New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act

Judgment 1The Applicant lodged Aboriginal Land Claim (ALC) 17472 on behalf of Wanaruah Local Aboriginal Land Council under the Aboriginal Land Rights Act 1983 (the ALR Act) for Crown land on 11 March 2009. The Minister administering the Crown Lands Act 1989 (the Minister) refused the ALC on 1 October 2010. The Applicant commenced an appeal against the Minister's decision pursuant to s 36(6) of the ALR Act by Class 3 application filed on 19 January 2011. I thank Acting Commissioner McAvoy for his assistance in this matter. 2ALC 17472 relates to Lot 7004 DP 93630 located immediately south of Camberwell village on the New England Highway in the Hunter Valley region of NSW. The map attached to the Minister's refusal letter outlined the claimed land in red. Within the red edged area land, freehold land vested in Singleton Shire Council was outlined in blue. The Applicant no longer presses its claim over that part of the claimed land. Also within the red edged area is an area adjoining the New England Highway said to be required for road widening by the Roads and Traffic Authority (as it was then known) which was outlined in green. 3The whole of the land now claimed including the area needed for road widening was reserved as a temporary common by gazettal on 21 October 1876 (the Common). On 25 June 1995 the Camberwell Common Trust (the Trust) was assigned as the corporate name to the trust responsible for the commonage. At the date of claim the Common was administered under the Commons Management Act 1989 (the CM Act) by the Trust. At the date of the claim the Common consisted of three lots including the claimed land (Lot 7004 DP 93630) which is approximately 25ha. Lot 7300 DP 11121685 which is 19.9ha and Lot 2 DP 1056200 which is 11.89ha are next to each other on the northern edge of Camberwell village. Glennies Creek runs along the southern boundary of Lot 7300. Lot 7004 DP 93630 is to the south of Camberwell village and separate from the two northern lots. It is next to the New England Highway. On 4 August 2003 a Compensation Agreement was finalised between the Trust, White Mining (NSW) Pty Ltd (White Mining), Hunter Rural Lands Protection Board and the Minister, whereby White Mining agreed, among other things, to provide an alternative site for the Trust to use as a common to compensate for mining part of the Common (land swap). On 25 November 2009 Ashton Coal Operations Pty Limited (Ashton Coal) forwarded documents for execution and registration to the Department of Lands to effect the exchange of Lot 2 DP 1056200, which was one of the northern lots of the Common, for Lot 1 DP 1114623 to the west of Camberwell village (land swap), inter alia. By gazette on 19 March 2010, in accordance with the 2003 Compensation Agreement, Lot 2 DP 1056200 was revoked out of the Common and converted to freehold title to Ashton Coal Mines Limited (also Ashton Coal). On 16 April 2010 the Common was revoked by gazette and the Trust consequently dissolved.

Aboriginal Land Rights Act 1983 4Section 36(1) of the ALR Act relevantly provides: (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: ... (b) are not lawfully used or occupied, (c) are not needed, nor likely to be needed, for an essential public purpose, and ... 5The Minister can refuse a claim under s 36(5)(b) if satisfied that part or whole of the land claimed is not claimable Crown lands. An appeal by an Aboriginal Land Council against a refusal is provided for under s 36(6). The Court's powers on an appeal are set out in s 36(7): The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred 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. 6The Minister has the onus of satisfying the Court that the lands claimed were not claimable Crown lands under s 36(7) including the establishment of primary facts and inferences to the satisfaction of the Court: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 at [202] per Basten JA. The Minister must prove that the lands claimed were not claimable Crown lands as at the date of the land claim, that is, 11 March 2009: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 691F - G per Hope JA. 7The ALR Act is remedial and beneficial legislation enacted to address the injustice and loss suffered by Aboriginal people through losing their land after white settlement by giving their representatives rights in Crown land: Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 per Kirby P; Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2001] NSWLEC 20; (2001) 113 LGERA 163 at [97] - [98]; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180; (2006) 149 LGERA 162 at [14] - [15]. Given that beneficial purpose, exceptions to the right to claim Crown land should be narrowly construed: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 at [53] - [54] per Spigelman CJ; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 at [21] and [25] per Mason P with whom Tobias JA agreed. 8As the Minister bears the onus of proof, if there is uncertainty about whether the claimed land was not claimable Crown land owing to the absence of evidence or supportive material, the Court is required to transfer the claimed land to the Applicant under s 36(7): Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; (2009) 168 LGERA 71 at [114] per Basten JA.

Issues 9The Statement of Issues filed in Court on 10 February 2012 by the Minister identifies the following issues: (1)[not pressed] (2)the part of the land, shown by red edge excluding blue edge, was lawfully used and occupied by the Camberwell Common Trust and commoners in accordance with the reservation of that part of the land by Reserve 170176 for Temporary Commonage; (3)the part of the land, shown by green edge, was needed or likely to be needed for the essential public purpose of access (roadway); and (4)the whole or part of the claimed land (being Lot 7004 DP 93630 at Camberwell, Parish of Auckland, County of Durham) was needed, or likely to be needed, for the essential public purpose of coal mining. 10If the Minister successfully proves that the claimed land is used or occupied as a common as at the date of claim the Applicant's appeal will fail. This issue including the relevant evidence will therefore be considered first.

Use or occupation of claimed land as common 11The provisions of the CM Act are relevant to the consideration of the issues and evidence in this matter. Relevant sections are: 4 A trust to be established in respect of each common (1) Whenever a parcel of land is set aside as a common after the commencement of this section, the Minister must, by notice published in the Gazette: (a) establish a trust in respect of the common, and (b) assign a corporate name to the trust. (2) A trust established under subsection (1) is constituted by this Act as a corporation with the corporate name assigned in the notice establishing the trust. (3) A body corporate constituted in respect of a common by section 4 of the former Act and in existence immediately before the commencement of this section continues in existence under this Act and is established as a trust in respect of the common for the purposes of this Act. (4) The Minister may, by notice published in the Gazette, alter the corporate name of a trust. (5) A trust established in respect of a common has the functions conferred or imposed on it by or under this or any other Act. (6) The affairs of a trust shall be managed: (a) by a trust board, or ... 8 Functions of a trust (1) A trust: (a) is responsible for the care, control and management of the common for which the trust is established, ... 9 Power of a trust to make by-law (1) A trust may, in relation to the common for which it is established, make a by-law, not inconsistent with this Act, for or with respect to the following: (a) the care, control and management of the common, (b) the rights of the commoners with respect to the use of the common and, in particular, securing equitable access to the common for all commoners and their invitees, (c) giving effect to a management plan that has been adopted in relation to the common, (d) regulating the conduct of commoners and others when using the common, ... (f) protecting all fauna (other than feral animals) which use the common as their habitat or which are allowed to be taken or kept there by commoners, (g) protecting trees, shrubs and other vegetation (other than noxious weeds) which are growing on the common and preventing such trees, shrubs and vegetation from being damaged or destroyed, ... (i) controlling noxious weeds that grow on the common, ... (m) prescribing annual fees to be paid by commoners, (n) imposing charges to be paid by or in respect of commoners or other persons or groups of persons as a condition of their being allowed to use the common, a part of the common or specified facilities located on the common for a specified purpose, ... ... 10 Duty of a trust to keep a commoners' roll (1) A trust must keep a commoners' roll for the common for which the trust is established. ... (The CM Act defines a commoner as a person whose name is entered on the commoners' roll.) 25 Preparation of management plans (1) The Minister may: (a) cause a draft management plan to be prepared for a common, or (b) direct a trust to prepare, within such period as is specified in the direction, a draft management plan in respect of the common for which it is established. (2) A trust may, on its own initiative, prepare a draft management plan for the common for which it is established and submit a copy of it to the Minister. ... 31 Trust to hold an annual general meeting of commoners (1) Except as provided by subsection (2), a trust must, at least once in each calendar year and within the period of 3 months after the end of each financial year of the trust, convene an annual general meeting of commoners. ... 37 Trust to prepare an annual report of its activities etc (1) A trust must, within 2 months after the end of each financial year of the trust or within such extended period as the Minister may in a particular case allow: (a) prepare a report in writing concerning the trust's activities for that year, and (b) submit a copy of the report to the Minister. ... 41 Trust to keep accounting records (1) A trust must: (a) keep such accounting records as correctly record and explain the transactions of the trust and its financial position, ...

Evidence 12The Minister's tender bundle (exhibit 1) included documents produced under subpoena by the Trust, Hunter Valley Local Area Command of the Muswellbrook Police Station (the police), Department of Planning and Ashton Coal. Subpoenas to produce documents (from 1 January 2000 to the present) issued by the Minister to Trust office bearers Ms de Jong, treasurer, and Ms Olofsson, secretary, were also tendered (exhibit 2). The subpoena to Ms de Jong sought documents described as follows: ... 2. For the period 1 January 2000 to the present, a copy of the former Camberwell Common Trust ("the former Trust") Common Roll. 3. For the period 1 January 2000 to the present, a copy of each of all documents, annual, financial and other reports including record of payment of commoner's fees; management plans, trust deeds, the former Trust Board's minute book, by-laws, receipts, bank statements, file notes including handwritten, minutes of meeting, memoranda and correspondence created, received or held by or on behalf of the trustees or commoners of the former Camberwell Common Trust ("the former Trust"), referring to Lot 7004 DP 93630 at Camberwell, Local Government Area of Singleton, Parish of Auckland, part of the former common. 13The subpoena to Ms Olofsson sought documents as follows: ... 2. For the period 1 January 2000 to the present, a copy of all documents, diagrams, plans, drawings, maps, surveys, studies; engineering, expert, annual, financial and other reports; management plans, trust deeds, the former Trust Board's minute book, by-laws, receipts, bank statements, file notes including handwritten, minutes of meeting, memoranda and correspondence created, received or held by or on behalf of the trustees or commoners of the former Camberwell Common Trust ("the former Trust"), referring to Lot 7004 DP 93630 at Camberwell, Local Government Area of Singleton, Parish of Auckland, part of the former common. 3. A copy of the former Trust's management plans, trust deeds, notifications of changes to the land subject of the former Trust, changes to the former Trust's by-laws or rules in so far as such relate to the land owned, managed or controlled by the former Trust. 14NSW Police Force Computerised Operational Policing System (COPS) reports were produced under subpoena by the police for the period from 1 January 2000 until the present. The Department of Planning and Ashton Coal were required to produce documents relating to the proposed coal mining over the claimed land for the period 1 January 2000 to the present and they produced documents relating to Ashton Coal's South East Open Cut (SEOC) project including the environmental assessment. Trust documents produced under subpoena 15The Common Rules (undated) at RTB p 15 state that all cattle must be tagged or branded, any commoner who does not pay fees would be struck off the roll, commoners were requested to notify of intention to agist cattle on "commons" for 1999 by a certain date, and horse riding on "commons" was permitted. The maximum head of cattle per common was 15 for an average of 6 months. The Rules list seven people as Trustees. 16On 9 April 2010 the Trust's secretary emailed P Allen about the use of email addresses for the Trust's business (RTB p 173).

