Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council

Land and Environment Court (NSW)|2017-11-30|Before: Pain J

SOLICITORS: Crown Solicitor's Office (Applicant) Chalk & Behrendt (First Respondent) Matthews Folbigg (Second Respondent) File Number(s): 17/110874

Judgment

The Minister has filed a summons seeking declaratory relief in relation to 66 Aboriginal land claims (ALCs) lodged by the New South Wales Aboriginal Land Council (NSWALC) to the effect that these should be declared invalid as not complying with s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).
The Registrar of the ALR Act (the Registrar) was joined as the second Respondent by a court order dated 13 July 2017. No relief is sought by the Minister in relation to the Registrar. The Minister's arguments, if accepted by the Court, may have an effect on how the Registrar carries out her functions under the ALR Act.

Aboriginal Land Rights Act 1983

Relevant sections of the ALR Act follow: Part 1 Preliminary … 3 Purpose of Act 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. … 4 Definitions … land includes any estate or interest in land, whether legal or equitable. land claim means a claim for land made under section 36. … Division 2 Claimable Crown lands 36 Claims to 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). Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased. (2) The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils. (3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area. (4) A claim under subsection (2) or (3): (a) shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form, (b) shall describe or specify the lands in respect of which it is made, (b1) (Repealed) (c) shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them. (4A) The Registrar may refuse to refer a claim, or part of a claim, to the Crown Lands Minister if the Registrar is satisfied that: (a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or (b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement under section 36AA while such an undertaking remains in force. (4B) Before refusing to refer a claim, or part of a claim, to the Crown Lands Minister, the Registrar must: (a) inform the claimant, by notice in writing, of the Registrar's intention to refuse to refer the claim, or the part of the claim, and the reasons for the refusal, and (b) invite the claimant to provide further information supporting the claim, or part of the claim, within 28 days of the giving of the notice (or such greater period as may be specified in the notice), and (c) consider any further information provided by the claimant within that period. (4C) If the Registrar has not referred a claim, or any part of a claim, to the Crown Lands Minister within 60 days after the claim was lodged with the Registrar or by the end of the period within which the claimant has been invited to provide further information supporting the claim, the Registrar is taken to have refused to refer the claim, or the part of the claim, to the Crown Lands Minister. (4D) An Aboriginal Land Council may appeal to the Court against a refusal to refer the claim, or any part of the claim, to the Crown Lands Minister. (4E) The Court is to hear and determine any appeal made to it under subsection (4D) and may order that the claim, or any part of the claim, be referred to the Crown Lands Minister if the Registrar fails to satisfy the Court that: (a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or (b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement under section 36AA while such an undertaking remains in force. (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. (5AA) The Crown Lands Minister to whom a claim for lands has been referred must not grant a claim under subsection (5) if the Crown Lands Minister is satisfied that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim. (5AB) An Aboriginal Land Council may appeal to the Court against a decision of the Crown Lands Minister under subsection (5AA). (5AC) The Court is to hear and determine any appeal made to it under subsection (5AB) and may order the Crown Lands Minister to determine the claim if the Crown Lands Minister fails to satisfy the Court that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim. (5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition. (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it. (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. … (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. … 36AA Aboriginal Land Agreements (1) In this section, Aboriginal Land Agreement means an agreement, in writing, between the Crown Lands Minister and one or more Aboriginal Land Councils (whether or not the agreement also includes other parties) that, in addition to any other matter that may be included in the agreement, makes provision for: (a) the exchange, transfer or lease of land to an Aboriginal Land Council, or (b) an undertaking by an Aboriginal Land Council not to lodge a claim, or to withdraw a claim, in relation to specified land. (2) An Aboriginal Land Council and the Crown Lands Minister may, at any time by notice in writing, commence negotiation, in good faith and in a manner agreed between the parties, for an Aboriginal Land Agreement whether or not a claim has been made under section 36 by the Council in relation to the land that is the subject of the proposed agreement. (3) The Aboriginal Land Council or the Crown Lands Minister may, with the approval of the other party, invite one or more other Aboriginal Land Councils, or any other person, to join the negotiations and enter into the Aboriginal Land Agreement. (4) An Aboriginal Land Council, the Crown Lands Minister or any other party may, at any time before the making of an Aboriginal Land Agreement, withdraw from negotiation for the agreement by notice in writing to the other party or parties. (5) Without limiting the matters that may be included in an Aboriginal Land Agreement, such an agreement may make provision for or with respect to the following: (a) financial or other consideration, (b) exchange, transfer or lease of land, (c) conditions or restrictions on the use of any land to which the agreement relates, (d) joint access to and management of land (including a lease of a type referred to in section 36A), (e) undertakings by an Aboriginal Land Council or the Crown Lands Minister with regard to the lease, transfer, management or use of any land, (f) the duration of the agreement, (g) the resolution of disputes arising under the agreement. (6) The Crown Lands Minister may enter into an Aboriginal Land Agreement whether or not a claim has been made under section 36 in relation to any lands to which the agreement relates. … 36B Special provisions relating to Crown lands subject of land claim (1) Despite anything to the contrary in the Crown Lands Act 1989, if an Aboriginal Land Council has appealed to the Court against a refusal of a land claim made by it in relation to any land, the Crown Lands Minister must not, by any act or omission, cause anything to occur in relation to that land that would cause a claim (if any) lodged in relation to that land before the final determination of the appeal to be unsuccessful. (2) Subsection (1) does not prohibit the extension or continuance of an existing lawful use of the land to which the claim relates or anything done with the consent of the relevant Aboriginal Land Council. (3) If an Aboriginal Land Council has appealed to the Court against the refusal of a land claim or part of a land claim, a land claim may not be made in relation to the land the subject of the appeal until the final determination of the appeal. … Part 9 Registrar and Registers of Aboriginal Land Claims and Aboriginal Owners Division 1 Registrar 164 Appointment of Registrar (1) The Governor may appoint a Registrar. (2) Schedule 1 has effect with respect to the Registrar. (3) The Registrar has and may exercise the functions conferred or imposed on the Registrar by or under this or any other Act. 165 Functions of Registrar The functions of the Registrar are as follows: (a) to register land claims made under this Act by the New South Wales Aboriginal Land Council or Local Aboriginal Land Councils, (b) to maintain the Register of Aboriginal Land Claims and the Register of Aboriginal Owners, … (h2) to keep and maintain a register in relation to Aboriginal Land Agreements made under section 36AA, … Division 2 Register of Aboriginal Land Claims 166 Register of Aboriginal Land Claims (1) The Registrar must establish and keep a Register of land claims. (2) The Register of Aboriginal Land Claims is to be kept in a form prescribed by the regulations or, if no form is prescribed, in a form determined by the Registrar. 167 Contents of Register of Aboriginal Land Claims The Register of Aboriginal Land Claims is to include the following information: (a) a number for each individual land claim (sequential over time), (b) the name of the Aboriginal Land Council that made the land claim, (c) a description of the land claimed, (d) the parish or parishes and the county or counties that the land claimed is within, (e) the local government area or areas that the land claimed is within, (f) the date of lodgment with the Registrar of the land claim, (g) the date of determination of the land claim by the Crown Lands Minister (within the meaning of section 36), (h) such other information prescribed by the regulations. 168 Registrar may request information from Crown Lands Minister The Registrar may request the Crown Lands Minister (within the meaning of section 36) to provide information relating to a land claim that is listed on the Register of Aboriginal Land Claims. … Crown Lands Act 1989 Division 1 Preliminary 78 Definitions In this Part and in Schedules 3, 4 and 5: ... reserve means land which is dedicated or reserved under this Act or which immediately before the commencement of this section was a reserve within the meaning of Part 3B of the Crown Lands Consolidation Act 1913, not in either case being: (a) a common within the meaning of the Commons Management Act 1989, (b) land within the meaning of the Trustees of Schools of Arts Enabling Act 1902, or (c) land, or land of a class, in respect of which an order under section 79 is in force. ... 87 Power of Minister to reserve land (1) The Minister may, by notification in the Gazette, reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose. (2) The reservation takes effect on publication of the notification. … Local Land Services Act 2013 Division 1 Preliminary 61 Definitions In this Part: ... travelling stock means stock that are being moved by being walked, and includes travelling stock that are grazing. travelling stock reserve means: (a) any route or camping place reserved for travelling stock route or camping place under the Crown Lands Act 1989, or (b) any reserve for travelling stock, water reserve, reserve for access or crossing (where the reserve is for the purpose of providing travelling stock with access to or a crossing of water, whether expressly notified for that purpose or not), or (c) any stock watering place. …

Second Reading Speech Aboriginal Land Rights Amendment Act 2014

At the introduction of s 36AA of the Aboriginal Land Rights Amendment Act 2014 (NSW) the Second Reading Speech stated (New South Wales Legislative Council, Parliamentary Debates (Hansard) 12 November 2014 at 2493): The bill will give both government and land councils flexibility to step outside the existing land claim determination process and negotiate the settlement of multiple land claims simultaneously. This has the potential to significantly reduce the amount of undetermined land claims. The amendments also allow the parties to agree on a range of alternative outcomes to the transfer of claimable Crown land in fee simple, enabling outcomes better aligned with the strategic interests of both government and local Aboriginal land councils. Specifically, the amendments will allow transfers of Crown land which may not otherwise fall within the definition of "claimable Crown land" in the Aboriginal Land Rights Act, potentially in exchange for the withdrawal of existing land claims by the Aboriginal Land Council parties or commitments not to lodge future claims over certain areas, whether for a limited time or in perpetuity. Other agreed outcomes may include: financial and other forms of consideration; exchange or leases of land from government to local Aboriginal land councils or from local Aboriginal land councils to government; conditions or restrictions on the use of land; joint access and co-management opportunities on land; and undertakings by the parties with regard to the future lease, transfer, management or use of any land. Negotiations for an agreement may commence whether or not there are current claims on foot, and any existing claims do not have to be determined or withdrawn before negotiations can begin. The process is purely voluntary, and Aboriginal land councils will retain the right to claim Crown land under the existing provisions of the Act if they do not choose to engage in the agreement-making process or if they no longer wish to participate. The time and priority of their claims will not be affected if they choose not to participate or if they withdraw from the process. The bill also contains a number of legislative reforms to streamline and improve the existing land claims determination process, including by: allowing the registrar to refuse to refer new land claims to the Crown lands Ministers for determination if a title search reveals that the land is privately owned and is therefore not Crown land available to be claimed; …

