an essential public purpose as at the date when the claims are made, such material being an irrelevant consideration. In particular, the Minister is bound to disregard material brought into existence after the date the claims are made which does nothing more than "prove a hindsight" rather than confirming a foresight, as such material is not logically probative of the relevant issue ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [76] - [75]) citing Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 558); and

(3) have regard to material which is logically probative of the question whether claimed lands are not needed, nor likely to be needed, for an essential public purpose as at the date when the claims are made, such material being a mandatory relevant consideration. 110 In issuing the certificates in this case under s 36(8)(b), the ALR Act and exposition of that Act by the courts required the Minister to: (1) accept that "needed" in s 36(1)(c) means "required or "wanted". Because the power to create national parks is vested in the Governor, who acts on the advice of Ministers, the relevant question is whether the Executive Government needed (in the sense of required or wanted) the claimed land for that purpose when the claim was made ( Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D per Handley and Powell JJA and Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [50]);

(2) recognise that the relevant issue is "essentially a question of the view held by the government on the day when the claim was made" ( Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 252C per Meagher JA, in dissent on other grounds). The relevant search is for an "expression of political will" to declare an area to be a national park ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [62], [73] and [74]);

(3) apply the distinction between land being "needed" for the essential public purpose of a national park and being "likely to be needed" for that purpose when the claim was made as found by the Court of Appeal - namely, that land is needed for an essential public purpose if a decision concerning the use of the land had in fact been made or, at the least, there has been some expression of political will at the requisite level within the Executive about the use of the land ( Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [50), [63] and [73]); and

(4) accept that: (a) the mere fact that land may possess ecological attributes making it suitable to be a national park does not prove that it was needed for that purpose when the claim was made ( Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 82 at [106]);

(b) the mere fact that NPWS may desire land to be constituted as a national park does not prove that it was needed for that purpose when the claim was made ( Deerubbin Local Aboriginal Land Council v Minister [1999] NSWLEC 82 at [82], Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [60] - [64]); and

(c) delay in bringing a proposal to fruition and in determining a land claim are relevant considerations in determining whether land was needed for an essential public purpose when the claim was made ( Deerubbin Local Aboriginal Land Council v Minister [1999] NSWLEC 82 at [88], Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [61] and La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 182-183). 111 For the Minister to do otherwise would involve a breach of the Minister's obligation to apply the ALR Act as explained by the courts (Indooroopilly Children Services at [2]-[6]). Contrary to these obligations the briefing notes to the Minister, which the Minister adopted, contained a series of misdirections by, first, not identifying or adequately identifying the temporal requirement including that material brought into existence after the land claims were made cannot be relevant if it does no more than "prove a hindsight" (see Falconer at 558) and, secondly, by dismissing as irrelevant the decisions of the Court of Appeal about land being needed for the essential public purpose of nature conservation. Further, the Minister was bound to consider that he could not determine on the material before him that the claimed land is needed for the essential public purpose of nature conservation when the claims were made. The Minister was also bound to consider as a relevant matter the extraordinary delay in determining the claims and the potential for prejudice and unfairness to the Land Council as a result. These misdirections meant that the Minister took into consideration matters in the nature of impermissible hindsight, being the Cabinet minute from 1993, the subsequent creation of the Jervis Bay National Park in 1995 and the rezoning of the claimed land for national park purposes in 1997. These were all irrelevant considerations. The Minister also impermissibly considered the fact that land needed for an essential public purpose (I interpolate, when the claims were determined as opposed to made) would be "lost to the public and the State…merely because a claim was lodged earlier in time to the need for the land being the subject of a government decision".

112 The Minister submitted that the question whether land is claimable Crown lands as defined in s 36(1) is one of fact and the sole issue for the Court on appeal under s 36(7) is one of proof of the fact (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685 at 691 - 692). Resolution of the factual question may involve a range of considerations. Where subsequent material involves nothing more than hindsight, the material cannot have any logical bearing on the factual question. Where such material does not involve hindsight, it may logically bear on that question. Distinguishing these two situations depends on the nature of the material. Accordingly, the mere presence of material subsequent to a claim in the Minister's decision-making process does not necessarily disclose jurisdictional error. It is a matter for the Minister to determine what weight to give to this material.

113 The mandatory relevant considerations alleged by the Land Council were not sustainable. The first (that the Minister could not determine the land was relevantly needed) was circular. The Minister had determined that he land was not claimable Crown lands and acted on that determination. The second (referring to decisions of courts) failed to recognise that appeals involve an issue of proof of a factual matter under s 36(7). Those principles do not apply to the issue of certificates under s 36(8). The observations in Indooroopilly Children Services are thus immaterial. Even if those observations were relevant, the courts have not established any prescriptive list of conditions that must be satisfied before the relevant factual finding of need can be made. In particular, there is no authority that the Minister or the Court cannot find that land was needed for the essential public purpose of a national park before the Executive has made a formal decision. The Court of Appeal found only that it was open to this Court on appeal to have regard to the absence of a decision of the Executive ((2001) 50 NSWLR 665 at [50]). The process in this case "proceeded in fits and starts" (second briefing note at para 5.3). It was for the Minister to assess the significance of the decisions of the Executive including their timing, as well as other matters of fact and degree, in issuing the certificates. Finally, it is not apparent why the third matter (being delay) would be a matter the Minister must consider. No such necessary implication arises from the subject-matter, scope and purpose of the ALR Act.