Trust meetings 17A Trust board meeting was held on 20 January 2000 to discuss the Olympic Landcare 2000 project (RTB p 17). On 2 February 2000 the Trust's secretary filled out an Olympic Landcare project agreement form promising that the Trustees would, among other things, plant 2000 native plants (RTB p 18). A letter from Landcare Australia Ltd to the Trust dated 13 March 2000 enclosed part payment for the Olympic Landcare project (RTB p 20). In July 2000 the Trust recorded expenditure on maintenance and the Olympic Landcare project (RTB p 28, 31). On 5 August 2000 a certificate was issued to the Trust as a finalist in the Olympic Landcare project week (RTB p 36). 18During a meeting on 8 February 2000 the commoners discussed, inter alia, the Olympic Landcare project, the need to improve grass cover and regrowth, and they read and accepted the financial report (RTB p 17, 19). Commoners' meetings discussing the Olympic Landcare project were held on 3 and 11 July 2000 (RTB p 17, 30). The agenda for the Trust's annual general meeting on 17 September 2001 lists financial report and elections as two of the items (RTB p 45). The agenda for the general meeting on 4 December 2003 lists "hand over new common from White Mining on the New England Highway" as one of the items (RTB p 69). In a meeting on 9 November 2005 the commoners discussed repairing dams on the Common for agistment of stock (RTB p 120). 19On 22 May 2009 the Trust notified its annual general meeting on 31 May 2009 in the Singleton Argus and were invoiced for the publication (RTB p 150 - 151). As a consequence of changes to the by-laws in the 31 May 2009 meeting, the Trust reproduced its Constitution and updated by-laws (RTB p 148 - 149).

Trust management plans, annual reports, financial records (agistment statements, annual financial reports) 20The Trust's management plan for 1999 to 2000 (undated) at RTB p 14 states, inter alia, that fencing of "all commons" needed to be repaired, agistment fees were increased, the commoners' fee set was due annually, rubbish needed to be removed from the "top common", no vehicles were to be permitted on "any common" unless to assist cattle, and only commoners and their families were to be permitted on "the commons". 21The Trust's management plan for 1999 to 2009 dated 1 August 2000 (RTB p 32) was prepared to produce sustainable outcomes for the Common for future generations and for the environment. Improvements required were listed as follows: replace boundary fences on Glennies Creek Road; replace boundary between the "common and C Lane property"; Olympic Landcare application and organisation program; Hunter Catchment Authority proposal for improvements to Common; repairs to dams on southern side, improve water course to dam site; pasture improvement on the Common, weed management schedule; upgrade common rules and by-laws to suit village requirements. 22A Trust statement dated 10 January 2000 to W Horadum for agistment of eight head from 1 July to 31 December 1999 (RTB p 16) notes payment on 3 February 2000. A receipt was issued (RTB p 13). In August 2000 the Trust recorded its income and expenditure including on the Olympic Landcare project (RTB p 33 - 35). On 1 September 2000 the Trust issued a statement to W Horadum for agistment of eight head to 1 July to 30 September 2000 plus previous agistment from 1 April to June 2000 (RTB p 37) which was paid on 22 December 2000. 23On 8 September 2000 the Department of Land and Water Conservation (Department of Lands in this judgment) received an annual report including a financial report from the Trust (RTB p 38 - 43). The annual report states that the Common was used daily for grazing, walking and horse riding by the commoners. The Trust received a grant from the Olympic Landcare project of $2,500 to plant trees and 500 trees were planted on "the common adjacent to New England Highway". The other 1,500 trees would be planted on the common adjacent to Glennies Creek after fences were in place. The Trust also received a grant from Hunter Catchment Management Trust (as it was then known) to improve management of soil erosion on the Common adjacent to Glennies Creek which would be fenced into three paddocks and cattle would have limited access to the creek to prevent damage to creek banks and to improve water quality. Next to "Reasons for rise or fall in patronage" it states "White Mining trying to mine [the] Common". Elected office bearers were recorded as K Patterson, Chairperson; D Olofsson, Secretary; and M Walker, Treasurer. The financial report (p 39 - 40) indicates income was received from agistment, commoners' fees and the Olympic Landcare project, and that money was spent on fencing materials, inter alia. 24On 29 August 2001 the Trust issued a statement to W Horadum for agistment to 30 September 2001 (RTB p 44) which was paid on 5 August 2002. 25On 18 September 2001 the Trust prepared an annual report to the Department of Lands and extracts from its savings passbook (RTB p 46 - 50). The annual report records that at the annual general meeting on 17 September 2001, new office bearers and trustees were elected, namely, C Stapleton, president; D Olofsson, secretary; M Walker, treasurer; D Thompson and C Green, trustees. The Hunter Catchment Management Trust provided funds "for fencing, dams and trees" which did not enter the Trust bank account. The annual report noted that in the next financial year the Trust would undertake fencing, tree planting, controlling weeds and having a field day organised by the Hunter Catchment Management Trust. The savings passbook extracts show income was receiving including from commoners' fees and money was spent. 26The Trust's annual report for 2001/2002 (RTB p 51 - 52) listed the commoners as: Thomson family, C Green, D and T Olofsson, M and T de Jong, C and K Stapleton, L Byrnes, M and R Walker, and W Horadum. The Common near Camberwell Hall had eight head agisted and had a three month spell in twelve months. When funds became available the Trust planned to repair the second dam wall. Fencing on that Common was complete and trees planted from the Olympic Landcare project grant were growing well. The Common adjacent to Glennies Creek had no stock agisted and had a two-year spell. The report then states, "The 20th July 2002 eight head of cattle has been adjusted [sic]." The Trust had sent a letter to the police about motorbikes damaging the land and trees and the Trustees were in the process of padlocking all the gates. On 7 August the Trust repaired rabbit holes on the Common. The Trust received a proposal from White Mining for a land swap in relation to the "common over the road". 27On 5 August 2002 the Trust provided a receipt to W Horadum for agistment fees (RTB p 53). On 16 October 2002 the Trust issued a statement to W Horadum for agistment of eight head up to 30 September 2002 (RTB p 61) and from 1 October to 31 December 2002 (RTB p 60). On 4 November 2002 the Trust issued a receipt to W Horadum for payment of agistment fees (RTB p 62). On 30 June 2003 statements were issued to W Horadum for agistment of cattle in January, February, and April to June 2003 (RTB p 63 - 66). 28A Trust record indicates that "Christine" paid for agistment of one horse from 16 September 2003 to 28 February 2004 (RTB p 70). The Trust was invoiced on 26 March 2004 by a company for "Camberwell Common" signage (RTB p 71). 29The Trust's handwritten financial report for 2002/2003 (RTB p 67 - 68) shows income from commoners' fees and agistment throughout the period. Money was spent on repairing fencing and rabbit holes. On 10 April 2004 the Department of Lands received an annual report (RTB p 72) attaching a financial statement for 2002 to 2003 (RTB p 73) which appears to be an identical printed copy of the handwritten version. The annual report records that the Trust had been involved in the land swap, that the land area had been approved, and next financial year the Trust expected to take over the new Common. It reports that money was spent on the erection of a new boundary fence on the Common near Glennies Creek and an "end of tree line area" was put in by the Hunter Catchment Management Trust to prevent stock damaging trees. The Trust stopped a dam on one of the Common areas from leaking, repaired the rabbit warrens, and padlocked the gates containing stock. It also notes that the Trust committee (that is, Trustees and office bearers) had not changed and new families joined the commoners' roll which then stood as: D, T and M Olofsson; M and T de Jong; V Lopes; C Stapleton; W Horadum; T and L Byrnes; M Walker; T Hassett; G Lane; C Green; and M Gale. 30On 15 June 2004 statements were issued to K Woods for agistment of two horses on common 2 from 8 April to 30 June 2004 (RTB p 75) and to G Hassett for agistment of two horses on common 2 from 5 June to 30 June 2004 (RTB p 74). A handwritten note states that from 30 June 2004 onwards, only one horse would be agisted. On 8 July 2004 a receipt was issued to K Woods for agistment fees (RTB p 78). 31The Trust's handwritten financial report for 2003/2004 (RTB p 76 -77) shows income was received from commoners' fees and from agistment throughout that period and that the Trust purchased padlocks. On 25 October 2004 the Department of Lands received the Trust's annual report attaching a printed copy of its financial report (p 81 - 82). The annual report (RTB p 79, 83) states that the Trust's priority was to finish fencing on "Glennies Creek Road", that it was waiting to receive the new common from Ashton Coal, that there was an increase in commoners wanting to use the Common, and that the "land has been managed with minimal stock to preserve wildlife and natural beauty also, natural repairs by tree growth in eroding areas". The report records that Ashton Coal repaired border fencing to their property, that there was an increase in patronage numbers, and the Common was used daily for grazing, walking, horse riding, water activities, fishing and swimming. 32On 17 November 2004 statements were issued for agistment to M Gale (two horses) (RTB p 85) and to G Hassett (one horse) (RTB p 84) from 1 July to 31 December 2004, both of which were noted as paid. See also receipt to M Gale (RTB p 86). On 25 June 2005 the Trust issued statements to G Hassett for agistment from 1 January to 30 June 2005 (RTB p 101) and to M Gale for agistment on commons 2 and 3 from 31 March to 30 June 2005 (RTB p 100). The Trust's annual financial report for 2004 to 2005 shows money being spent on fence repairs and Roundup weedicide (RTB p 102 - 103). On 15 August 2005 the Trust provided a receipt to M Gale for agistment (RTB p 108). An undated statement to M Gale for agistment on commons 1 and 2 from 30 June to 30 September 2005 notes that payment was received on 9 November 2005 (RTB p 118 - 119). 33On 27 September 2005 the Department of Lands received the Trust's annual report (RTB p 87 - 90). The Trust stated that it had been working effectively to address safety, land rehabilitation and stock movement. It reported that on 15 October 2004 rocks blasted out of the Ashton Coal mine and landed on the Common. On 22 January 2005 there were people riding motorbikes on the Common, which was reported to the police. On 24 February 2005 the NSW Fire Brigade was called to extinguish a fire on the Common which caused little damage. On 9 May 2005 there was rubbish on the boundary between Ashton Coal property and the Common which the police were contacted to investigate and which Ashton Coal removed. On 14 May 2005 a new fence was finished by Ashton Coal without a gate being put in to the existing fence for the livestock which were caught in a paddock without water for two days. The Trust would oppose any proposal by Ashton Coal to mine the common near Camberwell Hall. The Trust reported that tree and grass were well established and it had started spraying "green cestrum and boxthorn" and hoped to repair a dam on the common near the hall soon. There were no more incidents with motorbikes or vehicles on the Common since police action. Wildlife on the Common was plentiful and the Trust had tourists visiting the creek, and Greenpeace looking at the Common. There was an increase in commoners from the village due to a desire to preserve the area. The commoners' roll was as follows: S Turner, F Coyle, D and T Olofsson, M and T de Jong, T Clarke, J Vollebrecht, M Gale, P Holz, G Lane, T and G Hassett, C Stapleton, and C Green. The financial report (p 91 - 92) attached to the annual report shows receipt of income including from commoners' fees and expenditure on fencing repairs, Roundup weedicide, and padlocks. 34On 3 February 2006 a receipt was issued to D Olofsson for agistment from 20 November 2005 to 25 February 2006 (RTB p 122). An undated statement to D Olofsson for agistment on common 3 (from 20 November to 31 December 2005) and common 2 (from 9 January to 25 February 2006) notes that it was paid in full on 4 February 2006 (RTB p 125). On 4 February 2006 C Green paid for agistment on common 2 from 9 January to 25 February 2006 (RTB p 126). On 14 February 2006 K Miller sent a letter to the Trust recording that he had repaired all three dams and indicating future agistment (RTB p 123). On the same date C Green sent an email to the Trust applying for agistment on commons 2 and 3 (RTB p 124). 35An undated record of agistment bookings from 1 March to 30 June 2006 shows bookings for commons 1, 2 and 3 (RTB p 121). Another undated record of agistment bookings for the same period (RTB p 131) states "Common 1 inside village... Common 2 near Camberwell Hall ... Common 3 near New England Highway". On 6 March 2006 the Trust provided a receipt to D Olofsson for agistment from 25 February to 27 April 2006 (RTB p 127). 36The Trust's financial statement for 2005/2006 records that income was received including from commoners' fees, and that Roundup weedicide, wire and steel posts were bought (RTB p 132). The Trust issued a statement to K Miller for agistment from 1 August 2006 to 30 June 2007 (RTB p 138) and noted his account was in credit for work done on the Common. On 26 October 2006 the Trust provided a receipt to C Green for agistment from 22 July to 30 September 2006 (RTB p 137). 37The Trust's financial statement for 2007/2008 records that income was received including from one commoner for commoners' fees and money was expended on barbed wire and Roundup weedicide (RTB p 141). The Trust's annual report for that period (RTB p 142 - 143) records "Glennies creek in the common area damage to trees and increase of noxious weeds" and that the Trust commenced a noxious weed control program on "box thorn and green celestrum". It reports that "Dams on commons are all in good order, two on common near hall are spring feed ...", that flood damage to Common fences was repaired, and gates were kept locked. The Trust had maintained stock levels according to the management plan "to ensure balance between native and domestic fauna and flora". In the next financial year the Trust planned to undertake a Quoll population care and protection program, plant trees and repair cattle yards and shed. An invoice to the Trust dated 26 May 2008 indicates R & M Moore Rural Support Services sprayed boxthorns on the property on 21 May 2008 (RTB p 140). 38On 18 December 2008 the NSW Valuer General valued the claimed land (and Lot 7300 DP 11121685) for the Trust. 39On 20 December 2008 the Trust issued a receipt to D Johnston for agistment of three horses from 20 December 2008 to 14 March 2009 (that is, after ALC 17472 was lodged on 11 March 2009) (RTB p 144).

