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[2025] NSWLEC 144
Land and Environment Court (NSW)
2025-12-15
Pepper J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Brunswick River Claim) [2025] NSWLEC 144
Hearing dates: 23, 24 and 25 June 2025
Date of orders: 15 December 2025
Decision date: 15 December 2025
Jurisdiction: Class 3
Before: Pepper J
Decision: See orders at [272].
Catchwords: ABORIGINAL LAND RIGHTS: whether three parcels of land are “claimable Crown lands” – whether land was the subject of an application for a determination of native title that had been registered in accordance with the Commonwealth Native Title Act – whether land was able to be lawfully sold or leased, or was reserved or dedicated for any purpose, under the Crown lands legislation because it was reserved for a public road under the Roads Act – whether the lands were needed, or likely to be needed, for the essential public purpose of nature conservation.
STATUTORY CONSTRUCTION: meaning of “the subject of an application for a determination of native title …that has been registered in accordance with the Commonwealth Native Title Act” – meaning of lands “able to be lawfully sold or leased, or were reserved or dedicated for any purpose, under [Crown lands legislation]” – whether “or” used disjunctively or conjunctively.
Legislation Cited: Aboriginal Land Rights Act 1983, ss 3, 4, 36(1), 36(1)(a), 36(1)(c), 36(1)(d), 36(1)(e), 36(5), 36(5)(a), 36(5A), 36(6), 36(7), 36(9), 36(10), 36(13), 42(1)
Crown and Other Roads Act 1990, s 3(1)(a)
Crown Land Management Act 2016, ss 1.7, 1.15, 5.13, 5.19, 5.20
Crown Lands Act 1884, s 90
Crown Lands Act 1989, ss 3, 91(2)(b)
Crown Lands Consolidation Act 1913, s 75
National Parks and Wildlife Act 1974, s 49(2)
Native Title Act 1993 (Cth), ss 13(1), 23B(a), 23B(b), 23B(2)(c)(i), 23B(2)(c)(iv), 23C, 23D, 23E, 23F, 23I, 47, 47A, 47B, 47C, 61(1), 61A, 62(1)(b), 62(2), 62(1A), 62(2)(a), 62(2)(b), 81, 87, 94A, 186(1)(e), 187, 188, 190(1), 190(1)(a), 190A, 190A(6), 190B, 190B(2), 190B(8), 190C, 192, 193, 194, 225, 253
Native Title (New South Wales) Act 1994, s 20(1)
Roads Act 1993, ss 145(2), 152A(1), 152C, 152D, 152E, 152H(1), cl 56 of Sch 2 of Pt 2 Div 4
Cases Cited: Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800
Daniel v State of Western Australia [2004] FCA 849; (2004) 138 FCR 254
Daniels for the Ngaluma People & Monadee for the Injibandi People v State of Western Australia [1999] FCA 686
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (“Doyalson”) [2023] NSWLEC 134
Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275; (2022) 110 NSWLR 535
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [The Londonderry Claim] (1995) 89 LGERA 194
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353
Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68; (2012) 211 LGERA 100
Illawarra Local Aboriginal Land Council v Minister Administering Crown Lands Act [2008] NSWLEC 188; (2008) 161 LGERA 294
Inspector-General in Bankruptcy v Rutherfurd [2023] FCAFC 99; (2023) 297 FCR 535
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32; (2025) 99 ALJR 1285
Manado (on behalf of the Bindunbur Native Title Claim Group) v State of Western Australia [2018] FCA 275
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46; (2009) 166 LGERA 137
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (“Jannali”) [2024] NSWLEC 41
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 294; (2024) 261 LGERA 414
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13
Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 527
NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481
Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; (2025) 99 ALJR 1362
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 107; (2024) 114 NSWLR 534
Strickland v Native Title Registrar [1999] FCA 1530; (1999) 168 ALR 242
Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52; (2023) 255 LGERA 415
Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51; (2000) 106 LGERA 454
Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401
Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351
Texts Cited: Department of Lands, Brunswick Heads Foreshore Reserves Strategic Plan, (August 2008)
Explanatory Memorandum, Native Title Amendment Bill 1997 (Cth)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 April 1994
North Coast Region Department of Lands, Byron Regional Crown Reserve Management Strategy, (13 September 2006)
Category: Principal judgment
Parties: New South Wales Aboriginal Land Council (Applicant)
Minister Administering the Crown Land Management Act (Respondent)
Representation: Counsel:
Z Heger SC with H Rogers (Applicant)
C Lenehan SC with A Flecknoe-Brown (Respondent)
Solicitors:
Chalk & Behrendt, Lawyers & Consultants (Applicant)
NSW Crown Solicitor’s Office (Respondent)
File Number(s): 2023/300387
Publication restriction: Nil
TABLE OF CONTENTS
TOPIC PARAGRAPH NO
Aboriginal Land Claims Are Refused [1]
Issues for Determination [9]
Land Claims are Lodged by the Land Council [13]
Lot 50 (Central) [18]
The Riverfront Portion [22]
Cabinet Minute SC 98-90 [27]
Cabinet Minute 282-2002 [34]
Crown Reserve 1012196 [40]
2009 Premier’s Letter [44]
Native Title Determination Application Over Lot 50 (Central) [52]
The Native Title Determination [60]
Indigenous Land Use Agreement [65]
Licence Agreement [67]
Legislative Framework Governing the Appeal [68]
ALRA [68]
NT Act [75]
Roads Act [81]
CLMA [84]
The Native Title Issue – Lot 50 (Central) [85]
Applicable principles of construction of the ALRA [89]
s 36(1)(d) – land “the subject of” an application for a determination of native title [95]
The Bundjalung NTDA [117]
Lot 50 (Central) is not “claimable Crown lands” by reason of s 36(1)(d) of the ALRA [127]
Summary of the native title issue – Lot 50 (Central) [152]
The Crown Road Issue – Riverfront Portion [153]
The relevant Crown lands legislation [159]
The Riverfront Portion is “claimable Crown lands” because it was reserved or dedicated for any purpose [162]
Summary of the Crown road issue – the Riverfront Portion [199]
The Nature Conservation Issue – Lot 50 (Central) and the Riverfront Portion [200]
Needed for the essential public purpose of nature conservation [201]
Applicable legal principles [203]
The events prior to the 1998 Cabinet Minute [210]
The 1998 Cabinet Minute [215]
Events after the 1998 Cabinet Minute [225]
Lot 50 (Central) was not needed for the essential public purpose of nature conservation [249]
The Riverfront Portion was not needed or likely to be needed for the purpose of nature conservation [262]
The Conditional Grant Issue [269]
Costs [270]
Conclusion and Orders [271]
(a) Aboriginal land claim 7961 (“ALC 7961”), insofar as the claim relates to Part Lot 50 in DP 1067782 (“Lot 50 (Central)”); and (b) Aboriginal land claim 52818 (“ALC 52818”), insofar as the claim relates to Part Lot 2 in DP 728659 (“the Riverfront Portion”).
ALC 7961 and ALC 52818 were lodged by the applicant, the New South Wales Aboriginal Land Council (“the Land Council”), on 31 October 2005 (“the first claim date”) and 4 February 2021 (“the second claim date”), respectively. The relevant dates for assessing whether the land the subject of this proceeding was “claimable Crown lands” are the first and second claim dates.
Both Lot 50 (Central) and the Riverfront Portion are located in the Parish of Brunswick, County of Rous.
The Minister, by his delegate, initially refused Lot 50 (Central) on the ground that it was “needed for the essential public purpose of nature conservation” (s 36(1)(c) of the ALRA). The Minister initially refused the Riverfront Portion on the ground that it was a public road under the Roads Act 1993 (“Roads Act”) and “not able to be lawfully sold or leased” (s 36(1)(a) of the ALRA).
Pursuant to a Statement of Facts and Contentions dated 3 July 2024, the Minister relied upon the following grounds to discharge his onus:
(a) the whole of the Riverfront Portion was not “Crown lands” on the ground that it was a Crown road under the Roads Act, and therefore, not “claimable Crown lands” pursuant to s 36(1)(a) of the ALRA; (b) the whole of Lot 50 (Central), as at the date of claim, comprised lands that were the subject of a registered application for the determination of native title, and therefore, not “claimable Crown lands” pursuant to s 36(1)(d) of the ALRA; and (c) both the whole of the Riverfront Portion and Lot 50 (Central) were not “claimable Crown lands” on the ground that, as at the claim dates, the lands were needed or likely to be needed for the essential public purpose of nature conservation pursuant to s 36(1)(c) of the ALRA.
The Land Council did not press its appeal insofar as it relates to the part of the Riverfront Portion which was not the subject of reservation R69040 for “Future Public Requirements” at the second claim date.
The Land Council asserted that even if the Court was satisfied that any part of the Riverfront Portion was not “claimable Crown lands” by reason of a need or likely need for the stated essential public purpose, which it denied, it contended that those purposes could nevertheless be achieved through a conditional grant pursuant to s 36(5A) of the ALRA.
The Court was ably assisted by Smith AC during the hearing of the appeal. All legal and factual analyses and findings are, however, my own.
(a) first, whether the Minister can satisfy the Court that as at 31 October 2005, when ALC 7961 was lodged, the whole of Lot 50 (Central) was not “claimable Crown lands” because Lot 50 (Central) comprised land that was the subject of a registered application for the determination of native title for the purpose of s 36(1)(d) of the ALRA (“the native title issue – Lot 50 (Central)”); (b) second, whether the Minister can satisfy the Court that as at 4 February 2021, when ALC 52818 was lodged, part of the Riverfront Portion which was subject to R69040 was not “claimable Crown lands” because it did not satisfy the requirements of s 36(1)(a) of the ALRA insofar as the Riverfront Portion was a Crown road under the Roads Act (“the Crown road issue – Riverfront Portion”); (c) third, whether the Minister can satisfy the Court that Lot 50 (Central) was not “claimable Crown lands” because Lot 50 (Central) was needed or likely to be needed for the essential public purpose of nature conservation (“the nature conservation issue – Lot 50 (Central)”); (d) fourth, likewise, whether the Minister can satisfy the Court that the part of the Riverfront Portion which was subject to R69040 was not “claimable Crown lands” because the Riverfront Portion was needed or likely to be needed for the essential public purpose of nature conservation (“the nature conservation issue – the Riverfront Portion”); and (e) fifth, in the event that the Court is satisfied that any part of the Riverfront Portion or Lot 50 (Central) is not “claimable Crown lands” by reason of a need or likely need for the essential public purpose of nature conservation:
(i) whether the need for the claimed land for the essential public purpose would be met if the claims were granted in whole or part subject to the imposition of a condition (whether by way of covenant or easement or in some other form) relating to the use of the lands pursuant to s 36(5A) of the ALRA; and (ii) subject to the agreement of the Land Council to the condition, whether the Court should grant the claim subject to the imposition of the condition (together, “the conditional grant issue”).
The Minister bears the legal and evidentiary burden of satisfying the Court that Lot 50 (Central) and the Riverfront Portion are not claimable Crown lands pursuant to s 36(7) of the ALRA. This includes the onus of demonstrating the primary facts and inferences necessary in order for his decision to be upheld (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [202] per Basten JA).
In addition to a bundle of documents and a statement of agreed facts relied upon by both parties, the Minister read an affidavit of Jane Tussup affirmed 28 June 2024. Tussup is a Senior Status Officer employed in the Status Services Team in Crown Lands, NSW Department of Planning, Housing and Infrastructure. The Minister also read an affidavit of Todd Duffy affirmed 12 December 2024. Duffy is the Manager, Establishment & Activation Unit within the Biodiversity and Ecological Health Branch of the NSW National Parks and Wildlife Service (“NPWS”).
Both parties furnished the Court with comprehensive tables of evidence referencing the material in the bundle of documents that they relied upon in respect of each issue for determination. Suffice it to say that although it is not necessary to set out the tables in the judgment, I have read and considered the identified documents, even if they are not specifically mentioned in my reasons.
(a) the eastern part of Lot 50, consisting of all land to the east of the Brunswick Valley Way bypass (“Lot 50 (East)”); (b) the western part of Lot 50, comprising land dedicated as a Nature Reserve under the provisions of the National Parks and Wildlife Act 1974 (“NPWA”) (“Lot 50 (West)”) (shown in green); and (c) the balance of Lot 50, being “Lot 50 (Central)”.
Lot 50 (Central) and the Riverfront Portion are contiguous lots. The claimed land sits on the southern bank of the Brunswick River and to the west of the Pacific Highway Bridge over that River.
The claimed land is in the Tweed Byron Local Aboriginal Land Council area.
On 22 May 2023 the Minister, by his delegate, wrote to the Land Council notifying it of the decision to:
(a) grant ALC 7961 insofar as it concerned Lot 50 (East); (b) refuse the balance of ALC 7961 covering Lot 50 (Central) and Lot 50 (West); and (c) refuse the entirety of ALC 52818 (the Riverfront Portion).
By notice in the NSW Government Gazette (“Gazette”) on 23 February 1940, the Minister reserved land, including Lot 50 (Central), under Reserve 69040 for “Future Public Requirements”. No Reserve Trust Manager was appointed to R69040 and the Minister remained responsible for the reservation.
The Title Diagram DP 1019200 for Lot 50 (Central) was registered on 19 May 2004.
As at the first claim date, Lot 50 (Central):
(a) fell under the provisions of the Real Property Act 1900 (“RPA”) and the registered proprietor was the “State of New South Wales”; (b) was Crown land within the meaning of s 3 of the Crown Lands Act 198**9 (“CLA”); and (c) remained the subject of reservation R69040.
The Riverfront Portion was also the subject of R69040 to the extent identified in blue below:
On or prior to 1 April 1992, when the Crown and Other Roads Act 1990 (“CORA”) commenced, the Riverfront Portion was indicated on official maps and plans as being reserved for, or left as, a road in a subdivision, measurement or grant of Crown land. The Riverfront Portion was therefore a Crown road pursuant to subparagraph (a) of the definition of "Crown road" in s 3(1) of the CORA.
By reason of cl 56 of Sch 2 Div 4 of the Roads Act, upon the commencement of that Act on 1 July 1993, the Riverfront Portion was deemed to have been dedicated as a public road, and therefore, to be a “Crown road” for the purposes of the Roads Act.
The Title Diagram DP 728659 for the Riverfront Portion was registered on 25 January 1990.
Accordingly, it was not a matter of contention that as at the second claim date, the Riverfront Portion:
(a) came under the provisions of the RPA and the registered proprietor was the “State of New South Wales”; (b) was Crown land within the meaning of s 1.7 of the Crown Land Management Act 2016 (“CLMA”); (c) remained the subject of R69040 to the extent identified in blue above; and (d) was a public road and a Crown road under the Roads Act.
3.19 That Cabinet approve the dedication of Crown Reserves under the Crown Lands Act with the Director General of the NPWS to be the manager of the Reserve Trust, and the process for further consultation with stakeholders to enable these to be incorporated into the formal reserve system (see sec 6.5).
3.20 That Cabinet approve the dedication of new Flora Reserves and additions to Flora Reserves on State Forests (refer to section 6.6).
…
3.22 That Cabinet approve the process for gazettal of Crown Land administered under the Crown Land Act identified for potential addition to the formal reserve system in the Upper and Lower North East Region after consultation with the Dept of Land and Water Conservation, Dept of Mineral Resources and other stakeholders (see sections 6.8).
…
3.24 That Cabinet approve the process for further negotiations between State agencies for areas identified for possible inclusion in the reserve system, including Crown leasehold and areas where major mineral considerations exist (see sec 6.10).
…
3.39 That Cabinet note that 22,000ha of previously identified wilderness is outside the proposed reserve system and other provisionally identified wilderness areas, will remain in the State Forest Estate and will be available for logging ... That Cabinet further note that finalisation of wilderness proposals within reserve areas within Upper and Lower North East Regions will be the subject of a future Cabinet Minute.
5.4 Recommended Outcome for Upper and Lower North East
5.4.1 The recommended outcome for the Upper and Lower North East Regions is to adopt the agreed State agency position.
5.4.2 This position has been developed by the Department of Urban Affairs and Planning (RACO), the National Parks and Wildlife Service and State Forests of NSW, in close consultation with the Department of Mineral Resources. In summary, the State agency position provides for:
• immediate addition to the reserve system of approximately 382,200 ha, consisting of approximately 85 new parks and reserves, and approximately 37 additions to existing parks;…
6.8 Land administered under the Crown Lands Act
6.8.1 Approximately 72,420ha of land administered under the Crown Land Act has been identified for possible inclusion in the reserve system in the Upper and Lower North East Regions. This consists of approximately 25,693ha in the Upper North East Region, and 46,727ha in the Lower North East Region.