114 The irrelevant considerations the Minister was said to have taken into account also did not arise. Nothing in the ALR Act precluded the Minister from having regard to the matters the subject of complaint by the Land Council. Moreover, the Land Council's submissions incorrectly assumed that the Minister impermissibly relied on the material subsequent to the claims by way of hindsight. However, such material may have been used to confirm a foresight, which is permissible. The use made of the material was a matter for the Minister. The Minister, for example, may have decided that the decision about the national park in 1994 confirmed a foresight held by others who recognised the need at an earlier time. Nor is the idea of land not being claimable Crown lands "merely because a claim was lodged earlier in time to the need for the land being the subject of a government decision" necessarily inconsistent with judicial authority. Again, it is a matter for the decision-maker to determine the relevance of a decision of the Executive and its timing (see, for example, Australian Retailers at [525]).

115 The court's role is to declare and enforce the law. Hence, as Brennan J said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

116 I have set out my principal conclusions about the operation of s 36(8)(b) above. Consistent with these conclusions, the Minister cannot accrue the power to issue a certificate under s 36(8)(b) containing a statement as set out in that section by forming a state of satisfaction that claimed land is not claimable Crown lands other than in accordance with the definition in s 36(1)(c) of the ALR Act. To issue a certificate under s 36(8)(b) the Minister must correctly understand the "meaning of the law under which he acts" (Connell at 430). A state of satisfaction reached other than in accordance with this requirement, even if in good faith, cannot found the issue of a certificate.

117 With respect to an alleged failure to consider a relevant matter, as Deane J observed in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375: This does not, however, mean that a party affected by a decision is entitled to make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant and then attack the decision on the ground that a particular one of them was not specifically taken into account.

118 The ground of failure to consider requires the challenger to identify some matter expressly or necessarily impliedly that must be considered and demonstrate that this matter has not been taken into account (Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [79] - [80]). Many considerations "may fall within the category of those permitted, rather than those which are mandatory or proscribed" (Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [86] per Basten JA). The weight to be given to relevant considerations is generally a matter for the decision maker alone and not every failure of consideration will be material (Peko-Wallsend at 41). For this reason, "epithets such as 'proper, genuine and realistic' consideration … risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review" (Kindimindi at [79] referring to Bruce v Cole (1998) 45 NSWLR 163 at 186E. See also Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171 at [76]). In a different but analogous context (Parramatta City Council v Hale (1982) 47 LGRA 319 at 345) Moffitt P said that: Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person, who seeks …to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion…. A conclusion by a court finding a breach …by way of inference is one to be come to only after anxious consideration, but when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn .

119 The Land Council's claims must be assessed in the context of these established principles and on the basis of the common position of the parties that the certificates were not immune from review on the ground of jurisdictional error as broadly defined by the High Court in Craig at 179 and Yusuf at [82].

120 Consistent with the conclusions reached above about the operation of s 36(8), I accept that in issuing a certificate in reliance on that section the Minister is bound to apply the statutory prescription requiring the status of the claimed land to be determined when the claim is made under Div 2 of Pt 2 of the ALR Act (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Acts (1988) 14 NSWLR 685 at 691F). The Minister would ask the wrong question if this fundamental prescription were overlooked or disregarded. Placing material weight on facts capable of use by way of hindsight only and incapable of confirming a foresight or otherwise being logically probative of the status of the land when the claim was made would also involve the Minister asking the wrong question or considering an irrelevant matter. To this extent, I do not accept the Minister's submission that the manner of use of evidence subsequent to a claim being made is a matter for the Minister alone. The nature of the evidence may mean that it is incapable of any use other than by way of impermissible hindsight, in which event the Minister must not place material weight on that evidence. If, however, evidence is capable of both a permissible and impermissible use then it would be insufficient for the challenger to show that the Minister had used that evidence.

121 I also consider that the Minister is bound in issuing a certificate in reliance on s 36(8)(b) to apply the meaning of "needed" as "required or wanted" as explained by the Court of Appeal (Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D and Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 at [50]). The Minister would ask the wrong question and fail to consider a relevant matter if the Minister applied some standard other than "needed" in this sense. Similarly, the Minister would ask the wrong question and fail to consider a relevant matter if the Minister applied that standard by reference to some entity other than the government. That would be contrary to the Court of Appeal's decision to the effect that the statutory description focuses on the "view held by the government on the day the claim was made" ((1998) 43 NSWLR 249 at 252C and 254D).