Statement of agreed facts

The parties agreed the following: The agreement of the parties to the facts set out in this Agreed Statement of Facts is not an agreement by all parties that all of those facts are relevant to the issues before the Court. General Facts 1. Between about 14 and 23 December 2016, NSWALC lodged with the Registrar, Aboriginal Land Rights Act 1983 (NSW) (ALR Act), 66 documents described as Aboriginal Land Claims (the ALCs). 2. The land claimed in the ALCs is identified as: a) in respect of 22 ALCs, all land within a specified Local Government Area (LGA) or Local Aboriginal Land Council (LALC) area that was reserved for future public requirements (FPRs) pursuant to Government Gazette No. 83 of 29 June 2007 (Folios 4182-4213 and Folio 4226); b) in respect of 22 ALCs, all Travelling Stock Reserves (TSRs) as defined by section 61 of the Local Land Services Act 2013 (NSW) within a specified LGA or LALC area; and c) in respect of 22 ALCs, all reserves within the meaning of section 78 of the Crown Lands Act 1989 (NSW) (CLA), excluding FPRs and TSRs, within a specified LGA or LALC area, excluding specified land that is potentially contaminated. 3. The land excluded from the ALCs as potentially contaminated is specified by Lot and DP number in each relevant ALC. 4. Contaminated land refers to sites that on the basis of past use have the potential to pose a risk to human health and the environment. 5. The type of land affected by the ALCs includes land which is reserved for: a) FPRs b) TSRs; c) land reserved within the meaning of s 78, CLA. 6. The ALCs state on the face of the claims (precisely or in similar terms) that: a) "A map generally indicating the location of the [LGA/LALC boundary] is attached to assist"; b) "To the extent that the claim includes any land identified in the attachment marked "Annexure 2", which is land that the State understands to be potentially contaminated, such land is excluded from the claim," 7. The ALCs also variously state on the face of the claims (precisely or in similar terms) that: a) "A map(s) generally indicating the location of the TSRs within the [LALC/LGA] is attached to assist"; b) "A copy of the NSW Government Gazette Notices, constituting and identifying the bounds of the [LALC] are attached and marked 'Annexure 1'." c) "A schedule of the FPR reserves gazetted in Government Gazette No. 83 that are within parishes that fall wholly or partially within the [LALC's boundary] is attached." d) "A map generally indicating [LALC] and the location of Crown land within the [LALC's] area is attached to assist…This map depicts the Crown land that is visible at this scale. NSWALC can endeavour to provide more detailed maps that depict all of the parcels of Crown land in the [LALC's] boundary if required." e) "A list of Parishes and County's [sic] within the [LGA] is attached to assist and is marked 'Annexure 3'". f) "Please note that the [lot descriptions of the [TSRs /FPR Reserves/Reserves] claimed are available on the Crown Lands Information Database (CLID) held by the Department but to which the Land Council does not have access. This information can be used by the Department to produce a digitised plan of the reserves." 8. CLID is an internal database used by the Department administering the Crown Lands Act (the Department) to assist in managing the Crown estate and holds information about Crown land including tenures, reservations and trust management. 9. On 20 December 2016 the Registrar advised the Minister that "ALCs 42439 - 42456 [were] registered by the Registrar, Aboriginal Land Rights Act on 15 December 2016" and that "I am satisfied that the ALCs may be registered pursuant to section 36 of the Aboriginal Land Rights Act 1983 and entered on the Register of Aboriginal Land Claims". 10. On 20 December 2016 the Registrar advised the Minister that "ALCs 42459 - 42500 [were] registered by the Registrar, Aboriginal Land Rights Act on 19 December 2016" and that "I am satisfied that the ALCs may be registered pursuant to section 36 of the Aboriginal Land Rights Act 1983 and entered on the Register of Aboriginal Land Claims". 11. On 23 December 2016 the Registrar advised the Minister that "ALCs 42621 - 42623 [were] registered by the Registrar, Aboriginal Land Rights Act on 23 December 2016" and that "I am satisfied that the ALCs may be registered pursuant to section 36 of the Aboriginal Land Rights Act 1983 and entered on the Register of Aboriginal Land Claims". 12. On 23 December 2016 the Registrar advised the Minister that "ALCs 42624 - 42626 [were] registered by the Registrar, Aboriginal Land Rights Act on 23 December 2016" and that "I am satisfied that the ALCs may be registered pursuant to section 36 of the Aboriginal Land Rights Act 1983 and entered on the Register of Aboriginal Land Claims". 13. In respect of each ALC, the Registrar included on the Register of Aboriginal land claims: (a) a number for each individual land claim (sequential over time); (b) the name of the Aboriginal Land Council that made the land claim; (c) the parish or parishes and the county or counties that the land claimed is within; (d) the local government area or areas that the land claimed is within; and (e) the date of lodgement with the Registrar of the land claim. Partial Withdrawals to the Land Claims 14. On 23 January 2017, NSWALC wrote to the Registrar indicating its intention to amend ALCs 42623 and 42626 by part withdrawing the claims to the extent that they cover 2 Crown Reserves required by the Crown for the Eden Wharf extension project over Lot 2 DP 747363 and Lot 111 DP 839683. 15. On 25 January 2017, NSWALC wrote to the Registrar indicating its intention to amend ALC 42460 (over TSRs in Bega LALC), to excise a 20 metre wide portion of land which was then part of Lots 7001 and 7002 in DP 94305 which are reserved for camping and water and travelling stock. The area was sought to be acquired for use as a road. The balance of the claim was to "remain 'on foot.'" 16. On 3 February 2017, the Registrar wrote to each of NSWALC and the Minister to confirm the amendment of ALCs 42623 and 42626 as requested by NSWALC on 23 January 2017. 17. On 3 February 2017, the Registrar wrote to each of NSWALC and the Minister to confirm the amendment of ALC 42460 as requested by NSWALC on 25 January 2017. 18. On 9 March 2017, Shane Smith from the Aboriginal Land Claims Investigation Unit (ALCIU) in the Department wrote to the Land Rights Unit in NSWALC asking if Reserve 56146 could be excluded from the s 78 claims. 19. On 14 March 2017, NSWALC wrote to the Registrar in relation to ALCs 42448 and 42479 which claim FPRs within the Shoalhaven City Council LGA and Jerringa LALC areas respectively. NSWALC sought to withdraw Lot 9 Section 3 DP 758530 from the claims. 20. On 23 March 2017, NSWALC wrote to the Registrar indicating that it was amending its 22 "Section 78 claims" to the extent that if the claims are the subject of Reserve 56146 notified 11 May 1923, then the following land was removed from the claimed lands: a) All land that is or comprises beds of rivers, their tributaries and ana-branches that is below the Mean High Water Mark in the Eastern and Central Divisions of the State of NSW; and b) All land that is or comprises a bed of a lake, estuary or lagoon that is below the Mean High Water Mark in the Eastern and Central Divisions of the State of NSW. 21. On 25 March 2017, the Registrar wrote to each of NSWALC and the Minister to indicate that ALCs 42448 and 42479 had been amended on 14 March 2017 consistent with NSWALC's request of same date. 22. On 31 March 2017, the Registrar wrote to NSWALC confirming that on 23 March 2017 it amended the 22 "Section 78 Claim" ALCs as per NSWALC's letter of 23 March 2017. 23. On 3 April 2017, NSWALC wrote to the Registrar in relation to ALC 42477, which covers land in Gandangarra LALC reserved for FPRs, to withdraw Lots 1, 2 and 3 in DP 249818. 24. On 12 April 2017, NSWALC wrote to the Registrar in order to amend ALC 42495 (over Section 78 Reserves in Merrimans LALC) to excise Lot 159 DP 724552, to facilitate a land acquisition by the Snowy Monaro Regional Council for gravel extraction. 25. On 12 April 2017, at the request of Snowy Monaro Regional Council, NSWALC wrote to the Registrar seeking to amend ALC 42460 (over all TSRs in Bega LALC) to excise Lot 13 DP 239506 consistent with the Snowy Monaro Regional Council's letter of 13 February 2017. 26. On 19 April 2017, the Registrar wrote to each of NSWALC and the Minister to confirm she had amended ALC 42495 consistent with NSWALC's letter of 12 April 2017. 27. On 19 April 2017, the Registrar wrote to each of NSWALC and the Minister to confirm she had made NSWALC's intended changes to ALC 42460 consistent with NSWALC's letter of 12 April 2017. 28. On 20 April 2017, the Registrar wrote to each of NSWALC and the Minister for Lands and Forestry to confirm that ALC 42477 was on 3 April 2017 amended by withdrawing Lots 1, 2 and 3 DP 249818 from this claim. 29. On 1 May 2017, NSWALC wrote to the Registrar in order to amend ALC 42494 (over section 78 reserves in La Perouse LALC) to partially withdraw Lot 1211 DP 752015, Lot 7026 DP 1026884 and Lot 7027 1026884. The parcels make up Heffron Park Reserve for public recreation. 30. On 5 May 2017, at the request of Shoalhaven City Council, NSWALC wrote to the Registrar in relation to ALCs 42454 and 42499 (covering Crown land reserved under s 78 of the Crown Lands Act 1989 (NSW) in Shoalhaven City Council and Ulladulla LALC). NSWALC sought to withdraw Lots 2 and 3 in DP 1228719 to facilitate the acquisition of these parcels by Shoalhaven Water, as the land is occupied by existing sewer infrastructure established in 2009. 31. On 10 May 2017, the Registrar confirmed by letter to each of NSWALC and the Minister that she had amended ALC 42494 in accordance with NSWALC's letter of 1 May 2017. 32. On 10 May 2017 the Registrar confirmed to each of NSWALC and the Minister that she had amended ALCs 42454 and 42499 in accordance with NSWALC's 5 May 2017 letter. 33. On 5 June 2017, NSWALC wrote to the Registrar in relation to ALCs 42445, 42451 and 42473, seeking to excise Lot 7302 DP 1146564 from ALCs 42445 and 42473, and to excise "adjacent unidentified Crown land" from ALC 42451. This was aimed at facilitating a land acquisition by NSW NPWS for addition to Murramarang National Park. 34. On 6 June 2017, NSWALC wrote to the Registrar to withdraw Lot 7308 DP 115369 from ALCs 42451 and 42490, the claims being over section 78 reserves within Eurobodalla LALC and Cobowra LALC. 35. On 13 June 2017, the Registrar wrote to each of NSWALC and the Minister confirming that she had amended ALCs 42445, 42451 and 42473 consistent with NSWALC's correspondence of 5 June 2017. 36. On 13 June 2017, the Registrar wrote to each of NSWALC and the Minister confirming that she had amended ALCs 42451 and 42490 consistent with its letter of 6 June 2017. 37. On 13 June 2017, at the request of the ALCIU in the Department, NSWALC wrote to the Registrar in relation to ALCs 42453 and 42492 (which concern section 78 reserves within Shellharbour LGA and Illawarra LALC area), seeking to withdraw Lot 7004 DP 1028837 from the two ALCs. 38. As at 14 June 2017, the Registrar's Land Claim records indicated the following partial withdrawals as to ALCs the subject of this proceeding: I. 42445 - land reserved for FPRs - part withdrawn, part incomplete - "Excise lot: 7302 DP 42473." II. 42448 - land reserved for FPRs - part withdrawn, part incomplete -"Withdrawing Lot 9 section 3 758530." III. 42451 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above - "Withdrawn the adjacent unidentified crown land (shown on attachment A) from ALC 42451 and withdraw Lot: 7308 DP 115369". IV. 42452 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above. V. 42453 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above. VI. 42454 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above - "Lots 2 and 3 in DP 1228719 are withdrawn from the claim (5 May 2017)". VII. 42455 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above. VIII. 42456 - Section 78 Claim - part withdrawn, part incomplete - Amendment as per above. IX. 42460 - TSRs within LALC boundary - part withdrawn, part incomplete - "…part withdrawn [sic] twenty metre wise portion from claim shown by the res colour on the attached diagram. This portion is currentley [sic] part of lots 7001 and 7002 DP 940304. NSWALC SEEKS TO WITHDRAW LOT 13 DP 239506 WHICH FORMS PART OF TSR 91216 FROM ALC 42460." X. 42473 - land reserved for FPRs - part withdrawn, part incomplete - "Excise lot: 7302 DP 42473 (shown as pink on attachment A). XI. 42477 - land reserved for FPRs - part withdrawn, part incomplete - "Lots 1, 2 & 3 DP 249818 have been withdrawn from this claim and remainder balance is still under claim." XII. 42479 - land reserved for FPRs - part withdrawn, part incomplete - "Withdrawing lot 9 section 3 DP 758530." XIII. 42487 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XIV. 42488 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XV. 42489 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XVI. 42490 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above - "Withdraw Lot 7308 DP 115369 from ALC 42490 on the 6/06/2017. XVII. 42491 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XVIII. 42492 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XIX. 42493 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XX. 42494 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above - "Partially withdraw lot 121 DP 752015 lot 7026 DP 1026884 & lot 7027 DP 1026884". XXI. 42495 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above - "NSWALC SEEKS TO WITHDRAW LOT 159 DP 724552 FROM THIS CLAIM." XXII. 42496 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XXIII. 42497 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XXIV. 42498 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XXV. 42499 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above - "Lots 2 and 3 in DP 1228719 are withdrawn from the claim (5 May 2017). XXVI. 42500 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XXVII. 42623 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. XXVIII. 42626 - Section 78 Claim - part withdrawn, part incomplete - Amended as per above. 39. On 15 June 2017, the Registrar wrote to each of NSWALC and the Minister advising that she had amended ALCs 42453 and 42492 as per NSWALC's request of 13 June 2017. 40. On 20 June 2017, NSWALC wrote to the Registrar in relation to ALCs 42455 and 42494 (over section 78 reserves in Sutherland Shire Council and La Perouse LALC) seeking to withdraw Lots 2221 and 2222 DP 1182456. The parcels make up the Cronulla SLSC and Cronulla Park public recreation reserve. 41. On 23 June 2017, the Registrar wrote to each of NSWALC and the Minister advising that on 20 June 2017 she amended ALCs 42455 and 42494 consistent with NSWALC's request of same date. 42. On 25 July 2017, NSWALC wrote to the Registrar in relation to ALCs 42456 and 42492, seeking to amend the ALCs to excise a 385m2 portion of Lot 7002, DP1053534. 43. On 28 July 2017, NSWALC wrote to the Registrar in relation to ALC 42496 (concerning section 78 Crown reserves within Mogo LALC), seeking to excise Lot 63 DP 754870. 44. On 31 July 2017, the Registrar wrote to each of NSWALC and the Minister indicating that on 25 July 2017 she amended ALCs 42456 and 42492 consistent with NSWALC's request of same date. 45. On 31 July 2017, the Registrar wrote to each of NSWALC and the Minister for Lands and Forestry, indicating that on 31 July 2017 she amended ALC 42496 consistent with NSWALC's request of 28 July 2017. 46. On 7 August 2017, NSWALC wrote to the Registrar in relation to ALCs 42454 ad 42493 (which concern section 78 Crown reserves in Shoalhaven City LGA and Jerrinja LALC), seeking to excise a 266.4m squared portion of Lot 1 DP 608937. 47. On 10 August 2017, the Registrar wrote to each of NSWALC and the Minister advising that on 10 August she amended ALCs 42454 ad 42493 as requested by NSWALC. 48. As at 24 or 21 August 2017, changes to the Register information concerning the ALCs in issue (all in the form of additional information), as compared to the information set out above at paragraph [38], was as follows: I. 42453 - "WITHDRAWAL - On 13 June 2017 Lot 7004 DP 1028837 was withdrawn from claim." II. 42454 - "Partially withdraw 266.4 square metres of lot: 1 DP 608937 on the 10/082017 (sic)". III. 42455 - "Partially withdraw Lots 2221 and 222 DP 1182456 from this alc 20/06/2017." IV. 42456 - "ON 25/07/017 partial withdrawn of 385m2 of portion (LOT 7002 DP 1053534) is excised from ALC 42456". V. 42492 - "on the 25/07/2017 partial withdrawn 385m2 portion (LOT 7002 DP 1053534) is excised from ALC 42492." VI. 42493 - "Partially withdraw 266.4 square metres of lot: 1 DP 608937 on the 10/082017." VII. 42494 - "Partially withdraw Lots 2221 and 222 DP 1182456 from this ALC 20/06/2017." VIII. 42496 - "On 21/07/2017 partial withdrawal to remove LOT 63 DP 754870." 49. On 24 August 2017, NSWALC wrote to the Registrar in relation to ALCs 42454 and 42497, seeking to amend by withdrawing Lot 374, DP 755952, Lot 702 DP 1024852, Lot 7302 DP 1134093 and Lot 7323 DP 1164817 from the claims. 50. On 4 September 2017, the Registrar wrote to each of NSWALC and the Minister advising that on 24 August 2017 she amended ALCs 42454 and 42497 as requested by NSWALC. 51. As at 4 September 2017, changes to the Register information concerning the ALCs in issue (all in the form of additional information), as compared to the information set out above at paragraphs [38] and [48], was as follows: I. 42454 - "LOT 374 DP 755952, LOT 702 DP 1024852, LOT 7302 DP 1134093 AND LOT 7323 DP 1164817 ARE EXCISED FROM CLAIM ON THE 24/08/2017." II. 42497 - "LOT 374 DP 755952, LOT 702 DP 1024852, LOT 7302 DP 1134093 AND LOT 7323 DP 1164817 ARE EXCISED FROM CLAIM ON THE 24/08/2017." 52. On 13 September 2017, NSWALC wrote to the Registrar in relation to ALC 42480 seeking to amend by excising Lot 7327 DP 1163673 from the claim. 53. On 19 September 2017, the Registrar wrote to each of NSWALC and the Minister advising that on 13 September 2017 she amended ALC 42480 as requested by NSWALC. 54. As at 10 November 2017, changes to the Register information concerning the ALC in issue (all in the form of additional information), as compared to the information set out above at paragraphs [38] and [48], was as follows: I. "Excise Lot 7327 DP 1163673 on 13/09/20[sic]" 55. On 21 September 2017, NSWALC wrote to the Registrar in relation to ALCs 42448, 42454, 42485 and 42499, seeking to amend: ALCs 42448 and 42485 to the extent that Lot 7314 DP 1166835 and Lot 331 DP 40637 are excised from each claim; and ALCs 42454 and 42499 by excising Lot 7314 DP 1166835, Lot 331 DP 40637, the adjacent unidentified Crown land and part of Ulladulla Harbour. 56. On 10 October 2017, the Registrar wrote to each of NSWALC and the Minister advising that on 24 August 2017 she amended ALCs 42448, 42454, 42485 and 42499 as requested by NSWALC. 57. As at 10 November 2017, changes to the Register information concerning the ALCs in issue (all in the form of additional information), as compared to the information set out above at paragraphs [38] and [48], was as follows: I. 42485 - "Withdrawal of lot 7314 DP 1166835 and k[sic] lot 331 DP 40637 from this claim on the 21/09/2017." II. 42499 - "Withdrawal of lot 7314 DP 1166835 and lot 331 DP 40637 from this claim adjacent unidentified crown land and part of Ulladulla Harbour on the 21/09/2017." South Coast People's Native Title Application 58. Gwenda Jarrett & Ors on behalf of the South Coast People v Attorney General of New South Wales was filed on 3 August 2017 and allocated Federal Court of Australia proceedings no. NSD1331/2017 (the South Coast People's native title application). 59. The LGAs and LALCs affected by the ALCs are the same LGAs and LALCs affected by the South Coast People's native title application.
On 29 November 2017 the NSWALC agreed the following additional fact: 1. On 4 November 2016, the Department provided NSWALC with information extracted from CLID in the form of a spread sheet which was stated by the Department to contain all reserves in the State. The spread sheet contained Lot and DP numbers for a large number of the reserves.