6.8.2 The Crown Land identified for possible inclusion in the reserve system can be distinguished between Crown Land where there are no mineral or petroleum issues (yellow on the attached maps, and labelled "Existing Crown Land"), and Crown land which is subject to mineral and petroleum considerations (orange on the attached maps, and labelled "Existing Crown Land subject to mineral consideration"). In the Upper North East, approximately 4,288ha of Crown Land identified for proposed addition to the reserve system (out of a total of 25,693ha) has been identified as having high mineral prospectivity, while for the Lower North East, 39,733ha of Crown Land (out of a total of 46,727ha) has been identified as having high mineral prospectivity.
6.8.3 The National Parks and Wildlife Service will undertake negotiations with the Dept of Land and Water Conservation, the Dept of Mineral Resources and other stakeholders to determine if any of the identified Crown Lands proposed for reservation have continuing major constraints or are unsuitable for declaration as informal or formal reserves. These negotiations are to commence on the passing of the Forestry and National Parks Estate Bill. By February 28,1999, proposed Crown Land found suitable for inclusion in the reserve system in the Upper and Lower North East Regions as a result of these negotiations will be gazetted by the NPWS. It is envisaged the negotiations may result in a proportion of the identified Crown Land subject to mineral objections may become Crown Reserves dedicated under the Crown Lands Act as outlined in sec 6.5.
…
6.10 Further areas to be considered
During the State agency negotiations a number of additional areas where [sic] identified for possible inclusion in the reserve system due to their high conservation value. However, these areas were ultimately not included in the proposed reserve system, as outlined in the Cabinet minute, due to a number of constraints. As a result, the tenure of these areas will not change immediately, and these areas will continue to be available for logging subject to their forest management zone and protocol status. However, negotiations will continue between the State agencies, co-ordinated by RACD, with the aim of including those areas in the reserve system after consideration of their impact on mineral interests and wood volumes. It should be noted that these areas include approximately 20,000 ha of existing identified wilderness (see sec 10.3). …
- … approved the process for gazettal of Crown Land administered under the Crown Land Act identified for potential addition to the formal reserve system in the Upper and Lower North East Region after consultation with the Department of Land and Water Conservation, Department of Mineral Resources and other stakeholders (see section 6.8 of the Cabinet Minute)…
In early December 1998, the Department of Land and Water Conservation (“DLWC”) and NPWS arranged a consultation at Coffs Harbour on 21 and 22 December 1998 with the Department of Mineral Resources (“DMR”) to discuss the process referred to above.
On 15 December 1999, the Governor of New South Wales proclaimed the dedication of land as a Nature Reserve under s 49(2) of the NPWA. The proclamation was gazetted in the Gazette on 17 December 1999.
Lot 50 (West) was dedicated as part of the Brunswick River Nature Reserve. However, Lot 50 (Central) and Lot 50 (East) were not. Furthermore, only the western portion of Lot 2 DP 728659, beyond the approximate north-south axis of the reserved road separating Lot 50 (West) and Lot 50 (Central), was dedicated. The Riverfront Portion, being that part of Lot 2 DP 728659 which lies east of the reserved road, was not dedicated.
Cabinet Minute 282-2002 (“2002 Cabinet Minute”) was provided to the Hon Bob Carr MP (the Premier at the time) by the Hon Andrew Refshauge MP. It was dated 4 November 2002, with the title "Additions to the NPWS Estate in Upper North East and Lower North East Regions, the South East Region and near to Sydney". The "main purpose" of the 2002 Cabinet Minute was "to seek Cabinet approval for additions to national parks, nature reserves and state conservation areas in the Upper North East...including approval to revoke State Forest and declare national parks and other reserves".
The 2002 Cabinet Minute was in the following terms:
PURPOSE OF THE PROPOSAL
1.1 This proposal implements the Government's commitment to complete its assessment of public lands in the Upper and Lower North East Regions of New South Wales, which was contained in the Action for the Environment Statement 200 I (see attachment 1). The State forest land considered in the assessment was confined to Forest Management Zone 1, 2 and 3a land.
…
1.2 As a result of this review of Forest Management Zones, and other Government processes, approximately 204 000 hectares can be added to the NPWS reserve system in north eastern NSW and in the Southern and Eden Regions. This includes transfers from State forest, Crown land including leasehold, freehold, and also transfers from Crown reserve to State Conservation Area.
…
1.3 This proposal builds on the forestry reform package approved in Cabinet Minute 270- 98: Forestry and National Park Estate Bill 1998 and Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement.
…
The proposal is represented on the attached maps (N 1-N7). Key conservation achievements include:
• The reservation in the NPWS reserve system of 204 000 hectares, including immediate reservation of 145 000 hectares and, once some areas are finalised, an additional 59 000 hectares;
• The creation of 52 new national parks, nature reserves and state conservation areas and additions to 41 existing parks, reserves in the Northern, Southern and Eden regions.
• The immediate addition of approximately 70 000 hectares to national parks, 4000 hectares to nature reserves, and 71 000 hectares to State conservation areas
…
2 RECOMMENDATIONS
…
2.5 That Cabinet endorse, as a result of both the Vacant Crown Land Review conducted by NPWS and Department of Land and Water Conservation according to the decision of Cabinet (Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement), and also additional Crown land assessed by agreement between DLWC and NPWS, the transfer of 6957 hectares of Crown land to the NPWS estate comprising ( 1879 hectares of national park, 255 hectares of nature reserve and 4803 hectares of State Conservation Areas) (refer 5.1 and 5.7).
2.6 That Cabinet note that the balance of the Crown land reviews will be completed by 30 June 2003, following which transfers to the NPWS estate will be recommended. Following endorsement of these recommendations, reservation of the agreed areas as national park, nature reserve or state conservation area will occur.
…
2.26 That Cabinet approve the exclusion from transfer to the NPWS estate any Crown land identified for addition to the NPWS estate (not including land which is currently part of the NPWS estate or is State forest) on which there is currently an Aboriginal land rights claim made on or prior to the 1 November 2002 (that is, the date of the Premier's announcement of the new reserves) consistent with Government policy (noting that should any such claims be finally refused, the Crown land in question will be transferred to the NPWS estate by administrative process).
2.27 That Cabinet approve that, for Crown lands the subject of assessment by 30 June 2003, DLWC will identify at the commencement of review (refer 2.4 and 2.5) any outstanding Aboriginal land claims over these lands and that, if such claims are subsequently refused these lands will be added to the reserve subject to DMR and DLWC concurrence.
…
5 DETAILS OF THE PROPOSAL
…
5.7 Crown lands negotiations
Cabinet Minute SC 98-90: Upper and Lower North East Forest and National Parks Agreement agreed that the assessment of Crown lands for transfer to NPWS estate be completed by January 2003. To date, approximately 40 000 hectares have been transferred to NPWS under this process. A further 47 500 hectares of crown lands have been identified for consideration for addition to the NPWS estate under this process. These lands are identified on the attached maps (N2 and N4). These are indicative maps showing those crown lands that have been identified to date.
As at 11 October 2002, 6957 hectares of these identified Crown lands have been agreed to by DLWC and Dept of Mineral Resources for immediate transfer to the NPWS estate. These agreed areas are represented on the attached maps (N2 and N4). These are indicative maps only. Cabinet endorsement is sought for the reservation of these lands as NPWS estate by June 2003.
NPWS and DLWC have agreed on a process which will finalise the assessment of high conservation value Crown lands in northern NSW by June 2003. In-principle endorsement is sought from Cabinet for the continuation of consideration of these lands for transfer to the NPWS estate, as well as any further lands agreed between DLWC and NPWS that may be of high conservation value. These ongoing assessments will take into account land use interests such as mining and grazing, in accordance with the process outlines in the northern Forest Agreements.
Section 5.1 of the 2002 Cabinet Minute included a table of land "proposed to be transferred". Against the entry for "Crown Land 47,577 HA", the figure “6 957” appeared under the column "Total Transfer Later", referenced by footnote 3. Footnote 3 stated that, "In addition to this area, there remains approximately 40,600 hectares of Vacant Crown Lands to be assessed for possible transfer to the NPWS estate (refer 2.5 and 5.7)".
The Cabinet Decision referrable to the 2002 Cabinet Minute was made on 11 November 2002.
The National Park Estate *(*Reservations) Act 2002 was assented to on 18 December 2002. It commenced in January 2003. It added additional areas to the dedicated reserve system.
The National Park Estate *(*Reservations) Act 2003 (assented to on 7 July 2003) reserved additional areas of national park, nature reserve and State Conservation Areas, and vested land in the Minister for National Parks and Wildlife on behalf of the Crown.
A Crown Lands NSW memorandum dated 29 August 2006, recommended that approval be given for the creation of R101296, including a waiver of land assessment under s 91(2)(b) of the CLA . The new reserve was for the public purpose of “access and public requirements: rural services; tourism purposes; and environmental and heritage conservation.” The attachments to the memorandum indicated that Lot 50 (Central) was intended to be part of R1012196.
On 13 September 2006 the Byron Regional Crown Reserve Management Strategy was prepared by DLWC (“the Reserve Strategy”).
In August 2008, DLWC produced the Brunswick Heads Foreshore Reserves Strategic Plan (“the Strategic Plan”). The Strategic Plan was for the purpose of assessing the network of Crown Reserves along the Brunswick River foreshores, around the village of Brunswick Heads, and to identify opportunities and issues.
The study area of the Strategic Plan included Lot 50 (Central) and the Riverfront Portion, which were included within Precinct 9, “Western Foreshore Lands”.
On 8 April 2008, a map entitled “Upper North East Study Area/Proposed Reservation of Outstanding Crown Lands: North East Forest Agreement/ Cabinet Decision Processes” was prepared by NPWS (“the 2008 NPWS Map”).
On 13 July 2009 the Premier of New South Wales, the Hon Nathan Rees MP, wrote to the Minister for Climate Change and the Environment in relation to a number of matters, including the resolution of outstanding land issues under a land assessment process (“the 2009 Premier's Letter”).
An internal DLWC memorandum from the Director of Finance and Corporate Support, Bob Costello, to the Director of Crown Lands Policy, Richard Hunt, dated 16 July 2009, was entitled "Resolution of outstanding land issues with [Department of Energy and Climate Change (“DECC")].
A map was prepared by NPWS on 29 July 2009. This purported to be a plan of DECC Land ID G125 (“the 2009 NPWS Map”). The plan was not part of the 2009 Premier's Letter.
A memorandum of the Land and Property Management Authority (“LPMA”) signed by its CEO Warwick Watkins and dated 25 September 2009, recommended that a draft letter be approved to advise the Department of Energy, Climate Change and Water (“DECCW”) of, among other things, those parcels agreed for transfer in respect of the North East Regional Forest Agreement.
A letter the subject of the memorandum, from Watkins and addressed to Lisa Corbyn, the Director General of DECCW, was dated 25 September 2009 (“the 2009 Watkins Letter”). Schedule 1a to the 2009 Watkins letter identified the North East Crown Lands for "expeditious transfer to DECCW (subject to any conditions and Aboriginal Land Claims or Native Title Claims) - approximately 20000 hectares to National Parks". The Schedule also referred to DLWC’s "DoL ID Number 15” and “DECC ID G125”. It described the land to be transferred as "Brunswick River Foreshore West Addition to Brunswick Heads Nature Reserve". It stated that part of Lot 2 DP 728659 and the road reserve were to be transferred by reference to "the attached DECCW Map dated 29.7.09".
A document entitled 'Reservation of North East Crown Land', with document number DOC 10/7335 (“the 2010 Ministerial Resolution”) was signed by, among others, the Director of Protected Areas Policy and Programs Branch, Deputy Director-General (Parks and Wildlife), Director-General and the relevant Minister (with the Minister's signature being recorded on 30 April 2010).
Table D to the 2010 Ministerial Resolution was entitled “Upper and Lower North East Forest Agreement Crown Lands - Agreed by LPMA and DII (Minerals) [Department of Industry and Investment] but requiring ALC status check (purple lands)”. The "Part 50" DP 1067782 and "Part 2" DP 728659 were included within Table D. The “Reservation Status” is noted as "Gazettal notice to be prepared pending ALC status".
(a) issued under s 75 of the Crown Lands Consolidation Act 1913 (“CLCA”); (b) notified in the Gazette on 14 October 1955 (Fol 3037-3043); and (c) subject to Regulation No 106 which was notified on 2 August 1940.
(a) issued under s 90 of the Crown Lands Act 1884; (b) notified in the Gazette on 29 November 1911 (Fol 6358-6363); (c) subject to Regulation No 215 which was notified on 9 November 1910; and (d) subject to gazetted special conditions requiring the holder to:
(i) within two years, enclose the land "with a substantial fence"; (ii) within two years, clear not less than eight acres "suitable for cultivation"; and (iii) within three years, ''fell, burn off the scrub, and plant with pasture the whole of the area suitable for grazing outside the aforesaid eight acres for cultivation", except such timber and scrub "as are necessary for shelter, shade, and timber supply".
On 5 December 2001 Dulcie Nicholls, together with others, lodged an application for a determination of native title on behalf of the Bundjalung People of Byron Bay pursuant to ss 13(1) and 61 of the Native Title Act 1993 (Cth) (“NT Act”).
The Bundjalung native title determination application (“Bundjalung NTDA”) was given Federal Court proceedings number NSD 6020 of 2001 and registered under Pt 7 of the NT Act on 4 April 2003. The Bundjalung NTDA was amended in 2003, 2010, 2011 and 2019.
While there are two versions of the NTDA, it was not in dispute that the application dated 4 March 2003 (a later version was dated 29 March 2019) was the relevant application for present purposes by reason of the fact that it was the application in place as at the date of the first claim.
Attachment B to Schedule B of the March 2003 Bundjalung NTDA version, which includes exclusions from the claim area, was as follows:
Attachment B
Information identifying the boundaries of:
a) the area covered by the application; and
b) any areas within those boundaries that are not covered by the application.
A) The area covered by the application are within the boundary described in the “Metes and Bounds description” as set out in attachment B1.
B) The following areas are excluded from the application:
- The lands and waters included in application NC 95/1 (NG 6010/98) being the following:
| Number* | Identification | | 2 | 392/728 539 | | 3 | 396/728 544 | | 4 | 398/728 550 | | 6 | 171/755 695 | | 7 | 441/800 268 | | 8 | 428/729 069 | | 9 | 427/729 068 | | 10 | 395/728 541 | | 11 | 409/729 057 | | 12 | 410 – 426/729 062 | | 14 | 435/729 10 | | 15 | 437/729 107 | | 16 | 438/729 107 | | 18 | 1 & 2 /125 324 | | 22 | 370/723 047 | | 25 | 5/26/758 207 | | 30 | 383/728 202 | | 32 | 386/728 517 | | 33 | 399/728 551 | | 34 | 408/729 057 | | 37 | 387/728 536 | | 38 | 1/23/758 207 | | 39 | 407/729 057 | | 43 | Ms 691 Gfn | | 44 | The area described as the sandy beach and dunes down to low tide mark stretching from the south-eastern side of the Belongil Creek mouth following the beach line in a south-easterly direction to Cape Byron continuing in a southerly direction along Tallows Beach to the southern portion of Broken Head Nature Reserve. | | 45 | All exposed land mass within an area of five (5) km from the High Tide mark within the sea extending from the south-eastern side of the Belongil Creek mouth following the beach line in a south-easterly direction to Cape Byron and continuing in a southerly direction along Tallows Beach to the southern portion of Broken Head Nature Reserve; including areas described as “Snapper Rock, Kings Rock, Cocked Head Rocks, and Julian Rocks” (Juan and Julian Rocks). | | 46 | The sea extending five (5) km from the High Tide mark extending from the south-eastern side of the Belongil Creek mouth following the beach line in a south-easterly direction to Cape Byron and continuing in a southerly direction along Tallows Beach to the southern portion of Broken Head Nature Reserve. The sea areas claimed correspond to the areas adjacent to the land area claimed. Therefore to be consistent the applicants seek to extend the sea, beach and dune areas claimed to the northern most point of the land claimed. | | 48 | Unmeasured vacant crown land |
* This reference number refers to the reference number allocated to the land and waters claimed by the Department of Land and Water Conservation and held by the National Native Title Tribunal.
