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

Judgment of Bignold J 35 In his judgment his Honour set out the various steps involved in the consideration of the proposal to establish a National Park in the form of Maroota State Forest. His Honour also identified two bodies of evidence that came into existence after the relevant date. 36 First, was expert opinion evidence being a report from an environmental consultant who specialises in vegetation survey and another report from an ecological consultant specialising in habitat assessment. Each of these reports were supportive of the proposal to create a National Park. 37 His Honour referred to his own decision in Birrigan Gargle Aboriginal Land Council v The Minister Administering Crown Lands Act (1999) 102 LGERA 33 in the following terms: "56 Recently … I considered the question of how facts subsequent to the date of a land claim may be relevant to the question whether the land was, at the date of claim, needed for an essential public purpose, holding that subsequent facts, if in the nature of hindsight , could not have any logical relationship to the facts existing at the relevant anterior date (i.e. the date of the land claim). 57 However, I went on to observe that although much of the evidence concerning the ecological values of the claimed lands had come into existence subsequent to the date of the land claim, it nonetheless was admissible as confirming the ecological attributes possessed by the land at the date of claim." 38 Accordingly, his Honour admitted the evidence on the basis that it established the high ecological and conservation of the claimed lands and that those values were "at least ascertainable at the date of the applicant's land claim". His Honour did not however accept as relevant the opinions expressed by the two consultants to the effect that the land should be dedicated as a national park. His Honour concluded: "These opinions are inevitably in the nature of hindsight, and in my opinion are not relevant to the issue that requires adjudication in the present proceedings."

Nothing turns on this finding. 39 His Honour also referred to other evidence of subsequent events. These included the Lands department's formal 1994 land assessment; together with the representations of the Service thereon and the 1995 State election platform, which advocated the creation of a number of new national parks, including the Maroota National Park. There was also evidence relating to the Service's opposition to the Applicant's land claims and the investigation of those claims culminating in the Minister's determination to refuse them. His Honour concluded: "66 The documentary evidence unmistakably indicates that the Minister's determination refusing the Applicant's land claims was entirely based upon the objections raised by the Service. Moreover … in notifying the Applicant of refusal of its land claims on the ground that the land was needed for the essential public purposes of "nature conservation and public recreation", the Minister additionally advised that the land was proposed to be established as Maroota National Park." 40 His Honour concluded that it was this determination which constituted the first occasion in the entire period since the Service first proposed reservation of the land in 1975 on which the national park proposal had received approval at what his Honour described as "the level of Executive Government". 41 His Honour identified the issue before him as: whether or not the Minister had satisfied the Court that the claimed land was either "needed" or "likely to be needed" for the essential public purpose of nature conservation. 42 His Honour referred to the maintenance by the Service of a proposal for Maroota National Park from 1975 through to 1996; to the "high conservation and ecological values or attributes of the claimed land" and also to the support for the Service's proposal from other government departments, with the one exception, which his Honour described as "the solitary resistance, if not opposition, from the Lands Department". His Honour concluded: "82 In my judgment, these facts whether taken individually or collectively, fall far short of demonstrating that the claimed land is relevantly "needed" or "likely to be needed" for nature conservation. It establishes that the Service being principal statutory authority in New South Wales having responsibility for national parks and nature conservation had a desire or an objective that the land become a national park under its control and management, but that this desire or objective was never translated into anything like fulfilment or realisation throughout a continuous period of more than 20 years." 43 His Honour referred to the effectiveness of the resistance from the Lands department but said that this was not the only cause of the failure of the Service's proposal. His Honour noted that the Service did not bring the "impasse" with the Lands Department "to a decisive head" and "in particular, did not submit the matter for decision at the level of Executive Government". 44 His Honour noted that in 1991, the then Director of the Service stated that the Service was preparing to make a submission to the Minister on the heritage values but, by reason of the fact that no such ministerial submission was included in the material before him, his Honour inferred that he would proceed on the basis that no such submission was made. 45 His Honour also said: "The entrenched bureaucratic stalemate between the Service and the Lands Department continued in the new administration in New South Wales following the change of Government at the March 1988 election, again without involving any resolution at ministerial level." 46 His Honour concluded that it was not until the election of the new government in March 1995 and the decision to implement the Nature Conservation Strategy, that "the first and only decision at the level of Executive Government was taken in 1996 to dedicate the claimed land as a National Park". His Honour identified this as a "telling fact" against the assertion that the land was either needed or likely to be needed for nature conservation in August 1989. 47 His Honour emphasised on a number of occasions that the crucial event was the 1995 policy of the incoming Labor Government. He described this event as too remote from the date of the Applicant's claims with the relevant date for the purposes of determining this matter. 48 His Honour expressly referred to the argument advanced on the part of the Minister before him based on the "high ecological and conservation values and attributes of the claimed land". His Honour described this submission as "significant" and added: "104 It raises the question whether the intrinsic ecological qualities or attributes of the claimed land, generate of their own force a need or a demand for conservation, independently of any appraisal of need by human agencies." 49 His Honour concluded that the "undoubtedly high ecological significance of the claimed land does not itself demonstrate a need for the land and does not justify an inference being drawn of the existence of such a need". Accordingly, he concluded that the Minister had failed to discharge his onus of proof in the proceedings.