122 Although, as the Minister submitted, the Court of Appeal's decision in Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 involved the limited context of the Court rejecting an argument that this Court had erred in law in upholding an appeal, s 36(1)(c) and s 36(8)(b) distinguish between land being needed or likely to be needed for an essential public purpose. Effect must be given to this statutory distinction. Spigelman CJ, with whom Powell and Heydon JJA agreed, described an "acceptable distinction" between these two as whether a decision concerning the use of the land had in fact been made ((2001) 50 NSWLR 665 at [50]). However, the Land Council accepted that other passages in this decision refer to an expression of "political will" (at [63] and [73]), which may be something less than an actual decision by the Executive about the use of the land. When this is read with the required focus on the government or the Executive as explained in Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 it becomes clear that, contrary to the Minister's submissions, it was not for the Minister alone to asses the significance of the decisions of the Executive and their timing. In issuing the certificates stating that the land was needed for the relevant purpose when the claims were made the Minister had to ask whether there was a decision of, or some other manifestation of political will by, the Executive that the claimed land be used for the purpose of nature conservation (national park) when the claim was made. Other questions may be relevant to likely need but the certificates are not to that effect.

123 The other matters referred to by the Land Council (the mere suitability of land to become a national park, a mere desire of NPWS to see land become a national park and delay in bringing a proposal to fruition) are factors that may be assessed along with a range of other matters potentially relevant to the factual question whether the Minister can make the statement authorised by s 36(8)(b) in a certificate. The weight to be given to these factors, where relevant, is a matter for the Minister (at first instance) or the Court on appeal. I do not accept that judicial decisions elevate these matters to a statement by a court about the essential meaning and operation of s 36(1)(c). They are but three of a range of matters which may inform the fact finding process required by s 36(5) and s 36(7) of the ALR Act.

124 There was extraordinary delay in the Minister determining these claims. No land council should have to wait for twenty years for its land claim to be determined. The reasons for this delay are not meaningfully exposed in the evidence. The reference to the delay in paragraph 2.2 of the first briefing note is not illuminating. Nevertheless, it is difficult to see how the passage of time is a matter the Minister must consider when determining the status of land for the purpose of determining whether a statement in a certificate under s 36(8)(b) can be made. The delay might be wholly unconnected with the status of the land. If connected, it might be of marginal materiality. Moreover, given the essential prescription that the status of the land is to be found as at the date of the claim, delay by the Minister in determining the claim may well involve nothing more than hindsight knowledge.

125 What then of the second layer to the Minister's function under s 36(8)(b), the discretion whether or not to issue a certificate? The Minister accepted that s 36(5) contained an implied obligation, enforceable by a claimant land council, requiring the Minister to determine claims within a reasonable time. This must be so given that a land council's right of appeal depends on a refusal by the Minister. While a reasonable time may vary on a case-by-case basis, a delay of 15 to 20 years in determining claims does not accord with any idea of reasonableness. Did the ALR Act, by necessary implication, oblige the Minister to consider this delay in issuing the certificates? Although I see force in the view that it did, I am also satisfied the Minister in fact considered the extraordinary delay. The delay could hardly be missed. The Minister for Aboriginal Affairs pointed out that there had been a 20 year delay in his letter in response to the consultation requirement in s 36(8)(b). The Minister's attention was drawn to this letter in the third briefing note.

126 I do not accept that the Minister, in issuing the certificates, was bound to consider that he could not have determined on the available material that the land was needed for the essential public purpose of nature conservation when the claims were made. As the Minister submitted, this is a circular argument. If the Minister concluded that the land was so needed but this decision was affected by jurisdictional error then the decision is void because of that error, not because the Minister failed to consider that he could not so decide.

127 To deal with the balance of the Land Council's claims, particularly the claim that the Minister took into account an irrelevant consideration by having regard to the fact that land needed for an essential public purpose would be "lost to the public and the State…merely because a claim was lodged earlier in time to the need for the land being the subject of a government decision", I need to make three general observations about the Minister's decision-making process. First, the Minister signed each of the three briefing notes on 21 December 2005, 22 May 2006 and 13 November 2006 respectively. There is a readily available inference, which I draw, that the Minister adopted the reasoning in the briefing notes (Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198 at [50]). Secondly, the third briefing note relating to the issue of the certificates annexed the second briefing note and directed the Minister to have regard to that second briefing note in deciding to issue the certificates. Thirdly, the content of the briefing notes must be assessed in the context of the facts agreed between the parties as summarised in section C above.

128 It is the court's duty to say what the statute means. An attempt in good faith to exercise a statutory power expressly or necessarily impliedly dependent on a state of satisfaction is insufficient. If a decision-maker has misconstrued in a material respect the statutory power then the decision-maker will not in fact or law have exercised that power. It is the court's duty to intervene in any such case. Assessed in this context, I am satisfied that the briefing notes materially misdirected the Minister with respect to the function in s s 36(8) of the ALR Act in a manner inconsistent with the meaning and operation of that section.