- Subject to paragraphs 4 and 4A below, the area covered by the application excludes any land or waters covered by:
a) a Scheduled interest;
b) a freehold estate;
c) commercial lease that is neither an agricultural lease nor a pastoral lease;
d) an exclusive agricultural lease or an exclusive pastoral lease;
e) a residential lease;
f) a community purpose lease;
g) a lease dissected from a mining lease and referred to in s.23B(2)(vii) of the Native Title Act (1993) (C’th);
h) any lease (other than a mining lease) that confers a right to exclusive possession over particular land or waters;
which were validly granted or vested on or before 23 December 1996.
- Subject to paragraphs 4 and 4A, the area covered by the application excludes any area covered by the valid construction or establishment of any public work, where the construction or establishment of the public work commenced on or before 23 December 1996.
- Where the act specified in paragraphs 2 and 3 falls within the provision of:
| a) | s.23B (9) | Exclusion of acts benefiting Aboriginal peoples or Torres Strait Islanders; | | b) | s.23B (9A) | Establishment of a National Park or State park; | | c) | s.23B (9B) | Acts where legislation provides for non-extinguishment; | | d) | s.23B (9C) | Exclusion of Crown to Crown grants; or | | e) | s.23B (10) | Exclusion by regulation; |
the area covered by the act is not excluded from the application.
4A. Where an act referred to in clauses 2 and 3 covers land or waters referred to in:-
(a) s.47 – pastoral leases held by members of the native title claim group;
(b) s.47A – reserves etc covered by claimant applications; or
(c) s.47B – vacant Crown land covered by claimant applications,
the area covered by the act is not excluded from this application.
- All other areas in which native title has been extinguished are to be excluded.
*Note: All references to sections are references to the Native Title Act *(*1993) (C’th).
All definitions of terms used in this Attachment are as defined in the Native Title Act *(*1993) (C’th).
For the sake of completeness it should be noted that the 2019 version was in relevantly similar terms.
Neither version of the NTDA contained a specific exclusion of the claimed lands from the area the subject of the native title claim.
The Bundjalung NTDA was determined on 30 April 2019 as a consent determination by the Federal Court (“the NT Determination”). The reasons for the determination were published as Nicholls on behalf of the Bundjalung People of Byron Bay and Attorney General of New South Wales [2019] FCA 527.
The NT Determination defines the "Determination Area" as the "Native Title Area" (namely, “the land and waters described in Schedule One"), together with the "Extinguished Area" (that is, the "land and waters described in Schedule Two") (at [11]). The NT Determination defines the "Application Area" as the "land or waters subject to native title determination application NSD 6020 of 2001".
Lot 50 (Central) and the Riverfront Portion are listed within Schedule Two of the NT Determination, being the lands identified as within the "Extinguished Area".
Schedules One, Two and Three of the NT Determination appear in the NTDA. They also appear on the National Native Title Register maintained under the NT Act (see ss 185 and 190(1) of that Act).
The Court's order in the NT Determination comprised a finding that native title had been extinguished over Lot 2 DP 728659 (ID 33) and Lot 50 DP 1067782 (ID 35):
- Native title is extinguished in the Extinguished Area described and depicted in the map attached to Schedule Two to this Determination.
The claimed lands are within the Agreement Area of the Cavanbah (Byron Bay) Arakwal Indigenous Land Use Agreement NI2019/005, which was registered on 20 May 2020 (“the ILUA”).
As at the date of the second claim, the NT Determination had taken place and native title over the Riverfront Portion had been extinguished.
(a) commenced on 24 August 2022; (b) is subject to the CLMA (as to the part of the land that is Crown land) and the Roads Act (as to the part that is Crown road); and (c) covers an area which includes Lot 50 (Central) and the Riverfront Portion.
It is convenient at this juncture to set out the principal provisions governing the disposition of the appeal.
The objects of the ALRA are stated in s 3:
3 Purpose of Act
The purposes of this Act are as follows—
(a) to provide land rights for Aboriginal persons in New South Wales,
(b) to provide for representative Aboriginal Land Councils in New South Wales,
(c) to vest land in those Councils,
(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,
(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.
36 Claims to Crown lands
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires—
claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division—
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
(b) are not lawfully used or occupied,
(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,
(c) are not needed, nor likely to be needed, for an essential public purpose, and
(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
The term “native title or native title rights and interests” “has the same meaning as in the Commonwealth Native Title Act” and “Commonwealth Native Title Act or NTA” “means the Native Title Act 1993 of the Commonwealth” (s 4 of the ALRA).
Section 36(5) and (5A) state:
(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) 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 (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales 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.
…
(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.
An Aboriginal Land Council can appeal to this Court against a refusal of a claim by the Minister pursuant to s 36(6) of the ALRA. The Court must hear and determine any appeal and may, if the 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 part thereof, be transferred to that Land Council (s 36(7) of the ALRA).
Section 36(9), (10) and (13) provide that:
36 Claims to Crown lands
…
(9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
(10) A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer.
…
(13) Where the transfer of lands in accordance with this section would not, but for this subsection, be authorised by the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, the transfer of the lands in accordance with this section shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer.
Section 61(1) of the NT Act states that applications for the determination of native title “in relation to an area” may be made by a number of classes of person, including, relevantly, a person authorised by a “native title claim group”. Such an application is a “claimant application” (s 253 of the NT Act).
Section 61A of the NT Act relevantly provides for restrictions on the making of native title determinations in prescribed circumstances:
61A Restrictions on making of certain applications
No native title determination application if approved determination of native title
(1) A native title determination application must not be made in relation to an area for which there is an approved determination of native title.
Claimant applications not to be made covering previous exclusive possession act areas
(2) If:
(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.
Claimant applications not to claim certain rights and interests in previous non*‑exclusive possession act areas*
(3) If:
(a) a previous non‑exclusive possession act (see section 23F) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23I in relation to the act;
a claimant application must not be made in which any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others.
62 Information etc. in relation to certain applications
Claimant applications
(1) A claimant application (see section 253):
…
(b) must contain the details specified in subsection (2); and
…
Details required by paragraph (1)(b)
(2) For the purposes of paragraph (1)(b), the details required are as follows:
(a) information, whether by physical description or otherwise, that enables the boundaries of:
(i) the area covered by the application; and
(ii) any areas within those boundaries that are not covered by the application;
to be identified;
(b) a map showing the boundaries of the area mentioned in subparagraph (a)(i)…
190A Registrar to consider claims
…
Test for registration
(6) The Registrar must accept the claim for registration if:
(a) either:
(i) the claim was made in an application given to the Registrar under section 63; or
(ii) the claim was made in an amended application given to the Registrar under subsection 64(4) and subsection (6A) of this section does not apply; and
(b) the claim satisfies all of the conditions in:
(i) section 190B (which deals mainly with the merits of the claim); and
(ii) section 190C (which deals with procedural and other matters).
190B Registration: conditions about merits of the claim
(1) This section contains the conditions mentioned in subparagraph 190A(6)(b)(i).
Identification of area subject to native title
(2) The Registrar must be satisfied that the information and map contained in the application as required by paragraphs 62(2)(a) and (b) are sufficient for it to be said with reasonable certainty whether native title rights and interests are claimed in relation to particular land or waters.
Identification of native title claim groups
(3) The Registrar must be satisfied that:
(a) the persons in the native title claim group are named in the application; or
(b) the persons in that group are described sufficiently clearly so that it can be ascertained whether any particular person is in that group.
Identification of claimed native title
(4) The Registrar must be satisfied that the description contained in the application as required by paragraph 62(2)(d) is sufficient to allow the native title rights and interests claimed to be readily identified.
…
Prima facie case
(6) The Registrar must consider that, prima facie, at least some of the native title rights and interests claimed in the application can be established.
Note: If the claim is accepted for registration, the Registrar must, under paragraph 186(1)(g), enter on the Register of Native Title Claims details of only those claimed native title rights and interests that can, prima facie, be established. Only those rights and interests are taken into account for the purposes of subsection 31(2) (which deals with negotiation in good faith in a “right to negotiate” process) and subsection 39(1) (which deals with criteria for making arbitral body determinations in a “right to negotiate” process).
…
No failure to comply with section 61A
(8) The application and accompanying documents must not disclose, and the Registrar must not otherwise be aware, that, because of section 61A (which forbids the making of applications where there have been previous native title determinations or exclusive or non-exclusive possession acts), the application should not have been made.
225 Determination of native title
A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of:
(a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and
(b) the nature and extent of the native title rights and interests in relation to the determination area; and
(c) the nature and extent of any other interests in relation to the determination area; and
(d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and
(e) to the extent that the land or waters in the determination area are not covered by a non‑exclusive agricultural lease or a non‑exclusive pastoral lease—whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others.
Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non‑native title interests.
56 Existing Crown roads
Any road that, immediately before the commencement of this Act, was a Crown road within the meaning of the repealed Act is dedicated as a public road and is declared to be a Crown road within the meaning of this Act.
152A Crown roads generally not to be dealt with under Crown Land Management Act 2016
(1) A Crown road may not be dealt with under the Crown Land Management Act 2016 while it is a Crown road, except as provided by this section or the regulations.
Note
The roads authority for a Crown road is the Minister administering the Crown Land Management Act 2016—see section 7(2).
152H Effect of registration of sale or disposal
(1) On the transfer registration for a Crown road or part of the Crown road concerned—
(a) the road or part ceases to be a Crown road, and
(b) the rights of passage and access that previously existed in relation to the road or part are extinguished.
1.15 Dealings with Crown land generally subject to Act
(1) Crown land must not be occupied, used, sold, leased, licensed, dedicated, reserved or dealt with in any other way unless it is authorised by this Act.
(2) However, this Act does not affect the operation of another Act to the extent that it—
(a) makes special provision for particular Crown land or any particular kind of Crown land, or
(b) authorises Crown land to be dealt with in any manner inconsistent with this Act.
Section 36(1)(d) of the ALRA provides that land is not claimable Crown lands if, at the date of the claim, it is “the subject of an application for a determination of native title…that has been registered in accordance with the Commonwealth Native Title Act” (emphasis added).
In short, the Minister submits that Lot 50 (Central) was not claimable Crown lands because, as at 31 October 2005, the land was part of the application area of the Bundjalung NTDA (see Nicholls).
In reply, the Land Council argued that the Court would not be satisfied on the evidence before it that as at the first claim date, the whole or any part of Lot 50 (Central) was the subject of the Bundjalung NTDA, and therefore, it was not captured by s 36(1)(d) of the ALRA. This was because the special leases to which Lot 50 (Central) was subject were both “scheduled interests” for the purpose of the NT Act and were a “previous exclusive possession act” as defined by s 23B of that Act. Accordingly, as at the first claim date, any native title rights and interests in Lot 50 (Central) were extinguished by operation of the common law or were deemed to have been extinguished by operation of ss 23B to 23E of the NT Act and s 20(1) of the Native Title (New South Wales*) Act 1994* (“NT (NSW) Act”). Attachment B to Schedule B of the Bundjalung NTDA expressly excluded land the subject of a “previous exclusive possession act” and “all other areas in which native title has been extinguished” from the NTDA. In the result, Lot 50 (Central) was excluded from the Bundjalung NTDA and was, therefore, “claimable Crown lands” for the purpose of s 36(1) of the ALRA.
It was not in dispute that Lot 50 (Central) fell within the external boundary of the Bundjalung NTDA, or that the NTDA was registered in accordance with the NT Act. Rather, the issue turns on the construction of s 36(1)(d) of the ALRA having regard to the relevant provisions of the NT Act. That is, whether land can be “the subject of” an application for an approved determination of native title for the purposes of that provision notwithstanding that it is excluded from “the area covered by the application” for the purposes of the NT Act, albeit by reference to a grant of tenure (the special leases) or by reason of extinguishment, and not geographical area.
Text and context
4 Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose – being what the provision is designed to achieve in fact – insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.
5 That being the nature of the task to which the process is directed, the "modern approach" to statutory construction, as was explained nearly 30 years ago in CIC Insurance Ltd v Bankstown Football Club Ltd in a statement repeated and endorsed many times since: "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy". Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context.
33 That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded – liberal, broad or narrow – may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
…
92 The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively. Application of that more general principle to New South Wales legislation is mandated by the requirement of s 33 of the Interpretation Act 1987 (NSW) that a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not. Neither in its general application nor in its particular manifestation can that principle be applied other than on the understanding that legislation “rarely pursues a single purpose at all costs” and that “[u]ltimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling”.
As Gageler J (as he then was) observed, the beneficial purpose of the ALRA “says nothing of itself about how far the Act goes in pursuit of that purpose. In particular, it says nothing about where the precise limits of claimable Crown lands are to be drawn in applying the detail of the definition in s 36(1)” (at [94]).
More recently, however, in La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32; (2025) 99 ALJR 1285, Jagot J emphasised the “manifest remedial and beneficial purpose” of the ALRA (at [266], footnote omitted):
266 These submissions are irreconcilable with the text, context and remedial and beneficial purpose of the Aboriginal Land Rights Act, which the Minister for Aboriginal Affairs described in the second reading speech for the Bill as representing the New South Wales Government's "clear, unequivocal decision that land rights for Aborigines is the most fundamental initiative to be taken for the regeneration of Aboriginal culture and dignity, and at the same time laying the basis for a self-reliant and more secure economic future for our continent's Aboriginal custodians", with the Bill providing "a substantial amount of resources for the 40 000 Aborigines in New South Wales to secure land", including by "claims upon unused Crown land".
138 The second interpretive red herring, as the Court of Appeal correctly noted, is the interpretive principle of preferring a beneficial interpretation of beneficial legislation. As four members of this Court observed in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council, it is evident from the text (including the preamble) and the extrinsic materials preceding the enactment of the Aboriginal Land Rights Act that it is legislation that is "intended for beneficial and remedial purposes". In particular, one intention, as stated in the Parliamentary Debates, is to "provide a substantial amount of resources for the 40 000 [Aboriginal people] in New South Wales to secure land ... [and] vastly increase the amount of land owned by [Aboriginal people] in this State". That principle has real utility when assessing an interpretation of beneficial legislation that would be detrimental to the persons intended to benefit. But the principle says nothing about the extent to which a provision is intended to benefit a person.
139 This Court has described the interpretive principle as one that requires that "remedial or beneficial legislation should be accorded a 'fair, large and liberal interpretation', rather than one which is literal or technical" and that if a section "is ambiguous it should ... be given a broad construction, so as to effectuate the beneficial purpose which it is intended to serve". Despite the reference to ambiguity, this interpretive principle, as Professor Pearce rightly observes, is not confined to circumstances of ambiguous words. Rather, the principle is an aspect of the ordinary language technique by which the meaning of all words is understood by reference to their purpose, here a purpose that involves an intention to benefit Aboriginal people.
140 The reason that this interpretive principle is a red herring in this case is that the beneficial purpose of s 36(1) of the Aboriginal Land Rights Act is not in doubt. The issue on this appeal concerns the extent to which s 36(1)(b) provides a benefit to Aboriginal people: "[w]here the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose [as a beneficial aim] is unlikely to solve the problem"; since legislation does not pursue its purposes no matter what the cost, "[t]he question is: how far does the legislation go in pursuit of that purpose or object?"
(a) first, the claimed land must be “the subject of” an application for a determination of native title; and (b) second, the application has been registered in accordance with the NT Act.
It is the first of the two preconditions that occupies this appeal.
Section 36(1)(d) involves a question of mixed fact and law, answered by recourse to the documents comprising the application for a determination of native title, and an examination of the separate exercises of power under the NT Act required in order to determine if the claimed lands are “claimable Crown lands” for the purposes of the ALRA.
In relation to s 36(1)(d) of the ALRA, the critical question is the scope of the “application” which has been “registered” under the NT Act.
A claimant application by a native title claim group cannot be made if either of the two criteria in s 61A(2) of the NT Act are met.
According to the Explanatory Memorandum, the purpose of s 61A of the NT Act is to confirm that no application for native title can be made for a determination of native title over land where any existing native title has since been extinguished (Commonwealth of Australia, House of Representatives, Explanatory Memorandum to the Native Title Amendment Bill 1997 (“the Explanatory Memorandum”), [25.26]).
An applicant must file a sworn affidavit stating that the applicant believes that the native title rights and interests claimed by the native title group have not been extinguished in relation to “any part of the area covered by the application” (s 62(1)(a) and (1A)(a) of the NT Act).
Section 62(1)(b) and (2)(a)-(b) of the NT Act require the application to contain, among other things, information to enable the boundaries of “the area covered by the application” and of “any areas within those boundaries that are not covered by the application” to be identified, together with “a map showing the boundaries of the area” encompassed within the application.
