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

Court of Appeal (NSW)|2011-04-14|Before: Basten JA, Whealy JA, Mr J, Dr J, Sheahan J

BACKGROUND 7The claim lodged by the Land Council in March 1986 was for two unconnected portions of land (" Claimed Lands ") at Tongarra Gap, which forms part of the Illawarra Escarpment. The Claimed Lands run along the face of the escarpment, but include some land on the plateau behind the escarpment and some below the escarpment. The easterly portion of the Claimed Lands comprises about 100 hectares, while the westerly portion comprises 82 hectares, a total of 182 hectares. The Claimed Lands lie between Macquarie Pass National Park (to the northwest of the Claimed Lands) and the Budderoo National Park (to the southeast). The Budderoo National Park was proclaimed on 17 January 1986, some six weeks before the Land Council's claim was lodged. 8The Claimed Lands are situated north of an imaginary line drawn in 1985 (" Schedule A line ") to distinguish between land included in the Budderoo National Park and other land, noted as desirable for inclusion in the Park but not incorporated in the proclamation. The Budderoo National Park incorporated only land to which no Government department, including the Department of Mineral Resources (" DMR "), had objected to inclusion in the National Park. 9In the decade prior to the lodgement of the Land Council's claim, the National Parks and Wildlife Services (" NPWS ") had been investigating the possibility of establishing a national park that would cover parts of the Illawarra Escarpment. A report prepared in 1977 recommended the establishment of the Budderoo National Park, within boundaries that were to include the areas later subject to the land claim. As early as August 1981, NPWS had indicated to DMR that it was prepared to limit reservation of the proposed National Park to the surface and depth of 15 metres below the soil in order to allow coal resources to remain in private ownership. 10As the primary Judge found in the First Judgment, a key consideration in the delineation of the boundaries of the Budderoo National Park was an objection by DMR to the inclusion of lands under which coal seams were located. The presence of coal in this region had been known since the 1870s. Small scale mining had commenced in 1893, but mining operations on the Claimed Lands at the Tongarra Colliery had ceased in 1965 after the mine had produced some three to four million tonnes of coal. Nonetheless, a minute paper prepared by DMR on 17 April 1986 recorded that two seams of coal near the Tongarra Colliery had estimated recoverable reserves of 29 million tonnes. 11Six mining leases subsisted over the Claimed Lands. Four of the leases were in the western portion of the Claimed Lands on the date the Land Council's claim was filed. Of these, three (identified as ML1, ML2, ML3) extended from the surface downwards, but in two cases to a depth of 15.24 metres only. (These two leases were for the purposes of tunnels and shafts.) The fourth lease over the western portion (ML4) was subterranean, extending downwards from 15.24 metres below the surface. Both of the leases on the eastern portion of the Claimed Lands (ML5 and ML7) were subterranean, also extending downwards from 15.24 metres. The expiry dates for the leases varied from 1988 (ML3 and ML5) to 2002 (ML7). 12In addition, on the date the Land's Council's claim was filed the Electricity Commission (" Elcom ") held Authorisation 231, which permitted it to prospect for coal over an area of 244 square kilometres including, so it appears, the western portion of the Claimed Lands. A letter from Elcom dated 18 July 1986, stated as follows: "The Commission is not mining in the area at present. A decision on mining in the future would depend on several matters, among them the results of the coal prospecting, which will not be complete for several years, and the results of any mine feasibility studies which might be commissioned at some future time." It appears that Authorisation 231 expired in September 1991. 13In 1986, BP Australia Ltd held Authorisation 280 which entitled it to explore for coal on the eastern portion of the Claimed Lands. BP seems to have withdrawn an application for renewal of Authorisation 280 in 1989, but this was apparently associated with the transfer, at about that time, of the ownership of the Tongarra Colliery to CRA Ltd (" CRA "). In any event, in about August 1991, CRA (through a subsidiary, Novacoal Pty Ltd) advised DMR that it was not contemplating relinquishing its coal mining leases at that stage. Nonetheless, by 1993 restoration of the Tongarra Colliery site had been completed and the process for relinquishment of the mining lease over the land comprising the Colliery had commenced. It would seem that all mining leases over the Claimed Lands were relinquished by 1997. 14DMR's objections to the creation of the Budderoo National Park as proposed by NPWS were partly based on the exploration program being undertaken by the Elcom to determine the extent of economic coal reserves. In May 1985, NPWS recorded that objections by DMR had prevented dedication of much of the proposed Budderoo National Park. However, NPWS noted that DMR was prepared to withdraw its objections to the inclusion in the National Park of certain land along the Carrington Falls cliff line (not part of the Claimed Areas). DMR had suggested that the land excluded from the National Park could be subject to a management plan, to which the NPWS could contribute, which would impose guidelines on Elcom when drilling or mining. 15DMR's attitude to the proposed proclamation of the Budderoo National Park was stated in a letter from the Minister for Mineral Resources and Energy of 26 August 1985 sent to the Minister for Planning and Environment: "I refer to our discussion of 23 rd April, 1985, on the issue of the proclamation of the Budderoo National Park. I indicated at that meeting that coal resources of importance to the future planning of power generation were present in the Northern part of the proposed Park. It was agreed at that meeting that I would arrange to have the Department of Mineral Resources lift its objections to the bulk of the proposed Park. I have now received advice on the width of the protection zone needed along the Carrington Falls cliff line. I am therefore pleased to advise that there are no objections to the proclamation of the Budderoo National Park to the south of a line defined on the attached Schedule 'A'. I am willing to have minor variations from this line negotiated at officer level. It was also agreed that the area to the north of this line would need to be managed in accordance with National Park guidelines in order to protect the integrity of the Carrington Falls catchment. I understand that officers of our respective administrations have discussed the matter and have determined that the Crown Lands Office would need to be involved. It would be appreciated if you would arrange for this Management Plan to be jointly prepared. ... I would appreciate a further involvement before the Management Plan is formally adopted." 16The recommendation which directly led to the creation of the Budderoo National Park was made by the Minister for Planning and Environment on 28 November 1985. The recommendation included the following: "The proposal will initially comprise about 5,500 hectares, being unreserved and reserved Crown Land and lands acquired by the Service in 1980, shown by blue edging in diagram 'X'. All affected landuse authorities, except the Forestry Commission and the Department of Mineral Resources, have agreed to the proposal in its complete form ... The Department of Mineral Resources has objected to the area north of the thick broken black-line in diagram 'X' [Schedule A line], and had [sic] requested a depth restriction of 20 metres over the remainder of the proposal. ... It is therefore Recommended that:

