(a) essential public purpose;
(b) needed, and
(c) and likely to be needed.
58 The Minister did not seek to cast doubt upon the principles identified by the Land and Environment Court with respect to these concepts. Rather, he claimed that the Court had applied a wrong legal test in identifying the use which could be made of evidence as to matters which arose after the making of the claim. Secondly, the Minister challenged the imposition of a gloss on the statutory language, namely that the need must be identified at "an appropriate level of government". Thirdly, the Minister submitted that if it were open to the Court to take into account the post-claim failure to take action in relation to the use of the land for nature conservation, there had been a denial of procedural fairness to him. Fourthly, and perhaps related to the first issue, the Minister argued that the Court had elevated a finding of delay in relation to the determination of the claim into a principle which allowed any gaps in the evidence to be filled favourably to the Land Council.
59 Each of the matters, other than the third, is capable of constituting a challenge to a decision on a question of law. As explained by Hodgson JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [28], in relation to a similarly worded right of appeal under s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW):
"It is not necessary that the question of law be explicitly stated and decided by the Tribunal. It is sufficient if a decision of the Tribunal is such that a resolution of a question of law is manifested by it: see Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277 at [3]-[4], and Douglas v NSW Land and Housing Corporation [2008] NSWCA 315 at [17]-[18]."
60 Whether it is open to treat the third matter in such a way is less clear. As suggested in Lambert at [75] there may be doubt as to whether a failure to accord procedural fairness can properly be characterized as an erroneous decision on a question of law, other than in particular circumstances, for the purposes of appeal provisions in similar form to s 57(1) of the LEC Act. Nevertheless, it is not necessary to resolve this question in the present case, because this ground fails for other reasons.
61 The Minister placed his primary argument on the misuse of the evidence of post-claim activity or inactivity. It is convenient, therefore, to commence with that issue. However, it is first necessary to identify both the relevant legal principles and the factual background.
Legal principles
(a) construction of s 36(1)(c)
62 Two bases for exclusion from the definition of "claimable Crown lands" considered in recent times have been the requirement that the lands are "not lawfully used or occupied" - discussed in Bathurst Local Aboriginal Land Council and the cases referred to therein - and that they not comprise lands which "in the opinion of the Crown Lands Minister, are needed or likely to be needed as residential lands": see Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151, referring to earlier decisions in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ("Castlereagh Nature Reserve Land Claim") and Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; 50 NSWLR 665 ("Maroota Land Claim"). The present case is closer to the latter category, although it is not framed as an exclusion based upon the opinion of a Crown Lands Minister; rather it is framed in objective terms. Nevertheless, the language of need or likely need invites the question, 'needed by whom?'
63 In Castlereagh Nature Reserve Land Claim, at 252D, Meagher JA identified the relevant question raised by this provision as "a question of the view held by the government on the day the claim was made". To similar effect, Handley and Powell JJA identified the question as "whether the particular land was needed, that is, required or wanted, by the Executive Government for" the identified essential public purpose: p 254D-E. As explained in Maroota Land Claim, at [62] by Spigelman CJ (Powell and Heydon JJA agreeing), the justification for that approach is that the power to create national parks is vested in the Governor acting on the advice of his or her Ministers: see National Parks and Wildlife Act 1974 (NSW), s 33(2) (a provision since repealed, but in force in 1986) and Interpretation Act 1987 (NSW), s 14. That case involved issues similar to the present case, as did the Castlereagh Nature Reserve Land Claim. That is, they revealed more than one interest within the government in relation to the land at the date of the claim, all but one of which dropped away later leaving nature conservation as the remaining "essential public purpose". No decision having been made at the date of the claim as to any particular use to which the land might be appropriated, it was difficult for the Minister to establish that it was, at the date of the claim, "needed" for a particular purpose. As noted by Spigelman CJ in Maroota Land Claim at [50]:
"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."
64 It might be arguable that where there were three competing uses for the land, each of which might properly be described as an "essential public purpose", the priority ultimately to be accorded to one over another, as revealed by subsequent events, would not preclude a finding that the land had been needed at the date of claim for an essential public purpose, even though one specific purpose might not then have been chosen. Alternatively, it might be said that the land was "likely to be" needed for any one of the purposes, assuming them to be mutually inconsistent, which would in turn satisfy the statutory exclusion from the definition of "claimable Crown lands". While these may be possible outcomes, other factors may militate against them. Thus, not all public purposes will constitute "essential" public purposes. As Spigelman CJ noted in Maroota Land Claim at [55], accepting a meaning of "likely" as involving a real or not remote chance:
"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'."