The Explanatory Memorandum described “boundaries of the area covered by the application” in s 62(2)(a)(i) as the “external boundaries” of the claimed area, with the “internal boundaries” in s 62(2)(a)(ii) comprising “the boundaries of…any areas within those boundaries that are not covered by the application” ([25.33]).
The “external boundaries” of the claim area must be shown on the map included in the application (s 62(2)(b)), whereas the “internal boundaries” of the claim area can be identified by “information, whether physical description or otherwise” (s 62(2)(a)). It may reasonably be presumed that this includes Lot numbers or some other form of description.
If the application is not filed in the Federal Court of Australia, then s 190A(6) of the NT Act provides that the Registrar must accept the claim for registration if it satisfies all of the conditions in ss 190B (dealing with the merits of the claim) and 190C (dealing with procedure and other matters). Specifically, this includes that the identification of the area the subject of the native title claim and the map and the information referred to in s 62(2)(b) must be “sufficient for it to be said with sufficient certainty whether native title rights and interests are claimed in relation to particular land or waters” (s 190B(2) of the NT Act). In other words, before an application can be accepted for registration under the NT Act, the Registrar must be satisfied “with sufficient certainty” as to the identification of both the “external” and “internal boundaries” of the claim.
94A Order containing determination of native title
An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title).
A determination of native title is a determination of whether or not native title exists in relation to a particular area of land or waters (see s 225 of the NT Act).
The determinations are kept in the National Native Title Register (“the Register”), which is (subject to some limitations) to be publicly available (ss 192 to 194 of the NT Act).
It is therefore neither necessary nor appropriate to identify precisely the effect of a determination on a particular parcel of land. The Minister need only be satisfied that the relevant land is “the subject of” a determination of native title under the NT Act.
This is consistent with the exceptions to what constitutes “claimable Crown lands” contained in s 36(1)(d) and (e) of the ALRA. These exceptions concern exercises of power that do not involve a determination that native title exists under the ALRA by reason of the unopposed registration of a non-claimant application (s 36(1)(d)) or an approved determination that no native title exists in the claimed lands (s 36(1)(e)). The operation of both exceptions results in no possibility of a finding that native title exists in the claimed lands. In both instances, the Minister does not engage in any further evaluation of the strength or nature of the claim for native title.
There are further contextual indicators that reinforce a construction of s 36(1)(d) of the ALRA that gives precedence to native title determination applications and approved determinations:
(a) s 36(9) of the ALRA states that any transfer of land to an Aboriginal Land Council under that provision for an estate in fee simple is “subject to” any native title rights or interests in existence in the land immediately prior to the transfer; and (b) lands vested under s 36(9) of the ALRA that are subject to native title rights or interests must not be dealt with by an Aboriginal Land Council unless the land is subject to an approved determination of native title within the meaning of the NT Act (s 42(1) of the ALRA).
The Aboriginal Land Rights Act is ... amended so that land which is subject to a native title claim, or a determination that native title in the land exists, will not be claimable under the Act. One of the main objects of the Aboriginal Land Rights Act is to compensate Aboriginal people for dispossession from their traditional lands. If that traditional connection has been maintained in a way which would sustain a claim for native title, then it is that claim which should have precedence. Where a claim under the Aboriginal Land Rights Act is granted, it will be granted subject to any native title which may exist in the land. It may be that at the time of the grant no claim is made, but at a later time native title in the land is shown to exist. If that is the case, the native title holders, as traditional holders of the land, should have precedence over the relevant Aboriginal land council. This procedure will allow grants under the Aboriginal Land Rights Act to be made without extensive inquiries having to be made about whether the grant would affect native title and thus offend the Commonwealth Act. However, to protect purchasers of land granted to a land council that is subject to native title interests that have not yet been identified, the Aboriginal Land Rights Act is further amended to provide that such land cannot be sold unless there is on foot an approved determination in respect of native title.
Pursuant to s 62(2)(a)(i) and (b) of the NT Act, paragraph 1 of Part B in Attachment B to the Bundjalung NTDA (see above at [57]) describes the boundaries of the claim area by reference to lot boundaries and coordinates. Paragraph 2 of Part B in Attachment B sets out the “areas excluded from the application”. The drafting of the Bundjalung NTDA is unremarkable in terms of its formulaic structure and content.
According to the Land Council, the effect of paragraph 2 of Part B in Attachment B is that, in conformity with s 61A of the NT Act, because these areas were excluded from the NTDA they were not “covered” by it. Put another way, the claimants did not seek to establish native title rights or interests over any areas that had been the subject of a “previous exclusive possession act”.
This approach was reflected in the reasons of the delegate of the Registrar in accepting the Bundjalung NTDA for registration, when regard is had to the criteria in ss 62(2)(a) and 190B(2) of the NT Act. Those reasons described the areas excluded from the internal boundaries of the application as follows:
The land and waters included in application NC95/1 (NG 6010/98) are excluded from the application. The parcels within that application are listed.
The applicants have also detailed a series of land tenure types that are excluded from the area of the application, and which corresponds to the classes of tenure defined in s 23B.
Also all areas in which native title has been extinguished are excluded.
As noted above, s 61A of the NT Act restricts the circumstances in which certain applications for native title can be made, namely, over areas in respect of which there is an approved determination of native title (s 61A(1)); over any areas where a “previous exclusive possession act” was done (s 61A(2) and see ss 23B and 23E); and where any of the native title rights and interests claimed confer possession, occupation, use and enjoyment of any of the area to the exclusion of all others where a “previous non-exclusive possession act” was done to an area (s 61A(3) and see ss 23F and 23I). However, in relation to claimant applications, the application of ss 47, 47A and 47B of the NT Act may have the effect that s 61A(2) and (3) do not apply.
Section 190B(8) of the NT Act requires the Registrar to be satisfied that it is not the case that by reason of s 61A the application should not have been made. This state of satisfaction may be met by the inclusion of a description of the area covered by the native title claim application, such as that contained in Attachment B to Schedule B in the Bundjalung NTDA.
In Daniels for the Ngaluma People & Monadee for the Injibandi People v State of Western Australia [1999] FCA 686 (“Daniels No 1”) Nicholson J, when dealing with an application for leave to amend a claimant application, accepted that a class or formulaic description of exclusions of interests not covered by the application by reason of the operation of s 61A was required to be identified (at [33]-[35]):
33 Paragraph 62(2)(a)(ii) requires applicants to turn their mind to the issue of which areas are not covered by the application. In identifying such areas it will necessarily fall to the claimants to form a view on whether an instrument is of a type which would give rise to a grant or vesting of an interest falling within the description of s 61A(2)(ii) or s 61A(2)(iii) and hence of s 23B or s 23F. This follows from the requirement in s 62(1)(b) for the applicant to swear as to non-extinguishment of native title on the part of the area covered by the application.
34 Where on the state of knowledge of tenure information applicants identify limited parcels of land within the external boundaries which are not claimed - as in the maps in the second amended application - they would be required to identify those excluded areas.
35 Where the claimants are of the view that the grant or vesting of interests otherwise falling within par 62(2)(a)(ii) because s 61A applies to exclude them from the application are valid interests, they would be bound to identify the areas covered by those interests as areas within the claimed boundaries that are not covered by the application.
36 Where validity of an interest over an area is to be contested in the determination of the application, par 62(2)(a)(ii) must nevertheless require identification of the areas under s 61A excluded from the application in the event of validity being established. If that were not the case a strike out application could be brought under s 84C of the Act in respect of alleged non-compliance with s 61A. At the minimum a class or formula description of such exclusions dependent on determination of validity would be required. At the same time a description of those areas would be required to be included in the area covered by the application under par 62(2)(a)(i) on the ground validity was contested.
37 If an applicant chose to use a class or formula description, he or she could only do so in the knowledge that he or she could be called upon to answer a strike out application pursuant to s 84C of the Act with consequent impact on the progress of the application. That is, a class or formula description of the type proposed here would only be appropriate where the uncertainty of validity (for example ) was clearly arguable. However, a party bringing an application under s 84C would need to have in mind that absence of an identification of excluded areas other than by class or formula description, if defensible for reasons such as those in (6) above, would not mean the Act had not been complied with. It would mean the non-excluded area was subject to the claim.
38 All of the above is supported by the apparent recognition in the Act of the need to give persons holding interests certainty as to whether their interest is subject of a claim. The class or formula approach proposed by the applicants to definition of exclusion does, if otherwise appropriate, give certainty for respondent interest holders in that they know their interest is subject to claim unless specifically excluded. As recognised above, despite s 61A(2) and (3) requiring that certain areas not be claimed, the determination of whether particular interests meet the definitions referred to in that section will often have to await the determination of the application.
51 In Daniels v State of Western Australia & Others [1999] FCA 686, Nicholson J referred to the requirements of s 62 relating to information identifying the area covered by the application and areas within its boundaries not covered by the application. His Honour said:
“These requirements are to be applied to the state of knowledge of an applicant as it could be expected to be at the time the application or amendment to an application is made. Consequently a class or formula approach could satisfy the requirements of the paragraphs where it was the appropriate specification of detail in those circumstances. For example, at the time of an initial application when the applicants had no tenure information it may be a satisfactory compliance with the statutory requirement. A description of a class or formula character of an area of exclusion such as “areas affected by valid category A Past Acts” may be the fullest description that an applicant can give at the time of an application or application for amendment of an application. It is capable in the light of a subsequent determination of the nature and validity of those Acts of resulting in satisfaction of the legislatively prescribed criteria in s 62(2)(a). Whether that would be so on a later application for amendment when tenure information is available would depend on considerations such as those referred to in the following paragraphs.”
His Honour went on generally, albeit in the context of a motion for amendment of an application, to hold that whether a class or formula description satisfies the Act requires consideration by the Court in the light of evidence of consideration given to the relevant issues by the applicants and how feasible it was that greater certainty and detail could be provided consistently with the other requirements of the Act.
52 I respectfully agree with his Honour’s approach. However, in the context of the registration test, the kind of judgment which his Honour was contemplating might be undertaken by the Court is undertaken administratively by the Registrar. It is necessarily evaluative in character within the general parameters laid down by the statutory provisions which the Registrar must apply. Having regard to the nature of review proceedings the Court should not interfere with the Registrar’s assessment of the sufficiency of the description unless it is shown to be informed by some error of law or procedure.
31 The practical difficulty with an application in terms relied on by the first applicants is that whether particular interests fall within s 61A(2) or s 61A(3) is an issue which must await the time at which the Court is in a position to make a principal determination. However, having found there is a previous exclusive possession act or a non-exclusive possession act within the terms of s 61A(2) or s 61A(3), the Court would be required by s 225(c) to include them in the principal determination as other interests in the determination area. By s 225(d) it would be required to explain the relationship of that interest to any native title rights and interests subject to the subsidiary determinations in s 225(b). The relationship would be such as to be explicable only in terms of s 61A(2) and s 61A(3) as requiring the application to be dealt with as required by those subsections. That is, I do not see the effect of s 61A(2) or s 61A(3) as bringing about a situation where the determination pursuant to s 225 is not required to address the interests other than native title as they arise under s 61A(2) or s 61A(3) in the determination area. Furthermore by s 225(d) the Court would be required to address the issues of exclusion there identified in terms identical to those used in s 61A(3).
32 It follows that I consider the determination under s 225 must address the totality of the Yindjibarndi and the Ngarluma extinguishment areas. This is so even if, where s 61A(2) and s 61A(3) apply, the effect is to exclude the area from the claim. …
28 Although the parties did not in their submissions identify how this argument would have a practical effect in relation to particular areas of land, it seems that the effect mostly relates to certain roads. The parties now agree that the making of those roads were previous exclusive possession acts, being public works within the meaning of s 23B of the NTA. Under the terms of the NTA, public works extinguish native title and s 47B does not apply to require the extinguishment to be disregarded.
29 What s 61A(2) prevents is the applicant making a claim over an area where there is no debate that a previous exclusive possession act had been done in relation to that area. But where the applicant brings to Court a claim for native title over an area on the basis that the act done was not an exclusive possession act, or native title was not extinguished for some other reason, s 61A(2) is not brought in to operation. The section is directed to restricting the making [of] a particular type of application. That section does not prevent an application from being made where the applicant disputes the question whether native title rights and interests have been extinguished by a previous exclusive possession act. Consequently, there is no merit in the applicants' argument referred to in (a) above.
30 A similar approach answers the contention set out in (b) above. When the applications were filed, the Bindunbur and Jabirr Jabirr applicants' claim was made to the area designated. It was necessarily part of the application that the applicants asserted that native title had not been extinguished in the area. Otherwise, they would have had no basis for the application. The application cannot now have the effect of rendering unclaimed what was in fact claimed. That would be to rewrite the history of the claim.
31 It may be that the purpose of including in the application a provision such as [8] which seeks to exclude areas subject to acts such as exclusive possession acts from the application was an attempt to preserve the basis for the present argument. If so, it is not been effective to do so.
As the parties agreed, the expression “the subject of” in s 36(1)(d) of the ALRA must be construed within the context of the NT Act. The claimants are required to, as the Land Council submitted, describe the external and internal boundaries of the land in relation to which an application is made. This may be done by a variety of methods. It is axiomatic that land that is not stated to be within the external or internal boundaries of the claim area is land that is not “covered by” an application for determination of native title (s 62(2)(a)(ii) of the NT Act) and is therefore not “claimed” (s 190B(2) of that Act); it is not land that is “the subject of” the application.
However, it cannot be neatly said that the land “the subject of” the special leases was not stated to be within the external and internal boundaries of the claim area. In the present case, this required further investigation and enquiries of a legal and factual nature to be undertaken, and concomitant findings to be made. The High Court has repeatedly emphasised the difficulties that arise when an attempt is made to determine issues of extinguishment of native title rights and interests absent proper findings of fact (Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 at [34]-[35] per Gaudron, Gummow and Hayne JJ and Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at [109] per Gummow J).
The answer to the argument by the Land Council that the Minister must have regard to the description of the internal boundaries of the claim area that the Registrar has registered for the purposes of s 36(1)(d) of the ALRA, is that the operation of the description will be contingent upon the determination of questions of extinguishment which cannot be decided by the Registrar but must be resolved at a later stage in the native title determination process. The internal boundaries will therefore remain, to use the Minister’s entirely apt language, “inchoate” until determination either by agreement or the exercise of federal jurisdiction.
It is also not entirely correct to say, as the Land Council does, that because s 36(1)(d) of the ALRA is only engaged once an application for a determination of native title is registered, the Registrar must have concluded that the claim’s external and internal boundaries were described in a manner that provides “reasonable certainty” as to whether any given parcel of land is covered by the claim (s 190B(2) of the NT Act), and therefore, is “the subject of” the application for the determination of native title (s 36(1)(d)). “Reasonable certainty” is not absolute certainty; and it cannot be concluded at the point of registration of an application that the external and internal boundaries of the claim are fixed and will mirror the boundaries of the final approved determination. The Registrar is not tasked under the NT Act with determining questions of extinguishment or the putative existence or effect of previous exclusive possession acts. At the risk of being trite, registration is not determination.
A “Scheduled Interest” is an interest listed in Schedule 1 of the Native Title Act (s 249C). The two special leases over Lot 50 (Central) come within cll 2(3) and 3(8) of Schedule 1. In any event, they are each an “exclusive agricultural lease” within s 23B(2)(c)(iv) of the Native Title Act and paragraph 2(d) of Attachment B to the Byron Bay NTDA, having regard to the broad meaning of “agriculture” in this context: Ohlsen on behalf of the Ngemba/Ngiyampaa People v Attorney-General of New South Wales [2021] FCA 169, [592] (Griffiths J). Characterising leases for the purposes of Schedule 1 of the Native Title Act “requires a flexible, common sense approach focussing upon substance rather than form”: Darkinjung Aboriginal Land Council v Attorney General of New South Wales [2022] FCA 1555, [47]-[48] (Burley J).
Lot 50 (Central) was accordingly excluded from the “application” either pursuant to paragraph 2 of Part B in Attachment B of the Bundjalung NTDA because the two special leases constituted a “scheduled interest”, or by reason of the application of paragraph 5 of Part B in Attachment B, which extinguished any native title over the Lot by the grant of the special leases by operation of ss 23B and 23E of the NT Act and s 20(1) of the NT (NSW) Act.
But this analysis belies the very complexity that s 36(1)(d) and (e) of the ALRA seek, upon their proper construction, to avoid. The interpretation posited by the Land Council, if adopted, would require the Minister (and thus the Court) to interrogate the native title claim application to a level of detail that I do not accept was within Parliament’s intention in enacting s 36(1)(d) of the ALRA. It would demand a factual examination of the underlying circumstances of the claim which would usurp the function of the Registrar or the Federal Court. It would also result in either duplicate or inconsistent fact finding by both the Minister and the Federal Court in order to ascertain the content of the “application”.