Evidence

Evidence Book One (Exhibit A) contained: 1. letter dated 30 May 2017 from David Farmer, general manager of Wollongong City Council to the Deputy Director-General of Lands and Forestry; 2. national Native Title Tribunal summary for the South Coast Native Title Claim; 3. amendments relating to ALCs 42454 and 42497; 4. amendments relating to ALC 42480; 5. amendments relating to ALCs 42485 and 42499; and 6. the Registrar's tender bundle, containing: 1. letters from the NSWALC to the Registrar lodging the 66 claims; 2. file note dated 15 December 2016 of the Registrar regarding consideration of the ALCs 42439-42456; 3. file note dated 19 December 2016 of the Registrar regarding consideration of ALCs 42459-42500; 4. letters from the Registrar to the Minister referring all 66 ALCs to the Minister; 5. letters from the Registrar to the NSWALC stating all 66 ALCs had been registered; 6. extracts from the Register of Aboriginal Land Claims (the Register) as at 21 August 2017, showing the registration of all 66 ALCs; 7. letters from the NSWALC to the Registrar lodging the amendments and partial withdrawals at [38] of the SOAF; 8. letters from the Registrar to the NSWALC confirming receipt of the amendments to ALCs 42445, 42451-42456, 42460, 42473, 42479, 42487-42500, 42623 and 42626 and the partial withdrawals of ALCs 42448, 42477 and 42479; 9. NSW Department of Industry, Skills and Regional Development - Aboriginal Land Agreement Negotiation Framework; 10. NSW Department of Industry, Lands and Forestry - guidelines for expressions of interest - local government council participation in the Land Negotiation Program 2017-19; and 11. NSW Department of Industry, Lands and Forestry - guidelines for expressions of interest - local Aboriginal land council participation in the Land Negotiation Program 2017-19.

