Minister Administering the Crown Lands ACT v Illawarra Local Aboriginal Land Council

(2009) 168 LGERA 71; [2009] NSWCA 289

NSW Court of Appeal

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Interrogate

Catchwords

1. Aboriginals
2. › Land rights under legislation
3. › Claim to Crown land
4. › Whether land needed or likely to be needed for essential public purpose
5. › Nature conservation
6. › Appropriate level of government to demonstrate need or likely need
7. › Whether resolution of dispute at Cabinet level necessary
8. › Aboriginal Land Rights Act 1983 (NSW), s 36(1)(c)
1. Evidence
2. › Aboriginal land claim
3. › Permissible use of evidence of events and conduct post-dating claim
4. › Whether post-claim inactivity relevant to assessment of likely need at date of claim
5. › Falconer principle
1. Administrative Law
2. › Procedural fairness
3. › Foreseeable inferences drawn from tendered evidence
4. › Whether inferences adverse to tendering party available without warning
1. Statutory Interpretation
2. › Remedial legislation
3. › Principle of beneficial construction
4. › Whether adopted impermissibly in treatment of gaps in evidence

Quick Take

When assessing whether Crown land is 'likely to be needed' for an essential public purpose under s 36(1)(c) of the Aboriginal Land Rights Act 1983 (NSW), the question is whether there is a trajectory towards a requirement at the appropriate government level, not whether the trajectory itself exists at that level. The non-inclusion of claimed land in a national park after the date of claim cannot be treated as relevant where the non-inclusion is attributable to the existence of the undetermined land claim itself. The majority and dissent disagreed on whether the trial judge's reference to 'appropriate government level' constituted legal error or a permissible factual evaluation.