17 June 2009
MINISTER ADMINISTERING THE CROWN LANDS ACT v NEW SOUTH WALES ABORIGINAL LAND COUNCIL
Judgment
1 BEAZLEY AND TOBIAS JJA: We agree with the orders proposed by Basten JA and, subject to what we say below, generally with his Honour's reasons.
2 Given that the Minister's argument, as acknowledged by his Honour in the last sentence of [41] of his reasons with which we agree, was that on the findings of primary fact actually made by the primary judge, no conclusion was open or available other than that the Minister had satisfied his burden of demonstrating that the lands were not claimable Crown lands, it is unnecessary for us to adopt the obiter remarks of his Honour at [42] to [46] of his reasons.
3 There can be no doubt in our view that with regard to what was referred to as the Boronia Street land, the Minister failed to demonstrate that there was any question of law, let alone error of law, in her Honour's decision with respect to that land. Basten JA's reasoning at [61] to [63] provides a complete answer to the Minister's contentions on that issue.
4 The Lackey Street lots we found more difficult given the contents of Mr Edward's memorandum of 19 December 1990 referred to at [24] of Basten JA's reasons. The handwritten comments and endorsements on the third page of that document by Mr Edward's more senior officers and dated 20 December 1990 and 21 December 1990 respectively, were capable of providing the necessary opinion called for by s 36(1)(b1) of the Land Rights Act.
5 However, we agree with Basten JA at [65] of his reasons that her Honour expressly considered the position with respect to that part of the claimed lands. Furthermore, she discounted the force of the December 1990 memorandum at [118] of her reasons as Basten JA points out at [69]. Whether the inferences she drew in that paragraph from the evidence were right or wrong is not the question, as Basten JA notes at [70] of his reasons.
6 Even if her Honour's finding of no relevant opinion with respect to the Lackey Street lots was perverse or unreasonable, it would not constitute an error of law. The relevant principles with respect to such errors are conveniently and comprehensively set out in the judgment of Clarke JA, with whom Hope and McHugh JJA agreed, in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334. No error of law on the part of the primary judge of the nature there described was established by the Minister. His challenge to the decision of her Honour with respect to the Lackey Street lots in particular must therefore fail.
7 BASTEN JA: This appeal concerns one of a number of claims made under the Aboriginal Land Rights Act 1983 (NSW) ("the Land Rights Act") in relation to land in and around the north coast township of Nambucca Heads. The claim was lodged with the Registrar, pursuant to s 36(4) of the Land Rights Act, on 22 November 1990. The claim was refused by letter to the Land Council dated 4 May 2006.
8 On 30 June 2006 the Land Council appealed against the refusal of the claim, pursuant to s 36(6) of the Land Rights Act. The appeal was heard in the Land and Environment Court ("the L&E Court") by Jagot J, assisted and advised by Acting Commissioner Davis, in accordance with s 37(2) of the Land and Environment Court Act 1979 (NSW) ("the LEC Act"). Her Honour upheld the appeal and ordered that the land be transferred to the Nambucca Local Aboriginal Land Council in fee simple: see NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [No. 2] [2008] NSWLEC 13.
9 The issues in dispute have been reduced over the course of the litigation, so that the Minister's appeal is restricted to 10 lots proposed to be released as part of a residential subdivision. (The lots did not constitute a single contiguous area.) The only ground for rejecting the claim now relied upon is that, as at the date of claim, in the opinion of a Crown Lands Minister, the lands were needed or were likely to be needed as residential lands: see Land Rights Act, s 36(1)(b1). The burden of proving at least one limb of that criterion fell upon the Minister.
10 In addition to bearing that burden in the Court below, on the appeal the Minister needed to establish that a decision of the L&E Court on a question of law had been determined erroneously: LEC Act, s 57(1). As counsel for the Minister properly conceded, the relevant legal principles were correctly articulated by the primary judge in her reasons. In these circumstances, the Minister faced a difficult task in demonstrating that the L&E Court had erred in reaching a decision on a question of law, being the extent of the appellate jurisdiction conferred on this Court under s 57(1) of the LEC Act. These difficulties proved insuperable, with the result that the appeal must be dismissed.
Background
11 Before identifying the issues and arguments presented on the appeal, it is desirable to set out a general factual background to the land claim. However, it is necessary to avoid stating facts other than those found by the trial judge, or to state them in terms inconsistent with her Honour's findings.
