MINISTER ADMINISTERING THE CROWN LANDS ACT v DEERUBBIN LOCAL ABORIGINAL LAND COUNCIL
[2001] NSWCA 28
At a glance
Source factsCourt
Court of Appeal (NSW)
Decision date
2001-02-22
Before
Spigelman CJ, Powell JA, Heydon JA, Bignold J
Source
Original judgment source is linked above.
Judgment (8 paragraphs)
Background Facts 9 The formal steps in the history of the land and the claims were as follows: · 24 February 1961, the land was declared to be part of the Maroota State Forest pursuant to s18 of the Forestry Act 1916. · 25 March 1976, the Legislative Council and the Legislative Assembly resolved to revoke the Maroota State Forest as a State Forest. · 16 July 1976, by Notice the Governor revoked Maroota State Forest under s19 Forestry Act 1916. · 28 December 1979, Gazettal of Marramarra National Park adjacent to land previously forming Maroota State Forest. · 19 December 1985, Aboriginal land claims 2622 and 2623 lodged. · 18 August 1989, Aboriginal land claims 3438, 3439 and 3462 lodged. · 15 March 1996, Minister refused the land claims including 3438, 3439 and 3462. · 24 May 1996, Class 3 proceedings commenced in the Land and Environment Court. · 1 April 1999, decision of Bignold J allowing the appeal. 10 In the mid 1970's, when the timber in the Maroota State Forest had been cut out, the Forestry Commission proposed that the dedication of the area as a State Forest be revoked. From that time a number of proposals for the future status of the land were considered. Prominent throughout this consideration was the possible use of the area as a national park. 11 Section 19 of the Forestry Act provided for the effect of revocation in the following terms: "On any such revocation the land shall become Crown land within the meaning of the Crown Lands Consolidation Act 1973 or the Western Lands Act 1901, as the case may be, and shall be dealt with under those Acts respectively and until so dealt with shall be reserved from sale or lease under any Act." 12 This remained the status of the land at the time of the land claims. When rejecting the claim by letter of 15 March 1996, the Minister for Land and Water Conservation informed the Respondent that the land was proposed to be established as Maroota National Park. No formal proclamation has occurred, no doubt pending the outcome of these proceedings. 13 Upon being advised of the proposed revocation as a State Forest, the National Parks and Wildlife Service ("the Service") indicated its intention to propose that the area be reserved as a National Park or Nature Reserve. By letter of 9 July 1975 to other Departments, the Service indicated that any such classification "… will not be determined until completion of more detailed investigation of the area in relation to its future use". 14 In the resolutions of the two Houses of State Parliament, which proposed revocation of the dedication of fifteen State forests including Maroota, the column of the accompanying table under "Reasons for Revocation" noted against Maroota: "Nature Reserve or National Park". This reflected the express views of the Service, although it had no formal effect. The Ministerial Statement on the revocation said: "The Service is interested in establishing a national park or nature reserve and is investigating the land." 15 The Service's investigation culminated in a document dated 19 August 1975 entitled "Maroota National Park Proposal: Investigation Report" (28). It recommended that the Maroota State Forest "be considered for dedication as a National Park". It recommended that use as a nature reserve not be pursued. 16 Subject to some objections by the Department of Mines, which were subsequently resolved, the only opposition to the proposal came from the Lands department. I will refer to this body as such, notwithstanding a number of changes at nomenclature over the decades. This interdepartmental conflict continued for some time. 17 On 10 October 1979, the Lands department wrote to the Director of the Service indicating that that department's investigations were not complete but that "investigations to date indicate that the department is likely to object to the proposal as a whole or in part" (154). The Minister for Lands affirmed this position in a letter of 16 October 1979 to the Minister for Planning and Environment (155). 18 At an interdepartmental meeting on 8 May 1981 the Lands department indicated that it did not "see it as a national park" referring to "active recreational needs e.g. interest groups, scout camps/church groups" (165). 19 On 24 June 1982, the Service wrote to the Lands department referring to the seven years that had elapsed and the substantial investment the Service had made in protecting the environment of the proposed national park. The Director of the Service said: "It is my belief that if the Crown Lands Officer is not prepared to accept reservation of the area under the National Parks and Wildlife Act then priority should be given to an urgent comprehensive resource study to provide the basis for positive land use planning." (168) 20 The Lands department responded on 24 September 1982, that it would itself undertake a pilot study of the area with a view to land use planning (169). 21 By letter of 30 June 1986, the Service referred to the "long running issue" of the proposed Maroota National Park. The Lands department indicated that the pilot had not been completed but indicated that it was being pursued (173). 22 The position in 30 April 1990 - after the land claims in issue in these proceedings were made - was set out by the Minister for the Environment in response to representations in favour of a national park made by the Baulkham Hills Shire Council: "As you know, the state forest was revoked specifically for national park purposes. However, the Department of Lands has so far not given its consent on the grounds that its other possible uses has not been fully assessed. I have directed the National Parks and Wildlife Service to renew its efforts at bringing this longstanding national park proposal to fruition, and I will if necessary continue these discussions at ministerial level in the hope of resolving the outstanding issues." (487) 23 The Minister appears to have reiterated this position in a letter to the National Parks Association on 14 August 1990. I note that there is no evidence of any such discussion at ministerial level. 