Affidavit of Jason Brouff

The Minister read the affidavit of Jason Brouff, manager of the Aboriginal Land Claims Unit at the NSW Department of Industry - Lands (the Department), affirmed 10 April 2017. Attached to the affidavit was a schedule of the 66 ALCs, a copy of the 66 claims and a map of the Local Government Areas (LGAs) affected by the claims.
Mr Brouff stated that "the lodgement of the 66 ALCs has resulted in the majority of Crown land within the South Coast Area of New South Wales (NSW) being subject to an ALC." Mr Brouff attested that as "the 66 ALCs do not identify the land subject to the claim, the Department will need to review each parcel of Crown land." The parcels would be investigated using databases such as the Crown Lands Information Database (CLID), Cadastral Records Viewer, Infotrack, Historical Lands Records Viewer, Gazette Warehouse, Trove and the National Native Title Tribunal.
It could take three to four hours to undertake an initial assessment for a single parcel of land. The 66 claims cover over 9,000 parcels. Mr Brouff estimated it would take the Department 27,000 hours, equivalent to 15 years of work at current resourcing levels, to identify and investigate all 66 claims.
In his further affidavit dated 23 November 2017, Mr Brouff clarified what he meant by "the majority of Crown land" in his first affidavit, stating that it referred to land administered by the Department, as opposed to land administered by other departments or State Forest land. He also explained that the number of parcels was calculated using ArcMap software and came to a figure of 9,223. Mr Brouff said that he did not know if this figure was entirely accurate.
Since deposing his first affidavit, Mr Brouff became aware that certain parcels in the land claim were not recorded on CLID, as they were "vested in Her Majesty" under the control of other departments. Mr Brouff referred to ALCs 42445 and 42475 which covered Lot 1 DP 176147 by way of example. Maps of these claims and the relevant title search were attached to the affidavit. The land covered by ALCs 42445 and 42475 was reserved for future public requirements (FPR) and was vested in Her Majesty for and on behalf of the Minister for Police and Emergency Services for the Police Department. Mr Brouff could only identify this because it was shown on the title search he conducted.
In his further affidavit dated 28 November 2017, Mr Brouff corrected his second affidavit, noting that it would be possible to generate a list of parcels "vested in Her Majesty" from a Land and Property Information (LPI) search which could be cross-referenced with CLID. Attached to the affidavit was a letter dated 27 November 2017 from Mr Jason Behrendt solicitor for the NSWALC to Mr Brouff identifying that there were other possible methods for identifying land not administered under the Crown Lands Act 1989 (NSW).

Cross-examination of Mr Brouff

Mr Brouff was questioned about how he calculated 15 years as the time required to determine the 66 ALCs. Mr Brouff said that this figure was based on the work of one person. There were usually four staff members investigating claims at any one time. He agreed that there was "no precise mathematics" in calculating the 15 years and the figure contained a high level of uncertainty. Mr Brouff attested that had the NSWALC lodged 9,000 claims for 9,000 separate parcels of land, it would still be likely to take the Department 15 years to assess the claims.
Mr Brouff confirmed that it was common for native title claims to be made over large areas of land. Once a native title claim is made, the State becomes a party to proceedings in the Federal Court. In the course of the Federal Court proceedings, it is necessary to identify the land the subject of the claim. Mr Brouff said it was possible to identify land which was subject to native title claims using the resources available to the State.
An extract from the NSW Digital Cadastral Database (DCDB) was shown to Mr Brouff. He confirmed that it showed a native title claim in the south coast area of NSW. The native title claim had been made within the last 18 months and covered substantially the same land as that claimed by the 66 ALCs. Accordingly, the land would become the subject of Federal Court proceedings and would need to be identified for that purpose. When Mr Brouff was asked how quickly the land could be identified, he said that it could be investigated in a reasonable time, being a matter of days or sometimes weeks for small sections. Mr Brouff confirmed that this investigation had largely already been completed, except for lands vested in Her Majesty but under the control of other departments. In light of the corrections made in his affidavit dated 28 November 2017, Mr Brouff said that he had a "working understanding" of CLID.
If the NSWALC had lodged a request for further information under s 36(14), Mr Brouff stated that this information could be provided relatively easily and quickly in light of the investigations already carried out for the native title claim. If the s 36(14) request had been made, it would have been possible for the NSWALC to put in one land claim with a schedule encompassing every identified parcel of Crown land as identified in the response to the s 36(14) request. Alternatively, the NSWALC could have put in one claim for every parcel identified, which would have amounted to thousands of claims. If either of these courses had been followed, it would still likely take the Department some 15 years to review the claims.
Mr Brouff was taken to correspondence dated 30 May 2017 from David Farmer, general manager of Wollongong City Council to the Deputy Director-General of Lands and Forestry. He agreed that the letter identified more than 130 existing undetermined land claims in the Wollongong area, meaning there would likely be thousands of undetermined claims within the area covered by the 66 ALCs. If the existing claims in the Wollongong area were successful, the 66 claims would only apply to what remained.
Mr Brouff was shown the annual report for the Department for the financial year 2015/16 where it identified there were 29,289 outstanding land claims at the time of the report. Of the outstanding claims, 197 were over 16 years old, 520 were over 11 years old and just over 15,000 were over six years old. Mr Brouff stated that more than half of the claims over six years old were already suffering from the danger of evidence degrading.
The Department's target for assessing land claims is 500 per year. This was achieved in the financial years 2012/13 and 2015/16. At a rate of 500 claims per year, it would take the Department 59 years to determine all outstanding land claims, assuming no further claims were lodged.
Mr Brouff was shown an extract from the NSW Government Gazette of 11 May 1923. The extract described an area of land sought to be reserved by reference to all river beds and related areas such as gravel beds and sand beds. Mr Brouff was then shown an extract from the NSW Government Gazette of 3 February 2006, which sought to extend the reservation made in the 1923 Gazette to "all foreshore land below the high water mark of the coast of NSW." The effect of the 2006 gazettal was to make substantial areas of land throughout NSW subject to a reserve for FPRs without any specificity as to what parcels it would cover. Mr Brouff was then taken to an extract from the Gazette of 29 June 2007 showing the same reserve identified in the previous extracts. The 2007 extract showed the reserve with a greater degree of specificity by identifying the parishes within the reserve area. Mr Brouff agreed that it was still possible to assess claims identified at this degree of generality.

Re-examination of Mr Brouff

With respect to assessing outstanding land claims, Mr Brouff said the Department operated a priority register so that other government agencies or Aboriginal land councils (land councils) could seek a priority assessment. Additionally, the Department sought to actively investigate the oldest 1,000 claims.

Affidavit of Troy Lancaster

The NSWALC read the affidavit of Troy Lancaster, senior land rights officer at the NSWALC since 28 June 2010, affirmed 17 July 2017. Mr Lancaster outlined his personal observations in relation to ALCs: 1. ALCs can be made over large areas, covering multiple parcels of land and therefore may not always specify a Lot and DP number; an example being ALC 3032 lodged on 13 October 1987 which covered a large area of Crown land in multiple parishes. 2. The annual rate of determining land claims fluctuates. For example, in 2015-16, 146 ALCs were determined, in contrast to only 15 in 2014-15. 3. Claims can take more than 20 years to be determined, an example being ALC 3048 which was lodged on 4 November 1987 and not determined until 23 December 2010. 4. The oldest outstanding ALC is ALC 1048 which was lodged on 20 September 1984. 5. From time to time the Minister determines part of a claim while the remaining part is left undetermined. As an example ALC 2882 was lodged on 19 March 1987 and was determined in part on 31 October 1994, with the remainder determined on 1 July 1999. 6. There are numerous instances where claims have been amended or partially withdrawn to exclude land that was needed for other uses such as roads or public service infrastructure. For example the Snowy Monaro Regional Council proposed removing Lot 13 DP 239506 from ALC 42460 to facilitate the pre-existing use of the land as a road.
While ALCs are now mostly lodged by reference to a Lot and DP number, this was not always the case. Prior to Crown land being brought under the Real Property Act 1900 (NSW), Crown land did not have an allocated Lot and DP number. Claims in the past have described land by reference to areas on parish maps or to notified reserves.
The 66 ALCs relate to land that is reserved under the Crown Lands Act. Mr Lancaster stated that reserves were not always limited by individual Lot and DP numbers nor were they always described by reference to Lot and DP numbers. Four extracts from various NSW Government Gazettes were attached to Mr Lancaster's affidavit, showing instances where Crown land had been described by reference to parish numbers.
Also attached to the affidavit was a letter dated 16 December 2016 from the NSWALC to the Registrar in respect of six of the 66 claims. The letter stated that the NSWALC had previously made requests to the Department to access CLID to assist in preparing these claims. Without this access, the NSWALC was unable to more accurately specify the parcels of land. I note that pursuant to the additional agreed fact in par [6] above, the Department did provide the NSWALC with information from CLID which contained all reserves relevant to these claims not long before the 66 ALCs were lodged.

Minister's submissions

The Minister submitted the following two grounds: 1. that the ALCs do not "describe or specify" the land within the meaning of s 36(4) of the ALR Act because they do not describe the boundaries of each portion or portions of land and they do not specify the land by reference to folio identifier or other individual specification; and 2. that the ALCs were made by the NSWALC in circumstances where the NSWALC could not have a reasonable basis for believing that the whole of the land subject to each parcel of land was "claimable Crown lands" under the ALR Act.

Public inconvenience

The Minister argued that s 36(4) should not be construed broadly, as to do so would unduly burden the community, as well as local and state governments. Rather, the ALR Act must balance the interests of these groups with the need to facilitate land claims. The "public inconvenience" referred to by the Minister crystallised in three respects. Firstly, as identified in Mr Brouff's affidavit affirmed 10 April 2017, assessing the 66 ALCs would take approximately 27,000 hours or 15 years at current resourcing levels.
Secondly, under s 36B of the ALR Act, the restrictions on developing claimed land continue until final determination. As evident in the letter from Wollongong City Council dated 30 May 2017, undetermined land claims create uncertainty for local governments as they restrict the work able to be completed on the claimed land.
Thirdly, the Minister is required to assess land claims on the facts existing at the date of the claim per Dorrigo Plateau Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 155 LGERA 307; [2007] NSWLEC 653 at [9] and [44]. The longer a claim takes to be assessed, the greater the likelihood that evidence will degrade. This provides justification for requiring that claims adequately "describe or specify" the land in question so as not to cause unnecessary delay.
The Minister submitted that public inconvenience could be an important consideration in determining which of two competing constructions of a statute should be preferred per Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [97].