"Likely to be Needed" 50 In the submissions for the Appellant a number of the Grounds of Appeal were grouped under the heading "Likely to be Needed", the relevant limb of the formulation in s36(1)(c) of the Act. The Appellant accepted that, in accordance with the decision of this Court in Deerubbin Local Aboriginal Land Council supra, the word "needed" meant no more than "required or wanted". The distinction between what was "needed" and what was "likely to be needed" turned, in the Appellant's submission, on whether or not a decision concerning the use of the land had in fact been made. This is an acceptable distinction. 51 The Appellant referred to the well known judgment of Deane J where his Honour said that the word "likely": "can … in an appropriate context, refer to a real or not remote chance or possibility" as distinct from "probably" in the sense of a more than 50 percent chance. (Tillmanns Butcheries Pty Limited v Australian Meat Industry Employees Union (1979) 27 ALR 367 at 380). In Boughey v The Queen (1986) 161 CLR 10, in a joint judgment of Mason, Wilson and Deane JJ, their Honours expressed the view that in the statute there under consideration: " … the word 'likely' is used … with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial - a 'real and not remote' - chance regardless of whether it is less or more than 50 percent:" (at 21) 52 The word "likely" is protean. It has more than one usual meaning and always takes its colour from its surroundings. (See e.g. Jungarray v Olney (1992) 105 ALR 527 at 535). The context in which the word is used in a particular statute will usually indicate the intended meaning. 53 The beneficial purpose of the legislative scheme of the Aboriginal Land Rights Act 1983 suggests that the exceptions to the right to make claims on Crown Land should be narrowly construed. 54 That beneficial purpose is reflected in the recital of the Act and has been referred to on a number of occasions in judicial consideration of the Act. (See Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157, Kirby P; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 especially at 117 B to C and 121 D to E, per Sheller JA; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (1992) 76 LGRA 192 at 194 per Stein J.) 55 However the exception under consideration in the present case is expressed in terms of "an essential public purpose". The public interest in serving a public purpose of an essential character counterbalances the implication of the beneficial construction to which the Aboriginal Land Rights Act would otherwise be entitled. The reference to 'essentiality' of the public purpose sets a high standard. The restriction implied in the use of the word "essential" is a significant one. It is not enough that the public purpose to be served is 'desirable' or even that it is 'highly desirable'. 56 The test of essentiality has been variously expressed by judges in the Land and Environment Court. (See New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318 at 331 and 332; Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 AT 163; La Perouse Local Aboriginal Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 183; Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 95 LGERA 353 at 361. 57 The exception from the definition of claimable Crown lands of lands needed for an essential public purpose is restricted by the use of the word "essential". In this context there is no warrant to give an extended sense to the word "likely" to effect a restriction of the character which the beneficial purpose of the Act would otherwise suggest. In my opinion, in this context, the word "likely" is not used in the sense of "more probable than not" but is used in the sense, as the appellant contends, of a "real or not remote chance". 58 His Honour did not express himself in the language of a 'probability' or of a 'real or not remote chance'. There was no suggestion in the submissions in this Court that any such differentiation had been advanced before his Honour. Counsel for the Appellant indicated to the Court that submissions of the character that were put here, in terms of this particular distinction, were not put to his Honour. This explains why his Honour did not express the distinction in terms. 59 His Honour employed, as he was entitled to do, the terminology of the statute and asked whether or not the land was either "needed" or "likely to be needed" for the essential public purpose of a national park. The appeal to this Court is limited to questions of law. The circumstances in which alleged mistakes in fact finding can give rise to a question of law are limited. 60 One submission of the Appellants in this respect was that his Honour misconstrued the statute by failing to apply the 'real and not remote chance' test to the word "likely". There was no passage in his Honour's reasoning which indicated such an approach, but it was submitted that the error could be inferred from the absence of separate analysis of "need" from that of "likely need" and from the expression, on more than one occasion, in the same phrase of the two limbs of the statutory formulation. It was also asserted that the error appeared in his Honour's reasoning when he focused on whether or not an intention to use the land for the purpose of a national park was manifest at the level of "Executive Government" and in what was alleged to be his Honour's "complete dismissal of the significance of the intrinsic ecological qualities or attributes of the land". A number of his Honour's references to "Executive Government" were said to be indicia of the error which counsel for the Appellant asked the Court to infer his Honour had made. 61 I do not read his Honour's judgment in this way. His Honour identified the fact that the strong desire of the Service to have the area declared a national park had not been successful for two decades. Nothing in the period up to the change of government in 1995 suggested that the institutional imperative of the Service to create a new national park, in conjunction with the "intrinsic ecological qualities and attributes of the land", created a real and not remote chance that a declaration would be made. 62 His Honour's references to the significance of consideration at the level of "Executive Government" reflect the emphasis on the opinion of need held by the Government expressed in the first Deerubbin Land Council case. (See Meagher JA's reference to "government of the day" and Handley and Powell JJA's reference to "required or wanted by the Executive Government" in 43 NSWLR at 252 O and 254 D-E). His Honour noted that the power to create national parks is vested in the Governor, and the Governor does so acting on the advice of Ministers. (See the National Parks and Wildlife Act 1974, s43(2). The trial judge said: "97 … The policy of the Act is to leave such decisions to the policy of the Executive Government of the day." 63 His Honour was entitled to act on the basis that expansion in the size and number of national parks in New South Wales is primarily a matter of political will and such was not manifest, to the appropriate degree, at the relevant time with respect to the Maroota proposal. The submission put on behalf of the Appellant that by reason of the fact that this proposal was "seriously in play in the executive process" and that his Honour ought to have inferred that there was a real and not remote chance that it would come to fruition and therefore satisfy the "likely to be needed" test, was not a finding of fact which his Honour was obliged to make. 64 The institutional imperative of the Service which, for two decades, had been successfully stymied by the institutional imperative of another branch of the public service, did not raise the 'likelihood' of a declaration as a national park to the level of a "real and not remote" chance, relevantly, in 1989. 65 Some of the terminology that his Honour used indicated that he was directing his mind to questions of possibility rather than probability. In par [89] of his judgment his Honour had referred to the "entrenched bureaucratic stalemate between the Service and the Lands Department" and the absence of "any resolution at Ministerial level". In this context his Honour referred to the alternative proposals for a waste disposal site and a shooting range as indicating that: " … at Ministerial level, the realisation of the Service's proposal became even a more remote possibility , at least during the currency of those proposals which coincides with the date of the Applicant's land claims". 66 His Honour's use of the terminology of "possibility" in this passage indicates that his approach to the construction of the word "likely" was not one determined by "probability". 67 To similar effect are his Honour's observations that: · Until 1995 pre-election platform of what became the Labour Government, there was not at any time "any relevant policy of Executive Government" - the use of a standard of "relevance" is not consistent with an approach based on "probability". · Neither the need nor the likelihood of need for a national park was even "manifested" until after the new government came to office in March 1995 - the use of the word "manifested" is consistent with a low level test, rather than a test of "probability". 68 The Appellant also submitted, in the alternative, that the only conclusion reasonably open on the proven facts was that the land was likely to be needed for the purposes of a national park. (See e.g. Hope v Bathurst City Council (1981) 144 CLR 1 at 7-8). This submission should be rejected. It was reasonably open for his Honour to find that until the change of Government after the March 1995 election, there was no real chance of the declaration of the former Maroota State Forest as a national park, a proposal that had been under consideration for twenty years without sign of any significant possibility of implementation.