12 In large part the evidence was documentary. Apart from expert evidence, which played no significant role in her Honour's findings, the only oral evidence was that of Mr P R Edwards, who, prior to his retirement, worked as a senior surveyor in the New South Wales Department of Lands. At the time of the events in question, he was stationed in the Lands Office at Grafton, which was responsible for an area on the north coast including Nambucca Shire. Because the events in question occurred between 17 and 20 years before the trial, his oral evidence did not add greatly to that which was recorded in the documents. With one limited exception, it was peripheral to the arguments on the appeal.
13 The documentary evidence showed that, at least from the early 1980s, the Nambucca Shire Council held the view that there was a shortage of residential land in Nambucca and requested the Crown Lands Minister to consider an immediate release of "serviced Crown land" to meet the shortfall: at [13]. Although steps were taken to respond to the Council's request, by 1984 the real estate market was said to be "depressed" and various proposals were deferred: at [17]. Her Honour recorded that nothing appeared to have occurred between mid-1985 and 1988: at [20].
14 For present purposes, the key events commenced with a meeting between Mr Edwards and the Council in May 1990, which dealt with a number of matters, including an undertaking on the part of the Department "to prepare a strategy for release of a large tract of land near Mahogany and Forest Roads" to meet long-term demand: at [22]. Her Honour also noted that, to meet short-term demand, steps were taken with respect to a proposed residential subdivision of what was described as "the Boronia Street land". Her Honour continued:
"The Regional Manager of the Grafton Lands Office signed the enclosed development application for the Boronia Street land (registered as DA 2273) dated 15 May 1990 on behalf of the Minister."
15 The Boronia Street land was in fact an area including steep gullies and the subdivision included four non-contiguous areas, two of two lots and two of three lots. One of the three-lot areas was located at the end of Lackey Street. It was recognised that further works would be required to permit release of the lands and that concerns in relation to soil stability would need to be addressed. Under the Crown Lands Act 1989 (NSW), which had commenced on 1 May 1990, the Department was required to prepare a draft land assessment for public consultation prior to release of the lands: s 35.
16 Following the lodgement of the development application, there was correspondence between the Shire Council and the Lands Office as to the steps to be followed. As the Council noted, acting alone, it was not entitled to refuse the application, nor to impose conditions except by consent: Environmental Planning and Assessment Act 1979 (NSW) ("the EP&A Act"), s 91A. On 28 June 1990 the Council accordingly sought consent to a number of conditions which included the provision of reticulated water supply, connection to sewer mains and the construction of streets, with appropriate kerbing, gutters, drainage pits and related requirements. Lackey Street was a cul-de-sac ending with three of the proposed new lots and required the construction of a turning circle.
17 On 31 May 1990 the Council wrote to the regional office of the Soil Conservation Service seeking advice as to the suitability of the land for residential development. On 15 June 1990 the Soil Conservation Office responded in part as follows:
"An on-site inspection has identified class Ds land on all proposed Lots.
Class Ds land have very severe physical limitations to development because of slope constraints. It is generally recommended that these lands remain undisturbed, however a geotechnical survey may identify areas of land suitable for development. A geotechnical survey and report prepared by a qualified engineer should also evaluate the potential for any mass movement and detail any necessary requirements to ensure site stability."
18 The Service then noted that a geotechnical evaluation had been undertaken in 1983 and that the report accompanied the development application. It noted that a site inspection of the two lots proposed for Excelsior Street revealed significant difficulties and advised that geotechnical work should be done.
19 The 1983 geotechnical report identified significant difficulties with the area generally and with specific sites. Its comments with respect to the Lackey Street lots should be noted. For present purposes, the upper part of Lackey Street may be described as forming a 'Y', with Small Street constituting the left hand arm of the 'Y'. The three proposed lots ran from the top of Lackey Street round into the gap formed by the two arms of the 'Y'. The geotechnical report stated:
"It is apparent that the end of Small Street is basically on fill material, which forms a poorly consolidated very steep bank down into Lot A. The uphill side of Small Street has no drainage system, and it appears that considerable quantities of water must be soaking into the ground along the cut line and percolating under the road.
This presents a potentially hazardous situation and renders the proposed location of Lot A unsuitable. Even Lot B could be endangered by a large slip unless remedial measures are undertaken to reduce the slope angle and to provide adequate drainage to Small Street.
It appears that the three lots at the end of Lackey Street could be better located by rotating them clockwise as indicated on the locality plan."
20 On 20 September 1990, the Council gave consent to the development subject to conditions agreed with the Lands Department.