The ALR Act 25Section 36(3) of the ALR Act provides that an Aboriginal Land Council may make a claim for land within its area. The claim is to be lodged with the Registrar of Aboriginal Land Claims and referred to the Minister: s 36(4)(c). 26Section 36(5) of the ALR Act provides as follows: "A Crown Lands Minister to whom a claim for lands ... 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 ... 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." 27Section 36(1) of the ALR Act defines " claimable Crown lands " to mean: "lands vested in Her Majesty that, when a claim is made for the lands under this Division: ... (c) are not needed, nor likely to be needed, for an essential public purpose ...". 28An Aboriginal Land Council may appeal to the Land and Environment Court against a refusal by the Minister under s 36(5)(b) of the ALR Act : s 36(6). Section 36(7) provides as follows: "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 ...". 29Section 45(2) of the ALR Act provides that, subject to the section, a transfer of lands to an Aboriginal Land Council pursuant to s 36 includes the transfer of mineral resources contained in those lands. However, s 45(12) states that s 45 does not apply to any mining operations that are or may be carried on on any lands of an Aboriginal Land Council in respect of coal and certain other minerals. Section 45 relevantly was in substantially the same terms in 1986 (the date of the land claim).

National Parks and Wildlife Act 30Reference was made by the primary Judge to s 41 of the NPW Act as in force in March 1986 (the date of the Land Council's claim). Section 41 at that time provided that the Mining Act 1973 (NSW) and the Coal Mining Act 1973 (NSW) applied to lands within a national park: s 41(2). However, a mining interest granted in a national park after the commencement of the NPW Act in 1974 was ineffective unless notice of the application had been laid before both Houses of Parliament and, within a specified time, neither House had resolved to refuse the application: s 41(3). A renewal or extension of the term of an existing mining interest, other than an interest current and in force at the time the national park was reserved, was not to be granted without the concurrence of the Minister: s 41(4). 31The NPW Act, as it stood in 1986 made provision for the declaration of land as a state recreation area for the purpose of public recreation and enjoyment: s 47B. In considering a proposal for any such declaration, the Director was to have regard to the principle that areas reserved as state recreation areas were to contain features of "regional recreational significance in a natural setting which [were] capable of providing a range of recreational opportunities without detriment to the natural environment" (s 8(2) (b1)). The Coal Mining Act 1973 (NSW) continued to apply to lands within a state recreation area, although new mining interests could not be granted, or interests renewed, unless the relevant Minister approved: s 47J(3), (4). Reservation of land as a state recreation area did not affect any subsisting mining interest: s 47H(2), (3), (4). 32Section 41 of the NPW Act was amended by the National Parks and Wildlife (Mining Prohibition) Act 1990 (NSW). As amended, s 41 made it unlawful to prospect or mine for minerals in a national park and provided that the Coal Mining Act 1973 (NSW) was not to apply to lands within a national park: s 41(1), (2). The prohibition did not apply to existing interests and the Minister could approve of prospecting for minerals subject to disallowance by either House of Parliament: s 41(3), (4), (5). 33The National Park Estate (Southern Region Reservations) Act 2000 (NSW) (" 2000 Act "), provided that certain lands, including an area of 166 hectares known as the Tongarra Reserve, were taken to be lands dedicated under the Crown Lands Act 1989 (NSW) for the purposes of public recreation, conservation and mineral exploration: 2000 Act , Sch 4, Part 2 [17]. As I have noted, Tongarra Reserve comprised an area within the Claimed Lands. 34The NPW Act was further amended by the National Parks and Wildlife Amendment Act 2001 (NSW), which introduced SCAs into the legislation and removed the concept of a state recreation area. Section 30G of the NPW Act , in its amended form, provided that the purpose of reserving an area as an SCA was, among other things, to protect and conserve areas that contained significant or representative ecosystems, landforms or natural phenomena. SCAs were to be managed in accordance with a number of principles including the conservation of biodiversity, the maintenance of ecosystem function and the protection of natural phenomena: s 30G(2)(a). A mining interest could not be granted or renewed in respect of lands within an SCA except with the concurrence of the Minister: s 47J(3), (4). However, subject to certain exceptions, the reservation of land as an SCA did not affect the terms of any existing mining interest: s 47H(2), (3), (4).

