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Editors --- "Birrigan Gargle Aboriginal Land Council v Minister Administering the Crowns Lands Act 18 February 1999 - Case Summary" [1999] AUIndigLawRpr 31; (1999) 4(3) Australian Indigenous Law Reporter 28

Birrigan Gargle Aboriginal Land Council v Minister Administering the Crowns Lands Act

New South Wales Land and Environment Court (Justice Bignold and Assessor McDermott)

18 February 1999 ; [1999] NSWLEC 12

Aboriginal – Aboriginal Land Claim – Aboriginal Land Rights Act 1983 (NSW) s 36(l) – Definition of 'Claimable Crown Land' – whether land vested in Her Majesty – whether land needed for an essential public purpose of nature conservation – whether land was needed for an essential public purpose of public access – whether land lawfully used and occupied for access – Crown Lands Consolidation Act 1913 (NSW) – Real Property Act 1900 (NSW).

Facts:

On 2 July 1984, the Applicant made a number claims under the Aboriginal Land Rights Act 1 983 ('the Land Rights Act') to land near the town of Yamba on the New South Wales north coast. The claims concerned Portions 32, 33, 34, 53, 54, 55, 56, 72, 73, 74, 83, 118, 121, ML10 and R 74743 for Future Public Requirements in the Parish of Yamba, County of Clarence. The claims were given the claim identification numbers, 741, 742, 743, 751, 755, 777, 778, 779, 800, 801, 802, 803, 808, 809, and 810.

The bulk of the land in question had previously been compulsorily acquired by the State Planning Authority for the purposes of the Yamba Waters Development Project. That project was later abandoned around the time the claims were lodged. The land of that acquisition had been the subject of a Notice under s 25A of the Crown Lands Consolidation Act 1913, stating that it was able to be dealt with as crown land. Subsequent to the Notice, the land was vested in the State of New South Wales.

The land the subject of three of the claims had previously been the subject of a National Parks and Wildlife Service proposal for the Micalo Island Nature Reserve. The remainder of the lands were, subsequent to the land claims being lodged, the subject of a number of proposals from within the National Parks and Wildlife Service. None of those proposals were in existence at the date of claim.

On 20 March 1996, 12 years after the claims were lodged, the Minister refused the claims on the ground that at the time the claims were lodged, the land in question was needed for the essential public purpose of nature conservation. Claim 751 was refused on the additional ground that the land was needed for the essential public purpose of access.

The Birrigan Gargle Local Aboriginal Land Council appealed the refusal of the claims to the Land and Environment Court. Subsequent to the appeal, the Minister added an additional ground of refusal, namely that the vesting of the land in the State of New South Wales was a mistake and that the land was still vested in the State Planning Authority or its successor. This was despite the State of New South Wales appearing as the registered title holder on the certificate of title.

At the hearing, the Minister also argued that claim 751 should also be refused on the ground that at the date of claim the land was lawfully used and occupied for public access.

The issues at the hearing were:

1) Whether, at the date the claims were lodged, the claimed lands were vested in Her Majesty;

2) Whether, at the date the claims were lodged, any of the claimed lands were needed for the essential public purpose of nature conservation;

3) Whether, at the date the claims were lodged, the land the subject of claim 751 was needed for the essential public purpose of access; and

4) Whether, at the date the claims were lodged, the land the subject of claim 751 was lawfully used or occupied for the public access.

Held:

1. The 'conclusiveness of the Register provisions' in the Real Property Act 1900 (ss 40 and 42) are determinative of the issue in dispute and operate so as to require the conclusion in the proceedings that the lands were relevantly 'vested in Her Majesty' at the date of claim: Beskvar v Waff (1971) 1 26 CLR 376 referred to.

2. The determination of factual issues requires a determination of facts existing at the date of claim. In this respect, the occurrence of subsequent facts, if in the nature of hindsight, simply cannot have any logical probative relationship to the facts existing at the date of claim: Gosford Shire Council v Green (1980) 48 LGRA 201 referred to.

3. The fact that land possessed (and continued to possess) relevant attributes and values of ecological significance does not establish that they were needed as at the date of claim for the essential public purpose of nature conservation.

4. There was no adequate evidence to show that any of the land the subject of claim 751 was needed for the essential public purpose of access or lawfully used and occupied for that purpose at the date of claim.

5. The Minister failed to satisfy the Court that any of the lands were, at the relevant date, not claimable Crown lands with the consequence that the land should be transferred to the Birrigan Gargle Local Aboriginal Land Council.