Editors --- "Wanaruah Local Aboriginal Land Council v Minister Administering the Crown Lands Act - Case Summary" [2002] AUIndigLawRpr 2; (2002) 7(1) Australian Indigenous Law Reporter 15

• Wanaruah Local Aboriginal Land Council V Minister Administering The Crown Lands Act
• Facts:
• Held:

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Court and Tribunal Decisions - Australia

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

NSW Land and Environment Court (Lloyd J)

21 February 2001

(2001) 113 LGERA 163; [2001] NSWLEC 20

Claim over Crown land — power of the Court to allow a claim and impose conditions — Aboriginal Land Rights Act 1983 (NSW) ss 36(1), 36(5A) and 36(6) — Land and Environment Court Act 1979 (NSW) s 39

Facts:

The appellant appealed under s 36(6) of the Aboriginal Land Rights Act 1983 (NSW) (the Land Rights Act) against the refusal by the respondent to grant a claim for land made by the applicant under s 36(3) of that Act on the basis that part of the land was required for residential purposes. The claimed land comprised an area of about 180 hectares known as the Muswellbrook common, 90 hectares of which was granted as a claim. While part of the claim was granted from the surface to unlimited depth, part was granted from the surface to a depth of 15.24 metres below the surface, as a result of the existence of the Consolidated Coal Lease No 713 from 15.24 metres below the surface to unlimited depth. The claim was expressed to be subject to a number of easements, comprising an easement for an underground cable, easements for electricity transmission lines, easements for water supply and an easement for access, especially with respect to a trigonometric station.

Held:

1. The fact that land is zoned for residential purposes is not conclusive of the question of whether it is needed or likely to be needed as residential lands. It is a question of fact in each case whether the land is likely to be needed as residential lands. The zoning of the land is merely evidence that there was at the relevant date an acknowledgment in public documents of the capacity or the suitability of the land for future residential use. Daruk Local Aboriginal Land Council v Minister (No 2) (The Londonderry Claim) (1995) LGERA 194; New South Wales Aboriginal Land Council v Minister (The Winbar Claim) (1988) 14 NSWLR 685 referred to. [14]

2. The word ‘needed’ in s 36(1)(c) means ‘required’. The view of the executive government must be reasonable. The question must be whether the land is reasonable required for the relevant purpose. Moreover, the concept of ‘needed or are likely to be needed as residential lands’ involves an element of reasonable futurity, so that if evidence indicates that any possible development on the land is many years distant then the element of reasonable futurity is unlikely to be satisfied. Minister v Deerubbin Local Aboriginal Council (1995) 43 NSWLR 249; New South Wales Aboriginal Land Council v Minister (The Winbar Claim) (1988) 14 NSWLR 685 applied. Daruk Local Aboriginal Land Council v Minister (No 2) (The Londonderry Claim) (1995) LGERA 194; Deerubbin Local Aboriginal Land Council v Minister (1997) LGERA 353 referred to. [15]–[17]

3. The claimed land is neither needed nor likely to be needed as residential land and thus is not excluded from being claimable. [20]–[57]

4. ‘Occupied’ in s 36(1)(b) means ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree as opposed to constructive occupation, and ‘used’ is governed by the same consideration as ‘occupied’. Use is not confined to physical use, but does not include contemplated or intended use. Another question to be considered is the degree of control exercised over the land, whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land. Minister v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106; Minister v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641; Minister v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 applied. [67]–[72]

5. The mining lease exists as evidence of substantive occupation and use. The control that the leaseholder exerts over the land is particularly evident in the reasonably onerous and unfulfilled obligation to rehabilitate the land. Moreover, there is no evidence to suggest that the leaseholder would not go back into the old mine workings and, with the aid of new technology, extract additional material therein. The land that is below 15.24 metres below the surface is non-claimable land because it is lawfully occupied and used. [77]

6. The Court could determine whether conditions should be imposed on the grant because (i) the Minister’s decision to impose a condition unacceptable to the applicants would amount to a refusal of the application; and (ii) the Court could exercise the powers and functions of the decision maker under s 39 of Land and Environment Court Act 1979 (NSW). Minister v New South Wales Aboriginal Council (1987) 9 NSWLR 154; Minister v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 considered. [97]–[102]

7. The trigonometrical station and its curtilage comprising an area of 115 metres by 55 metres, the access thereto and electricity transmission are all needed for an essential public purpose and thus are not claimable, but pursuant to subs 36(5A) of the Land Rights Act the claim is subject to a condition that easements therefore be reserved out of the grant. Minister v Deerubbin Local Aboriginal Council (1995) 43 NSWLR 249 considered. [78]–[88], [105]??