THE SECOND JUDGMENT 35It is not necessary for the purposes of deciding the present appeal to recount in detail the primary Judge's reasoning in the First Judgment, or this Court's reasons in Illawarra Land Council (No 1) for setting aside the orders made in the First Judgment. However, two points should be noted about the judgment of Hodgson JA in Illawarra Land Council (No 1) , since they guided the primary Judge in the Second Judgment. 36Hodgson JA identified (at [10]) the essential question for determination by the primary Judge as: "whether, having regard to the desire of NWPS [sic], the support of the Minister for Planning and Environment, the opposition of the Minister for Mineral Resources, the non-opposition from other departments, and all other relevant circumstances, was it objectively likely as at 3 March 1986 that the subject land would be needed for the essential public purpose of nature conservation." 37Secondly, Hodgson JA held (at [35]) that the primary Judge had misapplied the reasoning in Deerubbin (No 2), in that his Honour incorrectly assumed that any " trajectory " towards the declaration of a National Park had to be " at the appropriate government level " on the date the land claim was filed. Hodgson JA said (at [35]) that: "where the question is whether the land is likely to be needed , it is a question as to whether it is likely that there will in the future be a Government requirement; and if this is addressed by considering whether there is a trajectory at the relevant time, this need not then be a trajectory existing at the appropriate Government level, but only a trajectory towards a requirement at the appropriate Government level." (Emphasis in original.) 38Hodgson JA considered (at [39]) that: "the primary judge did not decide the correct question, namely whether the land was, as a matter of fact, likely to be needed for an essential purpose; but rather he addressed a question distorted by irrelevant considerations, namely whether any trajectory towards the existence of such need was itself at the appropriate government level, and whether the land had been included in Budderoo National Park up to the date of the hearing." 39In the Second Judgment, the primary Judge noted (at [12] that the factual background had largely been agreed between the parties and had been set out at length in the First Judgment and in Illawarra Land Council (No 1). The same evidence had been placed before the Court in the remitted hearing. Some post-claim documents had also been admitted into evidence. Although his Honour did not expressly say so in the Second Judgment, it was common ground between the parties that nature conservation could be regarded as an " essential public purpose " within s 36(1)(c) of the ALR Act . 40The primary Judge discussed at some length the so-called Falconer principle in relation to post-claim evidence ( Housing Commission (NSW) v Falconer [1981] 1 NSWLR 547). He accepted (at [28]) the Minister's formulation of the principle, which had been applied by Spigelman CJ in Deerubbin (No 2) as follows: "When assessing likely need at the date of claim, this Court must take itself back to a moment in the past (3 March 1986) in order to consider, from that standpoint in time, the future as it then appeared ( the anticipated future ). Evidence from after that date is only relevant if it confirms the perceived existence of a need in the anticipated future, as viewed from the standpoint of 3 March 1986". (Emphasis in original.) 41His Honour noted (at [33]) that the Minister's case was that the announcement of the creation of Budderoo National Park, just before the land claim was lodged, represented only the initial stage of the establishment of the Park. Action was urgently needed to protect Minnamurra Falls (included in the National Park), " political imperatives and pressures being then in play ". His Honour pointed out (at [34]) that the Claimed Lands had not been included in the National Park because of DMR's objections, dating back to 1980, and some issues with the local council. At the time the Claimed Lands were excluded, the only opponent of their inclusion was DMR. It had objected on the grounds that the creation of the National Park over an area which included the Claimed Lands: "would preclude the exploitation of 'economic' coal and/or prevent access to it. ( National Parks and Wildlife Act 1974 (' NPW Act ') s 41, and ALR Act, s 45(12), as at the date of the claim). 42The primary Judge noted (at [35]) that testing had been carried out in 1984-1985 and again in 1986-1987 to evaluate the " economicality " of coal reserves in the area. The testing had been inconclusive. While the Schedule A line delineated areas to the north not to be included in the National Park, those areas were to be managed, while under further consideration, in accordance with NPWS guidelines. His Honour also noted (at [35]) that: "The NPWS, from August 1981, was concerned only to conserve the park lands to a depth of 15.24m, and the DMR, apart from access issues, seems to have been concerned only about 'economic' coal below that depth". 43The primary Judge found (at [36]) that active mining of the Claimed Lands had ceased in 1965 and maintenance work on mining installations had ceased in 1966. Elcom had reserved its position on access requirements in 1986 for ten years or more, but the pitheads had been sealed in 1993 as part of long planned rehabilitation works. Elcom had renounced its interest in the area by 1999. 44Nonetheless, his Honour found (at [37]) that: "The DMR's objection to the park remained firmly on foot until 1993, i.e. some years after the gazettal, but ... the National Park was extended on several occasions (1994, 1998 and 2001), without including in it the subject lands." 45After referring to the First Judgment and Illawarra Land Council (No 1), the primary Judge addressed the question that had been identified by Hodgson JA. His Honour recognised (at [49]) that there was a collision in this case of several " essential public purposes ", namely: "(1) proactive nature conservation by land reservation, (2) the facilitation of the exploitation of valuable coal reserves, and (3) reinstatement of appropriate lands to aboriginal custody." However, his Honour accepted (at [50]) the observation of the Minister's senior counsel that the competing objectives were " entirely reconcilable " as at 3 March 1986, because of NPWS's 15m policy. Consequently, the only real potential conflict between the National Park or the land claim, on the one hand, and mining, on the other, was access. 46Nonetheless, his Honour observed (at [51]) that: "As the coal mining could be restricted to levels more than 15m below the surface, it could coexist with aboriginal custody or nature conservation on the surface, but the need for appropriate access and pit-head infrastructure on the surface would be incompatible with achieving either of those other two essential public purposes." 47His Honour also observed that for much of the 17 year period from 1986 to 2003, the Land Council's claim had simply been overlooked. The concern during this period was the clash between NPWS's desire for land to be added to the National Park and DMR's concern that mining not be excluded. His Honour added (at [52]) that there was no reason to believe that DMR's objection to the land claim would have been any different from its objection to the National Park proposal. 48The Minister had argued that DMR's objections to the National Park proposal were always " contingent " and that, in any event, they had " evaporated " by 1993. DMR's objections at the date of the claims were therefore to be regarded as " temporary " or " provisional ". 49The primary Judge rejected these arguments. His Honour said (at [57]-[60]: "57 The DMR objections related not just to the areas of land under claim, but to all lands north of the Schedule A line . The Minister's proleptic assertion about the ultimate evaporation of these objections is not supported by either the pre-claim or the post-claim evidence. ...[T]he evidence of the position 17 years post-claim confirms the foresight at 1986 that DMR objections would continue to prevent proclamation of the Claimed Lands as park. In 2003, with the then Premier's announcement, it became politically imperative to resolve those objections once and for all. However, there is no evidence of the Government or its officers putting in place any process aimed at - or likely to result in - the resolution or removal of DMR objections to clear the way for park proclamation of the Claimed Lands. 58 It was only after the 2001 change in the NPW legislation that DMR's position changed, as mining became theoretically possible on conserved land. The Minister submits that it remained very difficult to achieve. The essential public purpose of nature conservation at no stage required inclusion of all relevant lands in National Parks. As at the date of claim some degree of nature conservation was also achievable by declaration of ' Crown Reserves', and, since 2001, an amendment to the NPW Act , has allowed for the establishment of ' State Conservation Areas ' (' SCAs ') as an addition/alternative to National Parks. Management arrangements (or guidelines) were always negotiable. 59 The new DMR position was not withdrawal of its opposition to the addition of land north of the Schedule A line to the Budderoo National Park; it was to support ' the change from Crown Reserve to SCA ' for a number of Crown Reserves, including Tongarra. Although this DMR support extended only to Crown Reserves where there were no active exploration licences, the amended NPW Act allows for future grants of mining interests under certain conditions. This DMR approval - not a withdrawal of its objections to reserving the land as national park - was noted by the NPWS in a letter to State Forests in December 2003 ... 60 There is no question that the decisions to declare the Budderoo National Park, and define its boundaries to exclude the Claimed Lands, were decisions of the Executive Government, albeit that they were taken in accordance with a ministerial concurrence (or consensus) protocol, agreed upon by Cabinet in 1979, rather than by a meeting of Cabinet. Ministers can signify their commitment to a park proposal outside a formal meeting. The final stage of the consultation among Ministers followed the decision by the sponsoring Minister to exclude the Claimed Lands from the proposal." (Emphasis added.) 50The primary Judge accepted (at [61]) that NPWS certainly held the view that the reserved area was only the first stage in a progress to reserve as a national park the lands along the escarpment between Macquarie Pass National Park and Budderoo National Park. While the NPWS appeared never to have shifted its position after 1985, " its view did not transform itself into a Government position " (at [62]). 51The primary Judge continued as follows (at [63]-[68]): "63 The evidence supports an interpretation that the Minister for the Environment, as well as the NPWS, hoped in 1985-86 that there would, in the future, be a Government requirement for the Claimed Lands to be needed for nature conservation, and that there was a real and ' not remote ' chance that this would be the case. However, this could not be realised without the consent of the Minister for Mineral Resources; without that consent, the hope could not become a requirement 'at the appropriate Government level '. As noted above, no mechanism was put in place to resolve the conflict between the positions taken by the respective responsible Ministers, either at the date of claim, or later. 64 The Minister ... suggests that ' the ongoing discussions between government agencies ' were ' conducted in an entirely collegial way ', and the evidence supports this view. However, the DMR objections were not withdrawn until after the amendments to the NPW Act in 2001 introduced the possibility of the co-existence of nature conservation and mining through the establishment of SCAs. Unlike national parks, SCAs ' protect native vegetation and habitats while allowing coal, gas, petroleum and other mining, subject to appropriate environmental assessment and approvals '. Under the amendment, SCAs may be revoked and the land reserved as a national park or nature reserve, but ' only with the concurrence in writing of the Minister administering the Mining Act 1992 '. 65 The letter from the Minister for Mineral Resources and Energy of 26 August 1985 ... is not inconsistent with the DMR position taken once SCAs became possible. DMR's objections both pre-claim, and then up to 2003, were not hostile to the NPWS's desire to see the Claimed Lands managed in accordance with NPWS guidelines, although the Minister's letter refers specifically to the need in that regard ' to protect the integrity of the Carrington Falls catchment '. The DMR objections were to the reservation of the land such as to completely preclude mining or mining-related activities. Once that obstacle was removed, either by management under guidelines , or by introduction of SCAs, the DMR objections ' evaporated '. The letter in no way carried any sense of the Minister or DMR seeing those objections in 1985 as temporary or provisional or as likely to be speedily resolved by completing the testing. 66 The subsequent Government decision to reserve part of the Claimed Lands for the purposes of nature conservation made the government requirement of the Claimed Lands for nature conservation ' not remote ' after the 2001 amendments, well after the date of the claim.... 67 I accept the claimant's detailed submissions ... to refute the Minister's case that the DMR objections were ' temporary '', ' provisional ' and likely to be removed. Those submissions place some reliance on post-claim evidence ... I found in the primary decision that, as at the date of claim, the only available foresight was continued opposition by the DMR, and the available post-claim evidence simply confirmed it .... 68 Taking into account again the evidence of DMR's position both pre-claim and up to 2003, therefore, and the absence of any indication as at the date of claim that the government would introduce legislation sixteen years later that would accommodate DMR's concerns while still allowing for the ' essential public purpose ' of nature conservation, I can only come to the same result again, and conclude that the Minister has failed to discharge the onus under s 36(1)(c)." (Emphasis added.)