As correctly submitted by the Minister, in seeking this Court to draw inferences from historical facts about the tenure of Lot 50 (Central), the Land Council invites the Court to perform the function of the Federal Court (vested exclusively in the Federal Court and the High Court: s 81 of the NT Act) of finding that any native title over Lot 50 (Central) was extinguished by the grant of the special leases.
Whether s 81 of the NT Act ousts the jurisdiction of State Courts is not settled. It is an issue that will demand attention if the Land Council’s construction of s 36(1)(d) of the ALRA is accepted, particularly in the context of a Court of limited jurisdiction such as the Land and Environment Court of NSW.
Moreover, not only does the interaction between the statutory schemes of the ALRA and the NT Act present a risk to the integrity of the native title claim process on the approach posited by the Land Council, it also poses a risk to the integrity of the land claim process under the ALRA. Under s 36(5) of the ALRA the Minister is only empowered to grant a land claim if the Minister is satisfied that it is claimable Crown lands. However, the Minister’s exercise of power would be contingent upon factual findings yet to be made as a consequence of proceedings in the Federal Court. The Minister would not have the benefit of the evidence adduced or the submissions made by parties in a curial setting. Although the Court, on appeal, would have access to this material, the risk of inconsistent decisions across differing jurisdictions in respect of the same subject-matter is more than fanciful. In addition, the Minister would be placed in the unsatisfactory position of having to second guess the outcome of an exercise of federal judicial power.
While s 36(9) of the ALRA would protect any claimants for native title by transferring an estate in fee simple subject to any native title rights or interests existing in it immediately prior to the transfer, where there was an extant native title determination application over the same land, this would have the practical effect of freezing any future dealings with the land thereby subverting the objects of the Act (see, in particular, s 3(a), (c) and (d) of the ALRA).
It was not a matter of controversy that as at 4 February 2021, the whole of the Riverfront Portion was a Crown road under the Roads Act, and moreover, that part of the Riverfront Portion was subject to Crown reserve R69040 for “future public requirements”.
It was also not in contention that as at the commencement of the CORA on 1 April 1992, the Riverfront Portion was a “Crown road” within the meaning of s 3(1) of that Act. As a consequence, upon the commencement of the Roads Act on 1 July 1993, the Riverfront Portion was deemed to be dedicated as a public road pursuant to cl 56 of Div 4, Pt 2 of Sch 2 of that Act. It follows that the Riverfront Portion remained a Crown road under the Roads Act as at the second claim date.
The issue between the parties is whether the Riverfront Portion that was subject to the Crown reserve R69040 falls within s 36(1)(a) of the ALRA and is not “claimable Crown lands”, notwithstanding that the same land is also a Crown road administered under the Roads Act.
What is excluded from the land claim over the Riverfront Portion is that part of the land that is not subject to Crown reserve R69040, namely, Lot 2. The Land Council accepts that Lot 2 does not fall within s 36(1)(a) of the ALRA insofar as it can only be sold or leased under the Roads Act and not the Crown lands legislation and is therefore not “claimable Crown lands” as defined (T85:04-06).
The Minister submits that when read as a whole and in context within s 36 of the ALRA, and in light of extrinsic materials to which recourse was made, the commonly disjunctive sense of the term “or” in s 36(1)(a) is displaced. Rather, the purpose of s 36(1)(a) is to extend the category of claimable Crown lands from those which are able to be lawfully sold or leased under the Crown lands legislation, to those which would be able to be lawfully sold or leased but for a reservation or dedication made under that legislation. That is, there is no separate category of lands that “are reserved or dedicated for any purpose” that are able to be “claimable Crown lands”.
By contrast, the Land Council construes s 36(1)(a) of the ALRA literally, giving full effect to the presumptive disjunctive meaning of the word “or” to contend that the existence of Crown reserve R69040 is the independent criterion upon which the provision operates. Because the Riverfront Portion is subject to Crown reserve R69040, it is land that is “reserved or dedicated for any purpose” and thus claimable for the purposes of s 36(1) of the ALRA.
173 Crown lands legislation, as referred to in s 36(1)(a) of the Aboriginal Land Rights Act, is also relevant. By "Crown lands legislation" what is meant is the Crown Lands Consolidation Act 1913 (NSW), the Crown Lands Act 1989 (NSW), and the Crown Land Management Act 2016 (NSW).
237 The reference to the Crown Lands Consolidation Act 1913 (NSW) in s 36(1) of the Aboriginal Land Rights Act is to be read as a reference to: (a) the Crown Lands Consolidation Act from its commencement to 1 May 1990; (b) from 1 May 1990 to 1 July 2018 "the Crown Lands Act 1989 [(NSW)]", by operation of Sch 7 and Sch 8, cl 21(1) of that Act; and (c) from 1 July 2018 to date the Crown Land Management Act 2016 (NSW), by operation of Sch 8 and Sch 7, cl 39 of that Act.
The operation of the Roads Act constrains the powers otherwise granted under the Crown lands legislation. Thus, s 152A(1) of the Roads Act states that a Crown road may not be dealt with under the CLMA while it is a Crown road except as provided by that section or the regulations.
The Minister argued that, as a consequence, properly understood, the reference to “able to” in s 36(1)(a) of the ALRA meant the “ability” to exercise the power to deal with the land under the Crown lands legislation. Both limbs of s 36(1)(a) of the ALRA, namely, that the lands “are able to be lawfully sold or leased” and that the lands “are reserved or dedicated for any purpose” are conditioned upon the ability to be sold, leased, or reserved or dedicated, specifically pursuant to Crown land legislation. Because the Riverfront Portion was reserved under a separate Act, viz, the Roads Act, the land was not able to be lawfully dealt with under the Crown lands legislation and it did not fall within the purview of s 36(1)(a) of the ALRA. This was so, according to the Minister, whether or not the land was subject to a reserve which had been gazetted before the land became a Crown road. The prior existence of a reserve was subject to the operation of s 152A of the Roads Act, and therefore, was not able to be lawfully sold or leased within the meaning of s 36(1)(a) of the ALRA.
The Minister relied principally upon the decision of Illawarra Local Aboriginal Land Council v Minister Administering Crown Lands Act [2008] NSWLEC 188; (2008) 161 LGERA 294 where the Court opined (at [123] per Sheahan J):
123 For land to be claimable under the ALRA, it must be capable of being dealt with, by sale or lease, under the Crown Lands legislation. Powers, including sale or lease, under various other Acts, such as the Public Roads Act, are not exercisable by the Minister responsible for the Crown Lands legislation, and so are not within the ALRA (Gandangara Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 41 NSWLR 459; 99 LGERA 43). I agree with the Respondent that the relevant issue for consideration here, therefore, is under which statute the land corresponding to the road portion fell to be administered (Respondent’s supplementary submission, 5 February 2008, par 18).
The Minister argued that Illawarra stands for the proposition that if a Crown road can be sold under the Roads Act and not the Crown lands legislation, then it is not able to be sold for the purposes of s 36(1)(a). The authority not being plainly wrong, it should be followed as a matter of comity in the present appeal.
In the result, upon its proper construction, the Minister submitted that s 36(1)(a) of the ALRA must be read as a composite whole so that the reference to “reserved or dedicated for any purpose” is predicated upon the land otherwise being “able to be lawfully sold or leased”. A reservation or dedication under the Crown lands legislation must be the only reason why the land is not “able to be lawfully sold or leased” for the land to be claimable Crown land pursuant to s 36(1)(a) of the ALRA.
The use of the word “or” in the paragraph is not a disjunction but a conjunction, meaning ‘or as well’, with the limitation that the reservation and dedication is predicated upon the ability to be lawfully sold or leased under Crown lands legislation. To construe it otherwise would result in incongruity insofar as a reservation or dedication under different legislation would have work to do when the land is able to be lawfully sold or leased under Crown lands legislation, but would have no work to do when the land was reserved or dedicated for any purpose under the same Crown lands legislation.
Contextually, the above construction was consistent with the scheme of legislation (namely, the ALRA) that is designed to facilitate land being claimable. Put another way, if land is not able to be lawfully sold or leased it can nevertheless be claimable Crown land if the inability to sell or lease the land is because it is reserved or dedicated for some purpose under the Crown lands legislation; that is, the Minister’s interpretation of s 36(1)(a) expands the scope of “claimable Crown lands” under the ALRA.
The Minister argued that such an interpretation was also consistent with the context of s 36(1)(a) of the ALRA, which includes s 36(5) of that Act. The absence of any express reference to reservations or dedications in relation to the obligation imposed upon the Minister in that provision suggests that reservations and dedications are included within the ambit of “restrictions on the sale or lease” of the lands.
As mentioned above, the Minister relied upon various extrinsic materials to aid in its construction of s 36(1)(a) of the ALRA, including the First report from the Select Committee of the Legislative Assembly upon Aborigines: Report and Minutes of Proceedings (1980), the Crown Lands *(*Validation of Revocations) Act 1983 (which validated revocations of reserves for the use of Aborigines which otherwise may have been contrary to the CLCA), and the Green Paper on Aboriginal Land Rights in New South Wales (1982) (the initial draft of the Bill for the ALRA). Recourse to this material demonstrated that the purpose of s 36(1)(a) of the ALRA is to define the scope of the Crown’s existing interests in land which may subsequently become the subject of transfer to a land council.
125 The submission raises potentially difficult issues concerning the construction of s 36(5) in the light of s 36(1). Under s 36(1) land is claimable not only if it is able to be lawfully sold or leased, but also if it is reserved or dedicated for any purpose under the specified statutes. Section 36(5) makes no reference to the dedication or reservation of land.
…
128 It is unnecessary to consider whether the land was able to be sold, except to reject the appellant’s submission that s 36(1)(a) and s 36(5) required that the land be susceptible both to being sold or to being leased at the Crown’s election. That distorts the disjunctive use of “or” within these provisions.
180 Second, "claimable Crown lands" under s 36(1)(a) of the Aboriginal Land Rights Act are not confined to "Crown land" under the Crown lands legislation. This follows from the fact that "land dedicated for a public purpose" is not "Crown land" under Crown lands legislation, but under s 36(1) of the Aboriginal Land Rights Act dedication of land is a qualifying condition for a land claim.
181 Third, subject to the Crown Lands Minister complying with the Crown lands legislation, ultimately, all land vested in the Crown in right of the State may be lawfully sold, leased, reserved or dedicated for any purpose.
The Minister’s submissions, if adopted, would have the effect of adding a gloss to the language of s 36(1)(a) of the ALRA so that it would read “are able to be lawfully sold or leased, or would be able to be lawfully sold or leased but for the fact that they are reserved or dedicated for any purpose, under” the relevant Crown lands legislation. This is neither supported by the text, context nor purpose of the provision. On the contrary, that there are two qualifications contained within s 36(1)(a) only serves to emphasise that the provision is concerned with the separate status of the land as Crown lands under the Crown lands legislation.
The Land Council did not cavil with the correctness of Illawarra. Rather, it argued that because the case did not concern a reservation or dedication under Crown lands legislation, the decision does not stand for the proposition that even if you have a reservation under the Crown lands legislation, it must nevertheless be able to be dealt with and sold under that legislation for it to be claimable under s 36(1)(a). It is authority for the more narrow proposition that because the land could only be sold or dealt with under the Roads Act, and not the Crown lands legislation, it was not claimable.
The Land Council’s submission in this regard must be accepted. Decided well before Quarry Street, Illawarra is distinguishable for the reason that the Land Council gives.
Second, contextually, the interpretation of s 36(1)(a) of the ALRA arrived at above and posited by the Land Council is not inconsistent with s 36(5) of that Act, as suggested by the Minister. The premise of the argument made by the Minister in this regard was that the words in parentheses essentially condition the Crown Lands Minister’s power to grant the claim. It imposes a precondition that must be satisfied before the claim can be granted, namely, the claimed land must be land that is able to be sold or leased under legislation administered by the Crown Lands Minister, as that term is defined in s 36(1).
As a general rule, statutory incoherence is repugnant and legislative instruments must be construed “on the prima facie basis that its provisions are intended to give effect to harmonious goals” (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70]). Applying this principle to s 36(5), the provision refers to lands “which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister”. The section is neutral as to the source of the “restriction on” the “sale or lease” of the claimed lands. The qualification contained in the phrase “under a provision of an Act administered by the Crown Lands Minister” is directed to the words “able to be sold or leased” under an enactment administered by the nominated Minister and not, as the Land Council correctly identified, the sub-clause “but for any restriction on their sale or lease”. The source of the limitation on the sale or lease of claimable Crown lands therefore does not matter and includes reservations and dedications.
The Minister contends that as at the dates of both claims, each of Lot 50 (Central) and the Riverfront Portion were needed, or likely to be needed, for the essential public purpose of nature conservation, and therefore, were not “claimable Crown lands” pursuant to s 36(1)(c) of the ALRA.
In both instances, the contention is based upon the asserted fact that the claimed lands were needed, or likely to be needed, for the essential purpose of nature conservation from, in particular, 1992 to 2010, and thereafter. The Minister places considerable emphasis on the fact that both parcels were identified for potential inclusion in a nature reserve system in the upper northeast region of New South Wales.
The applicable legal principles to establish whether land is needed, or likely to be needed, for an essential public purpose were not in dispute. They were recently articulated in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (**“Jannali”) [2024] NSWLEC 41 (at [124]-[128]), and were endorsed on appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 294; (2024) 261 LGERA 414 (“Jannali CA”) (at [40]).
In New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act *(*Newcastle Post Office Claim) [2014] NSWLEC 72; (2014) 204 LGERA 1 the Court stated the principles as follows (at [187]-[196]):
187 First, the question of whether land is needed or likely to be needed for an essential public purpose as at the date of the claim is a question of fact (Winbar at 691G-692A; 271 per Hope JA and Dorrigo at [10](1) per Jagot J).
188 Second, the concept of “needed” in s 36(1)(c) of the ALRA means “required or wanted” (Castlereagh at 254D; 104 per Handley and Powell JJA).
189 Third, the need for land must be a reasonable need (Wanaruah Local Aboriginal Land Council v Minister Administering Crown Lands Act (2001) 113 LGERA 163 (Wanaruah) at [16]-[17] per Lloyd J; New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (the Tuncurry claim) (2008) 159 LGERA 400 at [42] per Lloyd J and Daruk Local Aboriginal Land Council v Minister Administering Crown Lands Act (No 2) (1995) 89 LGERA 194 at 204 per Bignold J).
190 Fourth, the Court may come to a different conclusion concerning whether or not the land is needed than that reached by the Executive (Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 (Nambucca CA) at [40] per Basten JA).
191 Fifth, “essential” means “necessary” or “indispensable” (NSW Aboriginal Land Council v Minister for Natural Resources *(*The Tredega Claim) (1986) 59 LGRA 318 (Tredega) at 331-332 per Stein J). The concept “sets a high standard” and involves a “significant restriction” on the exception from claimable Crown lands. The reference to “essential” ensures that it “is not enough that the public purpose to be served is ‘desirable’ or even that it is ‘highly desirable’”, rather it must be “essential” (Illawarra at [32](2) per Hodgson JA, Maroota at [55] per Spigelman CJ, Dorrigo at [10](3) per Jagot J, Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act [2012] NSWLEC 68 (O'Hara's Creek) at [111] per Pain J).
192 Sixth, a “public” purpose is one that is normally carried out by the Government, or is regarded as a governmental function (La Perouse Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 74 LGRA 176 (La Perouse) at 183 per Bannon J). To constitute such a purpose, it must have connotations of the “community, state or nation as a whole” (Tredega at 331). A “purpose” may be defined as “the object in view or the object for which something is done” (Tredega at 331 per Stein J). It follows that “public” may be distinguished from “private” (Tredega at 331).
193 Seventh, what will constitute an essential public purpose in some circumstances may not be sufficient in others (Illawarra at [65] per Basten JA; Batemans Bay Local Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWLEC 800 (Batemans Bay) at [107]-[108] per Sheahan J, Dorrigo at [34] and [48] and O'Hara's Creek at [113]). However, the mere fact that the Government undertakes the activity does not, of itself, make it an “essential public purpose” (La Perouse at 183).
194 Eighth, normally it is expected that steps would be taken to achieve an essential public purpose before the date of the claim if it was “essential” (Batemans Bay at [110] per Sheahan J). Thus evidence of varying purposes over time suggests that the land is not needed for an essential public purpose for the purposes of s 36(1)(c). And unresolved, changing or conflicting proposals militate against the land being needed or likely to be needed for an essential public purpose (Castlereagh at 254F; 104 and O'Hara's Creek at [161] and [166]).
