On 24 May 2011 the NSW Court of Appeal unanimously dismissed an appeal by the Minister Administering the Crown Lands Act (‘the Minister’) against a decision awarding Illawarra Local Aboriginal Land Council (‘Illawarra LALC’) land at Tongara Gap in the Ilawarra escarpment.
That decision ended a long legal saga that included two Land and Environment Court and two Court of Appeal decisions. The saga began with Illawarra LALC lodging the claim for the land at Tongara Gap in March 1986. On 22 June 2006, some 20 years after the date of claim, the Minister wrote to Illawarra LALC rejecting its claim on a number of different grounds. Under the Aboriginal Land Rights Act 1983 (‘ALRA’) a land claim by an Aboriginal land council will be successful unless the Minister can establish a number of exceptions to that right to claim. One of those exceptions, and the principal issue in this matter, was where the Minister can establish that the whole or part of the claimed land was at the date of claim needed for an essential public purpose.
Illawarra LALC appealed the Minister’s rejection of its claim. The matter was heard before Justice Sheahan in the Land and Environment Court in 2008 and was determined in Illawarra LALC’s favour. The Minister appealed Justice Sheahan’s decision and that appeal was heard in 2009 before the NSW Court of Appeal. The Court of Appeal allowed the Minister’s appeal and sent the matter back to the Land and Environment Court to be determined in line with statements of law that were made in that judgment. The matter was then once again heard before Justice Sheahan of the Land and Environment Court in 2010 and His Honour once more found in favour of Illawarra LALC.
The Minister then decided to appeal this second Land and Environment Court judgment. The matter was then once again heard before the Court of Appeal in April 2011. Finally, on 24 May 2011, some quarter of a century after having claimed the land at Tongarra Gap and after two Land and Environment Court decisions and a previous Court of Appeal decision, the Court of Appeal ruled in Illawarra LALC’s favour.
The decisions of the Land and Environment Court and the Court of Appeal in Illawarra LALC’s appeal establish important jurisprudence regarding what is required of the Minister to establish an essential public purpose of nature conservation. They also give guidance on questions of general interpretation of the ALRA and the use of post claim evidence in appeals under that Act. This will have important effects on future Aboriginal land claims under the ALRA.