Meaning of "describe or specify"

The Minister stated that land would be "described" for the purpose of the ALR Act if "its boundaries were delineated one way or another (for example, by reference to landmarks or survey points)." Land would be "specified" for the purpose of the ALR Act if the land was "identified (most naturally for Real Property Act land, by identifying folio number, but also by a reserve name)." The Minister accepted that the NSWALC had, in some sense, "described" the land. However, it was not possible to identify the NSWALC's land claims by reference to the terms of the ALC alone. The CLID database must be reviewed. A generic description is not sufficient. Accordingly, the NSWALC had not reached the level of "granularity" required by the Act.
"Describe or specify" might be read as a hendiadys or composite expression. If so it must nevertheless be regarded as requiring the actual land claimed to be identified or delineated, not simply described by class.

Section 36 supports Minister's construction

A narrow construction of s 36(4) is supported by the operation of s 36(14). Section 36(14) provides that a land council may request information in relation to Crown land from the Minister, but the Minister is only required to provide such information so far as is "reasonably practicable."
Even if a land council were to make a more detailed claim by requesting information from the Minister under s 36(14), this may still result in a claim involving a very long list of descriptions of parcels of land. Accordingly, this explains why the "reasonably practicable" requirement in s 36(14) forms a limit on requests made to the Minister, as these requests could cause further public inconvenience. This limitation reflects the balance chosen by the text of the ALR Act between the statutory entitlements of land councils and the local government and community interests in the land.
Sections 36(5) and 36(7) further support a narrow reading of s 36(4). Section 36(5) requires the Minister, in refusing a claim, to be satisfied that either all or part of the land is not claimable. This necessarily requires the Minister to identify and investigate each parcel of land. Section 36(7) states that if a claim is refused under s 36(5) and an appeal lodged under s 36(6), the Minister bears the onus of proof of establishing that land is not claimable Crown land under s 36(7). Uncertainty about whether the land is claimable results in the Court transferring land claimed to an applicant per Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100; [2012] NSWLEC 68. If a claim covers a vast area of land, this increases the prospect that land will be found to be claimable because it is not reasonably practicable for the Minister to investigate and determine the claim. This could result in the Minister being unable to discharge his onus of proof should a decision be appealed.
Although some of the adverse consequences outlined above are an unavoidable feature of the ALR Act, they could be reduced if the requirement to "describe or specify" the land was read as a requirement to "describe or specify" the actual lands that are the subject of the claim, rather than giving a generic description of the kinds of land claimed.

Second Reading Speech

The Minister submitted that the Second Reading Speech reinforced the narrow construction of s 36(4), on the basis that "nowhere within this bill are there any provisions for a massive handing over of land to Aborigines…" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 24 March 1983, at 5092-5093).

Risk to claimants

The Minister contended that a broad construction of s 36(4) as adopted by the NSWALC presented a risk that claims could be found "not claimable." Firstly, the Minister submitted that s 36(5)(b) could, if the circumstances so required, afford him the power to dismiss the whole of a claim on the basis that he was satisfied that part of the lands subject to the claim were not claimable Crown lands. If the preconditions to s 36(5)(b) were met, the Minister would have to "refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require".
If the Minister was satisfied that any part of the lands claimed were not claimable Crown lands, then the chaussette to s 36(5)(b) would be engaged and the Minister could refuse the whole of the claim, at least if the case "required" it. Those words, "as the case may require", could in the context of this case pick up all relevant considerations of the claim involved, including the reasonable practicability of the Minister in considering all of the land. The difficulties associated with processing over 9,000 claims at once, with concomitant pressures on LGAs, could reasonably present a proper and exceptional circumstance for the need to factor in the language of "as the case may require" in s 36(5)(b), so that satisfaction that part of lands claimed are not claimable Crown lands may provide a legal foundation for a refusal of all of the claim.
Secondly, blanket claims of the type lodged by the NSWALC present a risk to claimants in that the failure to adequately "describe or specify" the land may mean that a claim is lost despite land being lawfully used or occupied to a low degree. Parts which are otherwise "claimable" may be lost in the breadth of the claims presented. Making this assessment in many situations will be imprecise and involve questions of fact and degree. Once an appeal is commenced, no narrower claim can be made in respect of part of the land until the appeal has been resolved due to the operation of s 36B. Similarly, it may be that in some situations the Minister is satisfied that some portion of the lands claimed is likely to be needed for residential purposes or an essential public purpose, but it is not reasonably practicable for the Minister to identify precisely which lands fall in that category. This could be another situation in which the case "requires" refusing the whole claim. The vagueness of the ALCs in this case makes the task of resolving these matters more difficult than it would otherwise be, and could plausibly increase the number of appeals as a result. This all reinforces the invalidity of the ALCs.

Functions of the Registrar

The Registrar's powers to refuse all or part of a claim to the Minister under s 36(4A)-(4C) also support a "parcel by parcel" approach to land claims. Subsection (4A) allows the Registrar to refer claims if it is satisfied that the lands are not "vested in Her Majesty." Subsection (4C) establishes a timeframe of 60 days (or other timeframe) within which a referral must be made. This time limit would likely not be sufficient if the Registrar had to further investigate insufficiently "described or specified" claims.

B Reasonable basis for claim required

The Minister also argued that a land council must have a reasonable basis for asserting that the lands are claimable Crown lands. The Minister submitted that it would be an incongruity for a land council to make a claim without having a basis for believing that the land was claimable. If a claim was so broad that it was not possible for the claimant to have formed the view even on a prima face basis, then it would not be valid. The Minister submitted that this was analogous to the principle that when a legislature confers a discretionary power on a repository (such as the power conferred on land councils to make claims), the legislature is taken to intend that the power will be exercised reasonably per Kruger v Commonwealth (1997) 190 CLR 1; [1997] HCA 27 at [36]-[37].

Alleged public inconvenience

The Minister's claim for declaratory relief was based upon the assertion that for him to identify the land was too burdensome. That assertion was irrelevant to the proper construction of the text of the ALR Act and, in any event, would not be substantiated to any material degree.
The greater burden to the NSWALC of requiring any more precise identification of the lands claimed is reflected in one of the reasons given for lodging the claims, which is set out in the covering letters accompanying the impugned ALCs under the heading "Proposed South Coast Native Title Claim". There was a concern in the NSWALC that the imminent lodgement of a native title claim over the entire south coast of NSW (the South Coast Native Title Claim) would engage the operation of s 36(1)(d) of the ALR Act and thus render large amounts of claimable Crown land not claimable. The South Coast Native Title Claim was subsequently lodged.
The Minister did not dispute that he can in fact ascertain the particular parcels of land that are the subject of the land claims, by reference to the Department's records of the Crown estate. The claims were made by reference to reserves under Crown lands legislation within a specified Local Government Area. The locality and the boundaries of the reserves are within the knowledge of the Minister and the Department. It seems that the Department has in fact already identified the affected parcels (Brouff Affidavit at [27]).
In response to the Minister's submission that the ALR Act requires a balancing of interests, the NSWALC asserted that s 36(4)(b) was not a provision directed to careful balancing of competing public interests of equal importance per New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 219 LGERA 282; [2016] HCA 50 (Berrima Gaol) at [94] (Gageler J). Rather, it was a formal or procedural requirement to commence the statutory process of determining a land claim.

Meaning of "describe or specify"

The NSWALC argued that while a land claim must be "described or specified", it need only do so to such a degree as to allow the Minister to investigate and determine the claim under s 36(5). This interpretation was supported by the natural and ordinary meaning of the words, taking account of their context and purpose. This interpretation is further supported by the beneficial interpretation of remedial legislation such as the ALR Act.

Section 36 generally

The immediate context of s 36(4)(b) suggests that the phrase "describe or specify" does not require precise identification of particular parcels of land: 1. The text involves two alternative options, a standard of description less exacting than "specify" alone. 2. What is required to be described or specified in the claim are "the lands in respect of which it is made". This phrase may be contrasted with the language of "lands claimed" which is used in subss (5) and (7), dealing with the formation of the requisite satisfaction and ultimately the transfer of the land to a land council. At the point of the Minister forming the requisite satisfaction, and ultimately transferring the land, there must be specific "lands claimed" for those actions to fix upon. In contrast, at the earlier point in time to which subs (4) is directed, the statute does not contemplate the precise notion of "lands claimed", but rather the more general notion of "lands in respect of which [a claim] is made". 3. That is a more general notion because the relational phrase "in respect of" is of intrinsically broad import and, in particular, has a wider connotation than the word "for" per Unsworth v Commissioner for Railways (1958) 101 CLR 73; [1958] HCA 41 at 87 (Fullagar J); State Government Insurance Office (Queensland) v Crittenden (1966) 117 CLR 412; [1966] HCA 56 at 416 (Taylor J) (SGIO v Crittenden). The phrase "lands in respect of which [the claim] is made" therefore has a more ample meaning than "lands for which the claim is made" or "lands claimed". 4. The purpose of describing or specifying the land claim is to enable the Minister to investigate and determine the claim under s 36(5). This presupposes that there will be an investigation of facts by the Minister. Consequently, the description or specification would only be insufficient if it is "were so vague as to render impossible that investigation". 5. The requirements for the Registrar to keep the Register also support the NSWALC's construction of s 36(4)(b). Under s 167, the Register is to include no more than "a description of the land claimed." Additionally, s 167(h) allows for the inclusion of information which would not be known to a claimant at the time of making a claim. This suggests that the description of the land may be updated as the investigation by the Minister progresses. 6. The information required for a more precise description or specification of the land is held by the Minister and the Department. Mr Brouff stated that land councils would need to access CLID in order to obtain this information. Contrary to the Minister's submission, the capacity of a land council to request information under s 36(14) does not introduce any requirement that the land council must undertake these investigations. 7. When the ALR Act was enacted in 1983, much of the Crown estate was only just being brought under the Real Property Act. For as long as such land was not under the Real Property Act, it could not have been described by reference to lot and DP number. 8. A broad construction of the words "describe or specify" would also be consistent with the purpose of s 36(4)(b). At the time this section was enacted, Parliament was cognisant of the social conditions of Indigenous Australians, including the lack of educational opportunities in many communities (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 24 March 1983 at 5089). It would therefore be inappropriate to read s 36(4)(b) as requiring a strict, legal description or specification.

Risks to claimants

With respect to the Minister's argument that a "blanket claim for all Crown land in the State of NSW" could be made, the NSWALC made two submissions. Firstly, the Minister conceded that a land claim could describe land by reference to reserve names, numbers or clearly identifiable land marks. This concession undermines the Minister's contention that such a description would increase the need to undertake further investigation to better delineate the land. Secondly, the Minister conceded that the "adverse consequences" would not be avoided entirely by this construction, but merely reduced.

B Reasonable basis for claim not required

The NSWALC argued that there was no statutory requirement that a claimant land council have a basis for asserting that the lands are prima facie claimable Crown lands. To do so would impose a "double implication", being that a land council believe that the land is claimable and that it have reasonable grounds for doing so.