195 Ninth, it is irrelevant in determining whether or not s 36(1)(c) of the ALRA has been satisfied whether the essential public purpose could have been achieved in some other way (Castlereagh at 252C; 102 per Meagher JA and 253E; 103 per Handley and Powell JJA).
196 Finally, it should be observed that a wide range of purposes have been regarded as essential public purposes: coastal protection and public access to the shoreline (Coffs Harbour and District Local Aboriginal Land Council v Minister Administering Crown Lands Act (2013) 199 LGERA 372); the provision of trigonometric stations and power lines (Wanaruah); the provision of drainage and sewerage infrastructure (Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act (2006) 149 LGERA 162 (Darkinjung)); nature conservation (Illawarra); public access and recreation with respect to tidal waters (Worimi Local Aboriginal Land Council v Minister Administering Crown Lands Act (1991) 72 LGRA 149); national parks (Maroota); and cemeteries (Deerubbin Local Aboriginal Land Council v Minister Administering Crown Lands Act (1997) 95 LGERA 353).
39 In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (2022) 110 NSWLR 535; 254 LGERA 311 (Gosford), this Court (Preston CJ of LEC, Gleeson JA and Basten AJA agreeing) identified the principles which apply when a land claim is made on the basis of s 36(1)(c) of the Act as follows:
(1) the need or likely need of the land to be used for an essential public purpose is to be determined at the date when the land claim was made: [65];
(2) the question of need is to be determined by reference to the view of the executive government of the State at the appropriate level as at the date of the land claim and, depending on the alleged need or likely need, may require the Minister to show that a decision of the executive government on that matter has been made prior to the date of the land claim: [66]-[67]; and
(3) holding a view or deciding that land is needed for an essential public purpose involves the formation of a positive opinion to that effect, with the result that the Minister must show that the executive government has, prior to or as at the date of the land claim, turned its mind to the question and formed the opinion that land is needed for an essential public purpose: [68].
Merely making land available for a private purpose does not make the purpose a public purpose (Newcastle Post Office Claim at [207]-[216] and [227]). Having said this, the purpose is not precluded from being characterised as “public” merely because it is provided by a private operator (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 at 360-361).
In relation to the concept of “needed” and ‘likely need’, as derived from the case law, the principles may be articulated as follows:
(a) in Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275; (2022) 110 NSWLR 535 (“Gosford CA”) (at [65]-[68]), the Court of Appeal emphasised that for land to be needed there should be an actual decision concerning the use of the land by the Government as at the claim date, and not at some earlier point in time. Holding a view or making a decision that land is needed for an essential public purpose involves the formation of a positive opinion of that fact by the executive government of the State at the appropriate level at that temporal point (see also Jannali CA at [39]); (b) the concept of “needed” connotes necessity. The requirement of a real and not remote chance in respect of the concept of “likely” need means a substantial chance (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 (“Illawarra CA”) at [32(1)]). It is not satisfied by a possibility (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 68; (2012) 211 LGERA 100 (at [118] and [128]); (c) the mere fact that land is suitable or has a capacity for a particular purpose does not mean that it is “needed” for that purpose (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] [The Londonderry Claim] (1995) 89 LGERA 194 at 204); (d) the relevant ‘need’ must be a need or likely need by the Government of the day (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D-F). What is required is a “specific Government intention” (Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [110]), and not proposals developed by agencies or non-government entities. Even then steps must be taken towards the making of a decision on the land to be used for the stated purpose (Maroota at [57]); (e) it is not the case that “any decision of or indication at any level within the executive that it wants or may want to use land for a purpose without anything more necessarily establishes the existence of the relevant need or likely need” (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act *(*No 2) [2008] NSWLEC 13 at [93] per Jagot J, as her Honour then was); (f) while “likely” can invite consideration of the likelihood of a formal decision being made in the absence of an actual decision, the likely decision must still be that of the Government rather than a desire by a department, agency or local government body without relevant decision-making power (Illawarra CA at [35]); and (g) to determine “likely need” regard must be had to the statutory scheme pursuant to which decisions concerning the claimed land are made ( at [62]-[64]).
The salient principles particularly germane to the present appeal are that, first, the need or likely need must have existed as at the date of the claim. Second, the Minister must establish that an actual decision was made by the appropriate level of executive government that the lands were needed for the nominated essential public purpose of nature conservation. This must have been a view held by that level of executive Government on the day that the claim was made. Third, the mere possibility of the land being used in a particular way is insufficient. And fourth, a departmental desire or bureaucratic process will fail to discharge the onus carried by the Minister.
In the present case, the appropriate level of executive government was Cabinet or the Executive Council.
As will become apparent, only very limited weight may be placed upon the factual chronology relied upon by the Minister prior to the 1998 Cabinet Minute and the Cabinet decision on 12 November 1998.
The Minister took the Court to various documents to assert that as early as 1993 NPWS were investigating the expansion of the Brunswick Heads Nature Reserve (dedicated in 1979) and that the investigation areas were those that had important natural heritage values, including high biodiversity value. The areas under investigation included lands in close proximity to the Brunswick Heads Nature Reserve and the claimed lands. For example, a NPWS memorandum dated 15 February 1993, indicated that land that was being investigated because it had been identified by it as having particularly high conservation value but the land did not include Lot 50 (Central) or the Riverfront Portion. This was also the case with the “Reference Statement Brunswick Heads Southern Investigation Area” dated 19 February 1993, with attached map. Similarly, an internal memo from NPWS dated 22 February 1993, noted that the New South Wales Roads and Traffic Authority had recommended that the “area of natural vegetation to the east of the proposed bypass” be dedicated as a nature reserve not only because of its “very high conservation value” but also its role in “providing a stepping stone link between the Tyagarah and Brunswick Heads Nature Reserve”. But the reference to the high conservation value land was to Lot 50 (East).
A memorandum dated 15 September 1998, indicated that the Far North Comprehensive Regional Assessment was occurring in the location of Brunswick Heads, including in an area seemingly encompassing the Riverfront Portion and Lot 50 (Central). It included a proposal for additions and new dedicated reserves over lands that included Brunswick Heads. As a consequence, there was an effort made to ensure that there were accurate maps for the purpose of developing options for the transfer of Crown land in order to facilitate negotiations between NPWS and the Department of Urban Affairs.
The evidence does not, however, demonstrate to any meaningful degree that either the Riverfront Portion or Lot 50 (Central) were specifically mapped.
The Minister referred to proceedings between the same parties as the present appeal in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 481 to establish that investigations, including the mapping and regional assessment of forests of the upper northeast region, continued throughout. But the judgment and the documents referred to therein are not admissible to prove the facts asserted by the Minister in these proceedings. It has limited to no evidential value in the present appeal.
Recommendation 3.3 of the 1998 Cabinet Minute dated 11 November 1998, stated that the Cabinet “approve the declaration of 85 new National Parks and Nature Reserves in the Upper and Lower North East Regions” as well as 37 additions to existing national parks and nature reserves.
However, none of the new or existing national parks and reserves in the region identified in the 1998 Cabinet Minute relevantly referred to any land at Brunswick Heads. Importantly, neither Lot 50 (Central) nor the Riverfront Portion fell within recommendation 3.22 to 3.24. At its highest, the claimed land formed part of an area that could potentially be added to the formal reserve system in the Upper and Lower North East Region, albeit after consultation. Item 6.10 of the 1998 Cabinet Minute stated that “every effort will be made by the relevant agencies to resolve outstanding issues by 28 February, 1999”.
Negotiations took place at Coffs Harbour on 21 and 22 December 1998, and the outputs were recorded in tabular form in a summary document dated 18 January 1999. The Minister placed considerable reliance on this document. The Minister contended that Lot 50 (Central) and the Riverfront Portion were specifically identified by planning land unit identification (“PLUID”) numbers (“10996” and “10992”, respectively) as proposed areas for inclusion in the West Brunswick Nature Reserve.
But as the Land Council observed, Lot 50 did not exist as at December 1998 and the land proposed to be added to the nature reserve was not coextensive with the Riverfront Portion. In short, there existed a lack of certainty as to the precise boundaries of the particular parcels of land mooted for inclusion. For example, it was agreed by the parties that the first reference to “Part 10992” in the table could not be a reference to the Riverfront Portion. The correct reference, if any, could only be to the second part of that entry which addressed “Part West of Road Only”. Furthermore, when regard is had to the summary document in respect of both parcels, the status of the lands was described as “negotiate” and the “negotiated outcome” was listed as “flagged for further consideration”.
In order to demonstrate that the PLUID numbers accorded with the claimed land, the Minister relied upon the Duffy affidavit. The central purpose of the Duffy evidence was to explain a map of Brunswick Heads prepared by NPWS showing PLUID numbers that appear to indicate that Lot 50 and the Riverfront Portion were, as at 1998, mapped as a proposed nature reserve. The two parcels of land the subject of this proceeding were contiguous with the Brunswick Heads Nature Reserve.
According to Duffy, environmental reviews had been conducted from 1996 to collect information about the environmental and heritage values of forests throughout the State (the comprehensive regional assessment process) as a precondition to the making of forest agreements under legislation that became the . These assessments included the forests in the northeast region. As part of the review process, the forests were classified and mapped as a series of ecosystems, with NPWS entering the information onto a database by reference to PLUID numbers allocated to each parcel in the region.
(a) first, the evidence was based upon Duffy’s understanding of PLUID numbers only. This was, however, the first occasion that he had encountered them. He has, moreover, no expertise in mapping; (b) second, the email annexed to his affidavit from Joanna Muldoon dated 28 June 2024 (upon which the Minister placed considerable reliance) expressing the view that PLUID 10992 corresponds with Lot 2 in DP 728659 was based on hearsay. Muldoon has not deposed to this evidence herself and no satisfactory explanation has been given as to why she has not attested to this evidence. The evidence is premised upon an “assumption” made by Muldoon that she has adopted and that she was invited to confirm by Darcy Munca, a solicitor from the Crown Solicitor’s Office. There is, moreover, no evidence of Muldoon’s expertise in relation to the opinions that she expresses. By her own admission, she did not “know much about” the files on the Coffs Harbour drive. There is also no evidence of how the image in her email was prepared. There is, for example, no evidence of the nature of the data source, how it was collected, or whether the information actually represents the position at the relevant point in time, namely, December 1998; (c) third, the emails between Duffy and Guy Hodgson dated 21 November 2024, are again hearsay evidence. Duffy similarly did not provide any written evidence in the proceedings. There is again no evidence that Hodgson had any experience with the relevant special databases. There is likewise no evidence of the nature of the data source or the software used to prepare the attached maps, or any explanation as to how that data was generated, collected or stored. Furthermore, Hodgson’s evidence was given in response to a request that he merely confirm that PLUID numbers 10992 and 10996 “relate to” the lot boundaries for Lot 50 (Central) and the Riverfront Portion. Finally, Hodgson’s evidence must be weighed against the fact that there is no evidence of the general relationship between the PLUID numbers and the lot boundaries and that the correspondence between the planning identifiers and boundaries of specific parcels is inexact.
No criticism can be directed at the Land Council, as the Minister sought to do, for failing to obtain by compulsory process the documents relevant to Duffy’s evidence. At all times the onus rests on the Minister to prove his case.
Consistent with the observations above as to the status of the claimed land in the summary document, as a result of the negotiations, by 17 December 1999 parts of Lot 50 and parts of the Riverfront Portion were dedicated as part of the Brunswick River Nature Reserve. The claimed lands were not, however, included in the dedication. As at that time there was, moreover, no evidence that the conservation values of the claimed lands had been identified or assessed.
I therefore decline to find, as the Minister invited the Court to do, that by late 1998 both of the claimed lands were part of the Crown lands review process negotiations for possible inclusion in the reserve system under the North East Regional Forest Agreement. Even if I were to make such a finding, it is unclear how this would assist a determination that as at the date of the claims, the lands were needed for the essential public purpose of nature conservation.
Following the 1998 Cabinet decision and Minute, a review of vacant Crown lands required by the Regional Forest Agreement for the Upper North East and Lower North East Regions was conducted in four stages.
From March 2000 to June 2002 further additions were made to the NPWS estate which were endorsed by Cabinet consequent upon the review. There is no evidence that the ongoing discussions related to the claimed lands. On the contrary, on 14 June 2002 a final draft of a letter to NPWS was prepared by the DLWC, which addressed parcels of Crown land that had been identified by NPWS in May 2002 as “being high conservation lands”. The draft letter outlined DLWC’s position on the transfer of parcels of land identified by NPWS to existing nature reserves or national parks. While the letter identified certain land at Brunswick Heads as suitable for this purpose, it did not identify Lot 50 (Central) or the Riverfront Portion. The draft letter noted that “advice on the remaining lands will follow when the review is complete”.
A DLWC Strategy and Policy memorandum dated 18 October 2002 and relied on by the Minister, similarly omitted any reference to the claimed lands.
The Crown land earmarked for addition to the NPWS estate was identified on maps attached to the 2002 Cabinet Minute. It is all but impossible having regard to their scale to determine from the maps attached to the 2002 Cabinet Minute, especially Map N2 (which identified different categories of land being considered), to what extent or even whether the Riverfront Portion and Lot 50 (Central) were included in the land nominated in the Cabinet’s 2002 decision for transfer to NPWS.
Relevantly, the 2002 Cabinet Minute recommended that Cabinet note that the balance of the review to assess vacant Crown lands for possible transfer to NPWS would “be completed by 30 June 2003”, following which transfers to the NPWS estate would be recommended, and if endorsed, reserved. The Minute also noted that NPWS and DLWC had agreed on a process to finalise the assessment of high conservation value Crown lands in northern NSW by June 2003.
As at that date, neither Lot 50 (Central) nor the Riverfront Portion were assessed as being of high conservation value. Accordingly, although the correspondence between NPWS and DLWC indicates that negotiations generally continued in 2003 with respect to vacant Crown land in the upper northeast region of the State for inclusion within the NPWS estate, it does not reveal any intention to add Lot 50 (Central) or the Riverfront Portion.
If any inference is to be drawn from the fact that by this stage the western parts of Lot 50 and Lot 2 (comprising, among other land, the Riverfront Portion) had been added to the nature reserve, it is that Lot 50 (Central) and the Riverfront Portion had not been specifically identified for transfer to NPWS.
That there had been a process underway for approximately seven years in which Lot 50 (Central) had been the subject of discussion and negotiations between various government instrumentalities as to its inclusion in the NPWS estate was not, in my view, sufficiently choate. They were not directed to Lot 50 (Central) and had not progressed beyond the stage of general deliberation.
In summary, having regard to the legal principles articulated above in respect of this ground and in light of the evidence adduced before the Court, I find that the Minister has failed to discharge the onus of establishing that as at the first claim date Lot 50 (Central) was needed or likely to be needed for the essential public purpose of nature conservation.
Accepting that nature conservation in the form of identifying and transferring land of high conservation value to existing nature reserves is an essential public purpose, the evidence does not disclose that as at the first claim date Lot 50 (Central) was needed or likely to be needed for this purpose. I agree with the Land Council that it does not assist the Minister to say that there was clear evidence of a commitment at a Cabinet level to nature conservation. At issue is whether there was a decision at the appropriate level of government, or at the very least a trajectory towards a decision, that Lot 50 (Central) – and not some amorphous area of land in the upper northeast corner of the State – was required for the essential public purpose of nature conservation.
The Minister’s case is dependent upon establishing a trajectory sufficient for the Court to infer that the decision to transfer Lot 50 (Central) to the NPWS reserve had been formed as at the claim date. But the difficulty with this approach is that much of the documentary evidence relied upon by the Minister in this regard is either considerably before or materially after 31 October 2005. Even if it was assumed that Lot 50 (Central) and the Riverfront Portion were identified as potential parcels of land for transfer to NPWS in the 2002 Cabinet Minute and subsequent Cabinet decision, there is an almost seven year gap in the negotiations over Lot 50 (Central) as a candidate for inclusion in the NPWS estate in the critical period from 2002 to 2009.
Similarly, making the assumption referred to above, no cogent reason has been advanced by the Minister to explain why no further meaningful steps were taken to progress the assessment of Lot 50 (Central) until 2010.
In any event, the documentary evidence does not disclose that NPWS had even assessed Lot 50 (Central) or the Riverfront Portion as having a high conservation value. Neither of the claimed lands were, for example, made a priority in negotiation up to the date of the first claim. This reinforces the conclusion that as at 31 October 2005, Lot 50 (Central) was not needed or likely to be needed for the essential public purpose of nature conservation.
