New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

1. [1]

   ADAMSON JA: The appellant, New South Wales Aboriginal Land Council (the Land Council), appeals against the decision of Pepper J (the primary judge) in the Land and Environment Court (the Court below) that Lot 3 in Deposited Plan 1001659 in Jannali (Lot 3, or the claimed land) does not constitute “claimable Crown lands” within the meaning of s 36 of the Aboriginal Land Rights Act 1983 (NSW) (the Act). The respondent to the appeal is the Minister Administering the Crown Land Management Act 2016 (NSW) (the Minister).

2. [2]

   The grounds of appeal (omitting particulars) are:

3. [3]

   The proceedings before the primary judge were Class 3 proceedings: s 19(g2) of the Land and Environment Court Act 1979 (NSW). As such, an appeal to this Court lies against an order or decision on a question of law: s 57(1) of the Land and Environment Court Act.

4. [4]

   The appeal turns on the application of s 36(1)(c) of the Act. Section 36(1) relevantly defines “claimable Crown lands” as:

5. [5]

   The Land Council “may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils”: s 36(2).

6. [6]

   If the Minister is satisfied that all or part of the lands claimed are claimable Crown lands, the Minister must grant the claim, or part of the claim, by transferring to the claimant Land Council the whole or part of the lands claimed: s 36(5)(a).

7. [7]

   If the Minister is satisfied that all or part of the lands claimed are not claimable Crown lands, the Minister must refuse the claim, or part of the claim: s 36(5)(b).

8. [8]

   An Aboriginal Land Council may appeal to the Land and Environment Court against a refusal of a claim under s 36(5)(b), as occurred in the present case: s 36(6).

9. [9]

   Section 36(7) provides:

10. [10]

    Section 36(5A), which is relevant only if the Court, exercising the Minister’s function, is not satisfied that all or part of the lands is claimable Crown lands, provides:

The facts

1. [11]

   On 18 October 1935, Lot 3 was included within a dedication of lands for public purposes under the Crown Lands Consolidation Act 1913 (NSW) (the CLCA) and the Public Trusts Act 1897 (NSW) by notification in the New South Wales Government Gazette. The purpose nominated was for use as a public school. In January 1959, Jannali Girls High School opened at a location which comprised Lot 3 and two other lots, Lot 51 in DP 1034575 (Lot 51) and Lot 1238 in DP 824066 (Lot 1238) (together the site). Lots 51 and 1238 were owned by the Department of Education but Lot 3 was Crown land.

2. [12]

   On 4 September 1964, “public school purposes” was declared to be a public purpose pursuant to s 233 of the CLCA. In December 1991, Jannali Girls High School closed.

3. [13]

   In April 1994, St George & Sutherland Community College Inc (the College) began providing adult and community education at the site. On 1 January 2011, the Minister for Education and Training granted a lease over Lot 51 to the College for a term of five years with an option to renew for a further five-year term (the lease). The lease specified the following permitted use: “(t)he conduct of adult and community education and child minding, car parking, administration and other activities incidental to the conduct of adult and community education”. The lease expired on 31 December 2015 and was not renewed. The College remained in occupation of the site during the holding over period and became a monthly lessee of Lot 51.

4. [14]

   In early 2016, the College offered to purchase the site from the Department of Education (in the mistaken belief that the Department of Education owned all three lots). On 8 April 2016, Kit Wong, Manager of Property and Asset Management at the Department of Education, wrote to Terry Higgins of the College, as follows:

5. [15]

   On 17 May 2016, Kristiaan Letsch, a public servant in Commercial Transactions at Property NSW, wrote to Thomas Delgatto, the Manager, Strategic Sales and Disposals, in the Department of Primary Industry and Crown Lands, in respect of Lot 3, as follows:

6. [16]

   On 18 May 2016, Mr Delgatto wrote to Ms Letsch and said:

7. [17]

   On 20 May 2016, Belinda Kelly, a Property Development Project Officer at the Department of Primary Industries, sent the following email to Mr Delgatto:

8. [18]

   On 4 August 2016, the Executive Director of Asset Management in the Department of Education recommended to the Minister for Education, in a briefing note prepared for that purpose, that the site be sold to the College. The recommendation was endorsed by a Deputy Secretary of Corporate Services. On 11 October 2016, the Minister for Education accepted the recommendation and signed the briefing note.