65 What may constitute an essential public purpose in some circumstances, may not in others. For example, there is no doubt that the conservation values of particular land may fall on a scale between low and very high or outstanding. Reliance upon (say) three public purposes under consideration at the date of claim, two of which are subsequently allowed to lapse, may give rise to an inference that the third has become an "essential public purpose" in relation to that land only with hindsight, or even opportunistically.
(b) reliance on post-claim material
66 The last suggestion raises the question as to the correct approach to reliance upon post-claim events. The Minister did not dispute that evidence of events occurring after the claim was made could be relied upon to determine whether the land was needed or likely to be needed for the specified purpose, at the date of the claim. Indeed, the Minister tendered a significant volume of material directed to that which he identified as a proper reliance on such events. On the assumption that there had been no decision taken within the executive government to use the land as part of a national park or State conservation area, as at the date of claim, the critical test was whether the land was likely to be needed for such a purpose. That involved a degree of speculation as to the future, for which purpose it may be permissible to take account of events which had not then occurred.
67 One area in which such questions have arisen involves the valuation of property at a particular date, whether it be the date of a person's death or the date on which the property is compulsorily acquired. McCathie v Federal Commissioner of Taxation [1944] HCA 9; 69 CLR 1 concerned the valuation of shares on the date of death of the shareholder. Williams J emphasised that the question was not the market value of the shares but their "real value", which required the valuer to speculate as to the temporary nature of factors (in that case a war) which may have tended to depress the value of the business. In relation to the date of death, being 7 August 1940, his Honour stated at 16-17:
"The accounts for the year ended 15th July 1941 would be admissible, in my opinion, on the question whether the structural alterations had affected the trade in the years ended 15th July 1938 and 1939, whether these alterations would in the future lead to improved business, and whether the grave international situation was going to interfere with the trade of a retail store. These were matters existing and to be taken into account at the date of death, and the court should not be forced to speculate as to their future when the facts are known and can speak for themselves."
68 Similarly, in Minister for the Army v Parbury Henty & Company Pty Ltd [1945] HCA 52; 70 CLR 459 at 514-515, Williams J held that an owner of property compulsorily acquired could recover the costs of moving its business to other premises. Where those costs had become known, the Court was entitled to take the known costs into account, rather than speculate, as would have been necessary at the date of acquisition.
69 In Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 this Court accepted a similar approach in respect of compensation payable upon resumption of land, which included an allowance for actual and future costs resulting from the resumption. After referring to authorities including those identified above, Hope JA stated the principle that "evidence of future events is admissible not to prove a hindsight, but to confirm a foresight": at p 558B. That statement appears to have been given aphoristic status, although it has a somewhat Delphic quality taken out of context. The next sentence in the judgment noted that an application of the principle, sourced to Parbury Henty, was that the amount of compensation "being a matter of assessment, can, like damages, be calculated in the light of any subsequent facts". Similar statements by Glass JA at 563F and 564B-C should also be understood in their context.
Use of post-claim material
70 In the course of identifying the relevant legal principles, the trial judge in the present case stated at [32]:
"Post claim evidence may be logically probative in determining whether the land was needed or likely to be needed for an essential public purpose. This evidence may be used subject to the Falconer principle, in that such evidence may not be used to ' prove a hindsight, but to confirm a foresight ' …."
71 A statement to similar effect may be found in the section of his Honour's judgment identifying the evidence which arose after the date of the claim: at [70].
72 Apparently invoking the concept of foresight, the Minister sought to identify a "trajectory" which had been achieved at the date of claim, arguing that the post-claim material could then be relied upon for the following purposes, at [97]:
"[a] [to confirm] that the DMR objections (relating to coal mining) to the inclusion of the claimed land in Budderoo National Park were only temporary, pending the conduct of some drilling investigations; and
(b) [to demonstrate] that subsequent land acquisition programs by the NPWS in the area confirm the original intention that Budderoo National Park link up with Macquarie Pass National Park along the line of the escarpment."
