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Behrendt, Jason; Cronin, Margie --- "Worimi Local Aboriginal Land Council v The Minister Administering the Crown Lands Act & Anor" [1991] AboriginalLawB 66; (1991) 1(53) Aboriginal Law Bulletin 14


Worimi Local Aboriginal Land Council v The Minister Administering the Crown Lands Act & Anor

Casenote by Jason Behrendt and Margie Cronin

Land and Environment Court of New South Wales. Stein J

18 April 1991

This case involved an appeal under the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act) over the refusal of the Minister administering the Crown Lands Consolidation Act NSW to grant a land claim - encompassing around 17 hectares of the waters of Port Stephens on the NSW north coast - lodged by Worimi Aboriginal Land Council in March, 1990.

The Minister, on 7 June 1990, refused the claim on the basis that the area was "needed for the essential public purposes of recreation, access, coastal environment protection, and tourism" and was therefore not 'claimable Crown land' under the ALR Act. On 16 August 1990, Worimi appealed - pursuant to s.36(6) ALR Act - against the decision.

The second respondent, The Anchorage Port Stephens Pty Ltd (the 'developer') had development interests in the area and opposed the claim. They wrote to the Minister and the Premier on 3 September 1990, requesting that a s.36(8) certificate be issued and that the Minister "vigorously defend the appeal to the court by the Land Council." Section 36(8) of the ALR Act provides that:

"A certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed for an essential public purpose shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be liable to repeal and review."

The developer's letter argued that land below the mean high water mark should remain in public ownership. It also contained a 'floodgates' argument, asserting that if the claim succeeded it "could have a pronounced effect as important waterways e.g. Port Hacking, Port Macquarie and Jervis Bay, could be the subject of a claim. Accordingly the recognition of the claim has very important consequences not just for the Company but for the community as a whole."

A further letter on 13 September 1990, contained an allegation that Worimi had been encouraged to lodge a claim to delay the development proposal. The developer's Managing Director, Mr Ian McAndrew, asserted that Worimi's claim was "a blatant and unjust misuse of the Aboriginal Land Rights Act...."

On 28 September 1990, the Minister replied to the developer in a letter which read in part:

"I agree with the views expressed in your letter to the Premier and you may rest assured that I will take the opportunity of raising this matter with both the Premier and the Attorney General. It would appear that the system is being abused by those with interests outside of the Aboriginal community."

On 16 January 1991, following concern from the Department of Lands that the legality of the certificate might be questioned on the basis that there was insufficient consultation between the Minister and the Premier over its issuing, the Acting Minister consulted with the Premier and signed the s.36(8) certificate. Counsel for the respondent Minister sought to rely on the certificate. Worimi claimed it was a nullity and that they had been denied procedural fairness.

Could the Minister issue a certificate?

Counsel for Worimi submitted that once the claim had been determined, the Minister's power to issue a certificate came to an end. Stein J. rejected this submission, arguing - as he did in Darkingung Local Aboriginal Land Council v the Minister for Natural Resources (No.2) (1987) 61 LGRA 218 at 225 - that: "the purpose of the issue of a certificate is an evidentiary one to facilitate proof....". He added:

"it is logical that, if a certificate is to issue, it will issue after institution of an appeal, although it is possible that a certificate could be issued after the determination of a claim in order to deter an appeal."(p.7)

Did Worimi have a right to be heard before the Minister issued a certificate?

Counsel for Worimi further submitted that under the laws of natural justice they had a reasonable expectation to be heard before the certificate was issued. Worimi ALC were unaware of the representations of the developer to the Minister and the Premier, of the developer's request for the Minister to issue a certificate and of the allegations that they had abused the ALR Act.

In examining the effect of s.36(8), Stein J. found that the issuing of a certificate had a "draconian" effect on the right to appeal decisions under the ALR Act. (p.9) He found that upon the admission of a certificate into evidence there is no longer any question of a merit hearing, as the contents of the certificate - ie., that the land subject to the claim is likely to be needed for an essential public purpose - are determinative of the appeal. In his words, "the right to appeal under s.36(6) becomes moribund." (p.10) Further, the certificate's receipt into evidence destroys the applicant's inchoate right to the land subject of the claim.

Stein J. noted the joint judgement of Mason CJ. Deane and McHugh JJ in Annetts v McCann (1990) 65 ALJR 167 which argued:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice, a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment."

Stein J. concluded that because of the extensive effect of the certificate under s.36(8), procedural fairness should apply. He stated:

"Furthermore, it seems to me to run against the current of fair decision making to receive extensive communications from a third party (the developer) seeking the issue of a certificate (bearing in mind its effect) and suggesting that the appeal was an abuse of process, when these representations were not made known to the Land Council. It meant that the decision (to issue the certificate) was made without the Land Council having the opportunity of responding to the allegations or submitting why a certificate should not issue." (p.11)

The effect of the privative clause.

In Darkingung (No.2), Stein J. held, that s.36(8) ousted judicial review for alleged breaches of natural justice. Since that case a number of authorities have dealt with privative clauses and their effect on natural justice. Echoing the views of McHugh JA. of the NSW Court of Appeal, in Lisafa Holdings v Commissioner of Police (1988) 15 NSWLR 1, Stein J. noted that

"the right of a person to be heard according to the principles of natural justice was a fundamental common law entitlement which cannot be displaced except by the clearest legislative intent. " (p.13)

In reference to his decision in Darkingung (No.2) Stein J, commented:

"I have now had the opportunity of reviewing the trend of authority since Hockey v Yelland [(1984) [1984] HCA 72; 157 CLR 124)] and have come to the conclusion that a breach of procedural fairness, when that has to be accorded, can be properly seen as an act in excess of jurisdiction. Authority at the highest Australian level and the trend of decisions over the past 5 years, especially in the federal sphere, have led me to a change of mind." (pp15-16.)

In contrast to his earlier decision, he found that s.36(8) did not prevent judicial review for denial of natural justice. He concluded:

"None of the words in the preclusive clause expressly or plainly negative the application of the principles of natural justice to the issue of a certificate before giving the Land Council the opportunity to be heard. Nor can it be said that such a situation arises by necessary implication. The provision reveals no intention to take away the right to be heard in opposition to the making of the certificate." (p.16)

Is the land claimed lawfully used or needed for an essential public purpose?

Under s.36(1)(b) of the ALR Act, land that is lawfully used or occupied is not claimable. It was conceded by counsel for Worimi that the water column above the sea bed was lawfully used' for the purposes of passage and anchorage, but contended that the sea bed was not Counsel for the developer argued that the claim must be over both the water column and the sea bed, as they are inseparable. Stein J. took the latter view;

"It seems to me quite artificial for a land claim to divide the sea bed from the waters which it holds and to acknowledge the lawful use and occupation of the waters by the public but not the sea bed." (p.18)

Because the use of the sea bed and the water column were held to be inseparable, the land claimed became 'unclaimable' under s.36(1)(b).

Stein J. approached the question of whether the land was needed'-for an essential public purpose on this basis of inseparability. He found that Port Stephens was a popular recreational and boating area and used for "public recreation and access." He concluded:

"In my opinion 'essential' means necessary or indispensable. The evidence satisfies me that the area of the subject land claim is used or likely to be used for the essential public purposes of recreation and access. The land subject of the claim is therefore not claimable crown land within s.36(1) of the Land Rights Act. Accordingly the claim must fail." (p20)

The appeal was dismissed.

For the Appellant: Mr Robertson.

For the First Respondent: Mr Blondel.

For the Second Respondent: Mr Craig Q.C.


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