Minister's Submissions 52Mr Kirk, who appeared with Dr Mantziaris, accepted that this Court could set aside the division of the primary Judge only if the decision was erroneous in law. He submitted, however, that in the light of the decision of the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390, it was not necessary for the Minister to identify an erroneous decision by the primary Judge on a question of law. It was enough on an appeal pursuant to s 57(1) of the L&E Court Act , so he contended, that the decision of the primary Judge was attended by an error of law. 53Although Mr Kirk acknowledged that the Minister could succeed only if he established that the primary Judge's decision was erroneous in law, it must be said that some of the Minister's submissions had the flavour of an invitation to review his Honour's findings of fact. For example, Mr Kirk submitted that the fact that authorisation 231 held by Elcom expired in 1991, apparently after some exploratory drilling had taken place, was powerful evidence that in 1986, viewed objectively, the western portion of the Claimed Lands had no economic coal resources. However, detailed factual submissions of this kind would be relevant only if it is open to the Court to reconsider the merits of the primary Judge's finding that the Minister had not shown that the Claimed Lands was not likely to be needed for the essential public purpose of nature conservation. Clearly, as Mr Kirk acknowledged, it is not open to this Court to review the merits of the primary Judge's factual findings. 54When any complaints about factual findings are put to one side, the Minister relied on what Mr Kirk described as four, but perhaps more accurately described as five, " overlapping " errors of law said to have been committed by the primary Judge. 55First , it was submitted that the primary Judge erred by holding, as a matter of law, that it was only when the NPW Act was amended in 2001 to introduce the concept of SCAs that the DMR's concern to preserve the possibility of mining coal could be reconciled with NPWS's desire to preserve the Claimed Lands for nature conservation. The effect of s 41 of the NPW Act , as in force at 1986, was that coal mining was permissible within national parks, although mining interests required Ministerial consent for their renewal. The primary Judge therefore erred in law in holding (at [34], [58], [68]) that the NPW Act , as at 1986, precluded mining in national parks. 56Secondly , so Mr Kirk argued, the primary Judge overlooked that there were three means by which the DMR's concerns could have been accommodated, while still allowing for the essential public purpose of nature conservation. The three mechanisms were as follows:

