NSW Aboriginal Land Council v Minister Administering the Crown Lands Act

NSW Aboriginal Land Council v Minister Administering the Crown Lands Act - [2008] NSWLEC 13 - NSWLEC 2008 case summary — Zoe

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Aeropelican Air Services v Lake Macquarie City Council (2006) 153 LGERA 19 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Badraie v Commonwealth of Australia (2005) 195 FLR 119 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 Blair v Curran (1939) 62 CLR 464 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 Craig v The State of South Australia (1994) 184 CLR 163 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 2] (1995) 89 LGRA 194 Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 95 LGERA 353 D'Orta Ekenaike v Victorian Legal Aid (2005) 223 CLR 1 Foodbarn Pty Limited v Solicitor-General (1975) 32 LGRA 157 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388 Jerrinja Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 577 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 Koompahtoo Aboriginal Land Council v KLALC Property & Investment Pty Ltd [2006] NSWSC 856 La Perouse Local Aboriginal Land Council v The Minister Administering the Crown Lands Act (La Perouse) (1991) 74 LGRA 176 Manly Council v Hortis (2001) 113 LGERA 321 CASES CITED: Markisic v Commonwealth of Australia & Anor [2007] NSWCA 92 Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 Minister For Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mirvac Homes Pty Ltd v Parramatta City Council (No 3) (1999) 111 LGERA 233 New South Wales Aboriginal Land Council v Minister for Land and Water Conservation Act [1997] NSWLEC 176 New South Wales Aboriginal Land Council v Minister Administering Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 The King v Connell; Ex parte The Hetton Bellbird Collieries Limited (1944) 69 CLR 407 Tickner v Chapman (1995) 57 FCR 451 Trust Company Limited v Chief Commissioner of State Revenue [2007] NSWCA 255 Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163

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5 Acting Commissioner Davis assisted in the appeal. B. The statutory scheme 6 The ALR Act establishes a scheme for Aboriginal land councils to make claims for the transfer of claimable Crown lands. It does so against the background of express acknowledgements by Parliament in the long title to the Act and s 3 that past government decisions have caused land traditionally owned and occupied by Aboriginal people to be taken without compensation, and that it is fitting to recognise the importance land has for Aboriginal people, and their need for land. Within this scheme claimable Crown lands are to be transferred to the claimant Aboriginal land council. Claimable Crown lands are defined in s 36(1) of the ALR Act as follows: (1) In this section, except in so far as the context or subject-matter otherwise indicates or requires: claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division: (a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, (b) are not lawfully used or occupied, (b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands, (c) are not needed, nor likely to be needed, for an essential public purpose, and (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands). 7 Section 36(1)(b1) was inserted by the Aboriginal Land Rights (Amendment) Act 1986 and commenced on 2 May 1986 (before the date of the claim in this case).

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20 Nothing appears to have occurred between mid 1985 and 1988. On 19 February 1988 the Council asked the Department whether it could buy another parcel of land in Nambucca Heads (at Pilot Street to the west of the Boronia Street land) for development. In a further letter to the Department on 22 February 1988 about the Pilot Street land the Council noted advice from a real estate agent that the time was right to release further developed lots at Nambucca Heads or sales would be lost to adjoining coastal areas not as pressed for land supply. In March 1988 the Council assured the Department that it did not want the Pilot Street land for low cost housing. In May 1988 the Council wrote to the Department noting that residential development of the Pilot Street land had been considered and rejected previously. The Council asked whether the Department would consider development of that land for an up market tourist resort development. On 16 May 1988 the Department wrote to the Council about the Ocean Street land noting that the proposed development of 21 lots was unlikely to take place within the foreseeable future. This letter noted that at a recent meeting Council officers had raised a shortage of privately owned residential blocks in Nambucca Heads and the possible interest of the Council in acquiring land shown on an attached map for residential development. The Department offered to consider selling the land to the Council on conditions. The attached map shows the Pilot Street land. On 24 May 1988 the Council noted that it would hold the offer in abeyance pending a response to its letter of 5 May 1988 about development of the Pilot Street land for a tourist resort. The Department responded on 8 November 1988. The response noted the information provided by officers of the Council about a serious shortage of residential land in Nambucca Heads and the Council's view that the Pilot Street land was suitable for tourist development, rather than residential development. The Department was willing to consider the sale of the land for that purpose but noted the general increased demand for residential land along the north coast.

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98 The difficulty with paragraph 6.13 of the briefing note is that it unequivocally invited the Minister to adopt the questions posed as a complete cipher for the words of s 36(8)(a). It invited answers to those questions to be treated as presumptively determining the issue of need or likely need set out in s 36(8)(a). In isolation, and depending on the facts, this approach might be insufficient to constitute vitiating jurisdictional error. However, it did not occur in isolation in this case. In circumstances where the substituted test focused solely on use, the briefing note omitted and inaccurately represented information centrally relevant to the question of use. The briefing note said: (1) The land (described as the Boronia Street subdivision) was part of the home sites program at all times from 1983 to the lodgement of the claim (paragraph 5.4(c) and 6.16(b) of the briefing note). This is wrong. The whole of the land was removed from the program in 1985. Further, and more importantly, I am satisfied that only part of the land (the three lots on Lackey Street, as a combined project with the five lots on Lee Street) was on the program by the date of the claim. This is the reason the Department described the development as a "three lot residential subdivision at the eastern end of Lackey Street" and the balance of the Boronia Street subdivision as "unwanted information" in its correspondence of 18 October 1990. I do not accept that the Department removed the seven lots from the program in December 1990 after the claim. That is inconsistent with: - (i) the terms of the correspondence of 18 October 1990, (ii) the fact that the recording of a decision often occurs at some later time, and (iii) the fact that by December 1990 the memorandum recorded the nature of project 1519 and an anticipated construction and marketing timetable (which must have taken some considerable lead time to formulate). Mr Edwards' statement to the contrary in his affidavit is incorrect. This is hardly surprising given that he was attempting to remember events from 17 years earlier on the basis of an incomplete set of documents given to him by the Crown Solicitor's office

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(2) The memorandum of 19 December 1990 noted that the Boronia Street subdivision project was included on the program as project 1519 with on-site construction works proposed for June - August 1991 and marketing planned for October 1991 (paragraph 5.4(r) of the briefing note). This is a serious error. The 19 December 1990 memorandum did not say this at all. Rather, the memorandum said that project 1519 involved three lots on Lackey Street (approved as part of the Boronia Street subdivision) and five lots approved on Lee Street. Paragraph 5.4(r) of the briefing note has taken a quote from the memorandum and placed before it the words "the Boronia Street subdivision" when the memorandum makes clear beyond any doubt that project 1519 is not the "Boronia Street subdivision". The context compounds this material inaccuracy because the following paragraphs of the briefing note (5.4(s) and (t)) refer to the modification of the Boronia Street subdivision from 10 lots to nine lots. These paragraphs clearly and wrongly convey the impression that project 1519 consisted of the 10 lot subdivision of the land and the modification involved steps directed towards implementing that subdivision consisting of all 10 (and then nine) lots. However, and consistent with the true text of the 19 December 1990 memorandum, the modification application lodged by the Department in May 1991 specifically identified the modification as relating to the three lots approved on Lackey Street being reduced to two. The reason the modification application was so framed is clear. Insofar as the Boronia Street subdivision was concerned, project 1519 related to those three lots only. (3) The Council objected to the claim on 29 April 1993 on the ground that the land was needed for residential development and public recreation purposes (paragraph 5.4(u) of the briefing note). The Council did so object. However, paragraphs 5.4(t) and (u) of the briefing note skip from the approval of the modification application to the Council's objection to the claim made on 29 April 1993. The briefing note thus omits reference to the Department's view that the Council should contribute to the cost of upgrading Lackey Street expressed in the memorandum of 14 August 1991. It also omits reference to Mr Edwards' letter to the Council of 23 July 1992 disclosing that the release of two lots from the land (at Lackey Street) had been abandoned altogether because the Council's requirement for the upgrading of Lackey Street made the proposal uneconomic and Mr Edwards' view that, if the claim were refused, the Department would examine development options but did not envisage any development in the short-term due to the Department's focus on the release of the land at Forest Road. (4) "Consent to the development application…was granted by the Council on 21 September 1990 to a 10 block subdivision over the land…. The land claim was lodged on 22 October 1990" (paragraph 6.16(d) of the briefing note). Again, the impression conveyed by omission is materially incorrect. The Department had in its possession evidence demonstrating that at some time before the claim was made (18 October 1990 at the latest) the Department had decided not to retain the whole Boronia Street subdivision on its home sites program as a project. Instead it consolidated a part of that subdivision (the three lots on Lackey Street) with another subdivision (five lots on Lee Street) to create a new project (1519) for its program. The evidence is not mentioned in the briefing note. Instead, the briefing note represents that whole Boronia Street subdivision was always part of the program and constituted project 1519 when it plainly was not and did not.

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