Registrar's submissions

The Registrar submitted that the land claims in issue sufficiently describe the land claimed for the purpose of s 36(4) by reference to identified reserves, local government boundaries and/or land council boundaries.
It is well settled that the making of claims to Crown lands under s 36 ALR Act is the primary mechanism giving effect to that beneficial and remedial intent (see for example New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 at [20] (Mason P) (Wagga Wagga Motor Registry). Section 36(4) ALR Act, identifies three requirements for making a claim under s 36(2) or (3). The claim: 1. shall be in writing and if a form for making such a claim has been prescribed, shall be in or to the effect of that form: s 36(4)(a); 2. shall describe or specify the lands to which the claim relates: s 36(4)(b); and 3. shall be lodged with the Registrar who shall refer a copy thereof to the Crown Lands Minister, or if there is more than one, to each of them: s 36(4)(c).
There is no prescribed form under the Aboriginal Land Rights Regulation 2014 for making a land claim, so the only requirement under s 36(4)(a) of the ALR Act is that the claim be in writing.
The words "describe" or "specify" appearing in s 36(4)(b) of the ALR Act are not defined terms in s 4 or s 36 of the ALR Act. The words should be given their natural and ordinary meaning. Section 36(4)(b) does not require land claims to include specific title information, metes and bounds by survey or any other specific means of identification. Historically, not all Crown lands had been brought under the Real Property Act but even where they had, there is no requirement that claimed lands be described or specified by reference to a folio in the register.
Section 36(4A)-(4C), introduced in 2014, does not provide textual support for a narrow construction of s 36(4) for the following reasons: 1. s 36(4A) confers a discretion on the Registrar not to refer a land claim to the Minister in two limited circumstances, in contrast to the obligation imposed by s 36(4)(c) to refer a copy of any land claim to the Minister; 2. nothing in s 36 prevents the Registrar from seeking further information about a land claim; 3. the matter identified in s 36(4A)(a) and (b) are not dependent on how the land is described or specified; 4. before refusing to refer a claim to the Crown Lands Minister, the Registrar must take the action required by s 36(4B)(a)-(c); 5. the deeming period in s 36(4B) is not limited to 60 days where the Registrar has requested further information from a claimant land council; and 6. the Registrar may request the Minister to provide information relating to a land claim listed on the Register, pursuant to s 168 of the ALR Act.
The Registrar was able to enter each of the subject claims on the Register containing the information in s 167(a)-(f) of the ALR Act. The Register need not record when a land claim is referred to the Minister.
The enactment of s 36AA of the ALR Act in 2014 provides an alternative mechanism for making land claims over large areas of NSW. The enactment of s 36AA and the publication of the Framework demonstrate that negotiations in relation to large-scale land claims across different LGAs and land council areas were contemplated by the ALR Act at the times the 66 ALRs were lodged. Resolution of them by the negotiation of Aboriginal Land Agreements (ALAs) is practicable and achievable. Moreover, s 36AA(3) and (4) expressly contemplate that parties other than the Minister and a Land Council may be involved in negotiations. This could include local councils.
The broad scope of ALAs may include the resolution of claims, including agreements to withdraw claims or to refrain from making future claims over "vast tracts" of Crown land. Consequently, the Minister's submissions in relation to "blanket" land claims should be rejected.

A 66 ALCs "describe or specify" the lands claimed

The statement of agreed facts (SOAF) sets out in considerable detail the scope of the 66 ALCs. It is not necessary to consider the specific detail of each land claim to the extent this appears in the SOAF. As identified broadly in par 2, the ALCs are organised into three categories, (i) land reserved for FPR in specified LGAs and LALCs, (ii) travelling stock reserves (TSRs) in specified LGAs or LALCs and (iii) all reserve land within the meaning of s 78 of the Crown Lands Act excluding FPRs and TSRs within specified LGAs or LALCs. Contaminated land is excluded by lot and DP number. Paragraph 7(a)-(e) of the SOAF identifies how the ALCs variously appear on their face whether shown on a map and/or in a NSW Government Gazette Notice. Lists of parishes and counties within relevant LGAs were provided in an appendix. The Registrar included all 66 ALCs on the Register as identified in pars 9-13. Numerous amendments to some of the land claims were made as identified in the section headed "Partial Withdrawals to the Land Claims". As at 14 June 2017, six claims had been amended by making partial withdrawals and the 22 "section 78 claims" made by the NSWALC had also been amended as identified in par 38 of the SOAF. As at 21 or 24 August 2017, eight further partial withdrawals had been made as identified in par 48 of the SOAF. As at 4 September 2017, two further withdrawals had been made as identified in par 51 of the SOAF. As at 10 November 2017, five further amendments had been made as identified at pars 53 and 56 of the SOAF. All amendments have been recorded in the Register.

Principles of statutory construction

The Minister's complaint is that the land claims in these three groups do not describe or specify the lands claimed as required by s 36(4)(b) of the ALR Act. According to the Minister, the ALR Act requires the delineation of actual portions of land claimed. Section 33 of the Interpretation Act 1987 (NSW) requires a construction which promotes the purpose or object of an Act over one which would not. Principles of statutory construction require the words of a statute to be considered in their context per Project Blue Sky at [381]-[382] where McHugh, Gummow, Kirby and Hayne JJ stated that the "primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute", that a "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals" and that "a court construing a statutory provision must strive to give meaning to every word of the provision." Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 11 also referred to the necessity of applying a construction of a statute consistent with its purpose.
Where words are plain and unambiguous they should be given their ordinary and grammatical meaning, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 at 305 (Gibbs CJ). In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at 46-47 (Hayne, Heydon, Crennan and Kiefel JJ) confirmed that statutory construction commences with a consideration of the language of the text, which may require consideration of the context, including the general purpose of the provision and the mischief it seeks to remedy.
A further consideration accepted by all parties in construing the ALR Act is that it is beneficial and remedial legislation as has been recognised in numerous authorities, for example, Wagga Wagga Motor Registry at [20] Mason P. The majority in Berrima Gaol referred to this purpose at [6]. At issue was the meaning of "used" and "occupied" in s 36(1)(b) of the ALR Act. At [30]-[34] under the heading "A beneficial construction?" the majority considered cases where a beneficial construction had been applied to statutory construction. At [32]-[34] the majority stated (footnotes omitted): [32] It has been said that remedial or beneficial legislation should be accorded a "fair, large and liberal interpretation", rather than one which is literal or technical. At issue in R v Kearney; Ex parte Jurlama was whether a claim could be made under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) with respect to land which could only acquire the necessary character of being "traditionally owned" by reference to land which lay outside that which was available to be claimed. Gibbs CJ (with whom Brennan, Deane and Dawson JJ agreed) said: If the section is ambiguous it should in my opinion be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve. The statute in that case left the question open and provided the Court with choices in its approach to the statute's construction. In such a circumstance the Court was clearly justified in adopting a broader approach on the basis of the beneficial purpose of the statute. [33] That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise. [34] True it is that the words "used" and "occupied" might be said to take much of their meaning from context. But that is not to say that they are devoid of a commonly understood meaning in ordinary parlance. They require an examination of activities undertaken upon the land in question and, in the case of "occupied", factors such as continuous physical possession must be taken into account. No question of differing approaches to construction arises for limiting the ordinary understanding of that term by reference to the beneficial purposes of the ALR Act.
The High Court's observations that a liberal application when construing particular words may not arise, as in Berrima Gaol, apply here also. I observe that "describe" and "specify" already have commonly understood broad meanings which the Minister seeks to narrow. As will become clear from my reasoning, the beneficial and remedial purpose of the legislation usefully informs my consideration of the whole legislative scheme to which s 36 is directed.
The words "describe or specify" in s 36(4)(b) are undefined in the ALR Act. The natural and ordinary meaning of "describe" in particular is of broad import. The word "land" is defined broadly in the ALR Act as an interest or estate in land, whether legal or equitable. "Land claim" means a claim for land made under s 36. Section 36(4) refers to lands claimed, connoting a wide reference to land. The Macquarie Dictionary referred to by both Respondents defines "describe" to mean "to set forth in written or spoken words; give an account of" and "specify" to mean "to mention or name specifically or definitely; to state in detail". The Minister criticised recourse to dictionary definitions as being of little assistance. By way of example, the Minister referred to additional meanings in the Oxford Dictionary for "describe" as meaning "to portray in words or by visual representation", "to represent in a painting, drawing, sculpture, etc: to make a likeness", "to mark; to delineate; to trace" inter alia and citing the need for caution in applying dictionary meanings identified in House of Peace v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28].
According to the Minister, statutory construction requires a choice from amongst possible meanings citing the majority in Independent Commission Against Corruption v Cunneen [2015] 256 CLR 1; [2015] HCA 14, at [57]. While that can be accepted, as the NSWALC identified, at [59] the majority recognised that "Expressions of indefinite connotation are especially susceptible to context". By way of example, in Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726, which the NSWALC referred to, the Full Federal Court considered the words "a specified area" concerning applications for protecting significant Aboriginal sites with some difference in approach. Kiefel J emphasised a purposive approach in holding at 491 that what was required was sufficient description to enable those receiving the application to understand what land and waters were addressed even where there were large tracts of land.
There is nothing in s 36(4) which suggests a narrow construction is required or that a particular definition should be selected given the usual and natural meaning of the words in s 36(4)(b). In this case recourse to a broad dictionary definition is useful.
The further statutory construction arguments of the NSWALC that the legislative context does not support a narrow interpretation are accepted as follows. The term "or" appears between "describe" and "specify", suggesting alternatives as it is used as a disjunctive. A mere description, which is less exacting than "specify", will suffice. The Minister's argument blurs "describe" and "specify" when they must be considered distinctly from each other.
An extension of my finding in the previous paragraph is that the phrase "describe or specify in respect of lands claimed" is not a hendiadys, for the reasons provided by the Registrar. The use of "or" as opposed to "and" suggests the expression is not a hendiadys as identified in Pearce & Geddes Statutory Interpretation in Australia (8th ed) at [4.44] citing numerous cases. The Registrar also cited Murray (on behalf of the Yilka Native Title Claimants v Western Australia (No 5) [2016] FCA 752 at [462] to similar effect in support of her submission.
The NSWALC's approach is also supported by the submission in par [49(b)] above concerning the reference in s 36(4) to "lands in respect of which a claim is made" in contrast to subss (5) and (7) where the Minister must make a determination in relation to "a claim for lands". The words "in respect of" have a wider connotation than "for" per Unsworth at 87 (Fullagar J) cited in SGIO v Crittenden at 416 by Taylor J who stated that "in respect of" has the widest possible meaning of expressions intending to identify a connection between two subject matters. The earlier stage of making a claim at s 36(4)(b) does not require the precision needed to specify lands claimed for the purposes of s 36(5). The Minister submitted in reply that this distinction did not assist in the task of statutory construction as "in respect of lands" appeared numerous times in s 36 including in subss (5AA), (5AC), (7), (10), (12) and (15). I observe that subss (5AA), (5AC) and (7) refer to the lands claimed under subs (4) and appropriately mirror the words "in respect of lands". No such words appear in subs (10) which in any event concerns the transfer of lands as does subs (12). Subsection (15) concerns the duty payable on the transfer of land. The Minister's submission does not undermine this part of the NSWALC's argument.
As an example of the danger of applying a broad construction to "describe or specify" the Minister suggested that a claim might be made for all Crown land in NSW. As the NSWALC submitted, construction of legislation is not to be tested by reference to extreme examples and distorting possibilities Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; [2006] HCA 44 at [46] (Gleeson CJ). Such a claim is not before the Court.
The NSWALC also submitted that any ambiguity in the words "describe" or "specify" should be resolved in its favour given the principle of beneficial construction as referred to by the High Court in the Berrima Gaol case at [32]. For my part I would not consider these words as ambiguous in their context in the ALR Act. The adoption of "specify" and separately "describe" suggests a wide latitude in complying with the subsection.

