NSW Aboriginal Land Council v Minister Administering the Crown Lands Act

NSW Aboriginal Land Council v Minister Administering the Crown Lands Act - [2007] NSWLEC 481 - NSWLEC 2007 case summary — Zoe

[127]

(3) As at 15 March 2005, the processes of negotiation and discussion mandated by Cabinet had not yielded any result. (a) The DMR opposed the transfer of any part of the claimed land and the "Broadwater NP Additions" generally. Despite the DMR's invitation on 4 April 2003 to NPWS to discuss any matters if necessary and a letter from NPWS on 14 May 2003 requesting a meeting, nothing further occurred with the DMR before the date of the claim or, indeed, until 2006. The DMR's silence in the face of the NPWS letter of 14 May 2003 discloses its position of maintaining its objection. At 15 March 2005, there was no real chance that the DMR would lift its objection and enable this land to be transferred to date. When further steps were taken in 2006, the Minister's approval related the area of 28 hectares only, being the northern part of lot 503. (b) The Department of Lands opposed the transfer of any part of the "Broadwater NP Additions" from 1998 until May 2003. By May 2003, the Department's agreement to transfer was limited to the northern part of lot 503, but even that was not irreversible. It maintained its opposition to any transfer of the balance. Mr Carey's memorandum of 18 May 2006 confirmed the existence of that opposition at the claim date and the foresight of that opposition continuing. As late as 5 June 2006 the Minister for Lands was asserting in the proceedings that the claimed land was needed for residential purposes. This confirms the existence of unresolved competing uses that remains to this day. (4) Delay is relevant to the assessment of the likelihood of things coming to pass ( Minister v Deerubbin LALC (1998) 43 NSWLR 249 at 254F and Minister v Deerubbin LALC [No. 2] (2001) 50 NSWLR 665 at [76]). The inactivity of NPWS (then DEC) from May 2003 to 2006 indicates that the only available foresight was continuing opposition to transfer. Relying on subsequent documents relating to the DMR involves impermissible hindsight. What was the likelihood of this isolated part of the "Broadwater NP Additions" land being transferred to DEC on its own? There was no real chance of that occurring having regard to Mr Shanahan and Ms Braithwaite's evidence. 89 The Minister submitted that at the relevant time, 15 March 2005, the Court would very comfortably conclude that the claimed land was likely to be needed for the essential public purpose of nature conservation (national park). The primary elements supporting this submission were as follows: (1) Cabinet established a process. By 2002 the whole of the claimed land was part of that process. The process involved negotiations between three departments. At all times NPWS (DEC) urged the whole of the claimed land to be included in its estate. Taking the applicant's case at its highest, the negotiations had reached and remained at an impasse by the claim date. Faced with such an impasse, it is relevant to ask, "what was going to give"? Clearly there was a real or not remote chance, in fact a good chance, of the objections of the DMR and Department of Lands being overcome at the claim date. (a) The threshold of "likely" (a real or not remote chance) is low. (b) Up to the claim date there had been a consultative process where departments expressed views, negotiations continued and outcomes were achieved. NPWS's position was not a mere aspiration. The land was part of the process established by Cabinet. (c) Delay and inactivity are relevant, but Ms Braithwaite had not simply downed tools. The area involved was substantial. NPWS was subject to a major restructure in 2004. The available resources were reduced and the remaining resources reallocated until the 9000 hectares was reserved in December 2005. That part of the process involved significant work. Accordingly, there was activity throughout this period as part of the process, albeit directed at other lands. But the "Broadwater NP Additions" land never exited the process. The NPWS (DEC) had never given up with respect to these lands. It was not put to Ms Braithwaite that it had. It was always her position that she would return to this land when she had the resources to devote to it. The delay is thus readily explicable. (d) The DMR's position in April 2003 was not irrevocable, as the terms of its response and the NPWS's letter of 14 May 2003 disclose. Nor was the position of the Department of Lands, which was said to be "subject to assessment". (2) The evidence of Mr Barnes and Mr Ricketts of the DMR is relevant absent any impermissible hindsight. First, the evidence shows the process by which the DMR reached its global objection in April 2003. The cogency of the DMR's position is probative of the likelihood of its objection ultimately being sustained. The DMR's global objection was based on a quick assessment and not a site inspection, as was necessary given the magnitude of the task. It was an objection based on weak grounds. Given that NPWS had not given up, it was likely at the claim date that the DMR's objection would be removed. Secondly, the evidence shows the objection did dissolve on closer review, which is relevant by way of confirming a foresight. Moreover, the objectives dissolved very quickly in 2006 (in the space of days), confirming its weakness when first formulated. (3) The references to 28 hectares in the 2006 negotiations with the DMR do not sustain the applicant's submissions. At best, the references introduce some ambiguity. In fact, the discussion between the departments was based on diagrams not numbers of hectares. The maps and diagrams all showed the whole of the "Broadwater NP Additions" land. Those diagrams were included in the correspondence recording the agreement. (4) The Department of Land's objection was modified in May 2003 when it agreed to transfer of the northern part of lot 503. Its objection to lot 534 was expressed to be "subject to assessment for council needs". This land claim under the ALR Act on 15 March 2005 explains the absence of further assessment by the Department of Lands. Mr Carey obviously had access to limited information only. He was wrong about the Department's agreement to transfer the northern part of lot 503. He knew nothing of the DMR's position. He did not have any apparent expertise with respect to the conservation value of the claimed land. Mr Carey's memorandum expressed his opinion well after the claim date. F. Findings 90 The 1992 national forest policy statement, the 1997 nationally agreed JANIS criteria, the comprehensive regional assessment process and the forest agreements under the Forestry and National Park Estate Act 1998 set the context of the Cabinet's decisions in 1998 and 2002. The context is clear: (1) The NSW government agreed to the objective of achieving a comprehensive, adequate and representative reserve system focusing on Crown land in the first instance.

[142]

(3) Part of the delay from late 2003 is explained by the fact that the resources NPWS was able to devote to the process were substantially reduced during the period of the restructure following its incorporation within DEC in 2004. Nevertheless, the process remained ongoing, albeit with reduced resources. Although most of Ms Braithwaite's work during this period was directed towards ensuring that the agreed land was transferred to the national park estate by notice published in the government gazette, this took significant time to achieve due to the need for ongoing discussions with other parties including councils and reserve trusts about boundaries and related issues. In other words, material resources were still being directed at the process from mid 2003 onwards involving lands other than the "Broadwater NP Adds" land. Part of the delay from late 2003 is also explained by a documented change of position within the Department of Lands in October 2003. The Department believed that more formal internal processes were required and was concerned by the overlap between the Crown lands review process proper and reviews under the forest agreements. (4) Despite the priority Ms Braithwaite gave to other lands that had been agreed for transfer after mid 2003, the entire process remained ongoing consistent with Cabinet's decisions, if not within its time objectives. Ms Braithwaite's focus on ensuring that the land agreed for transfer was transferred to the national park estate meant that further negotiations about the priority areas, including the "Broadwater NP Adds" land were deferred. The process, however, still included all remaining land identified to or in accordance with the process endorsed by Cabinet. Areas of high conservation value vacant Crown land containing forest ecosystems not adequately represented in the existing reserve system remained a priority for consideration, required by the government to be transferred if suitable for inclusion in the reserve system absent some major constraint or significant reason. It follows that to complete the implementation of the Cabinet's decisions, NPWS/DEC would have to recommence the outstanding parts of the process as soon as it could direct its resources to that end. Once the part of the process focusing on lands not agreed for transfer had recommenced, high conservation value vacant Crown land containing forest ecosystems not adequately represented in the existing reserve system would remain the priority. The "Broadwater NP Adds" land was within that category since 2002. (5) Accordingly, NPWS/DEC, as the instigating agency, would have to recommence negotiations with the DMR and the Department of Lands about the priority lands including the "Broadwater NP Adds" land. It would do so because the outcome for those lands remained modest and unacceptable having regard to the Cabinet decisions.

[143]

(6) The evidence of Mr Barnes about the DMR's position before the claim date and how it was formulated did not involve any impermissible hindsight, but rather a description of facts known to the DMR before the claim date. Although the DMR considered its information satisfactory to provide responses to the referred land, it also knew that it had dealt quickly with a large amount of land. It knew its objection was based on a review of documents and former use of part of the lands for quarrying. It knew that it had not inspected the lands when it notified its original objection. It knew that it could and on further inquiry by NPWS would make further inquiries to determine whether its objection was a major constraint or significant reason for exclusion. A relatively small part of the "Broadwater NP Adds" land was zoned for extractive purposes. The facts before the claim date weighed heavily against acceptance by NPWS or continued claim by the DMR that there was any major constraint or significant reason for exclusion. The DMR's objection, accordingly, would be difficult to maintain. (7) No officer of the Department of Lands has given evidence. Nevertheless, the documentary record is sufficient to establish that the primary basis of the Department's objection to transfer of all of the "Broadwater NP Adds" land except for the northern part of lot 503 before the claim date was the potential need for future urban development. Lot 534, located between the claimed land and the national park, was zoned for urban purposes (4(a) Industrial), but the balance was not. Although part of its objection (lot 429) referred to an extractive reserve, I consider the Department of Lands would have accepted that the DMR had the principal responsibility of resolving any such issue. The Department's objection before the claim was not absolute but "subject to assessment". This is evident from Mr Fish's undated memorandum and the agreed record of the meeting in May 2003. The outcome of the assessment was not known before the claim date and remains unknown.

[146]

103 It will be apparent from these conclusions that I have not adopted the Land Council's characterisation of the Cabinet's decisions or the factual circumstances at the claim date. In particular, I do not accept that the Cabinet's decisions related to the investigation of the mere suitability of land for a national park. The context and terms of the Cabinet decisions cannot be reconciled with that description. I do not accept that land could only be reserved under the process if there were no conflicting land uses, agreement between relevant departments, a recommendation and endorsement. While that describes the mechanical steps involved in the process it provides only a part of the picture. The process was intended to achieve a comprehensive, adequate and representative reserves system. Substantial public resources and years of work before 1998 had enabled detailed criteria to be developed for achieving such a system. The NSW government endorsed the ultimate objective and the criteria to be applied. Through its decisions and the forest agreements the government had put in place obligations suited to the reality of government decision-making involving inter-departmental interests. Outcomes could be achieved as the NSW government had endorsed a target of reserving all vacant Crown land containing rare or endangered forest ecosystems in 1992 and required objections to transfer, particularly to land containing inadequately represented ecosystems, to be based on matters warranting the description of major constraint or significant reasons. The mere fact of other competing interests thus would not be sufficient to avoid reservation unless they satisfied this nominated standard. Absent such constraints or reasons, the Cabinet endorsed process contemplated that all such land would be recommended for reservation and then in fact reserved. The claimed land had been identified as part of the process. Cabinet had endorsed this identification by 2002. While reservation of the claimed land as national park was not certain when the claim was made, the government's decisions were directed to that end and substantially limited the prospect of the land not being reserved. I do not accept that land cannot be "likely to be needed for an essential public purpose" if there is any element of contingency involved. Accepting this submission of the Land Council would be inconsistent with the idea of likelihood, particularly when given its meaning of "real or not remote chance".

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Broadwater Lot 429 Riley Extractive reserve NO

Broadwater Lot 503 Riley OK to area north of road; NO to area south of road

Broadwater DP 729456; Riley Subject to assessment for council needs Zoned for industry NO

Parties

Legislation Cited (1)

Cases Cited (3)

Cited By (2)