The proposed National Park could have been limited to a depth of 15 metres, so that the only use of the Claimed Lands that would have been inconsistent with nature conservation was the use of small surface areas for pithead access and shafts. Thus, if mining occurred at subterranean levels outside the lower boundary of the National Park, it would not be taking place " within [the] national park " for the purposes of s 41 of the NPW Act .
The Claimed Lands could have simply been managed by the Crown or NPWS so as to maintain its conservation value, as DMR had accepted in relation to the land north of the Schedule A line (including the Claimed Land).
The Government could have reserved the Claimed Lands as a state recreation area, thereby preserving the land for public recreation and enjoyment, while allowing for mining where appropriate. Mr Kirk frankly acknowledged, however, that the last of these mechanisms (reservation as a State recreation area) had not been put to the primary Judge. 57Thirdly , the Minister submitted that the primary Judge had constructively failed to exercise the jurisdiction conferred by s 36(7) of the ALR Act , by failing to grapple with the Minister's argument that DMR's objections to the inclusion of the Claimed Lands in the National Park could have been readily overcome by limiting the depth of the National Park to 15 metres. According to Mr Kirk, it was squarely put to the primary Judge at the remitted hearing that the likelihood of the claimed Lands being needed for an essential public purpose had to take into account that one way of meeting DMR's objections was to declare a National Park only to a depth of 15 metres and provide for the necessary access to any coal seams below that depth. By not addressing this argument his Honour failed to discharge his statutory function of hearing and determining the Minister's appeal. 58Fourthly , the Minister submitted that the primary Judge had erred in law because his reasoning was affected by illogicality and want of rationality. In essence, this submission rested on what was said to be a conflict between his Honour's findings that the competing objectives (nature conservation and preservation of mining potential) were reconcilable and his conclusion that it was only sixteen years after the date of the claim that the means were available to accommodate the DMR's concerns while still allowing for the public purpose of nature conservation. 59The Minister's fifth argument, which was not elaborated in oral submissions, was that the primary Judge had failed to consider whether any part of the Claimed Lands (as distinct from the whole) was not " claimable Crown land ". It was submitted that the primary Judge should have made a determination in relation to each individual part of the Claimed Land.

Land Council's Submissions 60The Land Council submitted that no error of law had been shown in the judgment of the primary Judge. The arguments advanced on the Land Council's behalf appear sufficiently from the reasoning which follows.