The operation of the Register supports the Respondents' construction. As provided in s 167 certain information must be included on the Register. "A description of the land claimed" is required, subs (c). Not all information is required upfront, for example subs (g) refers to the date of determination of the land claim which is unlikely to be known at the date of registration. Subsection (h) allows for additional requirements to be specified in a regulation. I am informed that no further information has been prescribed by any regulations pursuant to subs (h). As the NSWALC and the Registrar submitted this supports a finding that the required information can be updated over time enabling investigation to be made where necessary.

Registrar's role

The Minister relied on s 36(4A)-(4C) to support his case on the basis that the responsibilities of the Registrar under these subsections required an ability to identify the land the subject of a claim within a reasonable timeframe and therefore the land had to be identified with a level of specificity. Subsection 4A provides that the Registrar may refuse a claim or part thereof if satisfied of certain circumstances. As the Registrar pointed out, subss (a) and (b) are limited circumstances and do not rely on how the land is described or specified in the written land claim. Further, the deeming period in s 36(4B) is not limited to 60 days if the Registrar has requested further information from a claimant land council pursuant to s 36(4B)(b). Such a period must be at least 28 days or such period as specified in the notice and can be longer than 60 days. The Minister's submission that the time period in subs (4C) is ill-suited to the Registrar making these inquiries if the land is not "described or specified" in the manner contended for does not reflect the statutory scheme in s 36(4A)-(4C).
The Registrar also highlighted why s 36(4A)-(4C) did not support the Minister's construction. Subsections (4B), (4C), (4D), and (4E) concern processes relating to the refusal of a claim by the Registrar. The power of the Registrar to refuse to refer the whole of part of a claim under s 36(4A) does not support the Minister's construction of s 36(4)(b). The Minister submitted that the necessary review under s 36(4B) would not be able to be carried out in a timely way unless lands were described and specified as the Minister contended. The Registrar could refuse a claim where satisfied that the claim or part of it "relates to lands that are not vested in Her Majesty" in s 36(4A)(a) or the claim had been made in contravention of an undertaking under an Aboriginal Land Agreement in subs (b). The Registrar may undertake searches such as a title search as part of ascertaining matters relevant to these inquiries which were introduced as a gatekeeping function by the Aboriginal Land Rights Amendment Act. In the absence of a requirement for a claim to be made by lot and DP number it would be erroneous to elevate the possibility that the Registrar might conduct a title search into a statutory requirement. Given that the land claims were registered the form of the 66 ALCs enabled the discharge of the Registrar's functions under s 36(4A).

Requests for information

The Registrar under s 168 and land councils under s 36(14) can request information about Crown land from the Department. I agree with the NSWALC's submission that the fact that a request for information can be made to the Minister under s 36(14) does not mean there is some obligation placed on land councils to identify land claimed in some way beyond that required by s 36(4)(b). As submitted, there is no timeframe imposed on the Minister to respond under s 36(14) so that the suggestion that a land claim can be delayed pending the supply of any information lacks force in the absence of any specific statutory timeframe.
As the Registrar submitted, s 168 provides a mechanism whereby she can request the Minister to provide information about a land claim listed on the Register. The Registrar does not have information beyond that known to members of the public and does not have access to the CLID database. This underscores again that information about Crown land resides in the Department.
The Minister relied on s 36(14) for another submission to the effect that any request for information had to be answered "so far as is reasonably practicable" and that supported a narrow interpretation of s 36(4)(b). From a statutory construction perspective the connection between the two subsections is not apparent as they are directed to different activities and functions. Section 36(4) is the mechanism whereby land claims are commenced. Section 36(14) is directed to the Minister's responsibility to supply information where sought by a land council. The subsection is not drafted either explicitly or implicitly as having any connection to s 34(4), including subs (b). Further, the cross-examination of Mr Brouff outlined above identified that had a request for information been made and answered under s 36(14), there would have been no difficulty in providing the identification of the parcels of lands claimed quickly and cheaply. At a practical level therefore s 36(14) can provide no assistance to the Minister's case.

Investigation by the Minister

The NSWALC submitted that the requirement to describe or specify lands enables the Minister to perform the statutory function under s 36(5) of determining a claim. The NSWALC referred to New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 (Winbar Claim No 3) at 694 where Hope JA held that the provisions of the Act: envisage that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim.
The NSWALC submitted that the investigation of facts by the Minister could extend to investigating and ascertaining which particular parcels of land were within the lands claimed. The submission that the Minister's functions would be subverted if the description of the land was so vague as to render impossible the investigation is accepted. The evidence does not support such a conclusion in this case as I discuss below.
The Minister argued that if there was uncertainty about the lands claimed, under s 36(5)(b) the Minister can refuse a land claim in certain circumstances which may arise if these land claims proceed. As the NSWALC submitted, that subsection does not permit the Minister to refuse a claim in whole on the ground that part of the land is not claimable Crown lands. The chaussette should be read in relation to both subss (i) and (ii). If the whole of the lands claimed is not claimable Crown land then the case requires that the Minister refuse the claim. If part of the lands claimed is not claimable Crown lands then the case requires that the Minister refuse the claim to the extent that it applies to that part. Contrary to the Minister's submissions the chaussette specifying "as the case requires it" does not operate separately from these subparagraphs.

Beneficial construction

I also adopt verbatim the following submission of the NSWALC that a facilitative construction of the general words "describe or specify" is consistent with the legislative history of the provision, that being consistent with a beneficial and remedial intent of the legislation. Section 36(4)(b) existed in the ALR Act at its enactment in 1983. At that time, Parliament was cognisant of the social conditions of Aboriginal people, including the lack of education and educational opportunities within many communities: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 24 March 1983 at 5089. The flexible language of s 36(4)(b) should not become a legalistic requirement, amounting to "an unduly formalistic and narrow interpretation … contrary to a section of the Act designed to facilitate and accommodate … land rights claims": Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2011] NSWLEC 95 (Gandangara) at [9]. It should therefore be approached in a facilitative manner and not in a way that would erect artificial barriers to the primary remedial purpose of the ALR Act per Gandangara at [6]-[12]. I note that Gandangara held that a land council could appeal to the Court under s 36(6) of the ALR Act in circumstances where the NSWALC had lodged the original land claim which was refused by the Minister.
Applying established principles of statutory construction the 66 ALCs do describe or specify the lands claimed as required by s 36(4)(b).

No practical impediment to identification of land

As both Respondents identified, Crown land has only relatively recently been brought in large part under the Real Property Act which facilitates its description in the manner contended for by the Minister. The commencement of the ALR Act in 1983 predated that process by many years. Not all Crown land can be described in these terms. Further, as the evidence of Mr Lancaster identifies land claims have been made in a variety of ways, see pars [24]-[25] above. The evidence of Mr Brouff summarised in par [21] above is to the effect that Crown land has been reserved by way of broad description in gazettal notices as seen in the examples from 1923 and 2006.
The Department controls the relevant Crown land database CLID, referred to in the affidavit of Mr Brouff and the SOAF. Paragraph 7(f) of the SOAF states that access to CLID was not provided. Access to CLID or information contained in it depends on the agreement of the Department. The additional agreed fact is that an extract from CLID identifying all reserves in NSW including lot and DP numbers was provided to the NSWALC in November 2016. The 66 ALCs were lodged shortly afterwards between 14 and 23 December 2016. Neither land councils nor the Registrar have access to CLID separately from the Department.
Turning to the facts before me, and as already identified in relation to s 36(14) in par [78] above, the evidence of Mr Brouff, who impressed me as a frank and co-operative witness, confirms that the land the subject of the 66 ALCs has been, or can relatively easily be, identified. Mr Brouff's affidavit of 10 April 2017 provided his estimate of the substantial time required to identify and investigate all 66 claims as requiring about 27,000 hours (equivalent to 15 years) of work. In cross-examination he stated that most of the land claimed had been identified. This was able to be done in a matter of days. Some claims took a matter of weeks being the land "vested in Her Majesty" the subject of his second affidavit. He agreed that had the NSWALC made an application under s 36(14) for information about Crown land parcels within the 66 ALCs this could have been provided relatively cheaply, easily and quickly. He agreed that the time taken to assess the land claims would be about the same, namely 15 years, if the NSWALC had made such an application and then lodged one application with a schedule specifying every parcel of Crown land or lodged multiple separate claims for each parcel. No practical impediment to the identification of the land in a reasonable timeframe arises in the Department from the form of the 66 ALCs according to his evidence.
The information to be included in the Register is specified in s 167(a)-(h). According to the SOAF the information required by s 167(a)-(e) was included in the Register for each ALC and later amended in some cases. There was apparently no difficulty in the Registrar providing a copy of the 66 ALCs to the Minister and registering the land claims on the Register in a timely fashion. Under s 36(4)(c) a claim is lodged with the Registrar, in this case the 66 ALCs were lodged between 14 and 23 December 2016. The Registrar can refuse to refer a claim or part of a claim to the Crown Lands Minister as required by s 36(4)(c) if satisfied of certain matters specified in s 36(4A)(a) and (b). Under subs (4C) a claim is deemed to be refused if not sent to the Minister within 60 days. The Registrar advised the Minister that she was satisfied that the ALCs should be registered and entered on the Register on 20 and 23 December 2016, well within the 60 days specified in subs (4C).
The Minister's argument based on the practical need for a narrow meaning of "describe or specify" is difficult to understand in light of this evidence.

Public inconvenience

Under s 36(5) the Minister is responsible for granting a claim for Crown lands made under subs (4) in whole or in part, where claimable Crown lands exist, by transferring the land to a claimant land council. The Minister's principal concern in this case was the public inconvenience said to arise from the identification and assessment of the 66 ALCs. This was part of the Minister's argument in relation to s 36(4)(b). The public inconvenience is said to arise from the time taken to process the land claims because of the requirement to identify and assess the circumstances surrounding any land as at the date of a claim. The effect of s 36B of the ALR Act is that there can be no dealing with the land while this process occurs. The possible erosion of evidence where the assessment of a claim takes a substantial period can impact negatively on evidence the Minister may seek to bring before the Court in any appeal.
The evidence of Mr Brouff that 15 years is required to deal with the 66 ALCS highlights that the principle concern of the Minister must be the time taken to assess the claims under s 36(5). The assessment of the land claims arises because of the duty placed on the Minister to be satisfied whether or not a land claim relates to claimable Crown land under s 36(5). The construction of s 36(4)(b) is not assisted by the public inconvenience argument because the adverse consequences relied on in this case arise at the point of the Minister assessing the claims to determine if he is satisfied under s 36(5) that the lands are claimable Crown lands. The evidence does not establish that the Minister cannot conduct the necessary investigation under s 36(5) because of an inability of the Department to identify the relevant lands claimed.
Inferentially the Minister's complaint must be that some 9,000 parcels of land the subject of the 66 ALCs is excessive and unreasonable for the Minister to assess under s 36(5) and leads to adverse consequences for numerous entities such as local councils due to the operation of s 36B inter alia. That there is a heavy administrative burden resulting from processing the large number of claims does not arise on the evidence from any alleged failure to satisfy the requirements of s 36(4) however.
As became clear following the cross-examination of Mr Brouff, a contributing factor to the public inconvenience alleged is the level of resourcing in the Aboriginal claims unit in the Department, another submission made by the Respondents. This presently has four staff managing a very large backlog of claims regardless of the 66 ALCs about which complaint is made in this case.
That level of staffing appears to be inadequate to meet the demands placed on it if the aim of the Department is the timely processing of land claims. Given that inquiries must be made of other departments (and indeed other entities such as local councils who are involved in Crown land management) in understanding the status of Crown land the subject of land claims, resources elsewhere in other government departments are also required in assessing land claims. I have no evidence before me about whether there are sufficient departmental resources beyond the Aboriginal claims unit to deal with the backlog and keep up with current claims but the statistics referred to in Mr Brouff's evidence suggest not.
The evidence demonstrates that before the 66 ALCs were lodged there was already a very large number of outstanding land claims in NSW where the operation of s 36B and the erosion of evidence could or is presumably arising. This was evident from the annual report for 2015/2016 annexed to Mr Lancaster's affidavit which identified 29,289 outstanding land claims of which 197 were over 16 years old, 520 over 11 years old and just over 15,000 were over six years old. Mr Lancaster's affidavit summarised above in pars [23]-[26] identified similar figures. His affidavit also addressed the limited capacity of the unit to finalise claims given the annual clearance figures. Mr Brouff was also cross-examined on that topic, confirming that the unit aims to finalise 500 claims per year and managed to do so in 2012/13 and 2015/16. No timeframe is specified in the ALR Act for the finalisation of land claims by the Minister under s 36(5) but on any measure the delays in finalisation of some land claims are excessive.
The NSW Parliament has chosen to create through the ALR Act a scheme for the making of land claims over specified Crown land by land councils in specified circumstances in recognition of the dispossession of Aboriginal people. A practical and responsible consequence of meeting legislative obligations is that departmental resources are dedicated to achieving them. As the NSWALC submitted the administration of legislation always requires a commitment of resources by the executive government. Taking into account resourcing of a government program, here the processing of land claims, as a matter informing statutory construction is unknown to the Court, as the Respondents submitted.
While reliance was placed by the Minister on Project Blue Sky at [97] where the High Court referred to public inconvenience as one consideration in statutory construction in the circumstances before it, the statutory context addressed was entirely different to s 36(4)(b) of the ALR Act. At issue was the making of Australian content standards under the Broadcasting Services Act 1992 (Cth). The issue of statutory construction concerned whether a breach of s 160 by the Australian Broadcasting Authority (ABA) was intended to invalidate any act done under that section. In concluding that such a breach did not have that consequence the High Court identified that a court is unlikely to find that an act done in breach of a statutory provision is invalid if public inconvenience would result from the invalidity. If acts of the ABA in breach of s 160 were invalid it was likely to result in much public inconvenience to those members of the public who had acted in reliance on the ABA action.
Broadly similar considerations arose in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] NSWLEC 157 at [110], another case referred to by the Minister. The Court was considering s 90 of the Crown Lands Act which provides a power to the Minister to revoke the reservation of land provided mandatory matters are complied with. At issue was whether a failure to comply with s 90 resulted in the invalidity of such a decision and public inconvenience was cited as one consideration relevant to statutory construction at [110].
The statutory provisions in those cases were concerned with the exercise of powers conferred by statute and public inconvenience which may result from a particular construction when determining whether a breach of the section gives rise to invalidity. Section 36(4)(b) is of an entirely different character. It is concerned with the commencement of a statutory process which is the principal means by which land claims can be initiated under the ALR Act, a matter emphasised by both Respondents. As the NSWALC submitted, s 36(4)(b) requires only that a claim identify the land sufficiently for the Minister to ascertain the boundaries of the claimed land as an aspect of his statutory duty to investigate and determine the claim under s 36(5). Public inconvenience in the terms relied on by the Minister has no role to play in the construction of s 36(4)(b) in this case.
As Neave J stated in the Federal Court in Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455 at 477: Clearly, it is not for the Court to dictate to the Parliament or the Executive what resources are to be made available in order properly to carry out administrative functions under legislative provisions. Equally clearly, however, the situation cannot be accepted in which the existence of a right created by the Parliament is negatived, or its value set at nought, by a failure to provide the resources necessary to make the right effective.
In Wei lack of departmental resources for processing permanent residency applications resulted in an important deadline not being met by the applicants, resulting in their adverse immigration status.
My findings above largely adopt the submissions of the NSWALC and the Registrar.
Measures to ameliorate the impact of land claims appear in the evidence. The SOAF at pars 14-57 also summarised in par 60 identifies the amendments to several of the claims and some of the reasons for these such as local council requests based on existing land uses. This supports the statement of Mr Lancaster that there are numerous instances where claims are amended to exclude land needed for other uses such as roads or public service infrastructure. He provided one such example.
According to the re-examination of Mr Brouff summarised in par [22] above a priority assessment can be sought by other government agencies or land councils, a further mechanism to ameliorate the impact of delay in assessing outstanding claims.

Second Reading Speech

The Minister relied on part of the Second Reading Speech given in 1983 when the ALR Act was introduced which stated that land claims over large areas was not intended. Under s 34(1) of the Interpretation Act extrinsic material such as a Second Reading Speech, identified in subs (2)(f)), can be considered as an aid to statutory construction in order to confirm the ordinary meaning conveyed by the text in light of the purpose or object underlying an Act, or where a provision is ambiguous or obscure, or the ordinary meaning would lead to a manifestly unreasonable or absurd result. Given my earlier consideration of s 36(4)(b) none of these bases for relying on the Second Reading Speech arise in my view. Further this argument is really directed to the substantial administrative burden which arises because of the Minister's assessment responsibilities under s 36(5) a matter separate to the process under s 36(4).

Aboriginal Land Agreements

The Registrar referred to the operation of ALAs introduced by s 36AA in 2014 as supporting her construction of s 36(4)(b). The purpose behind their introduction is described in the Second Reading Speech delivered in 2014 set out in par [4] above which refers to greater flexibility in negotiating the settlement of multiple land claims with the potential to reduce the amount of undetermined land claims. As the Registrar submitted ALAs provide a mechanism whereby resolution of land claims over a wide area of land can be achieved suggesting the land claims in their current form are acceptable. While not central to my conclusions above I accept that ALAs provide an important part of the scheme under the amended ALR Act facilitating the resolution of land claims and other matters over wide areas of land.

Native title claims

For completeness I note that Mr Brouff was cross-examined (see pars [15]-[16] above) and submissions were made by the NSWALC concerning the scope of native title claims over large areas of land and what kind of assessment the Department had to undertake to identify lands claimed. While I agree with the Minister that the Commonwealth native title regime does not assist in the statutory construction of s 36(4)(b), the response to such claims does provide some measure of what can be done practically in identifying land by the Department. It is not a matter I have given much weight to in the statutory construction issue arising in this case.

Conclusion on Ground A

There is nothing within the text, or context, of the ALR Act to suggest that the words "describe or specify" or "lands" in s 36(4)(b) should be narrowly construed as requiring individual parcels of land to be identified by boundary description. The Minister's Ground A is unsuccessful.

B No reasonable basis for claim required

The principal reason for rejecting the Minister's second ground that a reasonable basis for making a claim must exist on the part of a land council is that there is no part of the ALR Act which supports such a construction of the making of a claim under s 36(4) either explicitly or implicitly. For the reasons stated by the NSWALC summarised in par [51] above the Minister's second argument is also rejected. To characterise the right conferred on land councils under the ALR Act to make land claims as a power is inapt. Further, irrespective of how the ability to make a land claim is described, the power considered in Kruger was of an entirely different character, being the power conferred on the Chief Protector of Aborigines under Northern Territory laws created in 1918 concerning the care, custody and control of Aboriginal people. It is also difficult to see how such a limitation on a land claim could be applied in practice. How would a land council demonstrate that it was acting reasonably in making a claim? The 2014 amendments to the ALR Act conferring on the Registrar the power to refuse a land claim in defined circumstances in s 36(4A) is a statutory mechanism to weed out inappropriate claims such as any made over private land.
The Minister's Ground B is unsuccessful.

Conclusion

The Minister's summons should be dismissed and an order to that effect will be made. In Class 4 matters costs generally follow the event so the Respondents' costs would usually be paid by the Minister in the absence of any disentitling conduct. As I have not heard any submissions on costs I will make the usual order in 14 days from the date of this judgment unless a notice of motion seeking an alternative order is filed with the Court.

Orders

The Court orders: 1. The Applicant's summons dated 12 April 2017 is dismissed. 2. The Applicant is to pay the Respondents' costs of the proceedings unless a notice of motion seeking alternative orders is filed within 14 days. 3. The exhibits are returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2018

Aboriginal Land Rights Amendment Act 2014(NSW)

Registrar, Aboriginal Land Rights Act 1983(NSW)

Crown Lands Act 1989(NSW)

(2012) 211 LGERA 100

(2007) 155 LGERA 307

(2016) 219 LGERA 282

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