On 30 March 2012, Justice Pain of the Land and Environment Court of NSW handed down a decision upholding an appeal by Deerubbin Local Aboriginal Land Council (‘Deerubbin’) against the Minister for Lands’ refusal of its claim over an area comprising some 355 ha at O’Hara’s Creek, Kenthurst in Western Sydney.
In her judgment Justice Pain stated that a striking feature of the case was the length of time taken to determine the land claim. In this case, it took nearly two decades for the Minister to determine Deerubbin’s claim.
When the Minister originally refused the claim it was alleged that the land was required by the NSW Government for the essential public purposes of nature conservation and public recreation. As time transpired the Minister then asserted that the land (excluding an area which the Minister conceded to the Applicant) was likely to be needed for a combination of nature conservation, public recreation, open space and or urban fringe park.
Justice Pain was unpersuaded by the Minister’s reliance on 4 essential public purposes over “undefined parts and/or the whole” of the contested land. Her Honour found that the Minister could not show that there was a sufficiently developed proposal to establish that the claimed land was likely to be needed for any essential public purpose at the date of claim. Justice Pain made various other salient remarks in the course of her judgment, including that it is the views of the State Government as the manager of Crown land that are most important regarding decisions affecting Crown land, rather than the actions and interest of a local council per se.
The decision is an important one in so far as it elaborates on considerations affecting essential public purposes, the significance of different agencies and bodies and their decision-making power over Crown land, and the significance of relevant statutory processes and schemes in the context of Aboriginal land claim disputes.
Uploaded: Wednesday, 18 April 2012