Post-claim documents 40On 23 March 2009 the Mid Coast Livestock Health and Pest Authority issued an invoice to the Trust for stock identification under the Rural Lands Protection Act 1998 and cl 59 of the Rural Lands Protection (General) Regulation 2001 which was recorded as being paid on 30 March 2009 (RTB p 146). 41A Trust statement to D Johnston for agistment of three horses on common 3 from 14 to 28 March 2009 (RTB p 147) is noted as paid. 42On 29 June 2009 the Trust issued a receipt to D Johnston for agistment of four horses to 5 October 2009 (RTB p 152). 43On 1 August 2009 the Trust prepared a management plan for 2009 to 2019 (RTB p 163) which included replacing boundary fences on Glennies Creek adjacent to the Highway and between B Richards and the Common, improving pasture on the Common creek flats, investigating a joint venture for protecting the environment, producing a workable weed management program, and tree planting on the Common on Glennies Creek. 44On 19 August 2009 the Department of Lands received the Trust's annual and financial reports for 2008/2009 and extracts from its savings passbook from 31 January 2000 to 29 June 2009 (RTB p 153 - 162, 164 - 167). The Trust reported changes to its by-laws made in the annual general meeting on 31 May 2009, which then included keeping domestic stock at acceptable levels to prevent overgrazing, using a weed management plan and introducing a wildlife corridor to protect Spotted Quoll and other native wildlife and flora. The Trust stated that it had received and spent $1,500 from the State Government for noxious weed control, undertook white ant control on the fences and loading race, maintained the loading race and repaired boundary fences. The Trust planned to change the use of the Common to ensure co-existence between domestic and native species and to continue reporting on the existence of endangered species. The Trust reported that land which the Trust was using after the land swap was still under the title of Ashton Coal. In July 2009 a domestic animal was killed and a commoner had a fall after Energy Australia, which had been given authority to remove low voltage lines by Ashton Coal, left cables and domestic terminal boxes on the ground. The Trust had not been informed about Energy Australia entering the Common and a title search Energy Australia had conducted showed that the parcel was not Crown land. The financial report indicated the Trust received income including from commoners' fees and spent on Roundup weedicide, wire and paid Mid Coast Livestock Health and Pest Authority. 45A statement was issued to D Johnston for agistment of four horses from 5 October to 26 December 2009 (RTB p 168). On 1 February 2010 the Trust issued a receipt to D Johnston for agistment up to 31 December 2009 (RTB p 172).

Commoners' roll 46Trust records on the payment of commoners' fees from 2002 to 2010 shows 13 members paid in 2002, 9 members paid in 2003, 13 members paid in 2004/2005, 15 members paid in 2005/2006, 7 members paid in 2006/2007, 3 members paid in 2007/2008, 8 members paid in 2008/2009 and 2 members paid in 2010 (RTB p 169 - 171). COPS reports 47A COPS report dated 30 August 2002 records the Trust secretary keeping trespassers off the common near "Glennies Creek" (RTB p 54 - 57). The Trust secretary's report (RTB p 58) refers to the incident being on the "third [paddock] at creek". It also refers to two other incidents when police were called, one involving unauthorised motor vehicles and motorbikes. In relation to one of the incidents on 2 September 2002 the Department of Lands sent a letter to the Trust's secretary outlining the office bearers' powers under the CM Act to keep trespassers off the Common (RTB p 59). 48A COPS report dated 3 March 2005 records a complaint about fence wire being cut on the north eastern boundary with unfenced Crown land, and that vehicles had been on the "area near the creek" (RTB p 93 - 95). A COPS report dated 9 May 2005 concerned rubbish being dumped on the Common (RTB p 96 - 98). A COPS report dated 10 April 2006 records a complaint about wire being cut on a fence bordering Crown land (RTB p 128). A COPS report dated 23 October 2006 indicates that the Trust complained about Ashton Coal trespassing and forming a road on the Common (RTB p 133).