73 His Honour rejected the existence of any clear "trajectory" at the level of "political will", holding that at the time of lodgement of the claim there was no more than a desire on the part of NPWS to include the larger area within the new park: at [112]. That conclusion was open; there was no error of law in rejecting the metaphor of a "trajectory". It added nothing to the concept of need or likely need and was apt to mislead.
74 The proposed use of the future events was to demonstrate that what might have been characterized as an investigation into a potential public purpose (coal extraction) was no more than that and the completion of the investigation was sufficient to exclude the proposed use of the land for coal mining. In that regard, his Honour stated at [117]:
"The post claim evidence reveals continued objection by the DMR to inclusion of the area into National Parks because of underlying coal. The DMR toward the end of 2003 supported Tongarra Reserve becoming a [State Conservation Area], despite its initial opposition, and this occurred in September 2004."
75 Although this involved no express finding as to whether the objection based on potential coal resources was temporary or otherwise, it appears to be an implicit rejection of the characterization as "temporary" by the Minister. In identifying the post-claim evidence, his Honour had noted that on 4 October 2002 the Department of Mineral Resources ("Mineral Resources" or "DMR") had advised NPWS that the Tongarra Reserve should not become a State Conservation Area: at [77]. Mineral Resources gave no reason for its objection in that letter, nor was one apparent from the evidence. Nevertheless, it provided a basis upon which the trial judge was entitled to reject the characterization of any coal mining interests as merely "temporary" as at March 1986.
76 In 2002, various areas which had been subject to mining leases were being considered for reservation under the National Park Estate (Southern Region Reservations) Act 2000 (NSW). In fact, areas subject to land claims were not available for reservation under that legislation, but that fact appears to have been overlooked, at least for a period. As a result, the western area of the claimed lands was reserved as a State Conservation Area in September 2004. However, importantly for present purposes, that did not occur until after Mineral Resources had expressly withdrawn its objection in relation to "the Tongarra Reserve" in September 2003. An available inference was that the land would not have been reserved for nature conservation purposes while Mineral Resources maintained its objection to such a course.
77 Before leaving the use which was sought to be made of this material by the Minister, two factors need to be noted. First, the question which is to be addressed, as at the date of claim, is one involving an inherent level of speculation. If present need is not established, a real and not remote chance of future need will be sufficient. Had there been a degree of commitment to the essential public purpose of nature conservation as at the date of claim, giving rise to a real chance that the land would be put to that use, the existence of an investigation into alternative uses might reduce the likelihood from high to medium, or even lower, without precluding a finding that there was a real chance that the land would needed for nature conservation. Alternatively, it might reduce the likelihood of the land being reserved for nature conservation to a remote chance. Arguably, to await the results of the investigation is to make the required assessment at a later (and impermissible) point in time.
78 Secondly, the use of future events to confirm a real chance must be subject to reasonable time constraints. Were it otherwise, there would be an incentive for the Minister to delay deciding a land claim until the government's position with respect to the land had crystallized. A number of cases have now made reference to the unexplained, and thus apparently unjustifiable, delays incurred in processing land claims. Clearly a point is reached, far earlier than that demonstrated in the present case, at which time future events will no longer assist in confirming an existing state of affairs at the date of claim. In the present case, letters were despatched to all parties who might have a view about the purposes to which the land should properly be put within months of the claim being lodged. Any view which the executive government had in respect of the land should have crystallized promptly on receipt of the responses deemed relevant. The fact that Mineral Resources withdrew its objection to the land being set apart for conservation purposes some 16 years after the claim was lodged provided no assistance to the Minister's case.
79 The Minister's complaint on the appeal, however, was not that the post-claim evidence presented by him was not used to support his case, but that such evidence was used to support the Land Council's case.
80 The first point made by the Minister was that the trial judge "inverted" the "Falconer principle", so as to infer from an absence of post-claim executive activity, the absence of a likely need at the date of claim. This was described as employing hindsight to deny, rather than confirm, a foresight. This argument illustrates the risk which attaches to taking an aphorism out of context. The distinction which Hope JA was intending to draw in Falconer was not between confirming or denying a foresight, but between evidence which could relate to a foresight and that which merely constituted a hindsight. The point may be illustrated by reference to the example to which Hope JA referred, of the use of subsequent events to quantify loss: see at [69] above. The fact that foresight might anticipate a very significant loss does not mean that future events which discount the loss, rather than confirm its significance, are not admissible. Indeed, that was the point of the evidence in Parbury Henty: the cost of moving to cheaper premises was lower than expected, without adverse impact on the business of the property owner.