24 The Council had also made representations through a Member of Parliament to the Minister for Natural Resources. He replied on 15 June 1990: "Although previous investigation by the Department of Lands has directed that the greater part of this area has conservation value, there is no current request from the National Parks and Wildlife Service to establish a national park. Should a request be made it will be considered in the light of the assessment of the capabilities and identification of the suitable uses for the land. However, it should be noted that the land is subject to an Aboriginal land claim which will also need to be resolved before a decision is made." (447) 25 On at least three subsequent occasions - on 28 August 1990, 4 February 1991 and 25 September 1992 - the formulation "no current request" was used by the Minister responsible for Crown Land in response to representations addressed to the Premier (488, 489, 490). 26 On 27 March 1991 the Service submitted to the Lands department a document entitled "Assessment of the Maroota Crown Lands". The document emphasised: "The National Parks and Wildlife Service does have an active interest in permanently preserving the manifest natural attributes of the Maroota Crown Lands as a National Park. This has been the case since a Reference Statement was distributed to all relevant Government Departments, including the Department of Lands, (a) 976. The National Park proposal for the Maroota Crown Lands is still, in the Service's mind, very much alive." (177) 27 Over the relevant period two other proposals for the land were considered and discarded. · Between 16 February 1989 and 16 February 1990 consideration was given to the use of some 492 hectares of the land for purposes of a regional depot for waste disposal (435 and 446). · Between May 1990 and sometime in early 1991 consideration was given to the construction of an international standard shooting range and complex on the land. 28 The Crown Lands Act 1989, which came into effect on 1 May 1990 had the effect of continuing the reservation of land from sale or lease under s19 of the Forestry Act as set out above. This amendment also, however, introduced a new requirement for a formal "land assessment" before the land could be dedicated for a public purpose. (See Crown Lands Act 1989 Pt 3 and ss35 and 85). The Lands department study, that had been continuing for some time was, in a manner not fully set out in the materials before the Court, transformed or succeeded or subsumed into a statutory land assessment under these new provisions. 29 By letter of 19 August 1993 the Service commented on a draft Assessment, to the effect that it agreed with the general conclusions but noting that it was concerned by the possibility by mining in part of the area as discussed in the draft. Various other comments were made about the detail of the draft. The Service indicated its agreement with the reasons propounded as to why the Maroota Crown Lands would "constitute a viable, valuable and significant addition to the State's network of conservation reserves" (185). It concluded: "In conclusion the Service believes that in the 17 years that the Service has been pursuing the gazettal of these Crown Lands as a national park the weight of evidence supporting this land use has become even more overwhelming. It should be stressed that as early as 1976 every government department other than the then Department of Lands concurred with the gazettal of the subject lands as a national park and the proposed Maroota National Park has over many years enjoyed strong support from the Department of Planning, Baulkham Hills Shire Council and a great majority of local residents." 30 The statutory land assessment by the Lands department under the Crown Land Act 1989 was published in 1994. It was entitled: "Crown Land Assessment: Former Maroota State Forest and Environs" (189). Only part of the document is contained in the papers before the Court. The assessment concludes that the land was suitable for environment protection and nature conservation and the area was rated as high or very high for environmental protection and high for nature conservation. 31 The Service had been advised of the original land claims on 27 February 1987. It indicated an objection on the basis that the land the subject of the claims "form part of the proposed Maroota National Park". On 21 February 1990 the Service objected to the subsequent claim No 3462 on the basis that "the land is required for the essential public purpose … of reservation as Maroota National Park". Similarly on 21 July 1991 the Service nominated on the further claim No 3438, which covered most of the area proposed for a national park: "the land is required for the essential public purpose of conservation, recreation and management in the proposed Maroota National Park". 32 1995 was an election year in New South Wales. In the course of the election the Labour Party put forward a policy proposal described as "Labour Government's Nature Conservation Strategy". It listed Maroota as one of a number of new national parks. In March of 1995 the Labour Party was elected. 33 The implementation of this policy required the Minister to reject the land claims. This occurred in March 1996, after detailed submissions to the Minister of the Service. 34 In his letter of 15 March 1996 to the Respondent rejecting the land claims, the Minister said that the land the subject of the claims was: " … needed for the essential public purposes of nature conservation and public recreation. This land has been identified by the National parks and Wildlife Service for some considerable time as being needed for these purposes and is proposed to be established as Maroota National Park."