Principles Governing an Appeal Under the ALR Act 61There was no dispute between the parties as to the principles to be applied in determining a land claim or an appeal against a rejection of a land claim under s 36 of the ALR Act. The following principles are established by the authorities:

The conditions specified in the definition of " claimable Crown lands " in s 36(1) must be satisfied at the date on which the land claim is made: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and The Western Lands Act (1988) 14 NSWLR 685 (" NSW Aboriginal Land Council "), at 691, per Hope JA (with whom Samuels and Clarke JJA agreed).
The Minister is required under s 36(5) to investigate whether the land the subject of the claim satisfied the conditions at the time the claim was made. If so satisfied, the Minister has no discretion and must grant the claim: NSW Aboriginal Land Council, at 691. Similarly, the power which s 36(7) confers on the Court, notwithstanding use of the word " may ", must be exercised in the claimant's favour in the circumstances specified in the sub-section: NSW Aboriginal Land Council, at 693. It follows that if a Land Council satisfies the statutory conditions, it has a right to have the claim granted: NSW Aboriginal Land Council, at 694.
The appeal to the Land and Environment Court under s 36(7) of the ALR Act takes place by way of a full de novo hearing and the Court has available to it, under s 39(2) of the L&E Court Act , all of the functions and discretions of the Minister as the decision-maker: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 (" Deerubbin (No 1) "), at 251, per Meagher JA (with whom Handley and Powell JJA agreed on this point).
The question of whether land is likely to be needed for an essential public purpose at the date of the claim is a question of fact: NSW Aboriginal Land Council, at 691-692; Deerubbin (No 1), at 254, per Handley and Powell JJA. The Minister bears the onus of proving that the lands claimed are not " claimable Crown lands " : s 36(7); Deerubbin (No1), at 254.
The word " needed " in s 36(1)(c) of the ALR Act means no more than " required " or " wanted ": Deerubbin (No 2), at [50], per Spigelman CJ. The word " likely " in s 36(1)(c) is used in the sense of a " real or not remote chance ", rather than in the sense of " more probable than not ": Deerubbin (No 2), at [57], per Spigelman CJ.
In determining whether at the date of the claim it was likely that land would be needed for an essential purpose, it may be permissible for the court to take into account post-claim evidence. However, such evidence is relevant only if it is probative of the objective likelihood assessed in prospect at a particular date of events happening in the future and if the evidence is not used by way of hindsight to determine the events that were likely to occur at the relevant date: Deerubbin (No 2), at [69], [71], per Spigelman CJ, citing Housing Commission v Falconer , at 558, per Hope JA.

The Present Case 62The ultimate factual conclusion reached by the primary Judge was that, he was not satisfied that at the time the Land Council's claim was filed, the Claimed Lands were likely to be needed for the essential public purpose of nature conservation. The Minister did not submit that in reaching this conclusion his Honour had misapplied the statutory language or had misunderstood the task he was required to perform on the remitted proceedings. Although at one point in the oral argument Mr Kirk seemed to suggest that the uncertainty surrounding the proposed drilling program in 1986 meant that there must have been a real and not remote chance that the claimed Lands would be needed for an essential public purpose, he did not submit that the primary Judge had failed to appreciate or to apply the correct construction of " likely to be needed " in s 36(1). No such ground was incorporated in the amended notice of appeal. 63Nor was it submitted, despite hints in the Minister's written submissions, that his Honour had erred in law by placing too much emphasis on post-claim events. The Minister's submissions largely rested on the proposition that the primary Judge's ultimate factual conclusion erroneously assumed that, as a matter of law, it was not until SCAs were introduced in 2001 that the legal regime permitted the competing imperatives (nature conservation and the potential for coal mining) to be reconciled. 64There are, however, two difficulties with this submission. The first is that a fair reading of his Honour's judgment does not support the contention that he based his conclusion on a particular view of the law, as distinct from an assessment of the likely practical consequences of DMR's position, viewed as at 1986. The second difficulty is that, in any event, his Honour appreciated that there were options available, other than the declaration or extension of the Budderoo National Park, to achieve the public purpose of conservation of the Claimed Lands. 65Mr Kirk relied, for example on the Second Judgment (at [34], set out at [41] above), as indicating that his Honour had incorrectly assumed that s 41 of the NPW Act , as in force in 1986, precluded any mining in a national park as a matter of law. This, however, is a very strained interpretation of the Second Judgment. All his Honour was doing at [34] was to record the basis for DMR's expressed opposition in 1986 to the Claimed Lands forming part of the proposed Budderoo National Park. His Honour was not expressing a view as to whether it was legally possible to authorise mining in a national park. The reference in parentheses in [34] of the Second Judgment to s 41 of the NPW Act cannot be read as implying that his Honour was unaware that the provision on its face contemplated that in certain circumstances and subject to stringent procedural safeguards, a mining interest might be granted or renewed over land in a national park. The primary Judge was merely recording DMR's position at the time, namely that the creation of a national park over coal-bearing land effectively would preclude exploitation of the mining resources under that land, given the necessity, in effect, to secure the consent of both Houses of Parliament to the creation of new mining leases. Indeed as late as November 2002, NPWS advised the Minister for Environment, in an advice relating to the Jamberoo Gap (an area including the Tongarra Reserve), that DMR was less likely to object to the establishment of an SCA over the area than to the establishment of a national park " due to the presence of coal underlying some parts of this area ". 66Mr Kirk also relied on the Second Judgment at [58]. But a careful reading of that paragraph shows that his Honour was well aware that long before the 2001 amendments to the NPW Act it was possible in theory to achieve the essential public purpose of nature conservation without the Claimed Lands actually being incorporated within the boundaries of a national park. As his Honour said: "The essential public purpose of nature conservation at no stage required inclusion of all relevant lands in National Parks ... Management arrangements (or guidelines) were always negotiable." 67This passage in the Second Judgment was a direct response to submissions that had been made to his Honour. Contrary to the Minister's submissions in this Court, his Honour was not suggesting that it was only after the 2001 amendments that " some degree of nature conservation " could be achieved without the declaration of a national park. On the contrary, the Second Judgment at [58] shows that his Honour was aware that " management arrangements ", including those of the kind raised by the letter of 26 August 1985 from the Minister for Mineral Resources and Energy, might have been used to protect the nature conservation value of the Claimed Lands. 68The primary Judge's point was that, as a practical matter, DMR's firm position in 1986 and the absence of any evidence that DMR was likely to alter its position in the foreseeable future (judged at 1986), led to the conclusion that the Minister had not discharged the onus of showing that the Claimed Lands were likely to be needed for the essential public purpose of nature conservation. His Honour doubtless took into account that no department or agency had taken up any of the possibilities for achieving the purpose of nature conservation (other than extension of the Budderoo National Park) before the Land Council's claim had been lodged. Nor had any department or agency taken up any of the available possibilities in relation to the Claimed Lands for many years after the Land Council's claim had been lodged. 69Mr Kirk next drew attention to the Second Judgment at [63], where the primary Judge found that the evidence supported an interpretation that NPWS and the Minister for the Environment: "hoped in 1985-1986 that there would, in the future, be a Government requirement for the [Claimed Lands] to be needed for nature conservation, and that there was a real and 'not remote' chance that this would be the case." Mr Kirk submitted that this, in effect, was a finding that as at 1986 there was a real and not remote chance that the Claimed Lands would be needed for the public purpose of nature conservation. 70Once again, in my opinion, this is not a fair or even available interpretation of what the primary Judge was saying. As is made clear by the remainder of the paragraph, his Honour accepted the desire of the NPWS and the Minister to protect the Claimed Lands, but found on the facts that their desire was never translated into Government policy at the required level and, as at 1986, was not likely to be translated into Government policy. 71Finally, Mr Kirk relied on [68] of the Second Judgment as demonstrating that his Honour had erroneously assumed that it was only with the introduction of SCAs in 2001 that DMR's concerns could be accommodated. In my view, [68] of the Second Judgment does not reveal any such assumption. His Honour had found (at [67]) that as at the date of the Land Council's claim the " only available foresight was continued opposition by the DMR ". He had already addressed the other possibilities by which DMR's concerns, theoretically at least, might have been addressed. When read in context, the Second Judgment was merely making the point that, insofar as the Minister relied on the availability of SCAs, it could hardly be said in 1986 that such a concept was " likely " to come about in the relevant sense. 72In my opinion, the Minister's submission that the primary Judge failed to " grapple with " the argument that the 15 metre policy allowed the competing objectives of nature conservation and exploitation of coal reserves to be reconciled, cannot be accepted. The primary Judge specifically accepted (at [50]) the Minister's submission that the competing objectives were reconcilable. His Honour found (at [51]) that as coal mining could be restricted to levels more than 15 metres below the surface, it could co-exist with Aboriginal custody or nature conservation on the surface. He was aware that from 1981 NPWS had been concerned only to create the National Park to a depth of 15 metres and that DMR was only concerned about coal resources below that depth (at [35]). 73The primary Judge was nonetheless not satisfied that the Claimed Lands were likely to be needed for the purpose of nature conservation. He reached this conclusion in part because (at [51]) the need for appropriate access and pit-head infrastructure on the surface would be incompatible with achieving the public purposes of Aboriginal custody or nature conservation. He clearly also took into account that the letter from the Minister for Mineral Resources and Energy of 26 August 1985 (to which his Honour expressly referred at [65]) refused consent to the inclusion of the Claimed Lands within the Budderoo National Park, despite the long-standing proposal from NPWS to limit the depth of the National Park. His Honour found (at [63]) that the hopes of NPWS and the Minister for Planning and the Environment could not be realised without the consent of the Minister for Mineral Resources. 74That finding was reinforced by the recommendation for the creation of Budderoo National Park made by the Minister for Planning and the Environment on 28 November 1985. The recommendation noted that DMR had objected to the inclusion of the area north of the Schedule A line and had also requested that the remainder of the proposal be subject to a depth restriction of 20 metres. It was plainly open to the primary Judge to conclude that, looking at the position in 1986, the possibility of a depth restriction would not alter DMR's opposition to nature conservation measures for the Claimed Lands, whether through the extension of the National Park or otherwise, for the foreseeable future. 75The primary Judge did not fail to grapple with the Minister's submission based on the availability of a depth restriction for the National Park. He considered the submission, but rejected it. He did so on the ground that the evidence indicated that DMR would continue to (and did) oppose the extension of the National Park to the Claimed Lands regardless of the availability of a depth restriction. 76It follows from what has been said that, assuming illogicality and want of rationality constitutes an error of law for the purposes of s 57(1) of the L&E Court Act , the reasoning in the Second Judgment is not illogical or irrational. The Minister's argument was based on what was said to be a conflict between the finding that the competing objectives of nature conservation and coal mining could be reconciled and the finding that reconciliation could be achieved only with the introduction of SCAs sixteen years after the Land Council's claim had been lodged. 77This was not, however, the primary Judge's reasoning. As I have explained, his Honour was well aware that mechanisms were available by which the competing objectives might be reconciled (however difficult that process might have been). He reached the conclusion, clearly open to him, that regardless of these mechanisms, DMR's opposition in 1986 to the National Park was likely to persist into the foreseeable future. His Honour further concluded that, in the face of that opposition, no other mechanisms were likely to be invoked (or indeed were invoked over the succeeding sixteen years). The reasoning in the Second Judgment was neither illogical nor irrational. 78In the absence of elaboration of the final argument in the Minister's written submissions, the nature of the alleged error of law committed by the primary Judge remained elusive. The Court was not taken to any submissions to the primary Judge which invited his Honour to make a finding that identifiable portions of the Claimed Lands were likely to be required for the purposes of nature conservation. His Honour's attention was directed to the mining leases over the Claimed Lands, but he was not asked to make a finding that all or some of the Claimed Lands outside the mining leases were likely to be incorporated in the National Park or otherwise required for nature conservation. 79In any event, the primary Judge found (at [57]) that DMR's objections to the extension of the National Park related not merely to portions of the Claimed Lands, but to all of the Claimed Lands and indeed to other areas. This finding, coupled with his Honour's further finding that DMR's objections prevented the Claimed Lands being included in the National Park, was inconsistent with a determination that some of the Claimed Lands were likely to be needed for the essential public purpose of nature conservation. 80In summary, the Minister's arguments ([54]-[59] above) must be rejected, for the following reasons:

the primary Judge did not hold that the NPW Act in 1986 precluded mining in national parks;
the primary Judge did not overlook that there were legal mechanisms available by which the DMR's concerns could have been accommodated;
the primary Judge addressed the Minister's argument that DMR's objections to the inclusion of the claimed Lands in the National Park could have been overcome by limiting the depth of the National Park to 15 metres;
the reasoning in the Second Judgment was not affected by illogicality or want of rationality; and
the primary Judge was not invited to make a finding that identifiable portions of the Claimed Lands were required for the purpose of nature conservation and in any event his Honour found that DMR's objections related to the entirety of the Claimed Lands being included in the National Park.

CONCLUSION 81The Minister has not established that the primary Judge's decision was affected by an error of law. In view of this conclusion it is neither necessary nor appropriate to express an opinion as to whether, had an error of law been established, it would have justified allowing the Minister's appeal pursuant to s 57(1) of the L&E Court Act . 82The appeal must be dismissed. The Minister must pay the Land Council's costs of the appeal.

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: 01 June 2011

Coal Mining Act 1973(NSW)

Crown Lands Act 1989(NSW)

Mining Act 1973(NSW)

National Parks and Wildlife Amendment Act 2001(NSW)

National Parks and Wildlife (Mining Prohibition) Act 1990(NSW)

8(2) (b1)). The Coal Mining Act 1973(NSW)

Chalk & Fitzgerald Lawyers (Respondent) File Number(s): CA 264728/2010 Decision under appeal Jurisdiction: 9106 Citation: Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2010] NSWLEC 124 Date of Decision: 2010-07-15 00:00:00 Before: Sheahan J File Number(s): 30751 of 2006

THE APPEAL 4The primary Judge's decision was the second occasion on which his Honour had upheld an appeal by the Land Council against the Minister's decision. In the first decision ( Illawarra Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 188; 161 LGERA 294 (" First Judgment ") his Honour also concluded that he was not satisfied that the Claimed Lands were needed or likely to be needed for the essential public purpose of nature conservation. However, this decision was set aside by the Court of Appeal on the ground that the primary Judge had erred in law by failing to address the correct question posed by s 36(1) of the ALR Act : Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; 168 LGERA 71 (Hodgson and McColl JJA; Basten JA dissenting) (" Illawarra Land Council (No 1) ". The Court of Appeal in Illawarra Land Council (No 1) remitted the matter to the Land and Environment Court for decision in accordance with its reasons. 5The primary Judge heard the remitted matter with the Acting Commissioner, who had also sat on the first hearing. It was common ground at both hearings that the purpose of nature conservation was an " essential public purpose " within the definition of " claimable Crown lands " in s 36(1) of the ALR Act . On 15 July 2010, his Honour allowed the Land Council's appeal and ordered that the Claimed Lands (subject to presently irrelevant exclusions) be transferred to the Land Council in fee simple within twelve months from the date of the orders. 6As I have noted, the appeal by the Land Council to the Land and Environment Court was brought pursuant to s 36(7) of the ALR Act, the terms of which are set out below (at [28]). The parties agreed that the appeal to this Court from the Second Judgment was brought pursuant to s 57(1) of the Land and Environment Court Act 1979 (NSW) (" L&E Court Act "). Section 57(1) provides that: "A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Supreme Court against an order or decision ... of the Court on a question of law". The parties apparently proceeded on the basis that an appeal to the Land and Environment Court under s 36(7) of the ALR Act is within Class 3 of that Court's jurisdiction by reason of s 19(h) of the L&E Court Act : see Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665 (" Deerubbin (No 2) "), at [6], per Spigelman CJ (with whom Powell and Heydon JJA agreed); cf L&E Court Act, s 20(2)(a), (3)(a). On the basis agreed between the parties, the appeal to this Court is available only against an order or decision of the Land and Environment Court on a question of law.

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