Subsequent Facts 69 The Appellant submitted that events subsequent to the making of the claim ought to be taken into account in determining the likely future position as at the date of the claim to the extent to which they are logically probative. Reliance was placed on Housing Commission of New South Wales v Falconer (1981) 1 NSWLR 547 at 558; AMP Society v OTC (Aust) (1972) 2 NSWLR 806 and 823-824; Longworth v Commissioner of Stamp Duties (1953) 53 SR(NSW) 342 at 347. It was submitted that subsequent events should be taken into account to determine the proper weight to attach to circumstances that existed at the date of the claim. 70 It was submitted that the events, culminating particularly in the land assessment report, were reasonably foreseeable at the relevant time, that is, in 1989 and that was so notwithstanding that a process of assessment of that general character had been under way for some time. When I say "of that character", I acknowledge that it wasn't as formal as or subject to the statutory requirements of the 1989 amendments. 71 As noted above, Bignold J referred to his earlier decision in Birrigan Gargle Aboriginal Land Council v The Minister Administering Crown Lands Act supra, in which his Honour had said that reliance could not be placed on subsequent facts or events, in the nature of "hindsight". His Honour's use of this word was an adoption of the terminology of Hope JA in Housing Commission v Falconer supra at 558, in turn based on a number of High Court authorities to which Hope JA referred in the following terms: "However there are many decisions, including decisions of the High Court, in which it has been held that evidence of future events is admissible not to prove hindsight but to confirm a foresight …" (par 558B) 72 As I have noted above, there was a distinct section of his Honour's judgment concerned with subsequent events under the heading "Facts Occurring After the Date of Land Claims". This encompassed both documentary evidence after the period in March 1996 and expert opinion of ecological studies produced in evidence before his Honour. Contrary to submissions made on behalf of the Appellant, at [62] of his judgment his Honour expressly referred to the 1994 land assessment, as a matter to which he had regard. 73 It was submitted to this Court that the outcome of what became the land assessment was reasonably foreseeable at the time that the land claim was made. As I have mentioned, however, this bureaucratic process was not an expression of political will. It established that appropriate use of the land as a national park was a possibility but it was neutral as to whether or not it was "likely to be needed" under the statutory formulation, as at the date of the land claim, in the sense of a real chance or possibility. 74 His Honour's finding that the emergence, for the first time in 1995, of the political will to declare the area a national park represented a qualitative change, was a finding open to his Honour. I can see no error of any character, let alone an error giving rise to a question of law, in his Honour's reasons in this respect. 75 It was also submitted that his Honour failed to place any weight on the intrinsic ecological qualities or attributes of the land and that this itself constituted an error of law. In my opinion his Honour gave express weight to what he described as "the high ecological and conservation values and attributes of the claimed land". He certainly concluded that such ecological significance was not "sufficient in and of itself" (italics in the original at [106]) to draw the requisite inference. I can see no error in his Honour's analysis in this regard. These were findings open to his Honour.