21 On 18 October 1990 Mr Edwards wrote to Kinhill Engineers Pty Ltd ("Kinhill") inviting it to tender for a review of the engineering design with respect to the proposed release of residential land. Amongst other things, that letter required that the engineering design plans be redrawn "to exclude unwanted information (ie … Boronia Street subdivision)". That exclusion, however, appeared not to include the Lackey Street lots, which were referred to at the end of the letter as being the subject of further information to be supplied.
22 On 22 October 1990, the land claim was lodged over an area which included all of the land within the proposed subdivision.
23 A body of evidence was also tendered with respect to steps taken after the lodgement of the claim. As will be discussed shortly, such material may be relevant to the extent that it discloses matters which were known at the date of the claim. Otherwise, such material may distract the Court from its consideration of the state of affairs as at the date of the claim, in accordance with the requirements of the Land Rights Act. (Whether the material was properly used was a ground of appeal.)
24 Subject to that qualification, it is convenient to note a number of documents which were referred to by the parties in the course of argument. First, Mr Edwards prepared a memorandum to his superiors dated 19 December 1990 seeking approval to engage Kinhill, as proposed in the letter of 18 October 1990. The memorandum referred to the proposed release of land at Mahogany and Forest Roads as directed to long-term demand and continued:
"In order to satisfy the immediate demand this office has been able to bring forward a small residential development as a stop-gap measure whilst work proceeds on the major project.
Basically two projects in one, the development proposes subdivision of Crown land at the northern end of Lee Street (5 lots) and the eastern end of Lackey Street (3 lots). Both sites are in close proximity and can effectively be undertaken by the one contractor.
The project is included on the Land Development Program (Project No. 1519). On-site construction works are proposed for June-August, 1991, with marketing planned for October, 1991."
25 The memorandum noted that the land assessment process had been completed and that the assessments approved by the Assistant Director, Policy and Planning, "identify preferred land uses permitting the proposed use of lands for urban development". The memorandum also noted:
"Only recently a whole range of Aboriginal land claims were lodged in respect to vacant Crown lands at Nambucca Heads, including the subject lands. It is apparent that the claims have been lodged in response to the identification of the sites in Land Assessment advertisements.
In this case, it would appear most unlikely the claims will be satisfied given that the Department's intention to develop these lands for residential purposes was clearly demonstrated as far back as the early 1980s. As a result of the large number of claims lodged throughout the region, it could be up to six months before the subject claims are finalised."
26 Despite Mr Edwards' pessimistic view, the claims were not disposed of for more than 15 years. However, the principal relevance of the memorandum appears to have been the absence of reference to any of the land within the present claim other than the three lots at the eastern end of Lackey Street.
27 On 14 August 1991 Mr Edwards prepared a memorandum referring to work having been undertaken by Kinhill with respect to engineering survey and design for roads, drainage, sewer and water related to the development of "two small Crown subdivisions at Nambucca Heads (Lee Street - five lots, Lackey Street - two lots)". After referring to the pending investigation of the land claims, Mr Edwards recommended that "negotiations commence with Nambucca Shire Council with the aim of securing a contribution from it towards the cost of upgrading Lackey Street. Without such contribution, the Lackey Street development is economically unviable."
28 The documentation did not identify precisely when the Lackey Street proposal had been reduced from three to two lots, but such a decision appears to have been taken between December 1990 and 2 May 1991. On the latter date Mr Edwards wrote to the Shire Clerk noting that it had been decided to reduce the number of lots from three to two and increase the size of the remaining lots on account of the steep terrain. The reason given was the potential slip problem arising from the Small Street road batter, which had been identified in the geotechnical report.
29 On 23 July 1992 Mr Edwards wrote again to the Shire Clerk in response to a request for information as to the Department's intentions to develop land at the north-eastern end of Lackey Street. The response referred to the land claims and "the Department's commitment to the on-going residential development of land in the vicinity of Forest Road". It concluded:
"An earlier proposal to establish two residential lots at the north-eastern end of Lackey Street was abandoned as a result of Council's requirements for the upgrading of Lackey Street rendering such proposal uneconomic."
Issues in the L&E Court
30 The Land Rights Act provides that lands vested in the Crown are claimable Crown lands if, when the claim is made, they are "able to be lawfully sold or leased, or are reserved or dedicated for any purpose": s 36(1)(a). To this statement, there are a number of exceptions, the only one relied upon in the present case being that set out in s 36(1)(b1), namely that the lands -
"(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands."