129 Although the terms of the second briefing note are not free from ambiguity, I am satisfied the Minister's decision-making process in issuing the certificates proceeded on an erroneous basis, advocated to the Minister through and adopted by the Minister in this briefing note, that the purpose of s 36(8)(b) is to enable the Minister to ensure that land needed or likely to be needed for an essential public purpose is not "lost" to the public and the State merely because a claim had been made before the need or likely need arose. In other words, that s 36(8)(b) freed the Minister from the essential statutory prescription that the need or likely need had to be found when the claim was made. This constituted a material error about the operation of s 36(8)(b) of the ALR Act, contrary to the purpose and provisions of the legislation. Section 36(8)(b) does not empower the Minister to remove any claimed land from the spectre of a successful appeal by a land council. It allows the Minister to issue a certificate only where the Minister, in accordance with the meaning of the relevant parts of the definition of claimable Crown lands, decides that a statement about the claimed land as contemplated by s 36(8)(b) can be made. Such a decision must "really" be made in the sense that word is used in Connell at 113. In this case, whether or not the Minister had properly reached a state of satisfaction that the land was not claimable Crown lands under s 36(5) by reference to s 36(1)(c) or could do so is not the point. When the Minister came to issue the certificates, the misdirection about the operation of s 36(8)(b) meant that the exercise of the function under that section miscarried. In consequence, the certificates are not certificates within the meaning of s 36(8). They are void for jurisdictional error and cannot be tendered in the appeal. My detailed reasons for so concluding are set out below.

130 The third briefing note, signed by the Minister on 13 November 2006, identified the Minister's reasons for issuing the certificates. This briefing note contained a submission in section 5 to the effect that the Minister should have regard to various documents in issuing the certificates. Those documents were the second briefing note, various documents held on the departmental files in particular the Jervis Bay REP 1996 made on 10 January 1997, the letter from the Minister for Aboriginal Affairs of 6 November 2006 and the submission of the Land Council of 10 March 2006.

131 The second briefing note, signed by the Minister on 22 May 2006, described its purpose in section 2 as to consider the Land Council's submission and the draft letter to the Minister for Aboriginal Affairs, but was relied on by the Minister in issuing the certificates consistent with the submissions contained in the third briefing note. Section 3 of the second briefing note reminded the Minister of his earlier decision that the claimed land was not claimable Crown lands when the claims were lodged, the reason being that the Minister was satisfied the land was needed for the essential public purpose of nature conservation as an addition to "a reserve established under the National Parks and Wildlife Act at Jervis Bay". Land in fact was reserved under the NPW Act at Jervis Bay on 15 March 1995, five to ten years after the last of the claims was made. Section 3 also correctly noted the existence of the Land Council's appeals, the terms of s 36(8)(b) and that the consequence of issue and admission into evidence of certificates under that section would be that the appeals must fail.

132 Section 4 of the second briefing note dealt with the Land Council's submission, a copy of which was annexed for the Minister's consideration. The second briefing note described the Land Council's submission as "very comprehensive" and quoted the eight key points in the summary in section 1.8 of that document. However, paragraph 4.3 and section 5 of the second briefing note disclose that its author (and by inference the Minister) rejected the contents of the Land Council's submission. Accordingly, that submission, insofar as it correctly identified the Minister obligations, did not prevent the Minister from falling into jurisdictional error.

133 Section 5 of the second briefing note is important. The first sentence of paragraph 5.2 said that there was a strong argument that s 36(8) made the Minister the ultimate authority for determining whether land was needed or likely to be needed for an essential public purpose and that such a decision could be made notwithstanding "that the need had not been the subject of an Executive Government decision before the claim was made". Read in isolation these observations might be construed as the Minister submitted they should be - namely, as saying nothing more than that an actual decision by the Executive about the use of the land is not required to support a finding of need or likely need. This would be unexceptionable for the reasons given above (as some manifestation of political will by the Executive less than such a decision may suffice). The observations do not, however, stand in isolation. Their meaning is disclosed by the context. Subsequent paragraphs involved the following related propositions: (1) The lodgement of a land claim often acts as the catalyst to investigate whether land is needed for an essential public purpose.

(2) If, through that process of investigation, it is decided that land is needed for an essential public purpose, s 36(8) enables the Minister to issue a certificate to ensure that such land is not "lost" to the public and State by being transferred to a land council merely because the land claim was lodged before the need was the "subject of a Government decision".

(3) This may be seen as conflicting with the Court of Appeal's decisions in Minister v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 and Minister v Deerubbin Local Aboriginal Land Council [No. 2] (2001) 50 NSWLR 665 where the Court held that land was not needed for the essential public purpose of nature conservation if the Executive had not determined that it was needed before the claims were made. However, these decisions of the Court of Appeal did not "take into account the practicalities of Government decision making" and were not relevant to the Minister issuing certificates under s 36(8).

(4) The Executive Government decided the land was required for a national park in 1996 when the Jervis Bay REP 1996 was prepared. This decision was pivotal in a process that commenced before the claims were made when the claimed land was first identified as "worthy of preservation" albeit that the process involved "fits and starts". 134 It is important to understand these paragraphs as involving related propositions. The Minister's submission that the second briefing note involved nothing more than a response to the Land Council's submission is not persuasive when regard is had to its role in the decision-making process generally (as disclosed by the third briefing note) and its overall context. Section 5 of the second briefing note does more than merely respond to the Land Council's submission. It is concerned with the purpose and operation of s 36(8).