9. [19]

   Because of the importance placed by both parties on the briefing note, I propose to reproduce it in full. The briefing note said as follows:

10. [20]

    On 30 November 2016, Robert Fraser of the Department of Education wrote a letter to Dennis Szabo, Executive Director Commercial Transactions at Property NSW, which said:

11. [21]

    I understood it to be common ground that the dedication of the claimed land for the purposes of a public school would be revoked upon sale: s 3.42 of the Crown Land Management Act.

12. [22]

    On 15 December 2016, Aboriginal Land Claim 42455 (the first land claim) was lodged in respect of land including Lot 3.

13. [23]

    On 19 December 2016, Aboriginal Land Claim 42491 (the second land claim) was lodged, also in respect of Lot 3.

14. [24]

    As at the date of the claims, the claimed land was occupied by the College.

15. [25]

    On 27 May 2021, a Department of Planning, Industry and Environment brief entitled “Partial determination of Aboriginal Land Claims 42455 and 42491” was approved by the Executive Director of Strategy and Policy, Crown Lands, under the delegation of the Minister for Planning and Public Spaces. The brief recommended that the Minister’s delegate “[p]art refuse” the first and second land claims, “with the balance to remain undetermined”, and that a letter be sent to the Land Council as follows:

16. [26]

    A letter in those terms was sent to the Land Council in respect of the first and second land claims. The reason given for refusing the claims, that the land was lawfully used and occupied pursuant to s 36(1)(b) of the Act, was rejected by the primary judge ([121]-[122]). The Minister has not filed a notice of contention challenging that rejection.

17. [27]

    However, at the hearing before the primary judge, the Minister also relied on s 36(1)(c) of the Act in support of its contention that Lot 3 was not claimable Crown lands. That criterion had not been relied on by the Minister in refusing the claims, the Departmental brief noting “this criterion has not been fully assessed”. The primary judge accepted the Minister’s argument and dismissed the Land Council’s appeal on the basis of s 36(1)(c): namely, that the claimed land was needed for the essential public purpose of education so was not claimable Crown lands.

The evidence before the primary judge

1. [28]

   The evidence adduced on behalf of the Minister in the Court below comprised, together with documentary evidence (including that referred to above), an affidavit by Bernadette Mills affirmed 18 February 2022, who was appointed as the Chief Executive Officer of the College on 9 July 2021. She deposed to the activities of the College on the site, which included providing education to those with disabilities.

The primary judge’s reasons for decision

1. [29]

   The primary judge said, at [62]:

2. [30]

   In the following paragraphs, [63]-[80], the primary judge summarised the evidence of Ms Mills as to the activities of the College on the site and the services it provided to members of the public, including those with disabilities.

3. [31]

   The primary judge concluded that “education” was an “essential public purpose” within the meaning of s 36(1)(c) of the Act ([130]) and that “the fact that the courses were offered by a private organisation did not in and of itself mean that the claimed land was not needed for the essential public purpose of education” ([137]). Her Honour continued at [142] that:

4. [32]

   The primary judge, in substance, accepted the Minister’s submission that since, as at the date of the claims, the Department of Education’s intention was to sell the claimed land (it being found surplus to the Department’s own requirements), specifically to the College so that the College could continue using the site to deliver education to members of the public, the proper conclusion was that the claimed land was needed for the public purpose of education ([140]-[143]).

5. [33]

   The primary judge continued:

6. [34]

   The primary judge said further, at [146]:

Consideration

1. [35]

   Ms Graycar, who appeared for the Minister before the primary judge and with Dr Wong in this Court, submitted that the orders made by the primary judge were on questions of fact and were therefore not amenable to appeal, which lies to this Court only on a question of law: s 57(1) of the Land and Environment Court Act.

2. [36]

   The relevant principles were expressed by Griffiths AJA (Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33:

3. [37]

   Ground 1 alleges that the primary judge erred in failing to address a critical integer of the statutory test: whether the executive government of the day, having turned its mind to the issue, had decided that the claimed lands were needed or likely to be needed for an essential public purpose. This was to fail to ask the correct question. Ground 2 alleges that the primary judge erred in finding that the statutory test was capable of being satisfied by the evidence adduced as to the purpose of the proposed sale to the College. This was to ask the wrong question. Ground 3 alleges legal unreasonableness in the finding of the primary judge that the claimed land did not constitute claimable Crown lands for the purposes of s 36(1)(c) of the Act.

4. [38]

   Grounds 1 and 2 allege, in substance, that the primary judge’s decision was based on an erroneous construction and application of s 36(1)(c). Ground 3 alleges that the evidence adduced was not legally capable of discharging the onus cast on the Minister by s 36(7) that the lands were not claimable Crown lands within the meaning of s 36(1). In my view, each of the grounds alleges an error on a question of law in the primary judge’s decision and falls within s 57(1) of the Land and Environment Court Act.

5. [39]

   In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 (2022) 110 NSWLR 535; [2022] NSWCA 275 (Gosford), this Court (Preston CJ of LEC, Gleeson JA and Basten AJA agreeing) identified the principles which apply when a land claim is made on the basis of s 36(1)(c) of the Act as follows:

   1. (1)

      the need or likely need of the land to be used for an essential public purpose is to be determined at the date when the land claim was made: [65];

   2. (2)

      the question of need is to be determined by reference to the view of the executive government of the State at the appropriate level as at the date of the land claim and, depending on the alleged need or likely need, may require the Minister to show that a decision of the executive government on that matter has been made prior to the date of the land claim: [66]-[67]; and

   3. (3)

      holding a view or deciding that land is needed for an essential public purpose involves the formation of a positive opinion to that effect, with the result that the Minister must show that the executive government has, prior to or as at the date of the land claim, turned its mind to the question and formed the opinion that land is needed for an essential public purpose: [68].

6. [40]

   The primary judge set out these principles correctly in her Honour’s reasons. However, the Land Council submitted that the primary judge’s application of these principles was erroneous.

7. [41]

   Mr Wright SC, who appeared with Mr Jones for the Land Council, submitted, in support of ground 1, that the primary judge was required to determine whether the executive government had positively decided that the claimed land was needed for an essential public purpose and that her Honour had failed to make any such determination. Mr Wright noted that no witness capable of giving evidence as to the views or decision of the executive government had been called by the Minister. He submitted that the only document capable of being understood as reflecting the views of the executive government was the briefing note signed by the Minister for Education on 11 October 2016 and the letter advising Property NSW of the decision to sell dated 30 November 2016.

8. [42]

   He submitted that these documents were not only manifestly insufficient to discharge the onus of proof which lay on the Minister by reason of s 36(7) of the Act to prove that the claimed land did not fall within s 36(1)(c), but that they established the contrary proposition: that the claimed land was surplus to the requirements of the executive government because it was identified as such and because the sale to the College was, in substance, unconditional.

9. [43]

   Ms Graycar reiterated the submission she made to the primary judge (which was accepted by her Honour) that the briefing note established that Lot 3 was not claimable Crown lands because, as at the date of the claim, it was required for the essential public purpose of education. She submitted that it followed from the circumstance that the claimed land was to be sold to the College and that the activities of the College were educational, that the purpose of the sale to the College was so that it could (and would) carry on its educational activities, which amounted to an essential public purpose within s 36(1)(c) of the Act.

10. [44]

    Ms Graycar submitted orally, when asked whether there was any decision of the government at the time of the land claims that the claimed land was needed for an essential public purpose:

11. [45]

    Ms Graycar also submitted that:

12. [46]

    As to [144] of the primary judge’s reasons (a finding that the Department of Education had decided to sell Lot 3 on the “narrow and exclusive basis” that the College could continue to operate there), Ms Graycar submitted:

13. [47]

    As is evident from the primary judge’s statement of the applicable principles derived from Gosford, her Honour can be taken to have appreciated the significance of the requirement that the Minister prove that the executive government had decided by the date of the claim that the claimed land was required for an essential public purpose.

14. [48]

    However, her Honour’s reasons did not disclose any of the following:

    1. (1)

       a finding that an “actual decision” had been made by the government that the claimed land was needed for an essential public purpose;

    2. (2)

       a finding that the government “held the view” that the claimed land was needed for an essential public purpose; or

    3. (3)

       an identification of:

15. [49]

    The legal and evidentiary onus which lay on the Minister under s 36(7) of the Act could not be discharged without these findings having been made. The primary judge thereby failed to ask and answer the correct question in deciding whether the Minister had established the requirements of s 36(1)(c). For these reasons, ground 1, which constitutes an error of law, has been made out.

16. [50]

    Mr Wright submitted that the primary judge erred in concluding, on the basis that the objective purpose of the proposed sale of the claimed land to the College was to enable it to continue to provide educational services, that the land was not claimable within s 36(1)(c) of the Act. He submitted that the objective purpose was not determinative since the relevant matter for s 36(1)(c) purposes was whether the executive government had formed a positive opinion that the claimed land was needed for an essential public purpose. The primary judge thereby asked the wrong question.

17. [51]

    Mr Wright submitted that the primary judge’s erroneous approach was revealed by her Honour’s reasons, including the observation in [62] (extracted above) that Ms Mills’ evidence was “central to the resolution of the claim”, and the recitation of the nature of the College and the educational services it provides in [140] and [141], in circumstances where, in his submission, her evidence could have no possible bearing on the view of the executive government as to whether the claimed land was needed or likely to be needed for an essential public purpose at the relevant time.

18. [52]

    Ms Graycar submitted that the primary judge’s finding that the claimed land was needed for an essential public purpose was a question of fact and therefore was not amenable to appeal to this Court. For the reasons given above, I reject this submission.

19. [53]

    Ms Graycar submitted that the briefing note and letter (both of which were produced prior to the Land Council submitting its claims) were sufficient to establish that the claimed land was not claimable Crown lands within s 36(1)(c). She submitted that the present case was distinguishable from Gosford, in which it was found that the evidence did not establish that government officers responsible for administering a charitable disability support program had decided that the land was needed or likely to be needed for the program (which was accepted to be for an essential public purpose): Preston CJ of LEC at [61]. Ms Graycar submitted that while in Gosford there was no contemporaneous evidence of a decision by the executive government that the land was needed for an essential public purpose, in the present case the briefing note constituted such evidence and the task of finding a decision of the government ought be “undertaken by reference to what inferences can be drawn from the available evidence.”

20. [54]

    In light of the parties’ submissions summarised above, it appears to have been common ground that the view of the executive government could be divined, if at all, from the briefing note, since it was signed by the relevant Minister (being the Minister for Education, as the only public purpose suggested was the purpose of education) at a time shortly before the filing of the land claims. This much may be accepted. None of the emails set out above, which were tendered in the Court below, are capable of establishing the view of the executive government at the relevant time for the purposes of s 36(1)(c) of the Act.

21. [55]

    Ground 2 is, in substance, a converse way of putting the error alleged in ground 1. In having regard to the objective purpose of the College in providing the services on the site, instead of making the findings set out above (which were required having regard to the wording of s 36(1)(c) as interpreted by this Court), the primary judge misapprehended the effect of s 36(1)(c) and asked the wrong question. This was an error in a decision on a question of law. Ground 2 has been made out.

22. [56]

    An allegation of legal unreasonableness, in the present context, amounts to an allegation that the primary judge misunderstood either s 36(1)(c) of the Act or the evidence, or both, and that her Honour’s conclusion that the Minister had established that the claimed land was needed for an essential public purpose lacked any rational basis: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [68], [76], [91], [105]. Such an allegation amounts to a claim that the primary judge’s decision was erroneous on a question of law.

23. [57]

    The following facts were agreed or found by the primary judge:

    1. (1)

       The claimed land was dedicated solely for “public school purposes”: [8]. The Jannali Girls High School operated on the claimed land from January 1959, until its closure in December 1991: [11]. As at the date of the claims the College was not using the land for “public school purposes”: [103]-[105], [111].

    2. (2)

       There was no evidence that, at any time before 8 April 2016, anyone at the Department of Education or the Department of Primary Industries – Crown Lands was even aware that the College occupied the claimed land, much less turned their mind to the question of the College’s occupation: [113].

    3. (3)

       On 11 October 2016, on the recommendation of the Department of Education contained in an internal briefing note to the Minister for Education, the Minister for Education declared the site of the former Jannali Girls High School to be “surplus to educational requirements” and approved its sale to the College: [30], [131]. This approval was communicated to Property NSW by letter dated 30 November 2016: [32].

    4. (4)

       As at the dates of the claims, the College’s use of the site was unlawful because it was used for a purpose other than public school purposes, being the purpose for which it was dedicated: [111].

    5. (5)

       As at the dates of the claims, persons within the Department of Education and the Department of Primary Industry and Crown Lands, were aware that the College occupied the claimed land and that the land needed to be vested in Property NSW so that it could be transferred to the College: [115].

24. [58]

    Her Honour went on to conclude that the sale of Lot 3 to the College satisfied s 36(1)(c). That finding was incorrect and unsupported by the evidence, for the reasons that follow.

25. [59]

    In substance, the primary judge’s path of reasoning (in the sense used in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [48]) can be reduced to the following:

    1. (1)

       education is capable of amounting to an essential public purpose and therefore so too is community education, even if it is provided by a private entity on its own behalf;

    2. (2)

       the College was providing community education services on the site;

    3. (3)

       although the executive government did not, at the relevant time, itself need the claimed land for an essential public purpose of public education or consider that the claimed land was likely to be needed for that purpose, the fact that it was prepared to sell the land to the College which was using and intended to use the claimed land for the purpose of providing community education services indicated that it regarded the College’s purpose as an essential public purpose;

    4. (4)

       thus, the College’s purpose ought be accepted as proving that the executive government held the opinion at the relevant time that the claimed land was necessary for an essential public purpose.

26. [60]

    Integers (3) and (4) are erroneous (and the correctness of (1) need not be addressed) and at odds with the evidence and none, taken together or in any combination, is capable of discharging the Minister’s onus of proof under s 36(7) of the Act. The primary judge’s acceptance of Ms Graycar’s submission that the sale to the College compelled the conclusion that the government was only prepared to sell the claimed land to the College because it provided educational services and that it ought thus be inferred that the government needed the College to do so to fulfil an essential public purpose not only does not follow but also lacks any rational basis in the evidence.

27. [61]

    Knowledge of the College’s occupation (and its activities) and an intention to transfer the land to the College cannot rationally establish that the executive government had decided that the claimed land was needed for an essential public purpose. Indeed, the conditions of the transfer did not, as Ms Graycar accepted, contain any relevant limitation on the College’s use of the site. The College, as purchaser, could have used the site (and therefore the claimed land) for any available private purpose, including sale to a third party (subject to the College’s obligation to remain on the site which it included in its offer). I accept Mr Wright’s submission that there is nothing in the evidence which indicates that the Minister’s decision involved the imposition of any requirement, whether as a term of the lease or as a condition of the ultimate sale, that the claimed land be used in a particular way.

28. [62]

    I understood Ms Graycar to accept the Land Council’s submission that the intention of the executive government could not be proved by Ms Mills’ evidence and that the briefing note was the best (and possibly only) evidence of the view of the executive government with respect to the claimed land.

29. [63]

    The evidence goes no higher than to indicate that the reason the Department was prepared to sell the claimed land was that it was surplus to its educational requirements and that the College had made an offer which the Department regarded as providing value which was equivalent to the market value of the claimed land. No evidence was adduced by the Minister which was capable of proving that the executive government considered that the claimed land was necessary for the public purpose of community education. As such, the evidence was not capable of discharging the Minister’s onus of proof under s 36(7) of the Act.

30. [64]

    As this Court (Basten JA, Beazley, McColl and Macfarlan JJA agreeing) observed in Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 (Malabar) at [29]:

31. [65]

    While the passage from Malabar extracted above arose in the context of s 36(1)(a) of the Act, the reasoning also applies to s 36(1)(c). It is difficult to see how land which the Minister was advised could be sold because it was surplus to educational requirements could, at the same time, qualify as land which was needed, or likely to be needed, for an essential public purpose. The implausibility becomes even greater once it is appreciated that the conditions of sale imposed no restriction on the College’s use of the land following the proposed sale (subject to the terms of the College’s offer), with the result that the College would be at liberty to sell it.

32. [66]

    In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 (Moira Park), Leeming JA (Meagher JA agreeing), said of present relevance, at [98]:

33. [67]

    Ms Graycar sought to distinguish Moira Park from the present case on the basis that Moira Park concerned the residential lands exception in s 36(1)(b1) of the Act: being “lands which, in the opinion of a Crown Lands Minister, are needed or likely to be needed as residential lands”. In Moira Park, the primary judge’s conclusion that the Minister had not discharged the onus under s 36(7) of the Act in relation to s 36(1)(b1) was not amenable to challenge in this Court because it was held to be a factual matter. Leeming JA’s reasons in [98] turn on the exception in s 36(1)(c). I do not consider that there is any proper basis to distinguish what his Honour said at [98] from the considerations which apply in the present case. The College’s purposes were its own private purposes (although the provision of those services may have benefited those members of the public to whom the services were provided). The Minister’s decision that the claimed land was surplus to educational requirements and could be sold to a private body (the College) for its own purposes is, in my view, inconsistent with a decision of the executive government that the claimed land was needed for an essential public purpose.

34. [68]

    Further, the circumstance that, as the primary judge found (at [111]), the claimed land was used by the College for a purpose which was unlawful because it was not used in accordance with its dedication for “public school purposes” tells against the conclusion that the executive government had the view that the claimed land was needed for the essential public purpose for which the College was occupying and using the land: Gosford at [99]-[100].

35. [69]

    The primary judge’s conclusion that the claimed land was not claimable Crown lands within the meaning of s 36(1)(c) of the Act was legally unreasonable. The only available conclusion on the evidence was that the Minister has not discharged the onus of proof under s 36(7) of the Act that the claimed land did not constitute claimable Crown lands under s 36(1)(c). In these circumstances, there would be no utility in remitting the matter to the Court below under s 57(2)(a), there being only one conclusion rationally open on the evidence. Accordingly, this Court ought order, pursuant to s 57(2)(b) of the Land and Environment Court Act, that the Minister transfer the claimed land to the Land Council.

Further matter

1. [70]

   Mr Wright submitted that, if the appeal were dismissed, the question whether s 36(5A) of the Act (set out above) applied, ought be remitted to the Court below. As I propose that the appeal be allowed, this question need not be addressed.

Proposed orders

1. [71]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the orders made by Pepper J on 23 April 2024.

   3. (3)

      Order the Minister Administering the Crown Land Management Act 2016 (NSW) to transfer to the New South Wales Aboriginal Land Council Lot 3 in Deposited Plan 1001659 within 90 days of the date of this order.

   4. (4)

      Order the respondent to pay the costs of the appellant of the proceedings in this Court and in the Land and Environment Court.

2. [72]

   STERN JA: I agree with Adamson JA.

3. [73]

   PRESTON CJ of LEC: I agree with Adamson JA.