31 A land claim is required to be determined by the Crown Lands Minister who, if satisfied that the lands claimed are claimable Crown lands, must grant the claim and, if satisfied that they are not claimable, refuse the claim: s 36(5). A Land Council may appeal to the L&E Court against a refusal: s 36(6). The Act then provides:
"(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred …."
32 It is clear that the proceedings in the L&E Court are a full reconsideration of the merit of the land claim, on the evidence presented before the Court. Although it is customary to refer to such hearings (as the Act does) as an "appeal", it is in effect an exercise of original jurisdiction by the L&E Court. The burden of satisfying the Court that the lands are not claimable Crown lands lies on the Minister. He or she must therefore either negate the qualification to be found in the opening lines of the definition, together with par (a) of s 36(1), or bring the lands within one of the exceptions, which are stated negatively, in the subsequent paragraphs of s 36(1). In practical terms, it is sufficient to describe the Minister's burden in the present case as being to satisfy the Court that the lands were within the description in par (b1).
33 The description in par (b1) is identified by reference to the opinion of a Crown Lands Minister. The use of a subjective criterion or precondition is well-understood in the context of judicial review proceedings: it limits the circumstances in which an application for judicial review can succeed. The opinion, rather than the underlying circumstances, becomes the criterion conditioning the exercise of power: see Bankstown Municipal Council v Fripp [1919] HCA 41; 26 CLR 385 at 403 (Isaacs and Rich JJ), referred to by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [130]. In the present case, however, the purpose of the requirement is different. When the Minister determines a claim under s 36(5), he or she must be satisfied that, at the time of the claim, the Minister (who may have been a predecessor) held an opinion as to the need or likely need for the lands as residential lands. It will not be for the Minister exercising the power under s 36(5), or the Court, exercising its power on appeal under s 36(7), to decide whether or not there was a need or likely need for the lands as residential lands, but only whether the Minister in office at the time of the claim held such an opinion.
34 In practice, it is rarely the case that the Minister forms such an opinion prior to the making of a land claim. Further, because, prior to the making of a land claim, there is no purpose in the Minister forming such an opinion, there is unlikely to be any indication of a Minister delegating the power to form such an opinion.
35 If it were necessary to find such a contemporaneous opinion held by the Minister, the Minister must have failed in the present case because there was no suggestion that his predecessor had formed the relevant opinion. The case, however, was not run on that basis. It was accepted on behalf of the Land Council that it would have been sufficient if the officer responsible for dealing with Crown lands in the Grafton area had held the relevant opinion. Precisely who that was does not appear to have been identified; rather, the parties appear to have proceeded on the basis that Mr Edwards' opinion, at least when accepted by those in charge of the Regional Home Sites Program in the Department of Lands, would have been the relevant opinion. Mr Edwards did not, either in this affidavit, or in his oral evidence, express an opinion that he held when the claim was made, in terms of s 36(1)(b1). (The closest he came was the statement in the last paragraph of the letter at [25] above.) That appears not to have been treated as fatal to the Minister's case either. Rather, the case appears to have proceeded on the basis that the Minister could succeed if he demonstrated to the satisfaction of the Court that someone in his Department at the date of claim would have held the relevant opinion, if asked.
36 There was no proposal at the relevant time that the lands should be used for any other purpose than as residential lands. Accordingly, the only remaining question was whether they were, in the Minister's opinion at the relevant time, "needed or likely to be needed for that purpose". Similar language is used in s 36(1)(c) of the Land Rights Act, in relation to "an essential public purpose". There is no reason to suppose that the test in respect of these elements differs between the two provisions. As the trial judge noted, in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 ("Deerubbin (No 1)") at 254, Handley and Powell JJA noted that the word "needed" in s 36(1)(c) means "required". This view was confirmed in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; 50 NSWLR 665 ("Deerubbin (No 2)") at [50]. Spigelman CJ noted that "need" meant no more than "required or wanted" and continued:
"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."
37 His Honour then proceeded to consider the meaning of "likely" which, as has frequently been observed, can mean more probable than not or can have the less demanding connotation of "a real chance", being something more than a remote chance or possibility: at [51]. His Honour noted that the beneficial purpose of the legislative scheme favoured a limited construction of the exceptions to claimable Crown lands, while reference to an "essential" public purpose gave the paragraph a different emphasis. His Honour concluded that because the scope of the public purposes was restrictively identified, the meaning of "likely", should be accepted as satisfied by a real or not remote chance: at [57]. Although the separate identification of residential lands may imply that they would not of themselves constitute an essential public purpose for the use of land, the trial judge accepted that the same test should be applied in respect of the exception in par (b1) as in (c): that conclusion was not challenged on appeal.
38 The primary judge also accepted as relevant in respect of paragraph (b1) the comments in the joint judgment in Deerubbin (No 1) that the L&E Court in an appeal under the Land Rights Act, "would not be called upon to second guess, for example, a decision by the Executive Government that Sydney needed a second major airport, and that it should be located at Badgery's Creek". Their Honours continued:
"The only question for the Court in such a case would be whether a second airport for Sydney was an essential public purpose, and if so whether the particular land was needed, that is required or wanted, by the Executive Government for that purpose."
39 At various stages in her reasons, the primary judge eschewed "second guessing" a decision by the Executive Government.
40 Some care must be taken in transferring language used in one factual context to another. Thus, as appeared in Deerubbin (No 2), a reference to the "Executive Government" might be unhelpful in circumstances where different agencies within the Government were pursuing different purposes. Similarly, if the objective question of need is that to be determined by the Court under par (c), as the relevant precondition to refusal of the claim, then it may not be "second guessing" the Government to reach a different conclusion from that apparently reached by the relevant officer. In relation to par (b1), however, so long as a relevant opinion has been properly formed, according to correct legal criteria, and the Court is satisfied of the existence of the opinion at the relevant time, that would be a sufficient basis for rejecting the claim. Accordingly, whatever the precise scope of the comments in Deerubbin (No 1) in relation to the exclusion in par (c), it is clearly apposite in relation to (b1) and was therefore applicable in the present case. As already noted, the critical question was whether the relevant opinion was held by a relevant person at the relevant time.
Issues on appeal
41 Pursuant to s 57 of the LEC Act, the Minister may appeal "against an order or decision … of the Court on a question of law": s 57(1). Subject to one qualification regarding material generated after the date of the claim, the Minister was unable to identify a question of law upon which the primary judge had arguably made an erroneous decision. Furthermore, senior counsel for the Minister eschewed any argument that the fact-finding exercise was manifestly unreasonable: Tcpt, NSWCA, 06/05/09, p 20(5). (At least with respect to primary facts, such an argument would not in any event have been available.) Rather, the Minister's argument was that on the findings of primary fact actually made by her Honour, no conclusion was available other than that the Minister had satisfied his burden of demonstrating that the lands were not claimable Crown lands.
42 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156C-D, Glass JA stated:
"Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gaslight Co v Valuer-General (1940) 40 SR(NSW) 126 at 138 …."
43 His Honour then explained why it was not open to the party bearing the burden of proof to argue a "no evidence point". He stated at 156E:
"The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence."
44 These passages, and the various equivalent expressions referred to in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 and set out by Spigelman CJ in Amaca Pty Ltd v Frost [2006] NSWCA 173; 67 NSWLR 635 at [56], are ambivalent as to the proper approach to matters of inference. It is clear that Glass JA identified as the first stage, the exercise of "determining the facts by way of primary findings and inferences" at 156G. In reference to that stage, he stated that "the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, or as has been said, never be vulnerable to attack as an error of law by an applicant for compensation". However, he concluded in relation to the third stage (of applying the law correctly stated to the facts found) at 157B:
"An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to supply suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gaslight Co v Valuer-General (at 138 …). Accordingly this Court will not entertain unexplained perversity of result as a ground of intervention although it will correct perverse or unreasonable applications of law to the facts found."
45 These carefully crafted propositions do not provide ready answers in all circumstances. In particular, the distinction proposed in the last sentence set out above, between "unexplained perversity of result" and "perverse or unreasonable applications of law to the facts found" may not always be available. For example, unexplained perversity of result may provide a basis for discerning perverse or unreasonable applications of law to the facts found: see, eg, The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd [1953] HCA 22; 88 CLR 100 at 118 (Dixon CJ, Williams, Webb and Fullagar JJ).
46 The present case illustrates the difficulty. If the nature of the opinion was not in dispute, whether or not the Minister actually held the opinion at a particular time might have been construed as a pure finding of fact, rather than an application of the law to the facts as found. If, on the other hand, the question was to identify and characterise the nature of the opinion in fact held by the Minister, questions of mixed law and fact may arise. One question might be whether the onus lay on the Minister to prove that the opinion said to have been held was of the kind required by law, or whether that was merely an application of the law to primary facts. However, because the trial judge was simply not satisfied that the critical inference should be drawn, these questions need not be resolved.
Reasoning of primary judge
47 The reasoning of the primary judge addressed the following considerations: