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Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council.

Country/Territory
Australia
Type of court
National - higher court
Date
Sep 11, 2009
Source
UNEP, InforMEA
Court name
Supreme Court of New South Wales
Judge
Hodgson
McColl
Basten.
Reference number
[2009] NSWCA 289
Language
English
Subject
Land & soil, Legal questions
Keyword
Constitutional law Land tenure Land-use planning Indigenous peoples National parks Protected area Foreign land tenure
Abstract
On 17 January 1986 Budderoo National Park was established south of Sydney and inland of Kiama. Its establishment fulfilled part of a proposal by the National Parks and Wildlife Service to provide a corridor linking existing parks along the Illawarra escarpment, using available Crown land. One of the constraints on the area of the Park as reserved in 1986 had been concern voiced by the Department of Mineral Resources that there might be economically viable coal reserves underlying parts of the escarpment. On 3 March 1986 a land claim under the Aboriginal Land Rights Act 1983 (NSW) was lodged over two portions of land to the north of the newly established park. On 22 June 2006 the Minister rejected the claim, primarily on the basis that they were needed or likely to be needed for the essential public purpose of nature conservation. Small sections of the claimed land were rejected because they comprised freehold land, public roads or were lawfully occupied for mining purposes. The respondent appealed to the Land and Environment Court against the refusal by the Minister. The area of freehold land having been conceded by the respondent, Sheahan J overturned the decision of the Minister in respect of the remainder of the claimed land, other than land reserved for public roads. The Minister appealed to this Court from the judgment of Land and Environment Court. The issues for determination on appeal were:(i) whether the need or likely need must be identified to have been at "an appropriate level of government"; (ii) whether the trial judge correctly identified the use that could be made of evidence as to matters which arose after the lodgement of the claim; (iii) whether, in making use of evidence of post-claim events, the trial judge had denied procedural fairness to the Minister, and (iv) whether the trial judge elevated a finding of delay in determination of the claim into a principle that allowed any gaps in the evidence to be filled favourably to the Land Council. The Court held, allowing the appeal: In relation to (i) . 1 The trial judge did not address the correct question, namely whether the land was, as a matter of fact, likely to be needed by the executive government for an essential purpose. Rather, his Honour addressed a question distorted by an irrelevant consideration of whether any trajectory towards the existence of such need was itself at the appropriate government level: 2. The political commitment demonstrative of a need or likely need may be required to be discerned at Cabinet level, if the relevant decision is to be made at such level of government. The evidence was capable of supporting a conclusion that, absent the resolution of conflicting departmental positions as to the claimed land by Cabinet, the necessary political commitment did not exist as at the date of the claim. In relation to (ii) 3. The trial judge erred in taking into account the irrelevant consideration of whether the land had been included in Budderoo National Park up to the date of the hearing: [4. The distinction embodied within the Falconer principle is not between confirming or denying a foresight, but between evidence which could relate to a foresight and that which merely constituted a hindsight. It was open to the trial judge to infer from an absence of post-claim executive activity, the absence of a likely need at the date of claim. In relation to (iii) 5 Doubt exists as to whether an alleged denial of procedural fairness constitutes an erroneous decision of the court below on a question of law. In any event, where foreseeable inferences adverse to a party's case have been drawn from evidence tendered by that party, no denial of procedural fairness can be said to have occurred. In relation to (iv) 6. In circumstances where the trial judge possessed a large degree of procedural freedom, where there is evidence supportive of the trial judge's particular finding, and no erroneous principle of practice or law has been stated, no error on a question of law will have been established.
Full text
COU-156846.pdf