Department of Lands documents 49A Department of Lands internal memorandum dated 7 June 2000 (RTB p 21) forwards for comment a document titled "Recommended Management Practices for Camberwell Common" dated May 2000 (p 22 - 27) which was to be presented to the Trustees. The memorandum states "One thing that seems unclear to me is where the southern boundary along the creek is" and "Only one access is proposed over the creek through a Crown Road at the eastern boundary". The Recommended Management Practices document states that the Common was suffering from problems caused by past exploitative management practices and that the most noticeable sign of degradation was soil erosion especially "in that part of the Common south of the public road". It records that the Common had been overcleared and overgrazed, with no allowance for regeneration of the grass or shrub layer. It recommended that "the Common be spelled for a minimum of 18 months to allow for regeneration and seeding of grasses" and that "future stocking rates be limited to 1 dry cow equivalent per 2 hectares". Fencing was required to address active erosion and the "areas of concern are the northern creek bank, the erosion in the north-west corner and the gully running roughly north-south approximately half way along the common". It further recommends that stock be restricted from "access to the creek", "fencing along the high bank of the creek" and measures for treating soil erosion "in the north-west corner of the Common sought of the main road". The document suggests the creation of a green corridor to assist controlling erosion of the main gully in the centre of the Common by constructing "fencing to link the riparian zone of Glennies Creek with the regrowth dry sclerophyll forest in the north of the Common." Specific trees had to be planted in this corridor and weeds had to be controlled. Further, the document recommends controlling the rabbit population; controlling weeds generally; riparian tree planting along the creek; and progressively replacing willows with native trees, for example on the "two parts of the north bank of Glennies Creek within the Common". 50A follow-up internal memorandum dated 3 July 2000 (RTB p 29) responds that the concepts addressed in the draft plan of management did not raise objections from a reserves management perspective and that the "original notification of the Common indicates [that the southern boundary] follows the creek bank". 51On 4 August 2003 the Trust, White Mining, Hunter Rural Lands Protection Board and the Minister finalised the Compensation Agreement (RTB p 210 - 225) (see par 3 above). 52On 5 March 2009 the Department of Lands printed a map showing the position of the three pieces of Common land (RTB p 145). 53A letter from Ashton Coal to the Department of Lands dated 25 November 2009 encloses documents for execution and registration to effect the land swap (RTB p 227 - 233) (see par 3 above). 54An internal recommendation and approval dated 14 April 2010 within the Department of Lands identified that the Trust should be revoked and a temporary access and grazing licence granted to Ashton Coal. The document records that by gazette on 19 March 2010, in accordance with the 2003 Compensation Agreement, Lot 2 DP 1056200 was revoked out of the Common and placed under freehold title to Ashton Coal (RTB p 174 - 175). (As stated in par 3 above, the Common was revoked by gazette on 16 April 2010.) This document is dated after the date of claim and therefore potentially irrelevant. No objection was made to it, no doubt because it provides useful context for the fate of the Trust shortly after the claim date. 55The Applicant tendered a bundle of documents (exhibit A) which does not need to be relied on.

Minister's submissions 56The Minister relied upon Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 (Wagga Wagga) which held at [69] that the task of the Court in land claims under the ALR Act was to take into account the acts, facts, matters and circumstances and determine as a question of fact whether the claimed land was lawfully used or occupied. Use or occupation need not be evidence of physical presence upon the land but may be proved by demonstrating use of the land in a passive manner. For instance, in Newcastle City Council v Royal Newcastle Hospital [1959] UKPCHCA 1; (1959) 100 CLR 1 the Privy Council found that although the subject land adjacent to the hospital was not used other than to provide quiet and fresh air to the hospital patients that use was still a lawful use. 57The Minister submitted that evidence in the documents produced on subpoena by the Trust officers of the management and use of the Common generally was sufficient to establish use and occupation of the claimed land as part of the Common. It was not necessary to prove constant or regular physical presence upon the Common. Use or occupation of the Common was, and may well have been, passive from time to time. In the present case there is evidence of recurring physical presence on the land up to the date of claim. 58In relation to the claimed land the documentary record therefore establishes the following: (a)Livestock was regularly agisted on the Common although in different numbers from July 1999 to December 2009, including at least three horses covering the period that the claim was made (b)The Trust held regular meetings, submitted annual and financial reports, and developed management plans and rules, all of which evidence ongoing activity on and use of the Common (c)There was regular expenditure by the Trust on activities related to the Common (d)The Department of Lands had ongoing involvement in and oversight of the affairs of the Trust, and hence the use of the Common (e)Commoners sought the assistance of the police from time to time to protect their use and enjoyment of the Common I note that it is now clear that the reference to agistment of three horses in (a) relates to common 3 which is not the claimed land. 59Looking at the period 2008 - 2009 in more detail, the following is apparent: (a)On 18 December 2008 the claimed land was valued for the Trust by or on behalf of the NSW Valuer General (b)On 26 May 2008 the Trust was invoiced for the spraying of boxthorns on the claimed land on 21 May 2008 (c)In the 2007/2008 financial year the Trust received income for commoners' fees and for agistment, and it incurred expenditure for barbed wire and Roundup (d)In the 2007/2008 financial year flood damage to Common fences was repaired, weeds were controlled, stock levels were controlled according to the management plan and all gates were kept locked (e)On 20 December 2008 fees were received from D Johnston for the agistment of three horses from 20 December 2008 to 14 March 2009 (f)On 5 March 2009 a map was produced by the Department of Lands showing the Common (g)On 23 March 2009 the Trust was invoiced by the Mid Coast Livestock Health and Pest Authority for stock identification under the Rural Lands Protection Act and cl 59 of the Rural Lands Protection (General) Regulation, and the invoice was paid on 30 March 2009 (h)D Johnston extended the agistment of three horses, from 14 to 28 March 2009, and paid the fee thereof (i)The Trust advertised, paid for, and convened an annual general meeting on 31 May 2009 (j)The 2008/2009 annual report recorded, amongst other things, that in the past year $1,500 had been received from the State Government for, and spent on, weed control; there had been white ant control on fences and the loading race, and maintenance of the loading race; and there had been repairs to boundary fences (k)In the 2008/2009 financial report agistment fees were received from five different members and there was expenditure on Roundup and wire (l)A pro-active management plan for the Common was adopted on 1 August 2009 I note that it is now clear that (e) and (h) relate to common 3 which is not the claimed land. 60There is reference in some of the Trust documents to commons 1, 2 and 3. The location of these is not identified but the inference can be drawn that the claimed land is common 2, given the location of the claimed land near Camberwell Hall. Common 2 is identified as being near the Camberwell Hall in a record of agistment bookings from 1 March to 30 June 2006 (RTB p 131). The location of the hall is identified in Ashton Coal's environmental assessment for the SEOC project in Fig 1.3 (RTB p 470). There are a number of references to common 2 in the Trust records produced. The Trust records establish that the Trust was extant and the administration of the Trust continued up to the date of claim. 61It was submitted that the recurring physical presence of the commoners on the Common was lawful use and the acts consistent with legal possession of the land was lawful occupation. It was not necessary to disaggregate the Common and prove acts of physical use of every part of every lot comprising the Common to satisfy the test for lawful use or occupation. 62While the onus rests with the Minister to prove that the claimed land was lawfully used or occupied at the date of claim, this did not mean the land had to be physically used or occupied on that day. The presumption of continuance ought be applied to the present case where there was clear evidence of physical use and occupation of all of the lots comprising the common. The Minister relied on Cloverdell Lumber Co Pty Ltd v Abbott [1924] HCA 4; (1924) 34 CLR 122 as authority for the application of the principle that where a state of affairs could be proved to have existed at one point in time, that state is presumed to have been or remained in existence until evidence to the contrary displaces the operation of the presumption; see also JD Heydon, Cross on Evidence, 8th ed (2010) LexisNexis Butterworths at [1125] "Continuance". In this case there is no evidence from the Minister which rebuts the presumption and the Applicant did not call any evidence. 63The evidence of the general activities in the Trust records should be regarded as relevant to all of the Common. There is nothing in the evidence to suggest that the claimed land was unused or abandoned or neglected. This is reinforced by the documents returned under subpoena by Ms De Jong and Ms Olofsson. The Court can draw the inference from these that the Trust kept vigilant watch over the land. 64The Minister accepted that the evidence relating to commoners' fees suggested that the number of commoners fluctuated. The Common nevertheless remained in use at the relevant time. 65It was also submitted by the Minister that the evidence implies varying use and intensity of use over time including use that was partially passive. This distinguished the present case from Wagga Wagga as here there were recurring physical acts of use and a continuity of activity over a long period of time. 66In reply, the Minister submitted that there were in essence, four questions, which if answered in the affirmative, establish the Minister's case: (1)was the claimed land part of the Common? (2)was the Common extant at the time of the claim? (3)was the Trust active at the date of claim? (4)was there activity on all parts of the Common? Only the last question is in dispute. 67There was no obligation on the Minister to call oral evidence from the commoners or Trust officers. In response to the Applicant's Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 submission at par 75 below, the Minister submitted that no ambiguities arose from the evidence and no adverse inference could be made that the Trust office bearers or commoners would not have assisted the Minister's case had they given evidence.

Applicant's submissions 68The ALR Act requires actual use meaning use in fact to a more than nominal degree per Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 164D - E per Priestley JA; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 (Nowra Brickworks) at 108 D - E per Priestley JA and at 119G per Sheller JA; and Wagga Wagga at [69] per Hayne, Heydon, Crennan and Kiefel JJ. Use cannot be satisfied by constructive use: Daruk at 164B - D per Priestley JA. More than mere proprietorship is required for occupation: Daruk at 162D - E per Priestley JA. The purpose for which land is being used will determine the degree of immediate physical use required to decide if it is used in more than a notional sense: Nowra Brickworks at 121E per Sheller JA (with whom Priestley Clarke JJA agreed); Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 at [39] per Pain J; Bathurst at [119(h)] per Tobias JA and at [184] - [186] per Basten JA; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) [2008] NSWLEC 13 at [129] per Jagot J. The relevant use or occupation must in the circumstances of the case, and in terms of its nature, quality and extent, be of some substance rather than so miniscule, insignificant or token as to be disregarded: Bathurst at [161] per Tobias JA. 69The Common was fragmented, constituting three discontiguous parcels of land on different sides of Camberwell village which were not managed or used as single parcel and were sometimes labelled as commons 1, 2 and 3. Identification is further complicated by the land swap arrangements between the Trust and White Mining (amongst others). This may have been effected in practice before the land was formally transferred in November 2009. The parcels of land were likely to be used differently because of their different locations and distances from the operations of Ashton Coal. 70By the time the ALC was lodged, the continuing mining activity by Ashton Coal in close proximity to Camberwell had led to many of the residents leaving and Ashton Coal buying their land. Ashton Coal's environmental assessment for the SEOC project dated 1 November 2009 referred to the purchase of 33 dwellings within the village and a commitment to acquiring further properties. Mining activity also lead to direct interference with activity on the Common through blasting of rock onto part of it as referred to in the Trust's 2004/2005 annual report. That report also referred to rubbish on the boundary between Ashton Coal property and the Common, and vehicles using the Common to access Ashton Coal land. The 2008/2009 annual report refers to an incident where Energy Australia entered the Common with the purported authority of Ashton Coal to remove cables without communication with the Trust or the Department of Lands. This interference progressively reduced the amount of activity occurring on the Common, evidenced to some degree by the amount of commoners' fees being collected by the Trust. Activity on the Common decreased up until the date of claim when it was not being used, as the Common was subject to impact from mining activity so that its utility was being eroded. 71The fragmented parcels were not used as a whole and there is no evidence of the actual use of the claimed land as a common. Unlike Nowra Brickworks which involved sequential use of land for mining purposes the Common taken as a whole was not used or occupied for common purposes. The Common was fragmented and more so by the impact of mining. 72The onus of proof that the claimed land was not claimable Crown land remained with the Minister. As a result of the election by the Minister to rely upon documents to prove its case it was open to the Court to find the following: the documents related to the whole of the Common in a general manner and not the claimed land specifically

• because documents comprised the only evidence of use or occupation those documents must be subjected to close scrutiny
• close scrutiny reveals that there is no direct evidence of use or occupation
• the documents are hearsay and require inferences to be drawn to identify any use or occupation
• without the makers of the documents of being called as witnesses the ambiguities in the documents cannot be tested
• therefore, minimal weight should be given to the documents 73Even at its highest the documentary evidence relied upon by the Minister required the Court to make findings of fact based upon speculation and conjecture, rather than properly formed inferences. The Minister cannot discharge her onus of proof by evidence relating to a larger area of land of which the claimed land is a part, and ask the Court to infer that the claimed land was used and occupied at the date of claim. The Minister must prove that the claimed land was lawfully used or occupied at the date of claim either individually or as part of a whole. 74While the rules of evidence do not apply in Class 3 proceedings the issue in dispute must be determined by probative evidence: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 per Diplock LJ, inter alia. Speculation or conjecture is impermissible per Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 55 SR NSW 243 at 246 - 248 per Street CJ; Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 67 - 68 per Deane J; Vilro Pty Ltd (In Voluntary Liquidation) v Roads and Traffic Authority NSW [2010] NSWLEC 234; (2010) 179 LGERA 47 at [105] - [107]. Dixon CJ in Jones v Dunkel held that facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 75The Minister failed to establish by proper means the credibility of the Trust records. Sworn evidence by a Trust officer was required to do so. The Minister's submission that the documents were produced under subpoena and reflect the terms of the subpoena cannot be substantiated as some of the documents suggest to the contrary (for example, statement to D Johnston for agistment of three horses on common 3 from 14 to 28 March 2009). By reason of the ambiguities in the evidence relied on by the Minister and the failure to bring witnesses to Court such as the Trust office bearers who have knowledge of the relevant facts, the Court ought to draw an adverse inference as found in Jones v Dunkel against the Minister, namely that the evidence of these witnesses would not have assisted her. 76The Applicant submitted that even if evidence of use or occupation existed, that evidence was only to a notional degree. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 241 (Berowra) "limited, casual, and sporadic activity" was held to be insufficient (at [143]) (approved on appeal in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 at [1] per Hodgson JA, at [40] per Basten JA and at [170] per Macfarlan JA). There is no evidence of regular agistment on the claimed land near the date of claim. The receipt for agistment for three horses from 20 December 2008 to 14 March 2009 is not for any identifiable area of the Common and there is consequently no evidence of any stock being agisted on the claimed land near the claim date. Other invoices relate to other areas of the Common in earlier years. The invoice from R & M Moore Rural Support Services is 10 months before the claim date and is not referrable to the claimed land. Nor is the invoice from the Mid Coast Livestock Health and Pest Authority to the Trust dated 23 March 2009. The production of reports, plans, maps and valuation of the land and seeking the assistance of police are bureaucratic actions that occurred off the claimed land and do not amount to evidence of use or occupation of the claimed land, supported by Wagga Wagga at [76] per Hayne, Heydon, Crennan and Kiefel JJ. None of the activities in the annual report for 2007/2008 and 2008/2009 are referrable to the claimed land. The financial statement dated 1 July 2007 is a year and eight months before the date of claim. The 2007/2008 Trust annual report is undated and none of the activities are referrable to the claimed land. The 2008/2009 financial report refers to noxious weed control, fence repair and white ant control in the fences and loading race. The activities in the 2008/2009 annual report of removal of old timber posts and tidying the area around the old dairy building are extremely limited and are not referrable to the claimed land. 77The Trust records relied on by the Minister do not show regular agistment of stock or other activities on the claimed land. At most, small amounts of activity over a long period on several parcels of land not necessarily, or on the balance of probabilities, related to the claimed land. These activities are limited, casual and sporadic and do not prove lawful use or occupation at the date of claim.

Consideration 78Both parties referred to Wagga Wagga where Hayne, Heydon, Crennan and Kiefel JJ held at [69] that in order to consider whether there is lawful use or occupation at the date of claim the "acts, facts, matters and circumstances" relating to the claimed land must be measured against an understanding of what constitutes use or occupation of the land. Their Honours continued that: ... recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. (footnotes omitted) 79The parties did not distinguish between use and occupation, as has been necessary in other cases, see for example, Bathurst at [249] per Basten JA and as noted in Wagga Wagga at [73]. There is no need to do so on the facts of this case. No issue arises in this case of whether the use or occupation was lawful. 80The history of the Common is identified in par 3. At the date of claim the Common consisted of three lots which were not contiguous. The claimed land was to the south of Camberwell village and separated from the two contiguous lots to the north of the village. The parties agreed that at some unspecified point after the agreement in 2003 the land swap of one of the northern lots (Lot 2 DP 1056200) with a lot to the west of the claimed land was effected. This arrangement was not finalised legally until after the date of claim.

Minister can rely on Trust records 81An important threshold issue raised by the Applicant concerns whether the contents of the documents produced by officers of the Trust pursuant to subpoenas can be used to discharge the Minister's onus of proof that the land was not claimable Crown land. The parties agree that the Minister bears the usual civil standard of proof on the balance of probabilities. 82Firstly, the Applicant submitted that the produced documents could not be relied on because these were not properly proved as business records by sworn evidence from a proper officer of the Trust. The rules of evidence do not apply in Class 3 proceedings but provide a useful reference point in relation to the admissibility of evidence. There is provision in s 69 of the Evidence Act 1995 for the production of business records, that is, documents which form "part of the records belonging to or kept by ... a body ... in the course of, or for the purposes of, a business" as an exception to the hearsay rule. 83The documents produced by two proper officers of the Trust and by the Department of Lands meet the description of business records. These include annual reports (for the years 1999/2000 - 2004/2005 and 2007/2008 - 2008/2009, 2005/2006 - 2006/2007 omitted), financial reports/statements (for the years 1999/2000 - 2005/2006, 2007/2008 - 2008/2009, 2006/2007 omitted) and three plans of management (for the years 1999 - 2000, 1999 - 2009 and 2009 - 2019). The Trust was required to prepare such documents under s 25, s 37 and s 41 of the CM Act. Section 31 required it to have annual general meetings and records of these were produced. Additional documents produced include copies of statements (invoices) and receipts for agistment fees for stock agisted on the Common, and the list of commoners on the commoners' roll required under s 10 of the CM Act. The Trust may make by-laws under s 9 of the CM Act and has done so as these were also produced. Business records of this type are regularly admitted into evidence in civil proceedings without requiring a proper officer to swear to their bona fides. There is no requirement or necessity to do so in this case in order to establish their bona fides for evidentiary purposes. 84Secondly, the Minister relied on the legal obligation placed on a recipient of a subpoena to comply with its terms to submit that the documents produced by Trust officers met the description of documents relating to the claimed land specified in the subpoenas. Answering a subpoena imposes obligations on the recipient of the subpoena to comply with it: Uniform Civil Procedure Rules 2005 Pt 33 r 33.6. That obligation applied to the recipients, Ms de Jong and Ms Olofsson. The documents produced generally appear to meet the description of documents sought in the subpoenas. The Applicant pointed to what it submitted were discrepancies in what was produced as indicative that the documents supplied by the Trust officers did not meet the description in the subpoena. That submission was in part reliant on the Applicant's broader contention that general references to the Common were insufficient to establish reference to the claimed land. I address this matter in detail below but note here that I do not agree with this submission of the Applicant. 85Thirdly, the Applicant handed up a document (which I have marked as MFI 1) identifying three categories of documents which it submitted showed the documents produced by the Trust did not meet the description in the subpoenas. The first category of documents identified seven subpoenaed documents which it was submitted only referred to land other than the claimed land. As the Minister submitted, these documents were produced by bodies other than the Trust being four COPS reports produced by the police, a report to the police produced by the Department of Lands and two internal memoranda produced by the Department of Lands in 2000. The Minister did not rely on the four COPS reports identified in the Applicant's list given that the land referred to in these documents was described by reference to physical features which could not relate to the claimed land. 86The Applicant criticised documents identified in a second category described as including references to land other than the claimed land, being annual reports and management plans. Some of the annual reports were produced by the Department of Lands. That the management plans produced by the Trust officers included references to land other than the claimed land does not mean the Trust officers did not comply with the terms of the subpoenas. The management plans and annual reports applied to the whole of the Common, which must include the claimed land and other land. 87The Applicant criticised a third category of documents which referred to commons 1, 2 and 3 because there was no evidence which area of land these related to (see par 98 below). As discussed below at par 96, it became clear during the hearing that it can be inferred that common 2 was the claimed land. That a statement to D Johnston (RTB p 147) explicitly and, by implication the related receipt, (RTB p 144) refer to common 3, which is not the claimed land, does not undermine the credibility of the entire production of business records by the Trust officers. The criticisms based on the three categories of documents considered above are not sustained. 88Fourthly, the Applicant submitted that the Minister had an obligation to provide direct evidence and had failed in not calling a Trust officer or a commoner. Why that is the case is not clear. The Minister chose to rely on business records of the Trust. Direct evidence is not a requirement of Class 3 land rights cases. Given the widely differing facts of such cases what evidence is necessary to discharge the Minister's onus of proof must be determined in the context of a particular case. The Minister's approach of relying on the produced documents was not irregular in an evidentiary sense. As the Minister's counsel submitted, she was entitled to seek to prove her case in this manner. There is no failure in the Minister's conduct of the case in this regard. Further, there is no basis for a Jones v Dunkel inference against the Minister that evidence from a Trust office bearer or commoner would not have assisted the Minister's case in these circumstances. The necessary preconditions giving rise to such an inference do not arise in the absence of any failure by the Minister or the surrounding circumstances. 89In light of my findings on the four matters identified above, I consider the Minister can rely on the documents produced on subpoena to establish her case. It remains to be determined whether she has.

Use or occupation at date of claim established 90I will now consider whether the Minister has established on the balance of probabilities the use or occupation of the claimed land.

(i) Trust operating at date of claim 91As identified above in par 83, under the CM Act the Trust was required to produce an annual report including financial statements and a management plan. The business records of the Trust, produced by the Trust and the Department of Lands include all but two of the annual reports for the 2000 - 2009 period, all but one of the financial statements for the same period and three plans of management (1999 - 2000, 1999 - 2009, 2009 - 2019). There are several documents produced after the date of claim in 2009 and in 2010 identified above at par 40 - 46. While the date of claim is the relevant date at which the claim must be assessed, the Court on numerous occasions has considered events immediately after a date of claim as necessary to the consideration of the surrounding circumstances. No objection was taken to the limited number of post-claim documents produced in the Minister's bundle in any event and it is hard to see any basis for doing so. The documents after the date of claim confirm that the Trust continued to operate including through further agistment of stock (on common 3). The Common was revoked on 16 April 2010 after which the Trust was dissolved. The Minister has established that the Trust was operating up to and at the date of the Applicant's claim in light of the Trust records produced on subpoena. As the Minister submitted, the Trust held regular meetings, submitted annual reports and financial statements regularly and produced management plans and by-laws over the 10 year period of records before the Court. It is not disputed that the Common had existed since 1876.

(ii) Permissible inference of use or occupation can be made 92The period covered by the Trust records subpoenaed is 2000 to the present, which is effectively to the date of the Common's revocation on 16 April 2010. It is not necessary to establish activity on the claimed land on the precise date of claim to satisfy lawful use or occupation. It must be determined if there are specific references to the claimed land in the Trust records. Additionally, whether references in the Trust documents generally to activities on the Common should be inferred to include activity on all parts of the Common including the claimed land needs to be considered. 93The authorities relied on by the Applicant such as Gurnett, Jones v Dunkel, and Vilro identify that inferences should not be drawn on the basis of mere speculation. I was also referred to Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 which in turn referred to Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, in which the civil and criminal standards of proof were contrasted. Dixon, Williams, Webb, Fullagar and Kitto JJ stated: In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at p 678. 94In Vilro at [105] - [107] I was referred to Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 - 162 per Stephen J citing in turn Bradshaw v McEwans above and Jones v Dunkel at 305 per Dixon CJ: But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. 95In Gurnett Street CJ stated at 246 - 248 that a "guess is a mere opinion or judgment formed at random and based on slight or uncertain grounds", "an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts" and should "follow from given premises as certainly or probably true". The "mere possibility of truth is not sufficient to justify an inference". Gurnett, an appeal from a trial in a claim of negligence heard before a jury, was overturned in the High Court in Gurnett v Macquarie Stevedoring Co Pty Ltd [1955] HCA 63; (1955) 95 CLR 99 but not on this aspect. It is necessary to apply these principles where the Minister relies on inferences said to arise from the documentary evidence to determine if these are permissible in the circumstances.

Specific references to claimed land in Trust records 96In relation to whether there are specific references to the claimed land, none of the Trust records refer to the areas of the Common by lot and deposited plan numbers. Various records refer to commons 1, 2 and 3 or by proximity to other features such as for example Glennies Creek, which is not near the claimed land. Common 2 is described as being near Camberwell Hall in a record of agistment bookings from 1 March to 30 June 2006 (RTB p 131). The claimed land is common 2, a permissible inference arising from Fig 1.3 of the SEOC project environmental assessment which identifies the location of Camberwell Hall next to the claimed land. There are other references to the common near the hall, the inference arising that this means Camberwell Hall. To so infer does not require impermissible speculation or require conjecture on matters of equal degrees of probability, to draw from Bradshaw v McEwans at 5. No guessing is required (per Jones v Dunkel at 305). 97The 2001/2002 annual report (RTB p 51) refers to eight head being agisted on the common near Camberwell Hall and that common being spelled for three months. The 2004/2005 annual report (RTB p 88 - 89) states the Trust would oppose any proposal to mine the common near Camberwell Hall and hoped to repair a dam on the common near the hall soon. The 2007/2008 annual report refers to the common near the hall noting that the dams appear to be in good order (RTB p 143). 98Several agistment records refer to common 2 in terms or by physical description. The statements for agistment issued on 15 June 2004 to K Woods from 8 April to 30 June 2004 (RTB p 75) and to G Hassett from 5 June to 30 June 2004 (RTB p 74); the statement for agistment issued on 25 June 2005 to M Gale from 31 March to 30 June 2005 (RTB p 100); an undated statement to M Gale for agistment from 30 June to 30 September 2005 (RTB p 118); an undated statement to D Olofsson for agistment from 9 January to 25 February 2006 (RTB p 125); an undated invoice to C Green for agistment from 9 January to 25 February 2006 (RTB p 126); C Green's email of 14 February 2006 to the Trust applying for agistment (RTB p 124); undated records of agistment bookings from 1 March to 30 June 2006 including for bookings on common 2 (RTB p 121, 131). As referred to above at par 87 the third category of documents in MFI 1 identified ten agistment records referring to commons 1, 2 and 3 in various combinations. Common 2 is referred to in nine of the agistment documents in this category confirming use of the claimed land for agistment during 2004 - 2006. 99The 2001/2002 annual report and these agistment documents confirm that common 2, the claimed land, was used at least periodically for agistment throughout the period from 2000 to 30 June 2006 according to the undated records of agistment bookings (RTB p 121, 131). The 2004/2005 and the 2007/2008 annual reports refer to other activities intended to be undertaken or undertaken in relation to the repair and checking of dams on that lot. These records confirm that the Trust was oversighting activities on the claimed land during these period to which these documents relate.

Agistment and other records which by inference refer to claimed land 100The Minister provided a list of 38 agistment and other documents in the tender bundle purporting to relate only to the claimed land (RTB p 13, 16, 37, 44, 53, 60, 61, 62, 63, 64, 65, 66, 70, 74, 75, 78, 84, 85, 86, 100, 101, 108, 118, 119, 121, 122, 123, 124, 125, 126, 127, 131, 137, 138, 144, 152, 168, 172). A Valuer General's letter of valuation dated 18 December 2008 of common 2 and Lot 7300 was also relied on (RTB p 139). As already identified above in par 98 a number of these agistment documents do refer to common 2, the claimed land. The remainder do not mention commons 1, 2 and 3 or an area of common by proximity to other features. For some, inferences can be made that they refer to the claimed land, applying the same principles already noted in par 96 as I will now consider. 101Statements (invoices) and receipts for agistment to W Horadum for eight head from 1 July - 30 September 2000 (RTB p 37), 1 October 2000 - 30 September 2001 (RTB p 44, 53), 1 October 2001 - 30 September 2002 (RTB p 61, 62), 1 October - 31 December 2002 (RTB p 60) do not mention any specific common area. I note that the annual report for 2001 - 2002 (RTB p 51), stated that eight head were agisted on the common near Camberwell Hall, the claimed land which also had a three month spell. There was a two-year spell on the common near Glennies Creek and "The 20th July 2002 eight head cattle adjusted [sic]". An inference could reasonably be made that some of these agistments were on the common near Camberwell Hall given the content of the annual report and these agistment records. 102The receipt dated 8 July 2004 issued to K Woods for agistment fees (at RTB p 78) does not refer to a specific common area but relates to the invoice at p 75, which as identified above in par 98, refers to common 2. The statements for agistment to G Hassett from 30 June 2004 to 30 December 2004 and from 1 January 2005 to 30 June 2005 (RTB p 84 and p 101) do not refer to a specific common area. As identified above in par 98, the statement at RTB p 74 to the same person for agistment for two horses from 5 June to 30 June 2004 was on common 2 and a handwritten note on that document states that from 30 June 2004 there would only be one horse agisted. The inference therefore arises that from 30 June 2004, the agistment of one horse continued on the same land, being common 2. 103The receipt for agistment to 30 June 2005 to M Gale (RTB p 108) does not refer to a specific common area but it can be inferred that it refers to commons 2 and 3 from the related invoice at p 100 which refers to commons 2 and 3 (see par 98 above). 104A receipt to D Olofsson dated 3 February 2006 for agistment from 20 November 2005 to 25 February 2006 (RTB p 122) does not refer to any specific land. However, the undated statement to D Olofsson for agistment on common 3 (from 20 November to 31 December 2005) and common 2 (from 9 January to 25 February 2006) (RTB p 125) notes payment in full on 4 February 2006. Therefore by inference the receipt dated 3 February 2006 refers to commons 2 and 3. Another receipt to D Olofsson at RTB p 127 does not refer to a specific common area but is for agistment from 25 February to 27 April 2006 suggesting it was on common 2 as the dates for agistment on that common (which was previously from 9 January to 25 February 2006) are consecutive. 105A letter from K Miller, a commoner, to the Trust dated 14 February 2006 does not refer to the claimed land but refers to him repairing "all three dams" (RTB p 123). The inference could be made that this includes the claimed land as it has two dams (p 143). 106The remaining agistment documents do not refer to any specific part of the Common and no other document enables an inference to be drawn about which area of Common these relate to: RTB p 13, 16, 63, 64, 65, 66, 70, 85, 86, 137, 138, 144, 152, 168, 172. This means that of the 38 agistment records relied on by the Minister 15 are not able to be identified as relating to the claimed land. By inference arising from the documents considered above, the claimed land was used for agistment in the years 2000, 2001, 2002, 2004, 2005 and 2006.

General Trust activities occurred on claimed land 107In relation to whether general activities of the Trust can be inferred to have taken place on the claimed land in the absence of specific reference, the Trust records must be considered as a whole. The Court's consideration of whether general Trust activities can be inferred to have occurred on the claimed land is informed by it including in the Common and, at 25ha, is an area larger than each of the two other lots (19.9ha and 11.89ha respectively) constituting the Common. 108Relevant to identifying the nature of the Trust's activities on the Common are two memoranda of the Department of Lands in 2000 on recommended management practices for Camberwell Common. These are summarised above at par 49 - 50 and identify that restorative measures were necessary because of erosion due to overclearing and overgrazing. Measures referred to include fencing, spelling of the Common, weed and rabbit control, and reduced stocking rates. The Trust management plans are summarised at par 20 - 21 and 43, and refer to maintenance activities such as fencing repair for all commons, removal of all vehicles from the Common, improvement of the water course to dam site, repairs to dams, weed management and pasture improvement. These reports and management plans cannot provide direct evidence of activity on the Common but do provide relevant context for the activity that is referred to in the annual reports in particular. As business records of the Trust, the annual reports can be inferred to refer to the Trust's activities. 109The annual reports identify the Trust's maintenance activities on the Common on an annual basis. These reports also reflect the activities of the Trust as caretaker for the whole Common. The 1999/2000 annual report (RTB p 38, 41 - 43) states that the Common was used daily for grazing, walking and horse riding by the commoners. From the Olympic Landcare project grant of $2,500, the Trust planted 500 trees on "the common adjacent to New England Highway" and the remaining 1,500 trees would be planted on the common adjacent to Glennies Creek after fences were in place. The Trust also received a grant from Hunter Catchment Management Trust to improve management of soil erosion on the common adjacent to Glennies Creek which would be fenced into three paddocks and cattle would have limited access to the creek to prevent damage to creek banks and to improve water quality. There was a fall in patronage due to mining. 110The 2000/2001 annual report (RTB p 46 - 48) records that an annual general meeting was held on 17 September 2001 and that the Hunter Catchment Management Trust provided funds "for fencing, dams and trees". In the next financial year the Trust planned to fence, plant trees, control weeds and have a field day. 111The 2001/2002 annual report (RTB p 51 - 52) records that agistment occurred on the common near Camberwell Hall which also had a three month spell. When funds became available the Trust planned to repair the second dam wall. Fencing on that common was complete and trees planted from the Olympic Landcare project grant were growing well. The common adjacent to Glennies Creek had no stock agisted and had a two-year spell. The Trust had sent a letter to the police about motorbikes damaging the land and trees and the Trustees were in the process of padlocking all the gates. On 7 August the Trust repaired rabbit holes on the Common. 112The 2002/2003 annual report (RTB p 72) records that money was spent on the erection of a new boundary fence on the common near Glennies Creek and an "end of tree line area" was put in by the Hunter Catchment Management Trust to prevent stock damaging trees. The Trust stopped a dam on one of the commons from leaking, repaired the rabbit warrens, and padlocked the gates containing stock. It also noted that new families joined the commoners' roll. 113The 2003/2004 annual report (RTB p 79, 83) stated that the Trust's priority was to finish fencing on Glennies Creek Road, that there was an increase in commoners wanting to use the Common, and that the "land has been managed with minimal stock to preserve wildlife and natural beauty also, natural repairs by tree growth in eroding areas". The report records that Ashton Coal repaired border fencing to its property, that there was an increase in patronage numbers, and the Common was used daily for grazing, walking, horse riding, water activities, fishing and swimming. 114The 2004/2005 annual report (RTB p 87 - 90) stated that the Trust had tried to address safety, land rehabilitation and stock movement. It records that on 9 May 2005 there was rubbish on the "boundary between Ashton coal property and the common". The Trust started spraying weeds. There were no more incidents with motorbikes or vehicles on the Common since police action. The Trust reported that wildlife on the Common was plentiful, they had tourists looking at the creek and Greenpeace looking at the Common. There was an increase in commoners from the village due to a desire to preserve the area. 115There are no annual reports in evidence for financial years 2005/2006 and 2006/2007. The 2007/2008 annual report (RTB p 142 - 143) records "Glennies creek in the common area damage to trees and increase of noxious weeds" and that the Trust commenced a noxious weed control program. It reports that flood damage to Common fences was repaired, and gates were kept locked. The Trust had maintained stock levels according to the management plan "to ensure balance between native and domestic fauna and flora". In the next financial year the Trust planned to undertake a Quoll population care and protection program, plant trees and repair cattle yards and shed. 116In its 2008/2009 annual report (RTB p 153 - 155, 164 - 166), produced after the date of claim, the Trust reported changes to its by-laws made in the annual general meeting on 31 May 2009 to include keeping domestic stock at acceptable levels to prevent overgrazing, using a weed management plan and introducing a wildlife corridor to protect Spotted Quoll and other native fauna and flora. The Trust stated that it had received and spent $1,500 from the State Government for noxious weed control, undertook white ant control on the fences and loading race, maintained the loading race and repaired boundary fences. The Trust planned to change the use of the Common to ensure co-existence between domestic and native species and to continue reporting on the existence of endangered species. 117Financial reports for the Trust for the years 1999/2000 to 2008/2009 except for 2006/2007 identify income from commoners' fees which relates to membership of the whole Common. Agistment fees, some of which relate specifically to the claimed land, are also identified. These records further support the inferences arising from the annual reports concerning the agistment activities referred to and also confirm the number of commoners. 118As identified above at par 85, the Minister did not rely on four of the five COPS reports as they clearly related to the other common lots such as the northern lot bounded by Glennies Creek. That leaves one COPS report (dated 9 May 2005). It does not identify the land where rubbish was dumped in a way that identifies which common area is its subject. 119Speculation or conjecture is not permissible to fill gaps in evidence, as identified in the authorities at 93 - 95 above, and inferences must not be drawn on the basis of vague and uncertain material. The Trust business records reflect the fact that the Trust was responsible for the management of the whole Common, informed by its management plans which in turn were informed by the Department of Lands' memoranda in evidence. The content of the annual reports produced under subpoena, summarised above, contain numerous references to maintenance activity on the Common as a whole including weeding, fence and dam repair, rabbit hole repair, managing stock movements, white ant control, reporting endangered species, creating a wildlife corridor, and tree planting generally on the Common. Such activities accord with the Trust's responsibilities under the CM Act. The two management plans 2000 - 2009 and 2009 - 2019 refer to the conduct of maintenance activities in part directed to the conservation of the Common, as outlined in par 21 and 43 above. 120The Trust's annual reports identify activity on the Common as a whole for the period of the subpoena, being 2000 to 2010. The annual reports for 1999/2000 and 2003/2004 specifically identify use of the Common for recreation, grazing, water activities such as swimming and fishing, and horse riding. These activities are described as occurring daily. 121Numerous references in the annual reports are made to other areas of the Common that are not the claimed land, for example, several references to the area near Glennies Creek in the 1999/2000, 2001/2002, 2002/2003 and 2003/2004 financial years. The Applicant in its submissions submitted that none of the 2007/2008 and 2008/2009 reports are referrable to the claimed land which submission I do not accept given my finding that reference to general maintenance activities of the Trust can be inferred to include activity on the claimed land. It is not surprising that other areas of the Common would be referred to in the Trust's records. These references do not undermine the inferences that can be validly made concerning the claimed land. 122The Applicant submitted that the Trust records provided indirect evidence at best and required the formation of inferences which were not well founded and therefore impermissible because of conflicting and vague material. It also submitted that the Trust records give rise to the possibility only, rather than probability, that the claimed land was being used or occupied as a large part of the Common to which the Trust records relate (see par 73 - 77 above). I consider the general references to the Trust's activities on the Common can be inferred to apply to the claimed land given the nature of the Trust's caretaker activities such as fencing, weeding, tree planting and dam repair over the Common as a whole. I do not consider the Applicant's criticism of the Trust records as being vague or uncertain is warranted. The Trust records do not give rise to a gap in the evidence which impermissible speculation is necessary to fill. Contrary to the Applicant's submission that the Minister's inferences based on the Trust documents arise from impermissible speculation, I consider the inferences the Minister asks the Court to draw are properly informed by the contents of the Trust records viewed as a whole which are probative of the facts in issue. To so conclude is not guesswork or conjecture. I consider this evidence can give rise to the permissible inference that references to the Common include the claimed land and that maintenance activity referred to can be inferred to have occurred on the claimed land. 123In addition, use of the Trust for passive recreation by commoners can be inferred to have occurred intermittently at the very least across the whole Common which includes the claimed land. The 1999/2000 and 2003/2004 annual reports refer specifically to such activities occurring on a daily basis. 124In summary, the specific references to the claimed land in some of the Trust agistment records, the inference of activity on the claimed land in relation to other agistment and other records, the inference of the carrying out of general maintenance activities by the Trust on the claimed land and passive use of the claimed land by commoners give rise to the permissible inference that the Trust was using or occupying the claimed land during the ten year period the subpoenaed documents relate to.

(iii) Recent use or occupation established 125Establishment of use or occupation must be at the date of claim although need not literally be on the particular day. The Minister relied on the principle of continuance identified in Cloverdell Lumber at 137 per Isaacs J. That case concerned a retrospective presumption in relation to certain facts evidencing an earlier circumstance. In Cross on Evidence at [1125] a number of authorities are cited in support of the prospective application of a principle of continuance whereby the existence of certain facts at a point in time gives rise to the assumption that these continue in the absence of any evidence to the contrary. The Minister relied on a number of documents produced which related to 2007 - 2009, set out in par 59. 126The Applicant submitted there was no evidence of recent use or occupation of the claimed land. The Applicant's written submissions at par 4.17 identified five documents which it submitted was the relevant evidence filed by the Minister concerning the use of the entire Common near the date of claim being: (1)A receipt for agistment of cattle to K Miller dated 1 August 2006 to 30 June 2007 (RTB p 138) (2)An invoice from R & M Moore Rural Support Services dated 26 May 2008 (RTB p 140) (3)A financial statement for 2007/2008 with the balance as at 1 July 2007 (RTB p 141) (4)A receipt for agistment of three horses from 20 December 2008 to 14 March 2009 to D Johnston (RTB p 144) (5)The Trust's 2008/2009 financial and annual reports (RTB p 154, 162, 167) 127The Minister's list of documents in par 59 includes a reference to Trust activities in the 2007/2008 annual report such as weed control and fence repair. That document, in reporting that the dams on the Common are in good order and "two on common near hall are spring feed", refers to the claimed land. The Minister identified a couple more records than the Applicant referring to activities in 2008/2009. Evidence of Trust activity continuing during 2008/2009 (the date of claim) is identified in the annual report for that period. This refers to the maintenance work of noxious weed control utilising a State Government grant, pest treatment of fencing, and boundary fence repairs. Weed control is further confirmed by the purchase of weedicide. I infer that the Trust was actively managing the Common including the claimed land at the date of claim. Such records continue after the date of claim into 2010. It can be properly inferred that general Trust activity occurred on the claimed land in the 2008/2009 financial year. To the extent the principle of continuance is relevant or necessary it can be relied upon by the Minister given this and earlier evidence of use or occupation identified in the previous sections. I make this finding aware that there is no specific record of agistment on common 2 in the 2008/2009 year. The only agistment records for D Johnston relate to common 3. There is no evidence that the Common including the claimed land was abandoned or neglected immediately before the date of claim.

(iv) Use or occupation not nominal or notional at the date of claim 128The Applicant submitted, relying on Daruk and Nowra Brickworks, that the use or occupation, if any was proved, was notional and therefore not sufficient to establish lawful use or occupation (see par 68 above). Priestley JA in Daruk stated (at 162) that occupation under s 36(1)(b) did not refer to constructive occupation but in this context meant "'actually occupied' in the sense of being occupied in fact and to more than a notional degree." His Honour said at 164 that the same considerations applied to the meaning of "used", leading him to the conclusion that it meant "'actually used' in the sense of being used in fact and to more than a merely notional degree." Sheller JA (with whom Clarke JA agreed) in Nowra Brickworks at 119G referred to Priestley JA's statements in Daruk (at 162 and 164) and stated at 121B - C that the "use must be more than notional and be present use when the claim is made rather than contemplated or intended use". Sheller JA at 121E commented that the purpose for which the land is claimed to be used is relevant to determining whether the land is being lawfully used within the meaning of s 36(1)(b). His Honour continued, "the purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense". Priestley JA at 108D - E agreed that "purpose must be taken into account when the question whether land is actually being used in more than a nominal sense is being considered." The terms notional and nominal appear to be used interchangeably in much of the case law. 129The High Court and the Court of Appeal have more recently considered what is required to satisfy use or occupation. In Wagga Wagga, the majority (Hayne, Heydon, Crennan and Kiefel JJ) at [69] (quoted above at par 78) did not refer to whether use or occupation was nominal or notional. Kirby J did in his separate judgment at [29] - [32] in obiter. His Honour stated at [29] that the requirement for use beyond a notional degree, introduced by the Court of Appeal in interpreting the ALR Act, was correct as it furthered the beneficial and remedial purposes of that Act. His Honour said at [30], "This approach addresses the physical use of the land rather than a purely notional, potential, contingent or future 'use' or a 'use' which has not yet been translated into any actual physical use". It was supported by the contextual and purposive construction of the ALR Act and, specifically, by the narrow interpretation of the exceptions to claimable Crown land in s 36(1) (at [30]). At [31] Kirby J agreed with earlier Court of Appeal decisions which held that mere proprietorship was insufficient to establish use or occupation. His Honour stated that "used" meant "'actually used' or 'used in fact', not merely used in 'a nominal sense' or to a 'notional degree'" and therefore that this excluded a contemplated or intended use, citing Priestley JA in Daruk (at 164) and Priestley and Sheller JJA in Nowra Brickworks (at 108, 119 and 121). 130In Bathurst, Tobias JA in obiter at [121] referred to Kirby J in Wagga Wagga at [30] and observed at [158] that is difficult to identify what is an actual physical occupation that is nominal or notional. His Honour observed at [160] that although the plurality did not express a view on this topic, it could be considered as subsumed in their Honour's reasoning at [69]. Tobias JA preferred Kirby J's approach "to the effect that a notional or nominal use or occupation is one which is not an actual use or occupation but only one which is constructive", as it accorded with the statutory text (at [160]). Tobias JA recognised that this approach conflated the two concepts of nominal or notional use or occupation and future or constructive use or occupation, which did not follow from Priestley JA's approach in Daruk (at [159]). Nevertheless, following the Court of Appeal's decisions on the topic, his Honour stated that what is required is a present actual use or occupation which is more than de minimus. That is, "the relevant use or occupation must in the circumstances of the particular case, and in terms of its nature, quality and extent, be of some substance rather than so miniscule, insignificant or token as to be disregarded" (at [160]). 131Basten JA did not discuss the issue in detail (see [255] - [256]). Ipp JA, in dissent, stated that given the plurality's reasoning in Wagga Wagga at [69] - [70], the "use to a notional degree" requirement could not be regarded as "an absolute or essential element of use or occupation within the meaning of s 36(1)(b)." Applying the plurality in Wagga Wagga Ipp JA accepted (at [55]) that "the facts and circumstances of a particular case may be such that the fact that the degree of physical activities is slight may be relevant in determining whether land is used or occupied". 132I do not need to consider all aspects of this reasoning in order to resolve this matter as here there was physical activity taking place on the land at the date of claim, not a future or intended use. To borrow from the majority in Wagga Wagga there is legal possession and conduct amounting to actual possession. On one view that is a sufficient finding of use or occupation in light of the majority decision in Wagga Wagga. On another view, in light of Court of Appeal authority in Daruk inter alia, which was not addressed by the majority in Wagga Wagga, and more recently Tobias JA in Bathurst, whether this use or occupation is nominal or notional remains to be considered. The answer must depend on the nature of that use or occupation (Daruk at 163 per Priestley JA, Bathurst at 161 per Tobias JA). The claimed land is a relatively large area of approximately 25ha and part of a common totalling 57.67ha. The number of commoners who paid fees varied over time from 2002 to 2009, when the claim was lodged, from 13, 9, 13, 15, 7, 3 to 8. The range of uses of the Common by commoners included passive uses, such as recreational activities like walking and horse riding and preservation for conservation purposes, and periodic grazing of stock for which a charge was levied and a record of the use kept in the Trust records. It is reasonable to describe the use of the Common as intermittent and deliberately passive at times to accommodate protective measures as reflected throughout the ten year history of the Trust records before the Court. That is the relevant context in which to consider the Applicant's submission. 133The Applicant submitted that the use of the claimed land was diminishing over time due to the encroachment of mining related activity by Ashton Coal. Two particular instances were relied on. The 2004/2005 annual report records rocks being blasted out of the Ashton Coal mine and landing on the Common on 15 October 2004. The 2008/2009 annual report states that in July 2009 a domestic animal was killed and a commoner had a fall after Energy Australia, which had been given authority to remove low voltage lines by Ashton Coal, left cables and domestic terminal boxes on the ground. The Trust had not been informed about Energy Australia entering the Common. These two discrete incidents alone do not suggest diminishing use of the land. 134The buying up of 33 properties in Camberwell by Ashton Coal, referred to in the SEOC project environmental assessment, thus reducing the pool of potential commoners was also relied on by the Applicant as further evidence of the reduction in use of the Common. The number of commoners varies over the time period of the documents produced. Several (eight) commoners remained on the commoners' roll at the date of claim. If the activity on the Common was diminishing up to the date of claim there is no basis for concluding that it was minimal in light of the activity identified in 2008/2009 and in the context of the overall nature of activity on the Common since 2000 being intermittent and partly passive in nature. This level of activity is not "so miniscule, insignificant or token as to be disregarded" per Tobias JA in Bathurst at [160]. While the Applicant relied on Berowra, affirmed on appeal, where Sheahan J held that limited, casual and sporadic activity did not establish use or occupation in that case, whether a finding of insufficient use or occupation is made must depend on the facts of each particular case.

(v) Land swap does not affect conclusion 135The Applicant also submitted that the land swap agreed in 2003 (between the Trust, White Mining, Hunter Rural Lands Protection Board and the Minister) and legally effected after the date of claim in 2009 added further uncertainty to the evidence in the Minister's case. This submission was underpinned by other arguments made about uncertainty in the Trust records referring to the claimed land which I have not accepted above, particularly given the inference that the claimed land was common 2. The details of which lots were swapped is identified at par 3. A relevant consideration is that the lot swapped was not the claimed land but one of the northern contiguous lots. 136Reference to the land swap arrangement in the Trust records in evidence is not extensive. The 2001/2002 annual report stated that the Trust received a proposal from White Mining for a land swap. The 2002/2003 annual report referred to the land swap and that the Trust expected to take over the new common next financial year. The 2003/2004 annual report stated the new common was awaited, giving rise to the inference that this occurred after that date. In 2008/2009 the annual report stated that the land the subject of the land swap was still under the title of Ashton Coal. This evidence does not cause me to review my earlier findings that there is direct and inferential evidence of activity on the claimed land in the period from 2000 to 2009, even assuming the Trust took over the new lot from 2005 in the absence of any specific evidence of that fact.

Conclusion 137I consider the Minister has discharged the onus of proof necessary to establish that the claimed land was not claimable Crown land under the ALR Act at the date of claim. 138It is unnecessary to consider the balance of the Minister's arguments that the claimed land was needed for the asserted essential public purposes of coal mining and/or partly for access (road widening). Accordingly, the affidavits read and further evidence tendered on these issues need not be referred to. 139The Applicant's appeal should be dismissed.

Orders 140The Court makes the following orders: 1.The Applicant's appeal under s 36(6) of the Aboriginal Land Rights Act 1983 is dismissed. 2.Costs are reserved. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 July 2012