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Editors --- "Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council - Case Summary" [1998] AUIndigLawRpr 35; (1998) 3(4) Australian Indigenous Law Reporter 510

Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council

New South Wales Court of Appeal (Meagher, Handley and Powell JJA)

3 April 1998

Aboriginal Land Claim -- Aboriginal Land Rights Act 1983 (NSW) -- Definition of "Claimable Crown land" -- Whether claimed land was needed for the "essential public purpose" of nature conservation -- Whether relevant to consider whether the purpose can be achieved regardless of who owns land -- Whether findings vitiated by errors of law by trial judge

Words and Phrases -- "essential public purpose", "claimable Crown land"

Aboriginal Land Rights Act 1983 (NSW) s. 36(1)

Facts:

On 15 August 1989 the Deerubbin Local Aboriginal Land Council ("DLALC") lodged an Aboriginal land claim under s. 36(1) of the Aboriginal Land Rights Act 1983 (NSW) to two portions of land in the parish of Londonderry, county of Cumberland in western Sydney. That claim was refused by the Minister for Land and Water Conservation on 1 February 1996 on the basis that the land was not "claimable Crown land" because the bulk of the land was needed for the essential public purpose of nature conservation and part of the land was needed for the essential public purpose of road widening.

The DLALC appealed the Minister's refusal of the claim to the NSW Land and Environment Court. On 14 August 1997 Justice Sheahan allowed the appeal: see Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Lands Act (unreported, Land and Environment Court, No. 30025/96, 1997). Justice Sheahan held that the Minister had not satisfied the Court that the claimed land had been needed for either alleged purpose and was therefore "claimable Crown land" for the purposes of s. 36(1) of the Aboriginal Land Rights Act 1983 (NSW) and should be transferred to the DLALC. Justice Sheahan found that at the date the claim was lodged there was little support from a number of government agencies for a proposal by the National Parks and Wildlife Service to use the land for nature conservation purposes. In reaching his finding that the claimed land should be transferred to DLALC, Justice Sheahan accepted the argument of the DLALC that if the public purpose can be fulfilled otherwise than by maintaining a particular system of land tenure, it cannot be said that the land is "needed" for that purpose.

The Minister appealed the decision of the Land and Environment Court on the basis that Justice Sheahan had made an error of law in:

1. Holding that if the public purpose can be fulfilled other than by maintaining a particular system of land tenure, it cannot be said that the land is "needed" for that purpose.

2. Holding that an essential public purpose must be one which requires the retention of the land in public ownership to give effect to that purpose.

3. Considering whether the purpose could be fulfilled under the ownership of the DLALC.

4. Determining that the land was not needed for the essential public purpose of nature conservation by reference to circumstances which would arise following, and as a consequence of, the transfer of land to the DLALC.

The Minister did not appeal Justice Sheahan's determination insofar as that decision related to the essential public purpose of road widening.

^Held:

Per Meagher JA with whom Handley and Powell JJA agreed:

1. In determining whether land is needed for an essential public purpose under s. 36(1) of the Aboriginal Land Rights Act 1983, it is irrelevant to consider whether the essential public purpose could have been achieved regardless of whether the land is transferred to the applicant Aboriginal Land Council.

2. It is similarly irrelevant to inquire as to whether the best method of ensuring that the public purpose is achieved is by keeping the land in public ownership.

3. Determining whether land is needed for an essential public purpose does not involve an extensive inquiry into whether the purpose can somehow be achieved; it is essentially a question of the view held by the government of the day when the claim was made.

Per Handley and Powell JJA (Meagher JA dissenting):

4. The error of law made by Sheahan J did not vitiate his finding that the claimed land was not needed for the essential public purpose of nature conservation. "The variety of public purposes suggested by the different agencies, their lack of interest in the years before and after the claim, and the fluctuating priorities demonstrated in the evidence provided ample support for these findings": Yates Property Corp Pty Ltd v Darling Harbour Authority (1991) 24 NSWLR 156 referred to.