Worimi Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

130; [2006] HCA 5 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223 Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 586; [2006] SASC 32 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (No 2) (2016) 220 LGERA 1; [2016] NSWLEC 137 Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7 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; [2001] NSWCA 28 Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 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 (2008) 237 CLR 285; [2008] HCA 48 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15; [2002] NSWCA 12 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273; [2014] NSWLEC 58 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1; [2014] NSWLEC 72 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act (2014) 204 LGERA 205; [2014] NSWLEC 144 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 Orb Holdings Pty Ltd v WCL (Qld) Albert St Pty Ltd (2020) 5 QR 521; [2020] QCA 198 Pratten v Warringah Shire Council (1969) 17 LGRA 371 Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; [2003] HCA 43 Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 The South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603; [1932] HCA 40 Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30; [2004] HCA 63 Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 6 May 2009 Category: Principal judgment Parties: Worimi Local Aboriginal Land Council (Applicant) Minister Administering the Crown Land Management Act (Respondent) Representation: Counsel: S Pritchard SC (Applicant) C Lenehan SC with E Jones (Respondent)

Solicitors: Chalk & Behrendt, Lawyers & Consultants (Applicant) Crown Solicitors (Respondent) File Number(s): 2020/170716 Publication restriction: Nil

JUDGMENT TABLE OF CONTENTS TOPIC PARAGRAPH NO Worimi Local Aboriginal Land Council Claims Crown Land [1] The Claimed Lands [7] Tomaree Lodge [16] The Fisheries Area [29] The Pool Area [46] Issues For Determination [52] Statutory Framework [54] Evidence Of The Parties [69] Some Fundamental Legal Principles in Determining Claims Under the ALRA [72] Whether the "Lands Vested in Her Majesty" [78] Was the Land Vested in the Minister for FCDS by Force of the Just Terms Act? [94] Was the Notation Sufficient to Record the Minister's Interest Under the RPA? [140] Was the Acquisition of the Fisheries Area Lawful? [152] The Land Was Not Vested in Her Majesty [166] Was the Land Able to be Lawfully Sold or Leased? [167] Was the Claimed Land Lawfully Used or Occupied? [181] Fisheries Area [185] Pool Area [202] The Northern Bushland [212] The Land was Lawfully Occupied and Used as at the Claim Dates [223] Were the Disputed Areas Needed or Likely to be Needed for an Essential Public Purpose? [224] Meaning of "Public" [224] Meaning of "Essential" [224] Meaning of "Needed" [224] Meaning of "Likely Needed" [224] Was There a Need for the Essential Public Purpose of the Accommodation and Care of Persons With Intellectual Disabilities? [226] Was There a Need for the Essential Public Purpose of Open Space? [233] Was the Fisheries Area Needed or Likely to be Need for the Essential Public Purpose of Research? [240] Conclusion And Orders [255]

Worimi Local Aboriginal Land Council Claims Crown Land

1. These proceedings concern a Class 3 appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 ("ALRA") in respect of the refusal by the Minister administering the Crown Land Management Act 2016 ("the Minister") of the following Aboriginal land claims, namely: 1. claim 39573 lodged on 12 November 2015 by Worimi Local Aboriginal Land Council ("Worimi") over Lot 453 DP705463 ("the land"); and 2. claim 48502 lodged on 14 May 2019 by Worimi over the land.
2. On 11 February 2020 the Minister wrote to Worimi advising that the claims were refused on the ground that: …when the Claims were made the land was not claimable Crown land. The land was unable to be lawfully sold or leased, or reserved or dedicated under the Crown Lands Act 1989 or the Western Lands Act 1901. The land was acquired by the Minister for Family and Community Services on 2 June 2006.
3. The proceedings were commenced by Worimi on 9 June 2020.
4. On 27 November 2020 the Minister filed a Statement of Facts and Contentions ("the Minister's SOFAC") contending that the land was not claimable Crown land pursuant to s 36(1) of the ALRA because: 1. the land was vested in the Minister for Families, Communities and Disability Services ("Minister for FCDS") and not "vested in Her Majesty"; 2. the land was not "able to be lawfully sold or leased"; 3. the land was "lawfully used or occupied"; and 4. the land was "needed, or likely to be needed, for an essential public purpose".
5. For the reasons that follow, these submissions must be accepted and both claims must be dismissed.
6. I acknowledge the assistance provided to me by Davis AC. All findings are, however, my own.

The Claimed Lands

1. The following characteristics of the claimed land are relevant for the determination of the claims. For the most part they are not disputed.
2. The land is located at Tomaree Head, in the Parish of Tomaree, County of Gloucester, in the Port Stephens local government area. It is 8.876 ha in size. The shoreline of Shoal Bay is to the west of the land and Tomaree National Park is to the east.
3. On 9 June 1950, by notification in the New South Wales Government Gazette ("the Gazette"), the land was dedicated for public purposes under s 24 of the Crown Lands Consolidation Act 1913 ("CLCA"), with the "Purpose of Intended Dedication" listed as "Hospital".
4. On 16 May 1985 the "State of New South Wales" was recorded in the folio of the Register of land titles ("the Register") as the registered proprietor of the land.
5. The "State of New South Wales" remains the registered proprietor now and as at the date of the claims.
6. On 2 April 1999 the land was listed on the State Heritage Register.
7. A Ministerial Briefing Note was signed on 26 December 2005 seeking the approval for the compulsory acquisition of land at Tomaree Head. The Note stated that: BACKGROUND: � Lot 453 in DP 705463 is Crown land located at Tomaree Head in the local government area of Port Stephens. The land to be acquired is shown coloured yellow on the survey attached [see Tab A]. � The Crown land is dedicated for a hospital site under the control of the Minister of Health. � The site is currently used by the Department of Ageing, Disability and Home (DADHC) to provide supported accommodation for 44 clients and forms a key site for DADHC's Hunter Residences. � In 1999 the Department of Health ("Health") sought and obtained New South Wales Treasury ("Treasury") approval to realise the value of certain properties, including Tomaree Lodge at Tomaree Head, which were under the control of Health, but occupied and used by the Department of Community Services ("DoCS") and later by DADHC to provide disability services [see Tab B and Tab C]. � Health received compensation for the sites from Treasury, and in 1999 was directed by Treasury to proceed immediately to transfer ownership of the properties to DoCS. See [Tab C]. A reference to DoCS is to be construed as a reference to DADHC pursuant to the Public Sector Management (Community Services) Order 1997. � The Department of Health, the Treasurer of New South Wales and the Department of Lands have agreed to the acquisition by DADHC at nil compensation [see Tab B, Tab C and Tab D]. � The Department of Lands directed that the transfer of the sites be undertaken by way of compulsory acquisition under the provisions of the Land Acquisition (Just Terms Compensation) Act 1991 [see Tab D]. � The Crown Solicitor also advised that the most appropriate way to transfer title is by compulsory acquisition from the Crown by the Minister for Disability Services administering the Community Welfare Act 1987, pursuant to section 13A of that Act, and in accordance with section 29(4) of the Land Acquisition (Just Terms Compensation Act 1991. � The Crown Solicitor further advised that the development of the site for hospital purposes constitutes a "public work" as defined in the Native Title Act NSW 1994 and accordingly native title is extinguished. � Notification of the proposed compulsory acquisition in the Gazette is provided for in section 19 of the Land Acquisition (Just Terms Compensation) Act 1991. The draft notice for gazettal is attached to the Executive Council Minute. � The compulsory acquisition of the land effects the revocation of the current dedication on the land. On the date of publication of the acquisition notice in the Gazette, the dedication connected with the land will be revoked pursuant to section 20 of the Land Acquisition (Just Terms Compensation) Act 1991.

Tomaree Lodge

1. Located on the land is Tomaree Lodge, a large residential care centre for people with intellectual disabilities.
2. The land, including Tomaree Lodge, comprises of a number of buildings and areas. Among the buildings and areas are: 1. fisheries facilities and an area of bushland immediately adjoining the fisheries facilities (together, "the Fisheries Area"); 2. a pool and pool facilities (together, "the Pool Area"); and 3. an area on the headland in the northern part of the land ("the Northern Bushland").
3. The land, including the Fisheries Area, the Pool Area and the Northern Bushland, are identified on the following aerial photograph:
4. As at the date of the claims there were residents receiving care at Tomaree Lodge. Specifically: 1. there were 39 residents of Tomaree Lodge as at 12 November 2015 (the date of the first claim); and 2. there were 34 residents of Tomaree Lodge as at 14 May 2019 (the date of the second claim).
5. The residents of Tomaree Lodge had varying degrees of intellectual disability and ranged in age from approximately 40 to 75 years.
6. The residents of Tomaree Lodge were provided with fulltime care and supervision by nursing and support staff. Specifically: 1. as at 12 November 2015, there were 70 staff in total employed to provide services at Tomaree Lodge; and 2. as at 14 May 2019, there were 61 staff in total employed to provide services at Tomaree Lodge.
7. In December 2010 the NSW Government published a policy document entitled Stronger Together: A new direction for disability services in NSW 2006-2016. The next phase 2011-2016. In that document, the Government announced that Tomaree Lodge would be closed by 30 June 2018. This, however, did not occur.
8. In 2015, shortly after the commencement of the National Disability Insurance Scheme, the State government confirmed that it would be closing all large residential centres for people with disabilities.
9. On 13 December 2017 the Acting Director Assets and Major Infrastructure in the Department of Family and Community Services ("DFCS") prepared a brief to the Chief Financial Officer of DFCS in relation to correspondence received by the Minister for Disability Services regarding the future use of the Tomaree Lodge site. The brief advised that: The residents of Tomaree Lodge will be relocated to new purpose-built homes in the surrounding area as part of the Hunter Residences Program which is currently forecast to complete in mid to late 2018. It is anticipated that FACs will engage Property NSW (PNSW) in mid-2018 to commence investigations for the future use of the site once declared surplus to use.

The Fisheries Area

1. At some time in 1997 the Fisheries Administration Ministerial Corporation erected facilities in the Fisheries Area.
2. Until at least 2000, the Fisheries Area comprised a fenced area of approximately 300m2 and contained two shipping containers and sections that housed tanks for farming and researching abalone. The Fisheries Area operated as a research station, occupied by the NSW Department of Primary Industries ("DPI"). In particular, it was an abalone research facility until around 2005.
3. On 22 February 2007 a Memorandum of Understanding ("MOU") was signed between DPI and the Department of Ageing, Disability and Home Care ("DADHC") regarding the Fisheries Area. The recitals to the MOU stated as follows: A. NSW DPI currently occupies the Premises and the Research Station, which are located on the Land, pursuant to a Memorandum of Understanding between the FAC and the HAC dated 23 November 1998. B. The term of that Memorandum of Understanding has now expired, and NSW DPI wishes to continue to occupy the Premises and the Research Station. C. The Land is owned by the Minister for Disability Services pursuant to section 13 of the Community Welfare Act 1987, having acquired the land from the Crown in accordance with section 29(4) of the Land Acquisition (Just Terms Compensation) Act 1991. D. NSW DPI wishes to continue to occupy the Premises and the Research Station for the purposes of conducting its operations and activities. E. DADHC has agreed to allow NSW DPI to continue to occupy the Premises and the Research Station on the Terms and conditions set out below.
4. The MOU contained the following relevant definitions in cl 1.1: "Land" means the portion of Crown land known as Tomaree Lodge, being Lot 453 in Deposited Plan 705463; "Premises" means the area of land adjacent to the old swimming enclosure within the grounds of Tomaree Lodge at Shoal Bay, having an area of approximately 300 metres squared… "Research Station" means the Research Station constructed by the FAC on the Premises as a scientific station for the purposes of section 225 of the FMA, and in accordance with the Memorandum of Understanding between FAC and HAC;
5. The use of the Fisheries Area by DPI was subject to the following conditions, namely: 1. the research station had to be enclosed by a security fence at least two metres high with access by a gate to be kept locked to prevent unauthorised entry (cl 3.1(b)); 2. warning signs were to be erected in prominent positions on the premises to alert the public that the research station was occupied by DPI and to discourage unauthorised entry to the research station (cl 3.1(c)); 3. DPI was to ensure that there was separate metering for electricity supplied to the research station and was responsible for payment of that electricity (cl 3.1(f)); 4. DPI was to make a fair and reasonable contribution to water rates and road maintenance and to any other costs directly associated with the upkeep of the premises and the research station (cl 3.1(g)); and 5. DPI was to meet all of the costs and expenses associated with the premises and the research station (cl 3.1(j)).

The Pool Area

1. The Pool Area comprises a large concrete swimming pool measuring 15m x 10m with depths ranging from 1m to 1.7m. It has a full perimeter concrete path and a 4ft high weld mesh fence. There is an additional perimeter fence around the outside, consisting of an approximately 6ft high chain mesh and timber palings.
2. The pool was closed over the 2018/2019 summer due to a defect. The defect was repaired before 17 April 2019.
3. On 17 April 2019 a risk assessment in relation to the pool was published by Recovery Partners at the request of DFCS. That assessment concluded that "in lieu of the pending facility closures, the most effective control is to eliminate the risk and close the pool".
4. Since at least 17 April 2019 the pool has not been used by the residents of Tomaree Lodge.
5. A decision was made around June 2020 to decommission the pool. In September 2020 these works were undertaken, which involved the installation of tie down anchors and a roof frame over the pool.
6. On 16 November 2020 an engineering certificate in relation to the works decommissioning the pool was provided by Peter Sullivan & Associates Pty Ltd.

Issues For Determination

1. At a high level of generality the matter for determination may be put simply as whether the land comprising the Fisheries Area, the Pool Area and the Northern Bushland ("the disputed areas") are "claimable Crown lands" under the ALRA, and therefore, whether they ought to be surveyed and transferred in fee simple to Worimi. Worimi does not contend that other than the disputed areas, the land was not lawfully used and occupied within the meaning of s 36(1)(b) of the ALRA.
2. This belies, however, the complexity of the underlying issues giving rise to the central question for determination. Determination of whether the disputed areas are "claimable Crown lands" pursuant to the ALRA includes resolution of the following: 1. whether the land was "vested in Her Majesty" as at the date of the claims for the purpose of s 36(1) of the ALRA; 2. whether the land was "able to be lawfully sold or leased" within the meaning of s 36(1)(b) of the ALRA; 3. whether each of the disputed areas was lawfully used and occupied within the meaning of s 36(1)(b) of the ALRA as either: 1. a residential centre for people with intellectual disabilities; or 2. for the purpose of fisheries research; and 1. whether each of the disputed areas was needed, or likely to be needed, for an essential public purpose within the meaning of s 36(1)(c) of the ALRA, namely, for: 1. the accommodation and care of persons with intellectual disabilities; or 2. open space for the community; or 3. in respect of the Fisheries Area, for fisheries research.

Statutory Framework

1. Section 36(1) of the ALRA sets out what relevantly constitutes "claimable Crown lands": 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, … (c) are not needed, nor likely to be needed, for an essential public purpose… Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
2. Section 20(1) and (1A) of the Just Terms Act deals with the effect of publication of an acquisition notice in the Gazette: 20 Effect of acquisition notice (1) On the date of publication in the Gazette of an acquisition notice, the land described in the notice is, by force of this Act: (a) vested in the authority of the State acquiring the land, and (b) freed and discharged from all estates, interests, trusts, restrictions, dedications, reservations, easements, rights, charges, rates and contracts in, over or in connection with the land. (1A) Subsection (1) is subject to any express provision of an Act that authorises the acquisition of land by compulsory process but preserves the operation of any trusts, restrictions, dedications, reservations, declarations, setting apart of or other matters relating to the land concerned.
3. Section 40(1A)(b) of the Real Property Act 1900 ("RPA") creates a presumption in respect of persons recorded in the certificate as the registered proprietor of an estate or interest: 40 Manual folio to be considered evidence of title, and that the land has been duly brought under the Act … (1A) Where a computer folio certificate is issued in respect of a folio of the Register: … (b) it shall be conclusively presumed that: (i) the certificate contains all the information that was recorded in that folio at the time specified in the certificate, (ii) the land to which the certificate relates was, at that time, under the provisions of this Act, and (iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest.

Evidence Of The Parties

1. In addition to a bundle of documents, the Minister relied upon the following affidavits: 1. Wayne O'Connor, affirmed 30 April 2021, together with exhibits. O'Connor is the Research Leader Aquaculture, Fisheries Research at DPI. O'Connor deposed to the history and use by SCS of the fisheries facility at Tomaree Lodge used for fisheries activities. In particular, he described the use of the facilities for the growth of oyster spat and oyster research. It was his view that the ongoing operation of the fisheries facilities was critical to the NSW oyster industry; 2. Toni Skinner, dated 29 April 2021. Skinner is the former Nursing Manager at the Tomaree Lodge aged care facility. She was the Acting Nurse Manager in 2015 and from 1995 to 1998 was a registered nurse at the Lodge. In her capacity as Nurse Manager her role was to maintain and manage the delivery of nursing services for supported accommodation for people with a disability. Skinner deposed to the use of Tomaree Lodge and its grounds. She stated that the grounds would occasionally be used by the Singleton Army Base to hold training exercises. A joint risk assessment would be completed to ensure that the risk to the residents was minimised. The Nelson Bay Water Police and the RAF Base helicopter also used the grounds to complete training exercises on the water, especially at the northern end of the facility. As to its ongoing use, there was a shed on the grounds of Tomaree Lodge that was already being operated by SCS when Skinner commenced her role as Acting Nurse Manager in 2015. The use of the Tomaree Lodge site by SCS was an ongoing use and was still occurring when she left in October 2020. Finally, she deposed that the residents supported at Tomaree Lodge utilised all of the grounds. This gave rise to supervision concerns that were met by staff working at Tomaree site. The residents also had access to the pool, although its usage dwindled and during the last year of operation was minimal; 3. Richard Wilkins, affirmed 30 November 2020. Wilkins is the Manager of Finance and Administration in the Disability Services Unit at DCJ. Wilkins attended Tomaree Lodge approximately six times during the last decade to meet with managerial staff to discuss financial matters. He observed residents walking around the land. He deposed that as at 12 November 2015 there were 39 residents at Tomaree Lodge and as at 14 May 2019 there were 34. There was no challenge to his evidence; and 4. Pamela Brunner, affirmed 1 December 2020 and 7 May 2021, together with exhibits. Brunner is the Executive Director of Community Services, Statewide Services at DCJ. In her affidavits she deposed to: 1. her role in relation to Tomaree Lodge; 2. the use of the land as a health facility and public hospital; 3. the use of Tomaree Lodge as a large residential care facility; 4. the residents and staff of Tomaree Lodge; 5. the use of the buildings, facilities and grounds; 6. the management and maintenance services provided to Tomaree Lodge; 7. the use of third party providers; and 8. the use of part of the land by DPI as a research station relating to oyster research (that is, the Fisheries Area).

Some Fundamental Legal Principles in Determining Claims Under the ALRA

1. Although well traversed, it is worth repeating some of the fundamental legal principles underpinning claims under the ALRA. First, the ALRA was enacted in an attempt to alleviate the past dispossession of land from First Nations peoples in the State. This is expressly reflected in the preamble and objects of the Act (which are not repeated here). Thus the Act has been described as beneficial and remedial legislation (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B).
2. Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As was stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50 ("Berrima HCA") (at [33] per French CJ, Kiefel, Bell and Keane JJ. See also a similar sentiment expressed by Gageler J at [94], footnotes omitted): 33. That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
3. Second, as a result of this characterisation exceptions to the right to claim land should be narrowly construed (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001) 50 NSWLR 665; [2001] NSWCA 28 at [53] ("Maroota") and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379; [2009] NSWCA 138 at [186] ("Bathurst")).
4. Third, consistent with its statutory purpose, pursuant to s 36(7) of the ALRA the legal and evidential onus is on the Minister to satisfy the Court that the land (or part thereof) is not "claimable Crown lands": (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

Whether the "Lands Vested in Her Majesty"

1. The Minister contended that, notwithstanding that from 1985 and as at the claim dates, the "State of New South Wales" appeared as the registered proprietor of the land on the folio, the land was not vested in Her Majesty, but was vested in the Minister for FCDS. The registered interest of the State of New South Wales was discharged on 2 June 2006, by reason of the acquisition of the land by the Minister for FCDS under the Just Terms Act.
2. This was because s 20(1) of the Just Terms Act had the effect of vesting the land in the relevant Minister upon publication of the acquisition notice in the Gazette. No further action was required under any statute, including the RPA, for this to occur.
3. The Minister submitted that, first, the Just Terms Act impliedly repealed the RPA in its operation in relation to land to which the Just Terms Act applied, including the indefeasibility provisions of the RPA (relying upon The South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603; [1932] HCA 40 and the case cited therein, together with subsequent authorities from Queensland, Victoria and New South Wales) from the date of the commencement of the Just Terms Act. That the Minister for FCDS could, but had yet to do so, register his acquired interest was no barrier to his title prevailing.
4. Second, and in the alternative, no implied repeal has occurred because the two statutes coexist harmoniously having regard to the proper construction of s 31A of the RPA. A "resumption application" as defined in s 31A(1) is an application that causes the person entitled to the land, by virtue of the resumption or further vesting of the land by the operation of any Act, to be registered as the proprietor of the land. There is a statutory duty imposed upon the Registrar-General ("RG") by s 31A(3)(b) of the RPA to give effect to the resumption by recording it in the Register. This duty recognises that the entitlement to land the subject of a resumption application is an entitlement that already exists by force of statute.
5. In other words, the RPA proceeds upon the basis that an interest may be acquired and vested in the acquiring authority under other enactments authorising the compulsory acquisition of land, such as the Just Terms Act. It is by the operation of the Just Terms Act that the transfer of the interest occurs, which may later be formally certified in the Register by the RG.

Was the Land Vested in the Minister for FCDS by Force of the Just Terms Act?

1. For the reasons that follow, I largely agree with and accept the Minister's submissions.
2. It is clear that, as at the date of the claims, the registered proprietor of the land on the folio for the purpose of the RPA was the "State of New South Wales" and that on its face it was therefore vested in Her Majesty (Gandangara at 13).
3. Leaving aside for present purposes the lawfulness of the acquisition of the Fisheries Area, there is no question that the Minister for FCDS had the power to acquire the land pursuant to s 13A of the CWA, or that the Minister purported to do so (see also s 19(1) of the Just Terms Act).
4. On any construction, s 20(1)(a) and (b) of the Just Terms Act expressly states that upon the date of publication of the acquisition notice in the Gazette, the acquired land vests in the authority of the State resuming the land and is freed and discharged from all prior interests and rights over, or in connection with, the land. As the provision makes plain, no further action is required by the acquiring authority. The vesting occurred by dint of the operation of the Act upon publication of the acquisition notice; no further condition precedent to the effect of the vesting exists in the statutory scheme.
5. The acquisition notice was published on 2 June 2006, that is, prior to the date of the claims. Thus, as at the date of the claims the land was not vested in Her Majesty, but was vested in the Minister for FCDS.
6. This is consistent with s 33 of the Just Terms Act (which states that once land has been acquired the validity of the acquisition is not affected by a subsequent failure to comply with a requirement of the Act) and s 37 (which provides that a dispossessed owner's right to compensation arises upon the publication of the acquisition notice), both of which are contextual indicators that upon the act of acquisition, the interests and rights to the land pass to the acquiring authority.
7. What effect then, if any, did the provisions of the RPA have upon the operation of s 20(1) of the Just Terms Act? In my view, none for the reasons given below.
8. I note at the outset that it is not, in my opinion, necessary to have recourse to the doctrine of implied repeal. That doctrine applies where there are provisions within different enactments that are inconsistent and cannot be reconciled, namely, s 20(1) of the Just Terms Act and s 40(1A)(b)(iii) of the RPA (Commissioner of Police for New South Wales v Eaton (2013) 252 CLR 1; [2013] HCA 2 at [48], Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130; [2006] HCA 5 at [18], Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 at [48] and Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 at [35]).

Was the Notation Sufficient to Record the Minister's Interest Under the RPA?

1. Finally, and for the sake of completeness, I do not accept the Minister's submission that the notation "acquired and dedicated 2070334 revoked vide gaz 2.6.2006 fol. 3911" was a recording in the Register for the purpose of s 41 of the RPA.
2. The published acquisition notice was an "instrument" for the purpose of the RPA as that term is defined in s 3(1) of that Act: Instrument - Any grant, conveyance, assurance, deed, map, plan, will, probate, or exemplification of will, or any other document in writing or in electronic form relating to the disposition, devolution or acquisition of land or evidencing title to land.
3. The term "dealing" is defined in the same section to mean: Dealing - Any instrument other than a grant, caveat or priority notice, including an electronic form of that instrument, being an instrument - (a) that is registrable or capable of being made registrable under the provisions of this Act, or (b) in respect of which any recording in the Register is by this or any other Act or any Act of the Commonwealth required or permitted to be made
4. Dealings are not effectual until recorded in the Register. Section 41 of the RPA states as follows: 41 Dealings not effectual until recorded in Register (1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature.
5. Section 40(1B) of that Act further provides that: 40 Manual folio to be considered evidence of title, and that the land has been duly brought under the Act (1B) Where, in a manual folio or computer folio certificate, the estate or interest of a registered proprietor is expressed to be subject to: (a) an estate or interest evidenced by an instrument, (b) a provision of an instrument, or (c) an enumerated provision of an Act or of an Act of the Parliament of the Commonwealth, the whole of the contents of the instrument, provision or enumerated provision, as the case may be, shall be deemed to be set forth at length in the folio or certificate.

Was the Acquisition of the Fisheries Area Lawful?

1. In a collateral challenge, Worimi argued that the compulsory acquisition of the Fisheries Area was not lawful because its acquisition was not, pursuant to s 13A of the CWA, for the purposes of "community welfare legislation" (as defined in s 3 of the CWA). The power to acquire land under s 13A(1) of the CWA was restricted to this purpose (see also s 20(1A) of the Just Terms Act). When the land was resumed, the Fisheries Area was being used for fisheries purposes and it was intended that this use would continue post acquisition. Use for fisheries purposes was not use for the purposes of community welfare.
2. Although the Minister submitted that the collateral challenge by Worimi ought not be permitted (see the criteria in Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 586; [2006] SASC 32 at [93]), none of the reasons provided by it warrant exclusion by the Court of the challenge. There is no doubt that the Court has the power to determine a collateral challenge as to the validity of instruments affecting whether land is claimable under the ALRA (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) (2014) 202 LGERA 273; [2014] NSWLEC 58 at [153]-[181]).
3. First, to the extent that a challenge involving an allegation of improper purpose requires adducing evidence, there is no suggestion that the Minister was prejudiced in this respect by the collateral attack. Second, to the extent that it was asserted that this challenge would permit Worimi to circumvent the three month time limit contained in r 59.10 of the Uniform Civil Procedure Rules 2005 ("UCPR"), because these are not judicial review proceedings within Class 4 of the Court's jurisdiction Pt 59 does not apply (in addition to these being Class 3 proceedings, the setting aside of a decision was not required: r 59.10(5) of the UCPR. And, to reiterate, no prejudice was suffered by the Minister in permitting the challenge to proceed). Third, although the Minister for FDCS is not a party to the proceedings, this does not matter having regard to the relief claimed in the Class 3 proceedings, which comprises only the granting of the appeal and the transfer of the land and does not seek any declaratory relief or the setting aside of the acquisition.
4. There was some confusion as to whether or not Worimi was asserting that the land was acquired for an improper purpose. Worimi denied that this was the basis of the collateral challenge in closing submissions and contended that the compulsory acquisition was ultra vires because the empowering legislation, the CWA, did not authorise the acquisition of the Fisheries Area unless it could serve a community welfare purpose. However, given that the Gazette specifically stated that the land was acquired "for the purposes of the Community Welfare Act 1987", unless Worimi can demonstrate that it was acquired for some other impermissible purpose this aspect of its claim must fail.

The Land Was Not Vested in Her Majesty

1. It follows from the analysis above that, by reason of the vesting of the land in the Minister for FDCS occasioned by the compulsory acquisition of the land, as at the date of the claims the land was not vested in Her Majesty, and therefore, was not claimable Crown lands for the purpose of s 36(1) of the ALRA.

Was the Land Able to be Lawfully Sold or Leased?

1. The resolution of this issue follows inextricably from the determination of that above.
2. Whether the land was able to be lawfully sold or leased in order to satisfy s 36(1)(a) of the ALRA depends upon whether s 34(1) of the CLA and s 5.3(1) of the CLMA applied to the land as at the date of the claims. These provisions permit the selling and, in effect, leasing of Crown land.
3. At all relevant times, however, the application of both the CLA and the CLMA proceeded on the basis that land vested in a Minister was not Crown land because, for the reasons given above, the land was vested in the Minister for FDCS.
4. As at the first claim, the land had not been declared to be Crown land under s 138(1) of the CLA, which states: 138 Certain land may be declared to be Crown land (1) If any land was or is, before or after the commencement of this section: (a) acquired by compulsory process for any public purpose and vested in a Minister of the Crown on behalf of the Crown by or under the authority of an Act, (b) acquired by or on behalf of the Crown by gift or otherwise, or (c) acquired by compulsory process and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of an Act, the Minister may, by notification in the Gazette, declare the land to be Crown land.
5. Similarly, as at the second claim the land had not been declared to be Crown land pursuant to s 4.4 of the CLMA: 4.4 Certain land may be declared to be Crown land (1) This section applies to any of the following land even if it was acquired before this section's commencement: (a) land acquired by compulsory process for any public purpose and vested in a Minister on behalf of the Crown by or under the authority of an Act, (b) land acquired by or on behalf of the Crown by gift or in any other way, (c) land acquired by compulsory process and vested in a public authority (or acquired by or vested in a public authority in any other way) by or under the authority of an Act, (d) land acquired by a Crown land manager in the capacity of the Crown land manager of dedicated or reserved Crown land (including if it is acquired by or transferred to the manager under section 14 of the Cemeteries and Crematoria Act 2013). (2) The Minister may, by notice published in the Gazette, declare the land to be Crown land. (3) A declaration may - (a) be limited to the surface of the land or to the surface and a stated depth below the surface, and (b) contain provisions relating to the discontinuation or continuation of any interests affecting the land. (4) A declaration cannot be made in relation to land vested in or acquired by or on behalf of a public authority without the consent of the public authority. (5) Land declared to be Crown land under this section becomes Crown land.

Was the Claimed Land Lawfully Used or Occupied?

1. At issue is whether the land, and in particular the disputed areas, was lawfully used or occupied as at the claim dates, and therefore, not claimable Crown land under s 36(1)(b) of the ALRA.
2. The principles to be applied were not in dispute and may be summarised as follows: 1. first, it is necessary to consider the particular acts, facts, matters and circumstances which are alleged to deprive the land of the characteristic of being lawfully used and occupied and to measure those acts, facts, matters and circumstances against "an understanding of what would constitute use or occupation of the land" (Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48 at [69] ("Wagga HCA")); 2. second, the land must be actually used in fact and not just in a nominal sense or to merely a notional degree (Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 164D-E, Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 at [45]-[46] ("La Perouse NSWCA") and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2015) 215 LGERA 103; [2015] NSWCA 349 at [17] ("Berrima NSWCA")); 3. third, a constructive use or occupation of the land is insufficient (Daruk at 164B-D, La Perouse NSWCA at [44]-[46] and Berrima NSWCA at [16]). The mere existence of a lease or licence is not conclusive of lawful use or occupation (Daruk at 160E and 162D-164E and La Perouse NSWCA at [43]); 4. fourth, the purpose for which the land is reserved, dedicated or leased is material to the determination of whether the land is used or occupied (Berrima HCA at [38]); 5. fifth, recurring physical acts on the land serving some purpose will usually constitute a use of the land. A combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity is usually sufficient (Wagga HCA at [69] and Berrima HCA at [27]-[28]). Physical acts can be sufficient irrespective of the purpose for which they are taken (Berrima HCA at [88]); 6. sixth, total abandonment is not required to find that land is not lawfully used or occupied (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 at 198); and 7. seventh, it follows from earlier stated principles that the lawfulness of any use or occupation must be established by the Minister.

Fisheries Area

1. Worimi did not dispute that the Fisheries Area was used and occupied as at both dates of claim. Rather, the controversy centred on whether that use and occupation of the land was lawful.
2. The parties agreed that the aquaculture permit did not confer any right of occupation to the Fisheries Area. Nor could it. It was a condition of the permit that a right to occupation of the land or to immediate possession of it be maintained by the permit-holder.
3. The evidence demonstrates that the Collaboration Deed between SCS and DPI had expired three years prior to the first claim date (in 2012).
4. Accordingly, Worimi argued that SCS had no right to occupy the land.
5. In NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 ("Shoalhaven") Jagot J observed that the existence of a licence, gratuitous or otherwise, is a question of fact (at [67]) and that merely because an activity does not constitute and offence does not mean that the activity is a lawful use for the purpose of s 36(1)(b) of the ALRA (at [57]).
6. In my opinion, the evidence establishes that it was agreed or understood by DCJ and SCS that SCS could continue its use and occupation of the Fisheries Area after the expiry of the Collaboration Deed. In other words, it may be inferred that a gratuitous licence was granted to SCS for it to occupy and use that Area. This inference is premised upon: 1. the internal DPI emails dated 19 September 2019 regarding the lease to SCS; 2. the emails between SCS to the Facilities Services Manager at DCJ on 1 October 2019, in respect of the renewal of the lease with DCJ "to continue operation of the Oyster Hatchery business within the Tomaree Lodge grounds footprint"; 3. the internal DCJ email on 11 June 2020, regarding leasing arrangements, stating that SCS "should be advised that arrangement will continue on a month by month basis up to the point when the last residents leave Tomaree…a firm date is not known" but it was thought that this "could be November 2020". The email was in response to a query from SCS on 4 June 2020. Although Worimi urged the Court to place little to no weight on the email on the basis that it postdated the claims and the commencement of the proceedings, and moreover, because the agreement that it referenced was not before the Court, its explicit mention of "arrangements" that "will continue on a month by month basis" is, in my view, relevant insofar as it evidences a prior (and existing) permissive state of affairs between DCJ and SCS allowing SCS to use and occupy the Fisheries Area; and 4. the warranty contained in cl 1.13 of DPI's Aquaculture Permit to SCS dated 16 February 2009, whereby SCS warranted that it "shall maintain during the term of the permit, the right to occupation of the land or to immediate possession of the land on which the fish farm is situated for the purpose of aquaculture".

Pool Area

1. There was evidence that as at the date of the first claim, the Pool Area was still in use by the residents of Tomaree Lodge. I do not understand this to be a matter in dispute (and nor could it be in light of the evidence of Brunner - both written and oral, and that deposed to by Skinner).
2. The evidence as to whether or not the use of the pool had ceased as at the date of the second claim is more equivocal but nonetheless sufficient. According to Worimi use of the pool ceased, at the earliest, during the 2018/2019 summer or, at the latest, following the risk assessment on 17 April 2019, that recommended that "in lieu of the pending facility closure, the most effective control is to eliminate the risk and close the pool" (Risk Assessment FACS Hunter Residences Swimming Pools prepared by Recovery Partners for NSW Family and Community Services ("the Risk Assessment")).
3. The Risk Assessment was undertaken following a chlorine leak in the tank which occurred in the summer of 2018/2019. This rendered the use of the pool in its last year of operation "pretty well null and void" according to Skinner and it was not used after that (T70:08-14).
4. According to the Risk Assessment, however, the chlorine leak was repaired and there does not appear to have been any impediment to the pool being utilised, irrespective of the recommendation that the pool be decommissioned.
5. Brunner's evidence was consistent with that of Skinner. That is, the pool was closed over the 2018/2019 summer (T62:37). However, Brunner stated that works were not undertaken immediately after the Risk Assessment recommended the decommissioning of the pool. The Risk Assessment was not considered until May or June 2019 by the director of the facilities at Hunter Residences and the pool was not formally decommissioned until sometime in 2020 (T62:48-63:03).
6. As a consequence, to the extent that Worimi submitted that the pool closure during the 2018/2019 summer meant that the Pool Area was not lawfully used or occupied after this time, this is not consistent with the evidence.
7. Not only was the pool not decommissioned until 2020, there is additional evidence that the Pool Area was maintained and cared for on an ongoing basis sufficient to warrant a finding that it was being lawfully used and occupied.
8. As was explained in Berrima HCA, and having regard to the principles referred to above, continuous active use is not required to establish lawful use or occupation (at [80]-[81]): 80 Daruk was one of two early decisions of the Court of Appeal on s 36(1)(b) to which the plurality in the Wagga Wagga Motor Registry claim case referred without disapproval. The other was Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("the First Nowra Brickworks claim case"). 81 The reasoning in Daruk drew heavily on the explanation of the concepts of occupation and use of land given by Bowen JA in Commissioner of Land Tax v Christie, which echoed the distinction drawn by Kitto J and which was made with express reference to Royal Newcastle Hospital. "Occupied" was explained to mean "'actually occupied' in the sense of being occupied in fact and to more than a notional degree", in respect of which "[p]hysical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant". "Used" was separately explained to mean "'actually used' in the sense of being used in fact and to more than a merely notional degree".

The Northern Bushland

1. Worimi did not cavil with the proposition that bushland can be used as part of the amenity of a site despite there being no physical use (see Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 at 507-509). The question is one of fact.
2. Worimi relied on the fact that Tomaree Lodge was in the process of being closed down. It further argued that the bushland was not relevantly used as part of the amenity of the site, especially in circumstances where a substantive part of the bushland could not be seen by the residents on the land and the majority of the bushland in the vicinity of Tomaree Lodge was in the adjoining Tomaree National Park. For these reasons, Worimi contended that the Northern Bushland section of the land was used and occupied to only a notional degree.
3. The evidence suggests otherwise. The Northern Bushland was cared for and maintained. Brunner gave evidence in her first affidavit that the bushland was observed daily and maintained to ensure compliance with bushfire risk management policies. It was also the site of sewerage and waste services necessitating regular maintenance. Thus, in conformity with the Bushfire Emergency Management Plan Review; Tomaree Lodge and The Kanangra Centre dated November 2019, the grounds and vegetation on the land were continuously cared for. True it is that this document postdates the date of the claims, but it is sufficiently temporarily proximate to the second claim date that it may be used to infer that the maintenance occurring as at November 2019 was relevantly similar to that being carried out as at the date of the second claim.
4. As Brunner stated in her evidence: 1. the bushland served a therapeutic purpose for the residents. She was aware that the residents occasionally walked in the bushland to engage in recreational activities; 2. while not all of the boundaries of Tomaree Lodge were fenced, there was no public access. Access was restricted by a combination of security patrols, signage and a boom gate; 3. the areas of Tomaree Lodge that were not fenced were where public access was considered to be part of the land (T63:10-20); 4. during the period covering the two claims, DCJ employed two maintenance staff at Tomaree Lodge who were responsible for maintaining the grounds and the buildings on the land. These duties extended to the whole of the land, including the bushland (T61:30-43); 5. the maintenance staff were permanent full-time employees whose duties included ensuring bushfire and risk management policies were complied with. Tomaree Lodge was located in designated bushfire prone land. The bushfire management needed for the Lodge was "fairly consistent". During her tenure there were at least two bushfires on the headland area and bushfire management was a "constant activity…because the risks...are fairly clear and high" (T61:05-43); and 6. as at each of the claim dates, security services were provided to Tomaree Lodge by third parties. They undertook patrols of the grounds and facilities.

The Land was Lawfully Occupied and Used as at the Claim Dates

1. It follows that the whole of the land was being lawfully used and occupied as at both claim dates, including the disputed areas of the Fisheries Area, the Pool Area and the Northern Bushland.

Were the Disputed Areas Needed or Likely to be Needed for an Essential Public Purpose?

1. It is convenient to restate the relevant legal principles to be applied in assessing whether or not land is needed, or likely to be needed, for an essential public purpose (s 36(1)(c) of the ALRA): 1. first, the question is one of fact (Winbar No 3 at 691-692 and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Newcastle Post Office Claim) (2014) 204 LGERA 1; [2014] NSWLEC 72 at [187]);

Meaning of "Public" 1. second, to be a "public" purpose, the purpose must have connotations of the "community, state or nation as a whole" (La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 at 133 ("La Perouse"));

Meaning of "Essential" 1. third, the reference to an "essential public purpose" provides a constraint on its use. To be "essential" the public purpose must be "necessary or indispensable" (La Perouse at 183 and Newcastle Post Office at [190]). Mere desirability, or even high desirability is insufficient (Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71; [2009] NSWCA 289 at [32(2)]); 2. fourth, merely because an activity is undertaken by the Crown is not, of itself, enough to establish that it is an essential public purpose (La Perouse at 183); 3. fifth, the fact that a government activity is undertaken in the public interest, or that it gives rise to a public benefit, does not mean that the public purpose is "essential" in the relevant sense (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 78 LGERA 1 at 14); 4. sixth, what constitutes an essential public purpose may vary depending on the context (Illawarra at [65] and Batemans Bay Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 800 at [107]-[108]); 5. seventh, steps are generally taken to achieve an essential purpose before the date of claim for it to be "essential" (Batemans Bay at [110]);

Meaning of "Needed" 1. eighth, for the purpose of s 36(1)(c) of the ALRA, the term "needed" means "required or wanted" (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254D and Newcastle Post Office at [188]). The mere fact that the land is "suitable" or has a "capacity" is not enough; the land must be reasonably needed (Newcastle Post Office at [189], Daruk at 204 and Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2066) 149 LGERA 162; [2006] NSWLEC 180 at [149]);

Meaning of "Likely Needed" 1. nineth, the word "likely" means "a real and not remote chance" (Maroota at [57]) or a "substantial chance" (Illawarra at [32(1)]); 2. tenth, while the concept of "likely" can encompass a consideration of the likelihood of a formal decision being made, and not just merely an actual decision, the likely decision must be that of the executive government rather than the desire or aspiration of a department or agency without relevant decision-making power. It is not satisfied by a mere possibility. There must be a consideration of a reasonably concrete proposal (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2012) 211 LGERA 100; [2012] NSWLEC 68 at [118], [128] and [146] ("O'Haras Creek")); 3. eleventh, in determining the likely need, it is necessary to have regard to the statutory scheme conferring power to make the relevant decision (Illawarra at [35]); and 4. twelfth, the "need" must be a need or likely need of the land by the government as at the date of the claim (O'Haras Creek at [151]), and not some proposal developed by an agency or non-government organisation with no relevant decision-making power in relation to the land. Steps must be taken towards the making of a decision on the land being used for that purpose (Maroota at [63]-[68] and O'Haras Creek at [60]-[61]).

1. I have had regard to these principles in making the findings below.

Was There a Need for the Essential Public Purpose of the Accommodation and Care of Persons With Intellectual Disabilities?

1. The Minister stated that the land was needed or likely to be needed for the essential public purpose of the provision of accommodation and care of persons with intellectual disabilities.
2. Worimi disputed this asserted need on the basis that the State Government had announced its intention to close down Tomaree Lodge at least five years prior to the date of the first claim. Moreover, the Government had announced that all large residential care centres in New South Wales were to close (see the oral evidence of Brunner: T57:45-58:02).
3. According to Worimi, the more appropriate characterisation of the essential public purpose was for the provision of accommodation and care of persons with intellectual disabilities other than in large residential centres. And given that the government was in the process of closing Tomaree Lodge and that it had been specifically identified as no longer required for the purpose for which it was built (or any other public purpose), the use of the claimed land for the stated public purpose of the accommodation and care of persons with intellectual disabilities could not be regarded as essential, in the sense of necessary or indispensable.
4. There are, however, several difficulties with Worimi's submissions. First, the argument that Tomaree Lodge had been flagged for closure does not alter the fact that as at the claim dates, the Lodge was still being used for the essential public purpose claimed. In other words, it was needed for that essential public purpose.
5. Whether or not the transition of the residents to alternative accommodation would occur sooner, giving rise to the possibility that Tomaree Lodge would not be likely to be needed at some point in the future did not matter. The concepts of needed and likely to be needed are distinct and cannot, as Worimi seeks to do, be conflated. Provided that it was needed for the stated essential public purpose as at the claim dates, which it was, this is sufficient. As the Minister correctly submitted, the criterion of essentiality is directed to the public purpose and not to the need.
6. As Brunner indicated, the process of transitioning the residents of Tomaree Lodge to different facilities was a necessarily slow and demanding practice (T54:21-37). It was not completed until May 2021.

Was There a Need for the Essential Public Purpose of Open Space?

1. The Minister further relied upon the land being needed, or likely to be needed, for open space for community use and recreation. Although Worimi complained about the late reframing of this ground of refusal, it is noted that the essential public purpose of "open space" was expressly referred to by the Minister in the Minister's SOFAC. The refinement of the essential public purpose of open space to open space for recreation or open space for community use and recreation did no more than narrow the scope of the public purpose. In any event, Worimi appeared not to be, despite its protestations, prejudiced by the further characterisation.
2. Despite a submission by Worimi to the contrary, if established on the facts, the use of the land for such a purpose is enough to defeat a claim under the ALRA on this basis (Worimi Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 72 LGRA 149 at 163). Maroota does not stand in opposition to this proposition. Rather, that case stands for the principle that, as stated above, the public purpose to be served must be more than desirable or even highly desirable. Having said this, as Pain J emphasised in O'Haras Creek, the term "open space" is a broad concept that can encompass many land uses, not all of which will satisfy the criterion of an essential public purpose (at [155]. See also criticism of the similarly amorphous term "community purposes" which has been held not to constitute an essential public purpose: Newcastle Post Office at [225]-[226]).
3. In the present case, the high level of generality inherent in the stated public purpose of open space is, as observed above, appropriately narrowed by the tethering of that concept to the use of the land by the community for recreational purposes.
4. The task is to determine whether the land the subject of the claims, and not some other land proximate to it, was needed, or likely to be needed, for the asserted essential public purpose. That the Tomaree National Park adjoined the land, while relevant, is not determinative.
5. There is ample evidence that members of the public walked along the shoreline boundary of the land and then across the headland to the national park on its eastern side (see the written and oral (T63:10-20) evidence of Brunner and the affidavit evidence of Skinner).

Was the Fisheries Area Needed or Likely to be Need for the Essential Public Purpose of Research?

1. Worimi contended that neither of the essential public purposes identified by the Minister that the land was needed, or likely to be needed, for could be demonstrated in respect of the Fisheries Area.
2. It must be noted that this essential purpose was not raised in the Minister's SOFAC. It was, however, expressly referred to in the Minister's written submission filed in advance of the hearing and was squarely addressed in the evidence filed and served by the Minister (see, for example, the O'Connor affidavit). No formal application was made by Worimi prior to the trial commencing for a vacation of the hearing due to any prejudice occasioned by the additional late ground of refusal in respect of the Fisheries Area. Worimi was offered an adjournment to deal with "this newly raised essential public purpose" but it was not taken up (T39:38-49).
3. This was because the Fisheries Area was treated as an entirely distinct parcel of land in respect of which, under the MOU, DPI was responsible for upgrading and maintaining the Area, for the payment of electricity and other costs such as water rates and road maintenance, and for ensuring that the Area was secured by fencing with access through a locked door or gate. Furthermore, under the Collaboration Deed, SCS was responsible for maintaining all necessary insurance policies.
4. The Minister argued that if, contemporary to its submissions above, the Fisheries Area was to be considered as a standalone parcel of land, then the land was needed for the essential public purpose of fisheries research.
5. Worimi rejected this as an essential public purpose. I disagree having regard to the evidence before the Court.
6. The research conducted by SCS in the Fisheries Area was undertaken collaboratively with DPI. This is evident from the terms of the Request for Proposal Collaborative Research Project at Tomaree Lodge, Shoal Bay and the response by SCS (Collaborative Research Project at Tomaree Lodge, Shoal Bay dated 16 August 2007, submitted to DPI). The former document sought proposals for collaborative research that would assist DPI achieve the scientific and research priorities set out in its Science and Research Strategy 2005-2008. The latter document indicated that: In order to stabilise SRO [Sydney Rock Oyster] production, build confidence in the industry and overtime re-establish NSW as one of the premium oyster growing states in Australia, further investment into SRO research and development is needed. The proposal will have direct economic benefit to the industry through securing the supply of seed and product development. The proposal is a natural extension of the current research aims by the department and is aligned to the corporate strategies detailed in the Science and Research Strategy.

Conclusion And Orders

1. As explained in this judgment, as at both the first and second claim dates, the land, including the disputed areas, was not claimable Crown lands for the purpose of s 36(1) of the ALRA because: 1. the land was vested in the Minister for FDCS and not Her Majesty as required by s 36(1) of that Act; 2. the land was not able to be sold or leased as required by s 36(1)(a); 3. the land was lawfully used or occupied contrary to s 36(1)(b); and 4. the land was needed, or likely to be needed, for an essential public purpose contrary to s 36(1)(c).
2. Both claims, and Worimi's appeal, must therefore be dismissed. The exhibits are to be returned.
3. The parties are granted liberty to restore within 21 working days of the publication of this judgment to relist the matter for the purpose of seeking alternative orders with respect to costs.

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: 19 October 2022