135 Read as a whole and in context the paragraphs contain directions about s 36(8)(b) to the following effect: - (i) land claims may prompt the Executive to investigate land not previously identified as needed or likely to be needed for any essential public purpose, (ii) when it comes to the issue of a certificate under s 36(8), the Minister is the "ultimate authority" for deciding whether land is needed or likely to be needed for an essential public purpose, (iii) this is because the purpose of s 36(8) is to ensure that land the Minister identifies as so needed or likely to be needed is not irrevocably lost, particularly having regard to the limitation on the compulsory acquisition of Aboriginal land in s 42 of the ALR Act, (iv) accordingly, and inferentially, in the context of s 36(8)(b), it is not mandatory to focus on indicators of need or likely need when the claim was made, (v) while this may be inconsistent with decisions of the Court of Appeal, the Court's decisions were not considering s 36(8)(b) and, in any event, did not understand the practicalities of Government decision-making, inferentially, that land claims may cause the Government to think about need or likely need for the first time.

136 There are other indications that support the inference that the exercise of the function under s 36(8)(b) miscarried: (1) The "submission" section of both briefing notes (section 6 in the second briefing note and section 5 in the third briefing note) directed the Minister to have particular regard to the Jervis Bay REP 1996 as a reason supporting the issue of the certificates, being certifcates stating that the claimed land was needed for the essential public purpose of nature conservation when the claims were made. An environmental planning instrument prepared in 1996 and made in 1997, more than five to ten years after the land claims were made, cannot be a decision or manifestation of political will about the use of the land when the claims were made.

(2) As noted above, the second briefing note said the Minister had decided under s 36(5) that the claimed land was needed for an essential public purpose when the claims were made as an addition to a reserve established under the NPW Act at Jervis Bay. Land was not reserved at Jervis Bay until 1995, some five to ten years after the claims were made.

(3) The Minister's letter to the Minister for Aboriginal Affairs dated 22 May 2006, a draft of which was attached to the second briefing note, repeated a version of the proposition that s 36(8)(b) enabled the Minister to ensure that land needed for an essential public purpose could be retained in public ownership and remain available for use by the government. In subsequent paragraphs in that letter the Minister referred to the expansion of the Jervis Bay National Park being a long-standing policy of the Government. The Jervis Bay National Park was created in 1995 some five to ten years after the claims were made. Its expansion can only be described as a "long-standing" policy when looked at in hindsight from the date of the Minister's letter, 22 May 2006. The letter said the Jervis Bay REP, which zoned the lands proposed national park, confirmed this policy. This is the instrument prepared in 1996 and made in 1997.

(4) The briefing notes and attachments do not identify any decision of, or other manifestation of political will by, the Executive that the claimed land be used for the purpose of nature conservation (national park) when the claim was made. For example, paragraph 2.8 of the first briefing note referred to a report of senior executives of NPWS in 1985. This can only be a reference to Mr Hitchcock's report of 1985. Paragraph 2.8 said this report demonstrated that senior executives of NPWS had identified the claimed land as part of an area needed for a national park, which was said to evidence a "future likely need" when the claims were made culminating in the Jervis Bay REP 1996. First, the reference to "future likely need" indicates that the author (and thus the Minister) did not consider that Mr Hitchcock's report of 1985 could sustain a conclusion that the claimed land was needed for the purpose when the claims were made. Secondly, where a decision-maker relies on a summary of a document material to a decision then it is necessary that the summary accurately reflect the salient matters contained in the document ( Peko Wallsend at 30-31 and 66 and Tickner v Chapman (1995) 57 FCR 451 at 476F - 477B and 497D). This report did not involve senior executives of NPWS in identifying a need for a national park at Jervis Bay in 1985. The report identified the possibility of the reference of a proposal for a national park (which proposal had not been formulated at the time) as one of five options to improve conservation in the area. Mr Hitchcock was the sole author of the report. 137 The indications against this characterisation of the second briefing note are insufficient to lead to a contrary view. The references to "a Government decision" about, and the Executive not having determined, likely need or need, construed in context, are not concerned with the potential distinction between a decision of the Executive and a manifestation of political will by the Executive or, for that matter, any aspect of the process of finding facts for the purpose of s 36(1)(c) and, thus, s 36(8). Nor can the paragraphs be construed as meaning that an investigation after a claim has been lodged may or may not disclose the existence of a need or likely need in existence when the claims were lodged. That would be unexceptionable and must occur under s 36(5) for each and every land claim involving s 36(1)(c). Such a meaning could not be characterised as inconsistent with anything said by the Court of Appeal. The reference to the "process" having commenced before the claims were made follows immediately on a paragraph referring to the pivotal decision being made ten years after the claims were made. This, as noted, is in circumstances where the certificates relate only to the assertion of need, not likely need. 138 These conclusions do not involve converting mere questions of fact for the Minister to determine into jurisdictional error. The misdirection concerned the meaning and operation of s 36(8)(b) in a manner directly relevant to the issue of the certificates. Nor do they involve reading the second briefing note with an "an eye keenly attuned to the perception of error" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287). They fairly construe the second briefing note as a whole, recognising the key role this briefing note played in the Minister's decision to issue the certificates as disclosed by the third briefing note and the Minister's letter to the Minister for Aboriginal Affairs. 139 The propositions in the second briefing note about the meaning and operation of s 36(8)(b) are inconsistent with the statutory scheme contained within s 36 of the ALR Act as explained above. If applied, they would disengage s 36(8) from the essential temporal restriction in the definition of claimable Crown lands in s 36(1). They would make the result of any land claim dependent on an opinion by the Minister about the status of the claimed land at any time, rather than the time when the claim was made. Parliament, however, weighed up the potentially competing interests of the State and land councils and chose to establish a scheme in which the progressive reduction of the amount of land set aside for Aborigines caused by past government decisions would be redressed. The propositions do not recognise that Parliament, through the ALR Act, established a scheme of redress the very purpose of which was to ensure that land would be transferred to a land council if within the definition of claimable Crown lands when the claim was made. The purpose of s 36(8) is to enable the Minister conclusively to certify the status of the land if so satisfied by reference to s 36(1)(b1) or (c). Under this scheme it would be wrong for such land not to be transferred by reason of a need or likely need that arose only after the claim was made. Section 42 of the ALR Act, referred to in paragraph 5.2 of the second briefing note Minister's letter to the Minister for Aboriginal Affairs in support of the propositions, supports the opposite conclusion. Lands vested in an Aboriginal Land Council cannot be resumed or appropriated (even with compensation) because the statute expressly recognises in its long title that land is of "spiritual, social, cultural and economic importance to Aborigines". The statutory scheme is not consistent with the purpose of s 36(8) being to ensure that any claimed land could be made immune from the risk of transfer if the Minister decided the land was needed or likely to be needed for an essential public purpose at any time. 140 The character of this error in the exercise of the actual function under s 36(8)(b) was such that, as noted, it does not matter whether the Minister could or did conclude at any time that the claimed lands were needed for the essential public purpose of nature conservation when the claims were made. The function under s 36(8)(b) miscarried because the Minister issued the certificates on the basis of an incorrect premise about the relevant power. It is not possible precisely to identify how that error affected each aspect of the decision-making process other than to observe that the error was fundamental to the power and must be inferred to have materially affected its exercise. Part of the problem with the misdirection is that, when making the decision under s 36(5), the first briefing note (and thus the Minister in signing it) expressly contemplated the issue of certificates under s 36(8)(b). As there is no challenge to the validity of the Minister's refusal under s 36(5) it is sufficient to observe that there are at least two reasons why the Minister's state of satisfaction under s 36(5) cannot protect the certificates under s 36(8)(b). First, because the certificates were the immediate product of jurisdictional error in the exercise of the function under s 36(8)(b). Secondly, because s 36(8)(b) and thus the misdirections associated with it were in contemplation when the Minister refused the claims under s 36(5). The particular way in which the function miscarried was conducive to reliance on material that could not be logically probative of the substance of a statement in accordance with s 36(8)(b). 141 Although the Land Council characterised the misdirection of the statute found above as taking into account an irrelevant consideration, it correctly submitted that these jurisdictional errors overlap ( Yusuf at [82]). This error was fundamental to the decision-making process under s 36(8)(b). It is neither necessary nor possible to deal meaningfully with the balance of the Land Council's claims about asking the wrong questions, failing to consider relevant matters and considering irrelevant matters, as I have found that the statutory function miscarried in an essential respect. It is appropriate, however, to deal with some of the other claims made by the Land Council, albeit as briefly as possible.

142 The Minister correctly identified the problem with this part of the Land Council's case. The first alleged extraneous purpose (the Minister issued the certificates to achieve the result that the tender of the certificates would defeat the rights of the Land Council to the land claimed in circumstances where the Minister could not otherwise satisfy the Court that, as at the date of the claim, the land is needed for the essential public purpose of nature conservation) contains both a purpose (the part of the claim up to the word "claimed") and an allegation of fact (everything from and including the words "in circumstances"). The second alleged extraneous purpose (the Minister issued the certificates to attempt to establish that, as at the date of the claim, the land was needed for nature conservation purposes in circumstances where such need did not exist at the date of the claim and arose no earlier than approximately one decade after the date of the claim) also contains a purpose (everything up to the word "purposes") and an allegation of fact (everything from and including the words "in circumstances").

143 The claims might fall within the third class of improper purpose identified in The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232-233, as referred to by Basten JA in Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245 at [81] - namely, "an act done beyond the power of the body concerned, irrespective of the motive or intention of the person or body exercising the power". While the jurisdictional error found means that the Minister acted beyond power and, in that sense, acted for an extraneous purpose, I did not understand that to be the substance of the Land Council's claims on this ground. As I understand the argument, the factual component of both alleged extraneous purposes is a variant of the claim rejected above - namely, that the Minister must have a proper objective factual foundation, in the sense of a probability or high probability of being successful in an appeal, upon which to issue a certificate under s 36(8)(b). If so, this claim also must be rejected.