81 Further, underlying the Minister's submission was an assumption that the "Falconer principle" constituted a constraint on the legitimate approach to be taken by the Court below in determining the appeal. That assumption was not made good in the course of argument in this Court. At best from the point of view of the Minister, it would appear to be an evidential rule. However, the Court below was not bound by rules of evidence and could inform itself in such manner as it thought appropriate: the LEC Act, s 38, set out at [112] below. Ultimately, the only question of law which arose in this context was the requirement that any need or likely need for the land for an essential public purpose was to be assessed at the date of the claim. It might have been contended that nothing which happened thereafter was relevant to that question unless it directly demonstrated that, at an earlier time, a particular view had been held by an appropriate person or persons in authority. However, the Minister did not adopt that approach at trial, having included in his "tender bundle" a large volume of material which came into existence only after the claim and, in many cases, years after the claim.
82 The second point raised by the Minister was that the absence of executive activity was in fact the result of the existence of the undetermined land claim. That complaint would have some merit, at least on the basis of illogicality, if it were made out. The complaint is one of misuse of post-claim evidence, rather than a failure to apply the "Falconer principle", however that is properly expressed. Immediately after referring to Mineral Resources' objection to the land being reserved as a State Conservation Area, which continued until the end of 2003, the trial judge said at [117]:
"Budderoo National Park has increased in size since the claim was lodged and still does not include the claimed land. As a whole the post claim evidence reveals the expansion of Budderoo National Park and SCAs when appropriate land became available, and does not support a ' trajectory ', at the appropriate Government level, to include the claimed land in Budderoo National Park or reserve it for nature conservation."
83 These broad statements do not reveal the underlying logic with any degree of precision. Accepting that post-claim evidence may reveal something about the intentions and purposes of the executive government at the date of claim, it must follow that evidence of long inactivity with respect to a proposed use of the land may give rise to an inference that there was not, at the date of claim, any real prospect that the land might be used for that purpose. That inference could not be drawn if there were a known explanation for the failure to act, namely that the existence of the land claim precluded such activity. However, it is far from clear that the factual premise for that complaint arose in the present case. On 27 February 2003, the Deputy Director General, Land and Water Conservation, wrote to NPWS stating that land which included the whole of the eastern part of the claim area was "available for transfer to the National Park estate". A month later, the manager, Aboriginal Land Claim Investigations, wrote to NPWS advising that it had "recently been clarified" that part of the proposed addition remained under claim and that "[a]s a consequence no action should be taken to add the subject land to Budderoo National Park until such time as claim 2673 had finalised". In his written submissions in the Land and Environment Court, the Minister had somewhat blandly stated (par 49(d)):
"At some point in February to March 2003, it was discovered that 'Tongarra Reserve' was subject to ALC 2673, and so it was eventually understood that the land could not be gazetted as part of Budderoo NP until the land claim had been determined …."
84 Two comments may be made in respect of this material. First, neither the evidence nor the submission contradicts an inference that, from 1986 until 2003, a period of almost 17 years, it had not been appreciated that there was an obstruction to declaring a national park over the claimed land. Secondly, once the obstacle of an unresolved land claim had been identified, there was yet no hint that responsible officers appreciated the existence of a straightforward reason for rejecting the claim.
85 The highest point of the Minister's submission was the reference by the trial judge to the fact that the National Park "still does not include" the claimed land. If that statement could only be explained on the basis of a legally erroneous opinion that a national park could be declared over land subject to a land claim, the Minister may have established a relevant error of law. Assuming that the legal premise is correct, the inference does not follow, it having been squarely within the hands of the Minister to reject the claim so as to permit the inclusion of the area within the National Park. There is no reason to suppose that his Honour did not have such a basis in mind when referring to the present state of the land. As will be noted below, his Honour was conscious of the delay for more than 20 years in determining the claim. (It was not contended that the use of the present tense in the words quoted was to be taken as referring to the period after the refusal of the land claim and pending disposition of the proceedings.)