I adopt the Land Council’s submission that the fact that NPWS had not identified Lot 50 (Central) or the Riverfront Portion as having a high conservation value, explains, it may be inferred, why neither parcel was prioritised in the negotiations prior to the first land claim. It is a strong factual indicator against a finding that, as at the first claim date, Lot 50 (Central) was needed or would be needed for the essential public purpose of nature conservation.
(a) as at 31 October 2005 there had been no decision that Lot 50 (Central) should be transferred to the NPWS estate. As at the first claim date, the parcel had not in fact been assessed for the purpose of determining its conservation value and nor was it likely to be assessed; (b) even assuming that Lot 50 (Central) was potentially suitable for the purpose of nature conservation, this does not mean that it was needed or likely to be needed for this purpose. The Minister’s reliance on a so-described “trajectory” of events toward a possible transfer of the land into the formal reserve system is not compelling; (c) taking the evidence at its highest, while the land may have been identified as forming part of a region or area of conservation value that was desirable to add to an existing nature reserve, no decision concerning Lot 50 (Central) had been made in this respect as at the date of the first claim. Bureaucratic process is not an expression of political will and no decision had been made as at the relevant date whether or not the land was needed or even likely to be needed under s 36(1)(c) of the ALRA; (d) insufficient steps were taken to achieve the essential public purpose of adding Lot 50 (Central) to an existing nature reserve by the date of the claim. The public purpose of nature conservation was not sufficiently “essential”; and (e) not only was there insufficient evidence as at the first claim date that Lot 50 (Central) was positively identified as land to be transferred to the NPWS estate for the essential purpose of nature conservation, there was no likelihood of this need arising. Any likely need was so insubstantial, in the sense of unreal and remote, that it did not attain the threshold demanded by s 36(1)(c) of the ALRA.
The Minister submitted that as at the second claim date, the Riverfront Portion remained positively identified as land to be transferred to the NPWS estate subject to the resolution of the land claim made over Lot 50 (Central). It was therefore likely to be needed for the essential purpose of nature conservation.
Much of the factual analysis above in respect of Lot 50 (Central) is repeated here and the same conclusion, namely, that if as at 4 February 2021, when the second claim was lodged, there was still a need for the Riverfront Portion (I do not accept as a matter of fact that there ever was such a need), the Minister could have, as the Land Council submitted, adduced documentary or affidavit evidence to this effect. None was proffered. It cannot, therefore, be concluded that as at that date the Riverfront Portion was needed or likely needed for nature conservation.
As was explained in Gosford CA (at [71]):
71 The problem is rather that the primary judge accepted that these earlier decisions could and did establish what was the view of the government of the day at the date of the land claims, without any other evidence of the government of the day adopting those earlier decisions. The earlier a government decision concerning the use of the land is made before the claim for the land is made, the less probative the decision will be in establishing that the government of the day, when the claim for the land was made, holds the view that the land is needed for the essential public purpose. As the time period between the making of the decision and the making of the land claim increases, there will increasingly become a need for other evidence to establish that the earlier decision is still operative and expresses the view of the government of the day at the date of the land claim.
No evidence was adduced by the Minister as to either the continuing likely need for the land for the purpose of nature conservation, or of any steps taken in relation to transferring the land to the NPWS estate, since April 2010. The extensive passage of time weighs heavily against any inference to be drawn that the claimed land was likely to be needed for any purpose, let alone the nominated essential purpose.
I do not accept as sufficient the submission that the land remained in a state of stasis because of the outstanding land claim over Lot 50 (Central). First, the Riverfront Portion was a wholly separate parcel of land which could have been readily transferred to the State nature reserve system at any time prior to the lodging of the land claim over Lot 50 (Central) if it was genuinely needed or likely to be needed. It was not. Second, if the land was likely needed for the essential public purpose but was awaiting the outcome of the land claim over Lot 50 (Central) then the extraordinary delay in the Minister determining that claim is inexplicable. The more rational inference to be drawn from the delay is that the land was neither needed nor likely to be needed for the essential public purpose of nature conservation, or that any further action to secure the transfer of the land would have been effected.
On the contrary, as the Land Council observed, there was evidence before the Court that whatever decision has been made about the Riverfront Portion, by 2010 this ceased to represent the view of the executive government by the date of the second claim. In 2019 the Minister entered into an ILUA (registered on 1 May 2020) which provided for a third party to become the reserve trust manager for the land and was considering entering into negotiations with that party in respect of Lot 50. It appears that the entry into the ILUA was the reason why the land claims were eventually determined. This course of action is inconsistent with any extant intention for the Riverfront Portion to be added to the NPWS estate because it was likely to be needed for nature conservation.
It follows that because the Riverfront Portion was not needed or likely to be needed for the essential public purpose of nature conservation pursuant to s 36(1)(c) of the ALRA, it is “claimable Crown lands” within the meaning of that term in s 36(1) of that Act.
(a) Lot 50 (Central) is not “claimable Crown lands” by reason of the application of s 36(1)(d) of the ALRA; and that (b) none of the exceptions relied upon by the Minister have been established, and that because the land is able to be lawfully sold or leased, or is reserved or dedicated for any purpose, under the relevant Crown lands legislation pursuant to s 36(1)(a) of the ALRA, the Riverfront Portion is “claimable Crown lands” for the purpose of s 36(1) of the Act.
Accordingly, in conformity with the reasons and findings above, the formal orders of the Court are that:
in relation to ALC 7961 (Lot 50 (Central)) the appeal is dismissed;
in relation to ALC 52818 (the Riverfront Portion) the appeal is allowed;
the Minister administering the Crown Land Management Act 2016 is to transfer to the New South Wales Aboriginal Land Council Part Lot 2 in DP 728659 which is within Crown reserve R69040 (that is, the Riverfront Portion as defined in this judgment) within 90 days of the date of this order; and
the costs of the appeal are reserved. If the parties are not able to agree on appropriate costs orders, the parties are to confer and relist the matter before Pepper J in the week commencing 2 February 2026, for the purpose of allocating a date and setting a timetable for the hearing of any outstanding costs argument.
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New South Wales Aboriginal Land Council
Minister Administering the Crown Land Management Act
(2004) 138 FCR 254
(2022) 110 NSWLR 535
(1995) 89 LGERA 194
(1997) 95 LGERA 353
(2012) 211 LGERA 100
(2008) 161 LGERA 294
(2023) 297 FCR 535
(2004) 218 CLR 216
(2025) 99 ALJR 1285
(2009) 166 LGERA 379
(2001) 50 NSWLR 665
(1998) 43 NSWLR 249
(2009) 168 LGERA 71
(2016) 260 CLR 232
(2009) 166 LGERA 137
(2024) 261 LGERA 414
(2014) 204 LGERA 1
(2025) 99 ALJR 1362
(1998) 194 CLR 355
(2024) 114 NSWLR 534
(1999) 168 ALR 242
(2023) 255 LGERA 415
(2000) 106 LGERA 454
(2002) 213 CLR 401
(1999) 201 CLR 351
(1997) 41 NSWLR 459
(2001) 113 LGERA 163
(2008) 159 LGERA 400
(2013) 199 LGERA 372
(2006) 149 LGERA 162
Once accepted, the application is registered by the Registrar under Pt 7 of the NT Act. The Registrar is required to include details of any claims accepted for registration pursuant to s 190A of the NT Act in the “Register of Native Title Claims” (ss 185 and 190(1) of the NT Act). The Register of Native Title Claims must state “the area of land or waters covered by the claim” (s 186(1)(e) of the NT Act). It is required to be made available for inspection by the public (ss 187 and 188 of the NT Act).
This brief survey of the operative provisions of the native title legislation reveals that registration of a claim of native title involves the application of a series of statutory criteria by the repository of power (the Registrar) to the information contained in the application, and that this information must identify with sufficient certainty the boundaries of the area the subject of the claim.
The Minister is entitled to take at face value what appears on the Register of Native Title Claims. This is the purpose of selecting the act of registration as the point of engagement of s 36(1)(d) of the ALRA. The Minister is not required to interrogate the merits of the claim, look behind the act of registration, or make an evaluation of the facts and circumstances that have resulted in these exercises of administrative decision-making under the NT Act. Rather, it is sufficient that the Registrar has accepted the application having determined that the application has met the requirements for registration under the NT Act.
Part of the context within which s 36(1)(d) is to be understood includes s 36(1)(e) of the ALRA. Section 36(1)(e) provides that determinations of native title under the NT Act can be by either the Federal Court or the Registrar.
Part 4 of the NT Act deals with the manner in which the Federal Court makes native title determinations. Section 94A of the Act provides that an order made by the Federal Court determining native title must set out the details of the matters referred to in s 225 of that Act:
Furthermore, although eschewed by the Land Council, it remains the fact that upon an application for a native title determination being registered, for this Court to make a finding as to whether the jurisdictional criteria in s 36(1)(d) of the ALRA are satisfied, the Court would be required to go behind the registration in order to ascertain whether the land formed part of the claim or not. In my opinion, this would erode the certainty that s 36(1)(d) of the ALRA is intended to achieve. As the Minister submitted, and which I endorse, properly construed s 36(1)(d) of the ALRA defers the process of deciding an application for the determination of native title under the NT Act to the Federal Court.
The use of a descriptive formula to identify the excluded areas in the native title determination application form the subject of these proceedings is a convenient device to deal with the tension between s 61A and s 62(2)(a)(i) and (ii) of the NT Act. It allows the claimants to comply with both provisions and to preserve their ability to challenge a purported previous exclusive possession act or non-exclusive possession act said to have extinguished any or all of the native title rights and interests. The application therefore comprises all those areas identified in it, including the non-excluded and excluded areas. That is, the application can include areas where extinguishment will ultimately be found to have occurred due to a previous exclusive or non-exclusive possession act.
Whether or not extinguishment has occurred is a matter for the Federal Court, and not the Minister (or this Court on appeal) under s 36(5) of the ALRA. The lands that “are the subject of an application for a determination of native title” (s 36(1)(d) of the ALRA, emphasis added) or “are the subject of an approved determination of native title” (s 36(1)(e) of the ALRA, emphasis added) are coterminous with the lands that comprise the native title application as understood in the context of the statutory framework of the NT Act. This includes all lands that potentially fall within the subject of the claim described in the native title determination application.
Such a construction permits the validity of any previous exclusive or non-exclusive possession acts to be tested, including whether the exceptions in ss 23B or 23F of the NT Act apply or are to be disregarded pursuant to ss 47 to 47C of that Act.
It follows that the lands that “are the subject of” the registered application include all of the lands described in the native title claim application, and the standard language used in the Bundjalung NTDA does not have the effect of excluding Lot 50 (Central) from the land the subject of the native title application. In the absence of a specific exclusion of an individual parcel of land, of which there was none, it includes all land listed therein.
That Lot 50 (Central) was historically subject to two special leases granted under the Crown Lands Act 1884 and the CLCA does not matter.
The Land Council submitted that both leases constituted “Scheduled interests” and “exclusive agricultural leases” for the purposes s 23B(2)(c)(i) and (iv) of the NT Act, which were validly granted on or before 23 December 1996 for the purposes of s 23B(a) and (b) of that Act. This was because, it stated:
The agreement made under s 87 of the NT Act and the joint submissions filed by the claimants and the Attorney-General for New South Wales for the purpose of the Bundjalung NTDA, that the existence of the special leases had the effect of excluding Lot 50 (Central), is consistent with the Land Council’s conclusion. But this is immaterial insofar as it reflects the outcome of a negotiated agreement between the parties and not a determination by the Federal Court. As the joint submission noted, “the claim area is defined so as not to include certain areas of land” and that the parties had reached “agreement as to what those areas are”. It was this agreement that was reflected in the proposed consent determination. That it included Lot 50 (Central) in the “Extinguished Area” does not mean that the area was not included in the “application” for the purpose of s 36(1)(d) of the ALRA. In addition, an agreement reached under the NT Act to extinguish native title rights and interests in respect of particular parcels of land can have little bearing on a claim under the ALRA given that it was entered into after the date of the first claim.
Viewed this way, the land was “the subject of” an application for an approved determination of native title for the purpose of s 36(1)(d) of the ALRA irrespective of whether the land was purportedly excluded from “the area covered by the application” for native title.
In my opinion, there is a material difference between the position adopted by the Minister with respect to Lot 50 (East) compared to Lot 50 (Central). There was no doubt whatsoever that native title had been extinguished over the former area and that it was not the subject of an application for determination of native title as at the first claim date. This was not the case with Lot 50 (Central), where this matter had not been definitively established as at the date the native title claim application was filed. The question of whether the special leases constituted a “Scheduled interest” had yet to be determined.
Having regard to the text and context of s 36(1)(d) of the ALRA, there is no difficulty in accepting a construction that posits that the Minister is not required to decide a dispute as to whether native title has been extinguished over particular land because the land has been excluded from the application, prior to that issue having been resolved elsewhere. There may exist real uncertainty about whether the land has been excluded from the application, or whether, in this instance, Lot 50 (Central) was excluded from the native title claim. However, this is not germane. What is important is that the scheme of the ALRA does not require such questions to be determined until after the native title claim process has concluded. It is at this juncture that s 36(1)(e) of the ALRA becomes relevant. The determination of native title will give a definitive answer as to whether or not native title has been extinguished or not over land, and therefore, whether it is “claimable Crown lands” under s 36(1) of the ALRA.
The Land Council forcefully argued that the intention of preventing a land claim under the ALRA that is inconsistent with choate or inchoate native title rights and interests under the NT Act is not advanced in circumstances where native title has been extinguished or never existed. The Land Council postulated a scenario where the State could oppose a determination in the Federal Court on the basis that native title had been extinguished while also denying a land claim under the ALRA on the basis that the land was “the subject of” an application for native title. This was characterised by the Land Council as an “unattractive result”.
I do not accept as accurate this description of the statutory process. On the contrary, the outcome is desirable insofar as it demonstrates that the operation of both legislative regimes is congruent and coherent. The relevant provisions of the ALRA and the NT Act work harmoniously to allow any disputes concerning the existence of native title to be determined in the Federal Court prior to any land claim being made under the ALRA. There is nothing capricious or unjust about the two schemes operating in tandem in this manner. The land may not be “claimable Crown lands” for the purposes of s 36(1)(d) of the ALRA pending determination of a native title claim under the NT Act, but upon the bar in s 36(1)(d) of the ALRA ceasing to exist because a determination of native title has been approved and the land forms no part of that approval, there is nothing precluding a further land claim being made under the ALRA in respect of that land. The force of s 36(1)(d) or s 36(1)(e) having been spent, they have no further work to do.
Thus in the present case, that the refusal of the land claim by the Minister was after the determination of native title had been made by agreement and the claimed land ceased to be the subject of an application for a registered application for a determination of native title is irrelevant for present purposes. The Minister was required to assess the application of s 36(1)(d) of the ALRA as at the date of claim.
Even if there is an agreed position between the parties to a registered application for a determination of native title, this is likewise not relevant for the purposes of s 36(1)(d) of the ALRA. If there is a consent position that is not reflected in a registered native title claim and there has been no approved determination of that claim, then s 36(1)(d) of the ALRA operates to preclude a land claim. While determinations of native title can often be complex and lengthy, as the Minister submitted, it may be presumed that the New South Wales Parliament understood the possibility that the land the subject of a native title claim would be immunised from being claimed under the ALRA. This is consistent with ss 36(9) and 42(1) of the ALRA, which are directed to preserving undetermined native title rights or interests.
It is a well-established principle that the Crown has no power to create interests in Crown lands except in compliance with Crown lands legislation (see s 1.15 of the CLMA and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela Claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 at [72]-[73], Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52; (2023) 255 LGERA 415 at [70]-[71] and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (**“Doyalson”) [2023] NSWLEC 134 at [212] and [213]).
Section 36(1)(a) of the ALRA identifies two categories of land which may be “claimable Crown lands”, first, land that is “able to be lawfully sold or leased …under” the Crown lands legislation referred to therein, and second, land that is “reserved or dedicated for any purpose” under that legislation. The two categories are separated by the word “or” and the location of the latter as a sub-clause within the paragraph.
Having regard to the text, context and purpose of s 36(1)(a) of the ALRA, there is, in my opinion, no warrant for ascribing to that provision a meaning other than that in conformity with its ordinary grammatical meaning, namely, that the two categories of land are alternatives limited only by the specified statutes.