144 The Land Council submitted that there is an essential temporal nexus between the making of a land claim under s 36(3) and the issue of a certificate under s 36(8). Because s 36(8) speaks in the present tense and s 36(1) requires the status of claimable Crown lands to be tested when the claim was made, the power to issue a certificate is only available when the land claim is made or within a reasonable time thereafter. This is consistent with the beneficial and remedial purpose of the legislation. If it were otherwise the Minister could issue a certificate to defeat a land claim at any time irrespective of the passage of time since the claim was made, such as in this case. This is also consistent with the fact that s 36(8) restricts the jurisdiction of the Court to resolve the status of the claimed land for itself. Provisions limiting jurisdiction are to be strictly construed (Magrath v Goldsbrough, Mort and Company Limited (1932) 47 CLR 121, Shergold v Tanner (2002) 209 CLR 126 at 136). Whether the delay is reasonable or not will be a question of fact in the individual case, but the delay was not reasonable in this instance.

145 The Minister submitted that this claim involved reading a limitation into s 36(8) not apparent from the text and not justified by the subject-matter, scope and purpose of the ALR Act. There is a temporal connection between the provisions of s 36(1) to (8) because they follow a sequence. A certificate only operates as evidence in an appeal so the time that may call for issue of a certificate is where the Minister has refused a claim and an appeal has been instituted or foreshadowed. Stein J rejected a similar argument in Worimi Local Aboriginal Land Council at 154-155. It is one thing to accept that the Minister must determine a claim within a reasonable time. If the Minister fails to do so then the remedy is an order requiring the Minister to discharge the function under s 36(5). This assumes that breach of the implied reasonable time requirement in s 36(5) does not deprive the Minister of power to exercise that function. The duty to determine the land claim remains unfulfilled and the courts may compel performance of that duty. It is another to accept that breach of a time requirement deprives the Minister altogether of the function under s 36(8). If the same reasoning applied to s 36(5) then the appeal right could never accrue. This demonstrates the inconsistency within the Land Council's argument. In any event, relevant delay for the purposes of s 36(8) is between the date of the Minister's refusal under s 36(5) and the date of the issue of the certificates. That involved about 11 months, which was not unreasonable in all the circumstances.

Decision 146 It is not difficult to understand the Land Council's sense of grievance about the process to which it has been subjected. It has waited some 15 to 21 years to have its land claims determined. Once determined, it lodged appeals against the refusals as contemplated by the ALR Act. Nearly a year after the appeals were lodged, the Minister issued the certificates, the effect of which if tendered in the appeal would inevitably lead to the appeals being dismissed. No doubt it is considerations such as these that resulted in this Court expressing concern about the operation of s 36(8) on two occasions (Darkinjung Local Aboriginal Land Council v Minister (1985) 58 LGRA 298 at 392-303 and Darkinjung Local Aboriginal Land Council v Minister (No.2) (1987) 61 LGRA 218 at 231). The Court, nevertheless, has no jurisdiction to "cure administrative injustice" (Quin at 35-36).

147 I do not accept the Land Council's arguments. As the matters set out in a certificate under s 36(8) can only be relevant to an appeal, the issue of a certificate must inevitably occur after the claims were made and determined and, in most cases, after an appeal has been lodged. It necessarily follows (consistent with my conclusions above about the Land Council's first claim) that a statement in a certificate will relate back to the time when the land claim was made. It must do so or the statement in the certificate will be final and conclusive evidence about the status of the land when the certificate was issued, which is irrelevant to resolution of the appeal.

148 The Minister was correct to highlight the inconsistency in the Land Council's arguments. On the one hand the Minister is subject to an implied duty to determine land claims within a reasonable time, which duty the courts may enforce. Hence, the Minister must retain the function under s 36(5) despite breach of that obligation. There is no other way for the appeal right to accrue. On the other hand breach of that obligation somehow deprives the Minister of the function under s 36(8). Such a result is incongruous and finds no support in the statutory provisions.

149 It is true that in this case there has been extraordinary delay in determining the claims. I can see no reason why the Land Council has had to wait so long. But I do not accept that the extraordinary delay had the effect of depriving the Minister of the power to determine the land claims or, having determined them, to issue certificates under s 36(8)(b) if those certificates might otherwise be issued in accordance with law. The fact that the effect of a certificate is to require the Court to determine the appeal in one way only, adverse to a land council, does not authorise the introduction of the limitation for which the Land Council contends.

150 The Land Council submitted that there was no adequate explanation for the delay (which I accept). The Land Council submitted that it was prejudiced by the delay. Circumstances and values have radically altered over the 20 year period. In accordance with Mr Behrendt's evidence, the Land Council had done its best to unravel the facts when the claim was made from those arising later, but it was obvious that the Minister's entire decision-making process had been affected by the later events. The circumstances were such that the Land Council could not fairly respond to the proposed issuing of the certificates. They were analogous to those considered in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171 at [10] and [172]. Accordingly, the Minister denied the Land Council procedural fairness in issuing the certificates.

151 The Minister submitted that the Land Council had been given the opportunity to make submissions about the issue of the certificates and had taken full advantage of that opportunity. The Land Council had not identified any matter about which it could not make submissions by reason of the delay between the making of the land claims and the issue of the certificates. The definition of claimable Crown lands includes the temporal prescription of when the claim was made. The fact that the claims were made a long time ago does not disable the Minister from making the required determination under s 36(5) or issuing certificates under s 36(8). Nor does it prevent the Land Council from making submissions about these matters. NAIS is not analogous. In NAIS the Tribunal was disabled from deciding the matter fairly because its conclusions depended on oral testimony relevant to a person's credibility given five years before the decision. Here, the relevant issue involves the view of the government about the land on the day the claim was made. The relevant record is documentary. Moreover, in NAIS the remedy was to set aside the Tribunal's decision and remit the matter to the Tribunal for determination in accordance with law. That remedy is not available in the present circumstances. It would be unusual to conclude that the Minister could never exercise the function in s 36(8) by reason of disability due to effluxion of time where the Land Council clearly accepts that the Court can determine the appeal.

152 The Minister's submissions are compelling. They again disclose a fundamental inconsistency in the Land Council's position. The Land Council must accept that the Court is not prevented from deciding the appeal. The Court would do so on the evidence, consistent with the statutory definition of claimable Crown lands. The passage of time would not operate to prevent either the Minister or the Land Council from adducing such evidence or making such submissions as they see fit in the appeal. The Court would be able to determine whether the Minister had discharged the onus of proof in s 36(7) of the ALR Act. Once that is accepted it is difficult to see how the Land Council was subject to any procedural unfairness in the process by which the Minister issued the certificates.

153 I do not consider the unfairness identified by Mr Behrendt to be procedural unfairness of the kind that led the High Court to set aside the Tribunal's decision in NAIS. Mr Behrendt's evidence and the Land Council's submissions on this point relate to substantive unfairness by reason of their concern that the Minister used and placed material weight on evidence that did not exist when the claims were made and could only constitute hindsight knowledge. I have found above that the Minister's function under s 36(8)(b) miscarried and noted that the particular way in which the function miscarried would be conducive to reliance on material that could not be logically probative of the substance of a statement in accordance with s 36(8)(b). But that is different from a conclusion of procedural unfairness in the sense claimed by the Land Council.

154 For these reasons, I do not accept the Land Council's submissions about procedural unfairness. I also do not need to consider the Minister's argument that I am bound to conclude that a denial of a common law obligation of procedural fairness does not constitute a jurisdictional error by reason of the Court of Appeal's decision in Warringah Council v Edmondson [2001] NSWCA 1. L. Wednesbury unreasonableness? 155 The Land Council's submissions about Wednesbury unreasonableness (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) were unconventional in that they principally turned on the finding of one or other of the jurisdictional errors alleged. Beyond that, the Land Council simply asserted that the circumstances were such that the issue of the certificates met the stringent standard of Wednesbury unreasonableness.

156 Given my findings about the nature of the power under s 36(8) and the way in which the Minister's function miscarried, it is not necessary to resolve this claim. M. Abuse of process? 157 The Land Council submitted that the extraordinary delay in issuing the certificates meant that their admission into evidence would constitute an abuse of process because of the resulting unfairness and oppression to the Land Council (Walton v Gardiner (1993) 177 CLR 378 at 393, Rogers v The Queen (1994) 181 CLR 251 at 286 and Jago v The District Court of New South Wales (1989) 168 CLR 23). The Minister submitted that no abuse of process could be found because the effect of the certificates in the appeals would be precisely as Parliament intended (Adler v Director of Public Prosecutions [2004] NSWCA 352). Nor was the delay in issuing the certificates after the refusals extraordinary.

158 The certificates cannot be tendered in these appeals because they are not certificates within the meaning of s 36(8)(b) for the reasons given above. If that were not so, then my reasons for rejecting the Land Council's procedural unfairness claim would also lead to the rejection of this argument.

N. Conclusions 159 The Minister's function in issuing the certificates materially miscarried because the Minister misconstrued s 36(8)(b) of the ALR Act. Specifically, the Minister exercised the function on the erroneous basis that the Minister could issue a certificate under s 36(8)(b) where the need or likely need for the claimed land for an essential public purpose first arose after the claims were made. This was on the basis, also erroneous, that the purpose of s 36(8)(b) was to ensure that land needed for any such public purpose was not "lost" to the public and the State merely because a claim had been made before the need or likely need had arisen. This was a jurisdictional error by the Minister in the issue of the certificates. Consistent with the agreed position of the parties, the privative provision in s 36(8) of the ALR Act does not operate to preclude judicial review for jurisdictional error. It follows that the certificates are not certificates within the meaning of s 36(8)(b) and cannot be admitted into evidence. Accordingly, I consider that I should make an order generally as set out in paragraph 2 of the Land Council's amended notice of motion - namely: The Respondent is restrained from tendering in any of proceedings 30123/07, 30124/06, 30125/06, 30126/06 and 30127/06 any of the certificates under s 36(8) of the Aboriginal Land Rights Act 1983 purportedly issued by the Minister on or about 15 November 2006 in relation to the land the subject of each of those proceedings 160 I propose to hear further from the parties on the form of the order that should be made if they wish. Costs may also be argued and directions made to progress the appeal.

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