Other Submissions 76 It was submitted that his Honour's references to the delay of the Service in advancing its proposal constituted an error of law. I can see no relevant error by his Honour in noting the length of time that had passed whilst the matter was under consideration at a bureaucratic level and the failure, notwithstanding the strength of the Service's commitment to the project, to take steps to ensure that the proposal was treated as a high priority or raised for decision making at a Ministerial or Cabinet level. 77 These are matters of relevance on the issue of "likelihood", not because the passage of time represents some lack of diligence on the part of the Service, but because it is relevant to the determination of the possibility of success of a proposal, if it had been put up for political decision. It was open to conclude that the combination of a strong commitment to the proposal with the failure to promote it at the appropriate level, manifested a judgment on the part of the Service that there was no real prospect of success if it did actively pursue its proposal at that time. 78 As I have indicated, his Honour noted the Service made no submission to Executive Government at the appropriate level until after the election in March 1995. A proposal to take such steps in 1991, as I have indicated was not pursued. 79 The Appellant also relied on the fact that, by force of the Crown Lands Act 1989, no use or dealing could occur unless authorised by statute. This also continued the restriction under s19 of the Forestry Act 1916, imposed in 1976. As noted above, in the column of the table presented to Parliament, the reason for revocation of the dedication of the land as a State forest was given as being for the purpose of a "nature reserve or national park". This was the explanation given in 1976. It had no formal significance. It was not such as either alone, or in combination with subsequent events, to raise the prospect of such use to the level of a 'real and not remote chance' in 1989. I can detect no error in his Honour's reasons in this regard. 80 In my opinion the appeal should be dismissed with costs.

83 SPIGELMAN CJ: The order is that the appeal is dismissed with costs. **********

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