Turning first to the text of s 36(1)(a), when used to link expressions, the word “or” is typically disjunctive in meaning. While there are cases where it has been concluded that because of absurd or unworkable results the term should be interpreted conjunctively, these are exceptional (Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51; (2000) 106 LGERA 454 at [22]-[23] and Inspector-General in Bankruptcy v Rutherfurd [2023] FCAFC 99; (2023) 297 FCR 535 at [66]-[70]). The context of s 36(1)(a) of the ALRA indicates that the deliberate selection of the word “or” was neither in error nor is it strongly suggestive of a conjunctive usage.
On an ordinary grammatical construction of the text of s 36(1)(a), the two subsets of land are alternatives. That is, the land is claimable not only if it is able to be lawfully sold or leased, but also if it is reserved or dedicated for any purpose under the nominated legislation.
This was the conclusion reached by the Court of Appeal in Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 201**6 [2024] NSWCA 107; (2024) 114 NSWLR 534 (at [125] and [128]. Quarry Street’s ground of appeal in relation to s 36(1)(a) of the ALRA was not challenged on appeal to the High Court of Australia):
If, as the Minister submitted, s 36(1)(a) of the ALRA was directed only to land that was able to be sold or leased but for a reservation or dedication under the Crown lands legislation, then the omission of cognate text from s 36(5) is telling and speaks against, and not in favour of, this intent.
Section 36(5) of the ALRA is the operative provision pursuant to which land claims are granted or refused by the Crown Lands Minister depending on whether or not that Minister is satisfied that the lands claimed are or are not “claimable Crown lands” as defined in s 36(1) of that Act.
The Minister sought to construe s 36(1)(a) by reference to s 36(5) of the ALRA. In particular, by importing the definition of “Crown Lands Minister” in s 36(1) into s 36(5) of the Act (Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] per McHugh J), the Minister submitted that the power to grant the land claim contained in s 36(5) was reposed in the person administering only the specific provisions of the Crown lands legislation under which Crown lands are able to be sold and leased. This includes Crown lands that are able to be sold and leased but for a reserve or dedication. The “land claimed” referred to in s 36(5)(a)(i) and (ii) is land that is constrained by the description contained in the definition of “Crown Lands Minister” and the words in parentheses in the chapeau to s 36(5), that is, Crown land that is able to be sold or leased or would be able to be dealt with accordingly but for the reservation or dedication. In order to read s 36(5) harmoniously with s 36(1)(a), s 36(5) limits the scope of the Crown lands able to be claimed under s 36(1) of the ALRA to those that are able to be lawfully sold or leased, or would be able to be sold or leased but for the reservation or dedication, under Crown lands legislation. It follows that the word “Act” contained in s 36(5) of the ALRA must be construed as a reference only to the Crown lands legislation and not to some other enactment, such as the Roads Act.
In my opinion, the construction that the Minister urged upon the Court by recourse to s 36(5) strains the ordinary language of s 36(1)(a) by effectively inserting the words ‘or would be able to be sold or leased but for the reservation or dedication’ into s 36(5).
As the Land Council submitted, the simpler and more congruent meaning ascribed to the words in parentheses in s 36(5) of the ALRA (when read together with s 36(1)(a)) is that they indicate which of the Crown Lands Ministers is the repository of power for the purposes of determining the land claim. The term “Crown Lands Minister” is defined in s 36(1) to “mean the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased”. As s 36(5) contemplates (“A Crown Lands Minister to whom a claim for lands…has been referred”), there may be multiple Crown Lands Ministers. It is for this reason that the term “Crown Lands Minister” is defined in s 36(1) of the ALRA.
Further, s 36(5) confers the power to determine land claims under s 36 of the ALRA only on the Minister administering the provisions of the Acts that apply to the land in question. It does not impose an additional precondition that must be satisfied before the land claim can be granted. The words in parentheses do not condition the power of the Crown Lands Minister to grant a claim; they identify which Crown Lands Minister is administering the provisions of the applicable Crown lands legislation in respect of that claim.
A reading of s 36(1)(a) that posits two bases upon which the land is “claimable Crown lands”, the first, that the land is able to be lawfully sold or leased under the Crown lands legislation, and the second, that the land is reserved or dedicated for any purpose under that legislation, does not conflict with s 36(5) of the ALRA. As a matter of ordinary English usage, the words “under a provision of an Act administered by the Crown Lands Minister” in parentheses in s 36(5) engages “able to be sold or leased” but not “but for any restriction on their sale or lease”. The source of “any restriction” on the ability to sell or lease Crown lands is not exhaustively set out in the ALRA. The term “restriction” is neither defined in that Act nor in the relevant Crown lands legislation. Consequently, the restriction may be by way of reservation or dedication, or some other constraint or limitation on the sale or lease of land arising from the CLMA (see, for example, ss 5.13, 5.19 and 5.20 of the CLMA which deal with the restriction on the transfer of certain land and the recording of that restriction).
As the Land Council observed, if s 36(1)(a) of the ALRA was limited to land that was able to be sold or leased but for a reservation or dedication under the Crown lands legislation in conformity with the language of s 36(5), it may be expected that these words would have been included in the latter provision. In my opinion, their omission speaks against the construction of s 36(1)(a) proffered by the Minister.
The Minister further placed emphasis on s 36(10) and (13) of the ALRA in support of its submissions. Section 36(10) deals with the revocation of dedications and reservations upon transfer.
The Minister asserted that because s 36(10) revokes dedications and reservations under the CLCA, but not the Roads Act, the Riverfront Portion would, if transferred, remain vested in the Crown as a Crown road by force of s 145(2) of the latter Act. Section 145(2) of the Roads Act provides that “all Crown roads are vested in fee simple in the Crown as Crown land”.
But, as the Land Council asserted, s 152H(1) of the Roads Act operates to the contrary effect. While the Act stipulates the steps required to be undertaken prior to the selling and disposal of a Crown road (see ss 152C to 152E), the legislation confers upon the roads authority the power to dispose of and transfer the road, which it ceases to be a Crown road upon the registration of the transfer. This cures any tension inherent in a road vested in the Crown that is to be transferred to the Land Council.
In my view, s 36(13) of the ALRA also does not assist the Minister insofar as it deems the transfer of land not authorised by the Crown lands legislation to be authorised under that legislation. If, as in the present case, the power to transfer land is conferred by the Roads Act and not the Crown lands legislation, the effect of s 36(13) of the ALRA is to deem the transfer under the CLMA if it is decided that the Riverfront Portion is “claimable Crown lands” by reason of the reservation pursuant to s 36(1)(a).
In any event, neither s 36(10) or (13) provide a contextual basis for limiting the operation of s 36(1)(a) of the ALRA in the manner proposed by the Minister.
Third, turning to purpose, it is not incongruent for a restriction on the sale or lease of Crown land under other legislation, such as the Roads Act, to deny the application of the first limb of s 36(1)(a) (“sold or leased”), but not the second limb (“reserved or dedicated”). On the contrary, the deliberate bifurcation indicates that s 36(1)(a) can be satisfied in one of two ways; land may be claimable under one limb but not the other. No impractical consequences arise (Quarry Street at [149] per Edelman J) from such a construction because, as the Land Council noted, Crown land that is actually used as, or needed for, the purpose of a Crown road will not be claimable in any event.
To construe s 36(1)(a) of the ALRA as meaning lands that are reserved or dedicated for any purpose but are also lands that are able to be sold or leased under a provision of an Act administered by a Crown Lands Minister (see s 36(5)), does not overcome the mischief contemplated by Div 2 of the ALRA by expanding the pool of Crown land that is able to be claimed. On the contrary, it narrows it. The “rhetorical question” posed by the Minister, “what other mischief would be served by singling out lands that are the subject of a reservation or dedication but yet cannot be lawfully sold or leased” (T108:21-23), can be readily answered by noting that this expands the availability of Crown lands able to be claimed under the ALRA.
There is every reason why a reservation or dedication under Crown lands legislation should “give life” to a land claim that could not succeed absent it being reserved or dedicated. To do so squarely promotes the objects of the ALRA, a beneficial piece of legislation (see s 3 of that Act).
However, in my opinion, only limited weight ought to be placed upon the Duffy affidavit because:
Further negotiations between DLWC and NPWS continued in April and May 2003 but these did not concern Lot 50 (Central) or the Riverfront Portion. Correspondence from NPWS to DLWC on 23 April and 5 May 2003 referred to unidentified land in “Brunswick” but not in the location of Lot 50 (Central) and the Riverfront Portion. Other documents referred to land in the Parish of Billinudgel (north of the Brunswick River), and not the Parish of Brunswick (where the claimed lands are located). Again, this militates against any inference that the claimed lands were actively being considered for transfer to NPWS as at the date of the claim.
This conclusion is consistent with the assent given on 7 July 2003 to the National Park Estate *(*Reservations) Act 2003, reserving additional areas of national park and nature reserve. Neither Lot 50 (Central) nor the Riverfront Portion were included among the reservations.
Rather than Lot 50 (Central) being transferred into the NPWS estate system, in 2006 DLWC approved the creation of a new Crown reserve (Crown reserve 1012196) which included this parcel of land. The purposes of the reserve were broad and included, in addition to “environment and heritage conservation”, “access and public requirements, rural services” and “tourism purposes”. A departmental report discussing the establishment of the reserve did not mention transfer of Lot 50 (Central) to the NPWS estate, rather it was to provide appropriate stewardship of Crown lands under DLWC’s control.
None of the post-claim material between 31 October 2005 to July 2009 upon which the Minister relied, expressly referred to either Lot 50 (Central) or the Riverfront Portion or referenced any transfer of land between DLWC and NPWS. For example, while a letter from the Minister for the Environment to the Minister for Lands dated 2 June 2006, refers to the 1998 and 2002 Cabinet decisions and the need to complete the outstanding issues of the transfer of Crown lands to NPWS, including the finalisation of the Stage 4 review of Crown land of high conservation value, neither Lot 50 (Central) nor the Riverfront Portion feature.
In a memorandum dated 3 September 2007, DLWC expressed the view that although Lot 50 had been noted as “future ownership DECC/DoL [Department of Lands or DLWC]”, there was “no real justification for the transfer of tenure to DECC” and DLWC was capable of managing the land in the future. The fact that DLWC wanted the land to remain with the Department tells against a transfer to NPWS consequent upon the completion of the four stage review.
In April 2008 a map was prepared by NPWS entitled “Upper North East Study Area – Proposed Reservation of Outstanding Crown Lands”. According to the Minister, the map identifies Lot 50 (Central) and the Riverfront Portion and described it as “Immediate – pending DPI – Minerals agreement” (shaded orange). The outline of the parcels were indicated on a section of the map labelled “Brunswick River foreshore”.
But a closer examination of the legend appears to show that the relevant land is shaded brown with the description “DECC-PWG maintains long term interest”. The PLUID numbers upon which the Minister relies are equally equivocal. Even if the area identified is shaded orange (which is not accepted having regard to the legend), this does no more than demonstrate a continuing interest in the land near Brunswick Heads by NPWS. It does not demonstrate to the requisite degree that Lot 50 (Central) was needed or likely to be needed (as understood by the authorities) for the essential public purpose of nature conservation as at 31 October 2005.
It was not until August 2008 with the publication of the Brunswick Head Foreshore Reserves Strategic Plan, that the high conservation values of Lot 50 (Central) and the Riverfront Portion were identified and discussed. This is almost three years after the first claim date.
The 2009 Premier’s Letter to the Minister for Climate Change and the Environment on 13 July 2009, concerned, among other things, the resolution of outstanding land issues under the land assessment process. The letter referred to an agreement between the Cabinet and the Premier to give effect to the land transfers identified in the letter. This included parcels of “North East Crown Lands – expeditious transfer to DECCW, approximately 2000 hectares to National Parks”. Among these parcels was “Part 2 DP 728659” which had the description “Brunswick River Foreshore West 10 ha Addition to Brunswick Nature Reserve”. It was recommended that the “Parcels be transferred to DECC”.
Even on the Minister’s case, the 2009 Premier’s Letter, almost four years after the first claim date, was the first document to record the potential transfer of the claimed lands into the formal reserve system since November 2002. The table attached to the 2009 Premier’s Letter refers, however, only to the Riverfront Portion and not Lot 50 (Central) as part of the “Parcels to be transferred to DECC”.
The 2009 Premier’s Letter was followed up by a DLWC internal memorandum on 16 July 2009. It requested confirmation by 31 July 2009 as to the conformity of the parcels identified for transfer with the “work that has been undertaken in recent months”.
On 29 July 2009 NPWS prepared a plan of Crown land for transfer to DECC that expressly included Lot 50 (Central) and the Riverfront Portion. The handwritten note on the plan stated “OK”. An undated schedule identifying these parcels of land as land to be transferred to DECC consistent with the plan was in evidence before the Court.
On 25 September 2009 a memorandum signed by Watkins recommended signing the enclosed draft letter advising DECCW of the parcels agreed for transfer, which included for “expeditious transfer to DECCW” of the Riverfront Portion and Lot 50 (Central).
On 30 April 2010 a briefing document was prepared in relation to the “Proposed reservation of North East Crown Lands”. It was signed by senior departmental officers and the Minister. The document referred to the 1998 and 2002 Cabinet Minutes and the 2009 Premier’s Letter. It recorded 12 areas of approximately 726 ha for reservation. Lot 50 (Central) and the Riverfront Portion were not identified for immediate addition. Table d (signed by the Minister), however, identified these two parcels of land that had, as at that date, been agreed for reservation but required further consideration as to whether Aboriginal land claims had been lodged in those areas.
The evidence discloses that no further action was taken thereafter by the executive government, any agency, or any department in relation to the claimed land.
The Minister invited the Court to draw the inference that the reason for the relative inactivity between 2002 and 2005 and the cessation of activity thereafter, at least in relation to Lot 50 (Central), was because of the lodging of the ALC 7961 over that parcel of land.
I do not accept by reference to the letter from Nyssa Lesniak from the Reserve Establishment Team of NPWS to the Aboriginal Land Claim Assessment Team at Crown Lands dated 29 September 2022, that Lot 50 (Central) and the Riverfront Portion were being treated together for the purpose of the proposed reservation thereby causing the process to stall with respect to both parcels because of the land claim over Lot 50 (Central). The length of time that it took the Minister to determine the first land claim tells against this and it is antithetical to a claimed need or likely need for the land to form part of the NPWS reserve system. There was nothing preventing the Minister from transferring the Riverfront Portion to the State nature reserve system irrespective of the land claim over Lot 50 (Central). If the Riverfront Portion of the land was genuinely needed for the asserted essential public purpose, the fact that a land claim existed over Lot 50 (Central) as at 31 October 2005, ought to have expedited the transfer of the Riverfront Portion in order to avoid a similar fate.
As noted above, the fact that Lot 50 (Central) was included in Crown reserve 1012196, and not added to the NPWS estate, is contrary to the Minister’s narrative. Not only are the purposes of that reservation broad and somewhat antithetical to the more limited purpose of nature conservation due to the high ecological value of the land, but it is contrary to the 2002 Cabinet Minute and decision that envisaged reservation under the NPWS estate and not for other purposes.
The Minister submitted that the identification of the essential public purpose for which the land is needed or likely to be needed can occur at an earlier point in time than the claim date (citing Jannali CA) and that absent abandonment of that decision, the Court may infer that the earlier decision produced a continuing state of affairs of need or likely need. Evidence of the pursuit of the “larger purpose” of reserving land of high conservation value to the NPWS estate was, moreover, sufficient to discharge the Minister’s onus under s 36(1)(c) of the ALRA.
While the former proposition may be accepted, the latter cannot in this instance. First, I do not accept that either parcel of land was sufficiently identified as needed or likely to be needed by the executive government because of its high conservation value. Second, it follows that there could be no continuing state of affairs in relation to that purported need. And third, in my view, evidence of a desire sporadically given effect to over land in the upper northeast corner of the State, even if proximate to the claimed land, neither demonstrates the essentiality of the public purpose nor the executive government’s commitment to it.
To find that the claimed land was not claimable pursuant to s 36(1)(c) of the ALRA because it formed part of an area that had been identified earlier at a larger scale as desirable of preservation but was the subject of a process that never descended to individual lots, would be antithetical to the purpose of the Act. It would have the effect of immunising significant areas of the State from being “claimable Crown lands” under the Act. Having regard to the text and context of s 36(1)(c), I do not accept that this was the intended operation of the legislation.
At best, the evidence discloses an aspiration by DLWC and NPWS to capture within the NPWS estate land of high conservation value in the upper northeast region of NSW, including in and around Brunswick Heads. It does not disclose a ‘need’ or ‘likely need’ for this purpose in the sense identified in the case law as at the date of the claim. Thus, for example: