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

Court of Appeal (NSW)|2014-05-28|Before: Beazley P, Basten JA, Preston CJ

Lands Act (Nambucca (No 2)) [2008] NSWLEC 13 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1 Re Reference under Ombudsman Act, s 11 (1979) 2 ALD 86 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (2013, 5th ed, Lawbook Co) at [6.150]

D Greenberg, Craies on Legislation (2012, 10th ed, Sweet & Maxwell) at [12.4.3]

NSW Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986, at 2042 Category: Principal judgment Parties: New South Wales Aboriginal Land Council (First Appellant) Worimi Local Aboriginal Land Council (Second Appellant) Minister Administering the Crown Lands Act (Respondent) Representation: Counsel: Mr J Kirk SC/Mr M Wright (Appellants) Mr S Lloyd SC/Ms V McWilliam (Respondent)

Solicitors: Chalk & Fitzgerald (Appellants) Crown Solicitor's Office (Respondent) File Number(s): CA 2013/295855 Decision under appeal Jurisdiction: 9106 Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148; 198 LGERA 122 Date of Decision: 11 September 2013 Before: Pain J File Number(s): LEC 2010/30913

HEADNOTE [This headnote is not to be read as part of the judgment] A claim to Crown land made by an Aboriginal Land Council was rejected because the Minister was said to have held the opinion (at the time of the claim) that the land was needed, or likely to be needed, as residential lands: Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b1). In proceedings brought by the appellant in the Land and Environment Court, the evidence did not establish that the Minister personally held that opinion. Nevertheless, the trial judge (applying the Carltona principle) found it was sufficient that the requisite opinion under s 36(1)(b1) was held by departmental officers. The Court (Beazley P, Basten JA, Preston CJ of LEC) held, allowing the appeal:

The Minister must personally form the necessary opinion under s 31(1)(b1) to preclude an otherwise successful land claim. The nature and beneficial purpose of the statutory scheme under the Aboriginal Land Rights Act, the subject matter of the opinion that needs to be formed and the absence of an express power to delegate militate in favour of such a construction: [23]-[24], [27], [30]-[31], [33]-[34], [36]
The Carltona principle is unavailable to assist a construction of s 31(1)(b1) allowing the requisite opinion to be held by a departmental officer. Practically, it would have been difficult to establish any departmental officer had the necessary authority. More fundamentally, the statutory scheme did not permit the application of the Carltona principle where what is involved is the formation of an opinion rather than routine, administrative action: [43]-[45] Carltona Ltd v Commissioner of Works [1943] 2 All ER 560; O'Reilly v State Bank of Victoria Commissioners [1983] HCA 37; 153 CLR 1; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 considered.

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the reasons of Basten JA. I agree with his Honour's reasons and the orders he proposes. 2BASTEN JA: On 24 August 2009 the Worimi Local Aboriginal Land Council lodged a claim over an area of land near Nelson Bay on the central coast. The Minister rejected the claim, relevantly for present purposes, on the basis of an opinion that the land was needed or likely to be needed as residential lands. The New South Wales Aboriginal Land Council ("the State Land Council") lodged an appeal in the Land and Environment Court. The appeal was heard by Pain J, being dismissed on 11 September 2013: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nelson Bay) [2013] NSWLEC 148; 198 LGERA 122. From that judgment the State Land Council appealed to this Court, such an appeal being limited to an order or decision of the Land and Environment Court on a question of law: Land and Environment Court Act 1979 (NSW), s 57(1).

Issues 3The issues raised on the appeal involve the proper construction of s 36(1)(b1) of the Aboriginal Land Rights Act 1983 (NSW). Section 36(1) provided at the time of the claim (and without subsequent amendment): 36 Claims to Crown lands (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose. ... 4The evidence before the trial judge did not establish that the Minister held the relevant opinion at the time of the claim. The trial judge stated at [258]: "For the Minister to succeed the Court must be satisfied that under the Carltona principle an officer or officers carrying out relevant departmental functions to sell the claimed land held the opinion that the land was likely to be needed for residential land in August 2009." 5The State Land Council challenged that proposition as legally erroneous. It argued that: (a) the necessary precondition for rejecting the claim required the opinion to be held by the Minister personally; (b) the Carltona principle did not permit the section to be construed as if it were sufficient for such an opinion to be held by a departmental officer, (c) the Minister did not hold an opinion at the relevant time which was capable of satisfying the statutory language, and (d) in any event, there was no evidence capable of supporting the finding that any relevant officer held such an opinion. 6Each of submissions (a) and (b) should be accepted and (c) was not in dispute, with the consequence that the appeal must be upheld and the judgment below set aside. It is not necessary to decide the issues raised by (d). 7The Minister also argued below that the claim should be rejected because the land was needed for the essential public purpose (see s 36(1)(c)) of nature conservation and, as to parts, for "electricity distribution" and "drainage overflow". The letter refusing the claim did not refer to the essential public purpose of "nature conservation" although it appears to have been identified as an issue at trial. In any event, it is common ground that the matter must be remitted to the Land and Environment Court for the determination by that Court of outstanding issues. 8Because it is not in dispute that the Minister did not personally hold the relevant opinion with respect to the land as at the time of the claim, it is convenient to deal first with the construction of s 36(1)(b1) and the operation of the Carltona principle.

(a) general principles 9The natural and ordinary meaning of par (b1) is to exclude lands as to which a Crown Lands Minister has formed an opinion that they are needed or likely to be needed as residential lands. This language is to be contrasted with the language in (b) and (c), each of which excludes lands from being claimable Crown lands on the basis of facts or circumstances attending the lands at the time of claim. Thus, when the court hears an "appeal" from the refusal of a claim, it is the court which must be satisfied that the lands are lawfully used or occupied or needed or likely to be needed for an essential public purpose, in order to uphold the refusal of the claim. (The Minister bears the onus of proof in that regard: s 36(7).) However, in dealing with par (b1), it is not for the court to be satisfied as to the need of the lands as residential lands, but only to consider whether or not a Crown Lands Minister held the relevant opinion at the time of the claim. Subject to the availability of a power to delegate or authorise an agent, it is the opinion of the Minister himself or herself to which the statute attaches the significant consequence that particular lands vested in the Crown are not claimable Crown lands. 10In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nambucca (No 2)) [2008] NSWLEC 13, Jagot J noted the reference to the opinion of "a" Crown Lands Minister, suggesting that the indefinite article "reflects the fact that the Minister who formed an opinion may be different from the Minister determining the claim": at [72]. That the Minister may be a different individual is undoubtedly true: however, the definite article would not have been inappropriate. The reference to "a" Crown Lands Minister is more likely to reflect the fact that the administration of the Crown Lands Act 1989 (NSW) and of the Western Lands Act 1901 (NSW) might not be vested in the same person: if not, the identity of the relevant Minister would be determined by the location of the land. 11The Minister relied, both at trial and on appeal, on the principle of statutory interpretation known as "the Carltona principle", after the English Court of Appeal decision of Carltona Ltd v Commissioner of Works [1943] 2 All ER 560. Both the scope and status of the principle are uncertain. The principle is usually treated as one of statutory interpretation, although it may apply to prerogative powers. On the other hand, many standard texts on statutory interpretation do not mention it. Some statements of the principle in English law seem to assume its application as a matter of presumption in the absence of indications to the contrary: see, eg, Director of Public Prosecutions v Haw [2008] 1 WLR 379, at [33] (Lord Phillips CJ); D Greenberg, Craies on Legislation (2012, 10th ed, Sweet & Maxwell) at [12.4.3]. Statements in this country suggested that its application is a question of inference from the subject matter, scope and nature of the power or function in question. 12The underlying principle is that where a power or function is conferred on a Minister, in circumstances where, given administrative necessity, Parliament cannot have intended the Minister to exercise the power or function personally, an implied power of delegation (or agency) may be inferred. 13In Australia, statements of the principle are derived from administrative law cases. One early statement is found in a case concerning the powers of the Commissioner of Taxation to give notice in writing to individual taxpayers, being O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1. The case was not concerned with the powers of a Minister, but the powers of the Commissioner. Further, although the Commissioner had statutory powers of delegation, the Deputy Commissioner in a particular State did not. The first question upon which members of the Court focused was whether the principle identified in Carltona could extend to persons who were statutory office holders, but not Ministers. All members of the Court were satisfied that it could, on the basis of "administrative necessity". 14The second question, which flowed from the answer to the first, was whether some principle of implied agency conferred on authorised officers within the department, would operate where there was a statutory power of delegation. In Re Reference under Ombudsman Act, s 11 (1979) 2 ALD 86 at 94, Brennan J had said that "[t]he practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other." In O'Reilly, Gibbs CJ (with whom Murphy J agreed) appears to have treated that proposition as too absolute (at 12), whereas Mason J was inclined to apply it, although he was not required to reach a final conclusion: at 20-21. Wilson J held that "practical administrative necessity" was satisfied because a Deputy Commissioner had no power of delegation: at 32. 15Two other points of principle may be derived from O'Reilly: first, Gibbs CJ (at 12) noted that the exercise of the power in question "will be likely adversely to affect rights of individuals." The Chief Justice continued: "This is a reason for inclining in favour of the view that it must be exercised personally." 16Mason J (at 18), after noting the power of delegation, considered that there was "neither a need nor a basis for implying an authority in officers of the Department to exercise powers and functions of the Commissioner, at least when the exercise of the relevant power or function involves the exercise of a discretion or the formation of an opinion." He continued: "Apart from any exercise of his power of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising a statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of the discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing a notice." 17Three aspects of this reasoning (which will be developed further below) are relevant to reading an implied agency into the condition identified in s 36(1)(b1). First, there is an express power of delegation conferred on the Minister administering the Aboriginal Land Rights Act, by s 243, in relation to the exercise of any of that Minister's functions. Secondly, the formation of the opinion has the effect of precluding Aboriginal Land Councils from claiming Crown lands on behalf of their members, thus removing a beneficial entitlement created to address the wide dispossession of Aboriginal people of their lands following British settlement of New South Wales. Thirdly, the issue relates to the formation of an opinion. (More will be said shortly about the nature of the opinion.) 18Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 considered the nature of the power conferred on a Minister under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the NT Land Rights Act") to grant land to a land trust for the benefit of traditional owners. The respondents asserted that in exercising his functions under the Act, the Minister had failed to consider the extent to which the respondents would be detrimentally affected by the grant. The Minister acted on the recommendation of the Aboriginal Land Commissioner, who had conducted an inquiry to determine that there were traditional Aboriginal owners of the land in question and the question of detriment to those holding interests in the land. Following the Commissioner's report, submissions were received from the respondents as to the question of detriment, which the Minister was bound to consider. 19On the hearing before the High Court, the Minister raised an issue which had not been relied upon before the Federal Court, namely that he had delegated the function of considering the detailed submissions to officers in his Department, a course which he submitted satisfied the requirement of consideration. The submission was dismissed on the basis that it might have been answered by evidence if raised at trial: at 39. However, before dismissing the submission, Mason J addressed the legal basis of the submission. Noting that there was a statutory power of delegation conferred on the Minister, but not exercised in the present case, Mason J continued at 37-38: "The presence of an express statutory power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others. By way of illustration there are cases which establish that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his Department: Carltona .... This principle partly depends on the special position of constitutional responsibility which Ministers occupy and on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally: O'Reilly .... The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him." 20Mason J then proceeded to apply that principle to the power to grant land to traditional Aboriginal owners under the NT Land Rights Act, continuing, at 38: "However, there is nothing in the nature, scope and purpose of the power conferred by s 11, or in the context in which it is to be found, that makes it susceptible to this treatment. The Minister's function under the section is a central feature of the statutory scheme. Exercise of the power has important consequences, not only for the Aboriginals who will benefit from a grant of land to a Land Trust, but for others who may suffer detriment by reason of interference with their interests as a result of land being so granted." 21The NT Land Rights Act conferred functions on the Aboriginal Land Commissioner to determine whether there were traditional Aboriginal owners, the strength of their connection with the land and the detriment to others having interests in land if the land were granted: s 50(1) and (3). The powers of the Minister under s 11 to make the grant only arose in circumstances where the Commissioner had provided a report. The Minister was then required to be satisfied that the land or part of the land should be granted. There was no statutory obligation on the Minister to consider submissions from parties who might be detrimentally affected but who, as in the case of Peko-Wallsend, had failed to reveal significant circumstances to the Commissioner. Mason J held that the fact and nature of the inquiry to be conducted by a Commissioner who was a judge of the Supreme Court of the Northern Territory supported the conclusion that the Minister's function was to be exercised by him personally unless delegated pursuant to the statutory power of delegation: at 38-39. 22The reasoning of Brennan J was to similar effect, although he noted that it was necessary and appropriate for the Minister to rely upon departmental analysis, evaluation and précis to inform him of matters which were contained in submissions: at 65. Brennan J continued at 66: "Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision."

(b) application to s 36(1)(b1) 23Bearing these authoritative statements of principle in mind, there are several factors which militate in favour of the conclusion that the exclusion of Crown land from the category of claimable Crown land, based on the Minister's opinion that it was needed or likely to be needed as residential lands, required the Minister himself or herself to form the relevant opinion. 24The first consideration turns on the combined effect of the specific Minister whose opinion is in issue and the statutory structure for holding, managing and dealing with Crown lands. Perhaps curiously, the definition of "Crown Lands Minister" in s 36(1) has not been amended since the Crown Lands Consolidation Act 1913 (NSW) was replaced by the Crown Lands Act 1989. Nevertheless, it is not in doubt that the relevant Minister is the Minister administering the Crown Lands Act. That Minister has the primary responsibility for making decisions to grant or refuse claims under the Aboriginal Land Rights Act: s 36(5). However, forming an opinion under s 36(1)(b1) is an exercise of his responsibilities as the Minister administering the Crown Lands Act. His responsibility under that Act is described as "achieving the objects of" the Act: s 12(1). Those objects are set out in s 10: 10 Objects of Act The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for: (a) a proper assessment of Crown land, (b) the management of Crown land having regard to the principles of Crown land management contained in this Act, (c) the proper development and conservation of Crown land having regard to those principles, (d) the regulation of the conditions under which Crown land is permitted to be occupied, used, sold, leased, licensed or otherwise dealt with, (e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and (f) the collection, recording and dissemination of information in relation to Crown land. 25In carrying out the first object, the Minister is responsible for causing a program for assessment of Crown land to be instituted: s 30(1). The land assessments to be carried out under Pt 3 of the Crown Lands Act include "an assessment of the capabilities of the land" and "identification of suitable uses for the land and, where practicable, the preferred use or uses": s 30(2). The assessment of the capabilities of land covers various purposes, including "residential purposes": s 32(2). In identifying suitable and preferred uses, an assessment must have regard, amongst other things, to "the views of any government department, administrative office or public authority which has expressed an interest in the land": s 33(1). Under Pt 4 of the Act the Minister has power to dispose of Crown land and grant interests in respect of Crown land: s 34. However, subject to exceptions, the Minister is required not to exercise such powers unless satisfied that the land has been assessed under Pt 3. 26Although the Minister is not expressly required to deal with Crown land in accordance with the assessment, the land assessment process, which may include public participation, and is a primary object of the Act, is critical to the manner in which the Minister exercises functions under the Crown Lands Act. Importantly, the process of assessment is likely to reveal the views of other departments as to the proper use or preferred use of any Crown land. The Crown Lands Minister will therefore be privy to disputes between departments interested in land for environmental protection, for mining, for industrial use or for residential development, amongst other common purposes. It is to be expected that some land will be the subject of conflicting potential uses, which may be resolved in some cases only at ministerial level, by Cabinet or a consultative process between the responsible Ministers outside Cabinet. Thus, subject to statutory powers of delegation, Parliament may well have expected that decisions as to the use of particular Crown lands where a particular use has reached the level of a need or likely need for the land for that purpose, would be made by the Minister personally. 27Secondly, both the historical purpose and structure of the Aboriginal Land Rights Act militates in favour of an opinion being exercised personally by the Minister. The beneficial purpose of granting land to Aboriginal claimants has already been adverted to. It is discussed in more detail, in earlier decisions: see Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 (the Wagga Wagga Motor Registry claim) at [45]; see also Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B (Kirby P), adopted in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 at 117B-C (Sheller JA); Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; 50 NSWLR 665 at [53]-[54] (Spigelman CJ); NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 at [20]-[21] (Mason P). (A comparison of the approaches adopted in NSW, under the NT Land Rights Act and under native title may be found in Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 at [217]-[224].) 28The historical purpose of the legislation is complemented by the nature of the rights conferred by the Aboriginal Land Rights Act. As noted by Hope JA in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 ("Winbar No 3") at 694: "... [T]he Act does not in terms expressly confer a right in the land on the applicant at the time the claim is made. It envisages that there will be an investigation by the Minister of the facts and if the facts establish that the conditions in the definition are satisfied the Minister is then bound to grant the claim. If the Minister refuses, the court on appeal again investigates the same matters but the onus is put on the Minister. As it seems to me, assuming the conditions were in fact satisfied, the Land Council did not merely have a right to have its claim investigated; it had a right to have the claim granted. If the Minister wrongly refused to grant it, it had the right to have the Court grant it. The right might be said to be a conditional one, namely, conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional." 29Where legislation confers a right to a grant of land, subject to a condition which depends upon the opinion of an identified Minister, one would not expect the right to be forestalled by the decision of a departmental officer acting without express statutory authority. 30Thirdly, the subject matter of the opinion favours a personal decision by the Minister. It involves giving effect to a public purpose, albeit one held not to fall within the category of an "essential public purpose". It is, however, a purpose which involves high government policy. If lands are needed or likely to be needed for residential use, one may expect that they will be devoted to that use forthwith or in the near future. Use of land not previously so used for residential development is likely to attract a need for public and private infrastructure including roads, drainage, water supply, sewerage, power, telecommunications and other services expected by those who will occupy residential lands. This will require zoning by the relevant local government authority and almost certainly a commitment of public resources. Accordingly, the nature and subject matter of the opinion favour a construction of the statute which requires the opinion to be formed by the Minister. 31Fourthly, and in part consequentially upon the previous consideration, the nature of the opinion is markedly different from that which might arise with respect to the circumstances of individuals who may be applicants for welfare benefits or recipients of tax assessments or in any other of a multitude of respects subject to government decision-making. Where such decisions are, almost nominally, conferred on a Minister, with every expectation that the exercise of the relevant function will be delegated through some means, quite different considerations will apply. For example, the numerous provisions in the Migration Act 1958 (Cth) which empower the Minister to consider and grant or refuse to grant a multitude of different visas could not be intended to be exercised by the Minister personally. On the other hand, some provisions expressly state that the decision must be taken by the Minister acting personally: see, eg, s 502. Such a provision confirms that other decisions as to individual applications will not usually be dealt with by the Minister personally. The reason why such an expectation arises may adequately be reflected in the phrase "administrative necessity" referred to above. 32The Court was taken to no material which demonstrated that Parliament (or the Minister who presented the bill to Parliament) would have expected the Minister to be unable to form the necessary opinions from time to time. As explained by Brennan J in Peko-Wallsend, that is not to say that the Minister would not be dependent upon departmental officers for advice and information. 33Fifthly, the comparison with other provisions within s 36(1) is instructive. Paragraph (b1) was introduced in 1986, presumably on the assumption that residential use did not constitute an "essential public purpose" within par (c): NSW Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1986, at 2042; La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 183 (Bannon J). The legislature thus made a clear choice not to add a precondition which might be the subject of objective assessment by the court, but rather a precondition formulated by reference to ministerial opinion. Such an opinion will not be unreviewable by the courts, although the grounds of review will be more limited than the range of considerations which would be considered if the court were formulating its own opinion on the matter: see, eg, Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 ("Nambucca No 3") at [33]. 34Sixthly, there is no express power of delegation with respect to decisions of the Crown Lands Minister under the Aboriginal Land Rights Act. As was noted in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; 171 LGERA 56 ("the Berowra claim") at [64]-[65], the express power of delegation in the Aboriginal Land Rights Act, s 243, confers a power of delegation on the Minister administering that Act and not on the Crown Lands Minister with respect to functions under that Act. The equivalent power of delegation in the Crown Lands Act, s 180, refers to the Minister's functions under that Act or the Crown Lands (Continued Tenures) Act 1989 (NSW), but not the Aboriginal Land Rights Act. 35It is true that par (b1) was introduced into the Aboriginal Land Rights Act by way of amendment in 1986, so that it could have been an oversight that s 180 did not extend to the functions of a Crown Lands Minister under that provision. On the other hand, the Crown Lands Minister has always had the critical function of granting or refusing to grant claims pursuant to s 36(5), with additional important powers under other provisions in s 36. It cannot have been an oversight to fail to confer a power of delegation with respect to those functions of the Crown Lands Minister: the better view is that, when enacted, it was intended that the Crown Lands Minister exercise the functions conferred by s 36 personally. The formation of the relevant opinion under s 36(1)(b1) is of the same kind as the function conferred under s 36(5), namely to act in a matter which will permit or deny the grant of land. Given that similarity in the functions, there is no basis for inferring that the absence of a power of delegation in the Crown Lands Minister with respect to functions under the Aboriginal Land Rights Act was not an informed and deliberate choice. That conclusion militates strongly against the propriety of inferring some implied power to authorise agents to act on the Minister's behalf. 36The combination of these factors demonstrate that it was only the opinion of the Minister personally, taken no doubt on the basis of information and advice supplied by departmental officers, which could preclude a successful land claim under s 36(1)(b1).

(c) reasoning of trial judge 37The trial judge came to a different conclusion, relying upon three propositions for the conclusion that the Minister's opinion could be one formed by a departmental officer and did not need be an opinion held by the Minister personally. First (though not in order of consideration), the trial judge adopted a statement in M Aronson and M Groves, Judicial Review of Administrative Action (2013, 5th ed, Lawbook Co) at [6.150] that "Carltona is essentially an interpretative principle, which can therefore be overcome by express words or by implication": at [246]. The judge then noted that "[t]here are no express words or words giving rise to an implication in the [Aboriginal Land Rights] Act or the [Crown Lands] Act that overcome the application of the Carltona principle." 38Two points may be made with respect to this passage: first, it is by no means clear that the authors intended to say that in all cases where power is conferred on a Minister it will be presumed that the Minister can act through the agency of departmental officers, absent a sufficient statutory indication to the contrary. Thus at the end of the following paragraph, the authors stated: "It is interesting to note that some decisions seem to have adopted as their starting point a presumption in favour of the power to act through a Carltona agent, at least where the relevant action is relatively routine, administrative or non-discretionary." That passage is not consistent with the inference drawn by the trial judge from the earlier passage. Further, in the footnote (75) the authors noted that the presumption was "reversed where the power is liable to impact on a personal right or freedom". In short, it may be doubted whether the interpretative principle is engaged where what is at stake is not an action (but an opinion) and is not routine, administrative or non-discretionary. 39Secondly, the trial judge relied upon and adopted her own earlier conclusion in Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 ("the Hillston claim"). The consideration of the issue in that case did not rise above an acceptance of a submission from the Minister based on "practical necessity". Further, since that judgment was delivered, this Court has alluded to the issue in two cases to which the trial judge gave specific reference, reliance on which constitute the third ground to which it is convenient to turn. 40The two cases in this Court were Nambucca (No 3) and the Berowra claim. There was also reference to Nambucca (No 2) being a decision of Jagot J which became Nambucca (No 3) on appeal to this Court. The trial judge noted that the submissions for the State Land Council before her had relied upon passages in the Nambucca and Berowra claim cases for the proposition that "[w]hile steps carried out on behalf of the Minister by officers of the Department may evidence an opinion of the Minister for the purposes of s 36(1)(b1) ... the opinion must nonetheless be that of the Minister" at [202]. Passages from my judgment in Nambucca (No 3) were set out in the course of considering the submissions in a passage noting that the question as to whether the opinion had to be that of the Minister personally was not raised in those cases. The Nambucca claim proceeded on the basis that the Carltona principle could apply, so that the discussion centred upon whether a relevant departmental officer in fact held the necessary opinion at the time of the claim. The same assumption was made in the Berowra claim, where the issue was whether the relevant opinion could be held by a person outside the Minister's department. The primary judge treated statements made in the course of applying the principle in those cases as "obiter". In particular key passages referred to below, that description was not apt. Reasoning based on an assumption is not obiter: observations as to the correctness of the assumption when the assumption is not challenged would be obiter. 41After noting the apparent support derived from Aronson and Groves discussed above, and the absence of express words or words giving rise to a necessary implication that the Carltona principle is excluded, the trial judge continued at [246]: "Further, the practical necessity for such an approach is highlighted in Nambucca CA by Basten JA at [34] where he observed that a Crown Lands Minister has no knowledge of if or when a land claim might be made to inform him of the necessity of delegating the function of forming his or her opinion under s 36(1)(b1) of the [Aboriginal Lands Rights] Act. As already identified in par 244, in Berowra CA Basten JA at [65] further observed (in obiter) that there was no statutory mechanism allowing for delegation of the subsection (1)(b1) function under the [Aboriginal Land Rights] Act by the Crown Lands Minister under s 180 of the [Crown Lands] Act. If the Applicants' case is accepted, the Minister could rarely if ever rely on subsection (b1). Even adopting a beneficial approach to the construction of the [Aboriginal Lands Rights] Act, that outcome cannot be what Parliament intended in including subsection (1)(b1) in s 36." 42No doubt both of the passages relied upon in my reasons could have been better expressed: however, read in context they do not support the reasoning of the trial judge. The passage in the judgment in Nambucca (No 3) at [34] read as follows: "In practice, it is rarely the case that the Minister forms such an opinion prior to the making of a land claim. Further, because, prior to the making of a land claim, there is no purpose in the Minister forming such an opinion, there is unlikely to be any indication of a Minister delegating the power to form such an opinion." 43That statement followed an explanation that par (b1) adopted a well-known distinction, so that "[t]he opinion, rather than the underlying circumstances, becomes the criterion conditioning the exercise of power": at [33]. The point sought to be made at [34] was that, by this drafting device, the legislature had identified a criterion which might be harder for the Minister to establish than the underlying circumstances. Even if the Carltona principle applied, the fact that there might be no occasion prior to the claim for the Minister to consider whether the lands were needed as residential lands also created a difficulty in establishing that any departmental officer had authority to form such an opinion. In other words, as a practical matter, the Carltona principle was unlikely to assist the Minister. 44The second point arises from the observations in the Berowra claim that there appeared to be no power vested in the Crown Lands Minister to delegate the holding of an opinion under the Aboriginal Land Rights Act, s 36(1)(b1). Accepting that to be the case, the trial judge relied on that fact as supporting the application of the Carltona principle. However, that conclusion required consideration of two countervailing considerations. First, if Parliament included express powers of delegation, but in terms which did not extend to the formation of the opinion in question, why, as a matter of statutory construction, should the court imply the existence of a power not found in the statute? Secondly, it is necessary to consider whether the Carltona principle operates with respect to the formation of an opinion as opposed to administrative acts. No case was brought to the attention of this Court which would expressly uphold the operation of the Carltona principle in such circumstances, but there are dicta in the High Court decisions which suggest it would not operate. 45Thus, although the trial judge was right to look to earlier decisions of this Court to consider whether the question before her was addressed, even by way of obiter dicta, the passages relied upon did not provide support for the application of the Carltona principle in this context.

Did the Minister hold the relevant opinion? 46Absent a finding that the Minister personally held such an opinion, it is not strictly necessary to address the evidence as to the activities of departmental officers. However, there was no express finding as to the absence of a Ministerial opinion, hence it is desirable to explain why the basis on which the case was run below was justified on the facts. There was no evidence from the Minister in office at the time of the claim as to whether the relevant opinion was then held. The absence of such evidence is not of itself significant. The documentary record is, in any event, likely to provide the best evidence of what opinions were or were not held at or shortly before the time the claim was made. 47The activities undertaken in the department at that time may also be relevant if they permit an inference to be drawn as to the state of mind of the Minister. Similarly, evidence as to events or opinions held shortly after the claim was lodged may also be relevant, because they may permit an inference to be derived as to a continuing state of affairs which commenced before the lodging of the claim. 48It is convenient to summarise the evidence of departmental activity at and before the time of the claim, which might justify a finding that the relevant Ministerial opinion was held: it falls within a relatively short compass.

(a) departmental activity 49On 21 July 2004 the adjoining land owners (Mr and Mrs Rakus) sold their property to a developer known as Christmas Bush Pty Ltd: trial judgment at [37]. Settlement occurred on 21 July 2005. Shortly prior to settlement, Mr and Mrs Rakus had made an offer to purchase the claimed land. Whether that offer was intended to allow development of the claimed land for residential purposes is not entirely clear. They may have been aware of an interest that Christmas Bush had in acquiring the land for a larger development. The offer was rejected by letter dated 6 September 2006: at [44]. 50On 2 July 2007 Christmas Bush expressed an interest in purchasing the claimed land: at [47]. In February 2008 Mr and Mrs Rakus also inquired whether the department was selling the claimed land: at [49]. On 3 April 2008 the department advised them that the claimed land was not for sale, but Christmas Bush continued to indicate its interest in the claimed land: at [50] and [51]. 51On 13 August 2008 the department instructed valuers to prepare a report on three hypothetical bases, one of which involved rezoning the land and selling it as a residential site: at [209]. The valuation report was dated 22 August 2008. 52Up to this point, approximately 12 months before the claim was lodged, there had been competing proposals with respect to the land. It had been the subject of a land assessment, but no action had been taken with respect to its management or disposal until the adjoining land owners expressed interest in it. Following receipt of a valuer's report, Mr Stewart Veitch, the Programme Manager Commercial, Central Coast Hunter, Crown Lands Division in the Department of Lands, took steps to pursue his preferred option which was "to have this land developed in the future as a residential subdivision": email, 30 July 2008, addressed to Mr Gary Wood, Team Leader, Commercial Crown Lands NSW, Maitland Central Coast/Hunter Region and to Mr Ian Tapper, development officer 5/6 Commercial Crown Lands Division, Maitland: at [168]. After receipt of the valuer's report, on 1 September 2008, Mr Veitch placed the claimed land in the "2008-2009 sale programs": at [57]. The expected return was identified as $1 million. 53This action was referred to obliquely in the evidence in an email to an officer in the Aboriginal Land Claim Investigations Unit, asking as to the progress with a previous land claim which had been lodged over the claimed land. 54On 12 August 2009 Mr Tapper prepared what was described as a "first draft" of a "submission for approval in principle" of the sale of Crown land. The draft noted "three potential scenarios" for the land, namely "continued rural zoning", "low density residential zoning" and "environmental protection". The preferred option was identified in the section of the report headed "Evaluation of issues", at par 5, in the following terms: "The Disposal Assessment highlights the advantages accruable for 'added value' to the adjoining property for residential development. The preferred option for disposal of the Crown site is by private treaty directly to the adjoining land owner at the assessed market value ...." 55The document referred to the possibility of the Minister considering the issue of a certificate under s 36(8) of the Aboriginal Land Rights Act, stating that the land was needed or likely to be needed as residential land, but no recommendation was made in that regard. The submission was signed by Mr Wood on 24 August 2009 and by Mr Veitch on 28 August 2009 and forwarded to the Regional Manager, Central Coast/Hunter Region. 56The Minister's delegate approved the proposal for a private treaty sale on 8 February 2010. At that stage the possibility of rezoning for residential use had been put to one side because Treasury was expecting the proceeds of sale within the financial year. A purchase price was then negotiated with Christmas Bush, but when Christmas Bush sought time to raise the funds, the request was refused on the basis that Treasury had been advised that the sale would settle on 4 June 2010: [74]-[78]. 57This evidence of activity within the department was the high point of the evidence in favour of the view that the Minister had formed the requisite opinion as to the need or likely need for the claimed land as residential lands. However, the evidence did not stand alone. There are a number of separate respects in which any inference drawn from the material set out above required qualification.

(b) evidence of Ministerial involvement 58A draft land assessment was prepared in 2000. According to the sale proposal prepared by Mr Tapper, the land assessment was dated 22 June 2000. That document does not appear to be in evidence, but there was evidence that public exhibition occurred and further changes were made at a later time. Mr Tapper said that the land assessment "recommended the preferred optimum land use as urban residential development." It is not clear that that was so; discussion which is in evidence suggested that the suitable land uses were identified as environmental protection, nature conservation and recreation. 59On appeal, counsel for the Minister submitted (apparently accepting that the land assessment did not recommend residential use) that a Crown Lands Minister was not bound to deal with the land in accordance with the relevant land assessment. The Minister accepted, however, that consideration of the land assessment was required in exercising powers under the Crown Lands Act with respect to particular land. The State Land Council submitted that, even if that were so, an opinion based on a report which misstated the conclusions of the land assessment would not be a valid opinion for the purposes of the Aboriginal Land Rights Act. 60It is sufficient for present purposes to conclude that an opinion of the Minister under par (b1) would depend upon a proper consideration of the terms of a land assessment and, if reasons were required, they would need to address a significant departure from the suitable land uses identified by the land assessment. 61Secondly, there was communication between Ministers, including the Minister for Lands, as to the proper use of the claimed land. In a letter dated 28 December 2007 from the Deputy Director General, Department of Premier and Cabinet to the Minister for Lands, it was noted that: "In 1998, the Cabinet Standing Committee on Major Issues and Strategies approved a process for the gazettal of Crown land identified for possible inclusion in the National Park Estate." 62The letter suggested that concerns had been raised that the Department of Lands was not properly implementing Cabinet decisions. The writer stated that "the Premier has requested that an update be submitted to Cabinet by May 2008 on the status of Crown land transfers in north-east New South Wales." 63It appears the concerns had not been resolved 18 months later. On 13 July 2009 the Premier wrote to the Deputy Premier and Minister for Climate Change and the Environment referring to "outstanding land issues". The Premier stated that "[t]he future management of identified Crown lands" set out in schedules to the letter would be dealt with in accordance with those schedules. He asked that "the land transfers identified in this letter now proceed expeditiously." Schedule 1(b) to the letter identified the claimed lands by reference to nearby Gan Gan Hill. In the column headed "Action" the following appeared: "Parcels remain with DoL [Department of Lands], subject to DoL entering into a conservation agreement for the conservation of threatened flora and fauna species and under-conserved forest eco systems on site." 64It is possible, though implausible, that the Minister for Lands held an opinion for the purposes of par (b1) which was inconsistent with government policy as stated by the Premier in his letter. However, that would not be an inference which should be drawn in the absence of affirmative evidence. Further, it is not an inference which should be drawn without reference to that contradictory evidence. 65There is a further factual reason why that inference should not be drawn. There was in evidence a document with a covering email dated 17 March 2009 referring to a meeting of the respective Chief Executive Officers of Lands and Environment on 10 March 2009. It annexed sheets which identified decisions which had been made prior to that date and determinations made at the meeting. With respect to the claimed lands, the Department of Lands' position was identified as noting that the land was "required for urban expansion given the lack of vacant land in region". The position of the Department of Environment and Climate Change was a preference that the land be transferred as it was required for "under-target forest ecosystems". The entry in the final column headed "Proposal" and dated 3 March 2009 stated: "Parties agree for the site being retained within DoL subject to a conservation agreement being entered into for the conservation of threatened flora and fauna species and under-conserved forest eco systems on site." 66This evidence of a compromise proposal reached at a meeting of departmental officers and not varied by a meeting at which the Chief Executive Officer of the Department of Lands was present is also inconsistent with an opinion in the terms of par (b1) being held by the Minister. Again, it would be necessary for any finding that the Minister held such an opinion to have regard to this conflicting evidence.

(c) trial judge's assessment of evidence 67As noted above, the trial judge did not suggest that this evidence supported a finding that the Minister personally held a relevant opinion. Rather her assessment concerned the question raised under Carltona, namely whether a departmental officer with appropriate authority held such an opinion. With respect to the schedule attached to the Premier's letter of 13 July 2009, the trial judge stated at [62]: "On 13 July 2009 DECC [the Department of Environment and Climate Change] notes that the position in relation to claimed land was that the claimed land remain with the Department subject to the Department entering into a conservation agreement ...." 68There was no reference in this statement of the evidence to the letter from the Premier to the Deputy Premier to which these documents were attached and from which the date was presumably derived. That letter stated: "I note that there have been discussions between yourself and the Minister for Police, Minister for Lands and Minister for Rural Affairs concerning the allocation of functions relating to land and property management. I note that the attached documents represent the agreements to date, as follows." Schedule 1(b) is one of the attached documents referred to in the following paragraphs of the letter. Accordingly, on the evidence, it was wrong to characterise the document of 13 July 2009 as something noted by the Department of Environment and Climate Change. It was an intra-Government agreement reached by, amongst others, the Minister for Lands. No doubt it was open to the Minister for Lands at the time to deny the existence of such an agreement: however, there was no evidence to that effect, documentary or otherwise. 69In considering the application of par (b1), the trial judge set out the chronology of events at [14]-[85] which included the passage referred to above. She referred to the land assessment "conducted from August 2000 to March 2002 [which] concluded that suitable uses for ... the claimed land ... were environmental protection, nature conservation and recreation." She further noted the zoning under the Port Stephens Local Environmental Plan 2000 as, at all relevant times, "for rural use": at [167]. 70The trial judge then set out the history of interest of the developer, Christmas Bush, in purchasing the land and steps taken within the department in response to those expressions of interest. In summarising the Minister's submissions (without comment) the judge noted, at [196], the submission that the "opinion of the Minister can also be inferred" from the document dated 17 March 2009 to which reference is made above. Apparently the Minister's submission identified the position of the Department of Lands concerning the claimed land, as noted above, without reference to the compromise position reached by the departmental officers on 3 March 2009. 71When making relevant findings with respect to the issues raised by the reliance on par (b1) the trial judge first reached the legal conclusion that the Carltona principle applied, so that the Minister was entitled to rely upon the exercise of ministerial functions by departmental officers: at [247] and [249]. There was then discussion of the legal principles to be applied in determining whether the requisite opinion was held, after acknowledging that there was "no express opinion of an officer of the Department referring to s 36(1)(b1) stating expressly that the land is needed or likely to be needed for residential land": at [249]. The trial judge concluded at [258]: "For the Minister to succeed the Court must be satisfied that under the Carltona principle an officer or officers carrying out relevant departmental functions to sell the claimed land held the opinion that the land was likely to be needed for residential land in August 2009." 72The judge then noted that the Minister had relied on "the actions of various officers ... in pursuing a sale of the claimed land up to and during August 2009 with the expectation that the land would be developed for residential purposes": at [259]. The trial judge stated at [260]: "The departmental officers were carrying out functions under the [Crown Lands] Act. Provided they are sufficiently senior, their actions can give rise to an inference of the holding of an opinion on the Minister's behalf." Further at [262], the trial judge stated: "Mr Veitch stated in a departmental email in September 2008 that the urban expansion of Nelson Bay was being monitored and he considered the claimed land had been earmarked by both the council and a private developer as being required for urban development as part of the urban expansion of Nelson Bay. I infer that Mr Veitch meant residential development. The purchase of the claimed land for an ambulance site was rejected by the Department in May 2009 because the land was under investigation for disposition as a residential development site according to Mr Veitch and Mr Wood. The same view about the potential use of the land, expressed as urban expansion, was identified to [the Department of Environment and Climate Change] in March 2009 and on several other earlier occasions when these departments were negotiating about the appropriate use of the land." 73The last reference to the potential use of the land for "urban expansion" as identified to officers in the Department of Environment in March 2009 demanded attention to the agreement reached between the Chief Executive Officers in that month, which was manifestly inconsistent with the opinion ultimately ascribed to the Minister. Further, there was no reference at all to the agreement recorded in the letter from the Premier of 17 July 2009. 74The final conclusion was reached at [273] in the following terms: "I consider the Minister has discharged her onus of proof on the balance of probabilities that the evidence gives rise to the inference that the opinion that the claimed land was likely to be needed for residential land was held by relevant officers in the Department at the date of claim. The exception in s 36(1)(b1) applies and the land is not claimable Crown land. This appeal, which relates to two land claims, should be dismissed in light of that finding."

(d) error in findings of fact 75This analysis gives rise to a question, raised by the appellant's alternative grounds, as to whether there was error of law on the part of the trial judge in reaching this final conclusion. The State Land Council alleged in its notice of appeal that there was error of law in holding that such an opinion could be established when there was a contrary, operative Ministerial opinion at the time of the claim: ground 4(b). The Minister submitted that this ground raised no question of law. However, if a contrary view were taken, the Minister further submitted that the argument in question failed to take account of all of the evidence. In particular it was noted that a document similar to that attached to the Premier's letter of July 2009 referred to the Department of Lands as seeking to maintain the position that the Gan Gan Hill land should not be added to Tomaree National Park because the area "could be used for urban expansion." The schedule stated that the Department of the Environment had not been able to resolve the issue with Department of Lands "at an officer level." 76The second limb of that submission was unpersuasive for two reasons. First, the document was attached to a letter of 2 June 2006 from the Minister for the Environment to the then Minister for Lands. The Minister for Lands responded on 7 August 2006 noting that "no final decision to transfer Crown lands at Grassy Head and Gan Gan Hill was reached, and Lands maintains that those reserves should be retained as Crown lands." Secondly, that exchange of views pre-dated the land claim by some three years. It is apparent that the meeting of the CEOs of 3 March 2009 took place because some issues could not be resolved at officer level. They were resolved by the Chief Executive Officers in the manner identified above and not on the basis that the lands were needed or likely to be needed as residential lands. 77The submissions by the State Land Council identified the error of law in the following terms at par 78 of the written submissions, namely that - "[the Carltona principle] could not operate where the evidence made plain that the Minister had already expressed an opinion in relation to the land. The principle, if applicable, arises as a matter of administrative necessity and taking account of practical realities. The views of an agent cannot be determinative for the purposes of this statutory principle if the principal themselves [sic] has relevantly exercised the power or function (or, here, turned their mind to the formation of an opinion). To take the contrary view would be to subvert the hierarchy which is implicit in recognition of the practical Ministerial and bureaucratic realities underlying the Carltona principle." 78This submission may elide two related but separate concepts. The first proposition may be that evidence of the Minister in fact taking action (or forming an opinion) may be inconsistent with the underlying premise of the Carltona principle, namely that Parliament could not have envisaged that the Minister would take such action (or form such an opinion) personally. The second proposition is that where the principal acts (or forms an opinion), inconsistent action (or the holding of a different opinion) by an agent is legally ineffective. (For present purposes, there is no question about third party reliance on the opinion formed by the agent.) 79The formulation of the first argument set out above cannot be accepted in those terms. Accepting that the Carltona principle is really an implication as to statutory intention derived from contextual considerations, the facts of a particular case can do little to demonstrate an intention which must have existed at the time the legislation was enacted (par (b1) being introduced into the Aboriginal Land Rights Act in 1986). What it may demonstrate, in practical terms, is the failure of the trial judge to consider why the doctrine based on administrative necessity applied to this provision. The second proposition does raise a question of law. If it be correct that the opinion of the agent cannot override the opinion of the principal, it was necessary for the trial judge to consider the evidence indicating that the Minister did not hold the relevant opinion, before placing reliance upon the opinion of a possible agent. That task was not undertaken and amounted to a constructive failure to exercise the Court's jurisdiction. No point was taken by the Minister that the underlying legal principle was erroneous. 80The conclusion that the Minister did not personally hold the opinion necessary to engage s 36(1)(b1) is sufficient to dispose of the case in the event that the Carltona principle is not available. If, contrary to that conclusion, the Carltona principle is available, the appellant further argued that the finding that officers having authority to form an opinion in the terms set out in s 36(1)(b1) held such an opinion was infected by legal error.

Authority of agents 81The appellant asserted that there was "no evidence that the officers relied on were authorised by the Minister to act as the Minister's agent or delegate with respect to forming that opinion": notice of appeal, ground 4(a). Further, the State Land Council asserted that there was no finding identifying which officer was authorised to hold the relevant opinion at the date of claim, nor an assessment as to whether that officer in fact held that opinion as at the date of claim: ground 5(a). 82The Minister's response was that each of four officers in the department (Messrs Tapper, Wood, Veitch and Phillips) held the relevant opinion and that it did not matter which, if not all, were agents of the Minister for that purpose. Further, whether they were relevantly authorised could be inferred from the fact that they were authorised to deal with certain lands (including the assessment of those lands as to possible and likely uses): written submissions, par 48. (The Minister conceded there was no evidence of express authorisation in relation to the Aboriginal Land Rights Act, s 36(1)(b1).) There was a delegation at least to one of the officers (the regional manager, Mr Phillips) to act on behalf of the Minister with respect to functions under s 34 of the Crown Lands Act, which included the power to dispose of Crown lands by way of sale. 83The trial judge held that the officers authorised to sell the claimed land must, at the time of the claim, have "held the opinion that the land was likely to be needed for residential land": at [258]. Whether Mr Phillips held that view was unclear on the evidence. The State Land Council noted that he had given evidence in the proceedings but was not asked whether he held the opinion that the lands were needed or likely to be needed as residential lands, at the date of the claim. The trial judge noted that Mr Veitch (who did not give evidence) had "expressed views about the likelihood that the land would be used for a residential development site and for urban development or expansion near Nelson Bay before the claim date": at [265]. 84Despite the issue identified at [258] the trial judge did not make an express finding in those terms. The closest she came was the reference to Mr Veitch's September 2008 email noting that the claimed land "had been earmarked by both the council and a private developer as being required for urban development", from which she inferred that the writer of the email, Mr Veitch, meant "residential development": at [262]. She then stated that "[t]he same view about the potential use of the land, expressed as urban expansion" had been identified in the March 2009 document. This language was no doubt used because it reflected the language of the documents: it did not reflect the language of s 36(1)(b1). (The views of the Council and the private developer were irrelevant.) 85Given the errors of law already identified, it is not necessary or productive to embark upon an analysis as to (a) the authority of various departmental officers, (b) the opinions they held at the relevant time, (c) whether the findings of fact made by the trial judge were adequate or (d) the extent to which they involved questions of fact as opposed to law. The judgment below must be set aside in any event.

Conclusions and orders 86The State Land Council is entitled to succeed on the basis that the opinion required to engage the exclusion of Crown lands from the definition of claimable Crown lands under s 36(1)(b1) of the Aboriginal Land Rights Act is the opinion of a Crown Lands Minister personally. While the Minister may rely upon information and advice supplied by officers in the Department of Lands, it is an opinion of the Minister which must be established at the time of claim and not an opinion held by an officer within the department. The doctrine of administrative necessity upon which the Carltona principle is based does not operate in the circumstances of s 36(1)(b1) of the Aboriginal Land Rights Act to imply a power in the Minister to confer on a departmental officer the function of forming the relevant opinion. 87Secondly, if that conclusion of law be wrong, the implied power will not permit an opinion held by a departmental officer to have legal effect in circumstances where the evidence demonstrates that the Minister held a different opinion or, arguably, the Minister having considered the suitability of the land for different purposes, did not hold the opinion in par (b1). The manner in which the trial judge dealt with the evidence in relation to the Minister's opinion demonstrated legal error. 88On the facts of the case, it is doubtful whether the evidence demonstrated that (a) any particular departmental officer had implied authority to form the opinion required by s 36(1)(b1) of the Aboriginal Land Rights Act, (b) any relevant officer did in fact form such an opinion and (c) whether the trial judge made findings of fact sufficient to support the affirmative conclusion that an agent of the Minister held the opinion at the time of claim that the claimed lands were needed or likely to be needed as residential lands. It is unnecessary to determine whether these doubts give rise to an error of law on the basis that there was a constructive failure to exercise the jurisdiction conferred by s 36(7) of the Aboriginal Land Rights Act. 89The Court should make the following orders: (1) Allow the appeal from the judgment of the Land and Environment Court given on 11 September 2013 and set aside the order of the Court dismissing the application. (2) Direct that the Court consider and determine any outstanding issues raised by the application filed on 12 November 2010 by the appellants. (3) Order that the respondent pay the appellants' costs of the appeal. 90PRESTON CJ of LEC: I agree with the reasons of and the orders proposed by Basten JA.

Amendments 14 July 2015 - [17] Amending citation to s 243. [27] Amending names of cases cited. [37] and [41] Deleting abbreviations and citing full Act. [65] and [72] in quote Amending name of Department of Environment. 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: 14 July 2015

Crown Lands Act 1989(NSW)

Western Lands Act 1901(NSW)

Crown Lands Consolidation Act 1913(NSW)

Crown Lands (Continued Tenures) Act 1989(NSW)

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (8)

Cases Cited (16)