MINISTER ADMINISTERING THE CROWN LANDS ACT v ILLAWARRA LOCAL ABORIGINAL LAND COUNCIL [2009] NSWCA 289

New South Wales Court of Appeal

CITATION: MINISTER ADMINISTERING THE CROWN LANDS ACT v ILLAWARRA LOCAL ABORIGINAL LAND COUNCIL [2009] NSWCA 289

HEARING DATE(S): 15 May 2009

JUDGMENT DATE: 11 September 2009

JUDGMENT OF: Hodgson JA at 1; McColl JA at 45; Basten JA at 46

(1) Appeal allowed.

(2) The decision of Sheahan J of the Land and Environment Court dated 6 June 2008 allowing the applicant's appeal and the final orders made by the Court on 4 September 2008 set aside. DECISION: (3) Respondent to pay the appellant's costs of the appeal, and to have a certificate under the Suitors' Fund Act 1951 if otherwise eligible.

(4) Matter remitted to the Land and Environment Court for decision in accordance with these reasons.

CATCHWORDS: ABORIGINALS – land rights under legislation – claim to Crown land – establishment of national park – needed or likely to be needed for public purpose of nature conservation – appropriate level of government to demonstrate need or likely need – whether resolution of dispute at Cabinet level necessary – Aboriginal Land Rights Act 1983 (NSW) s 36(1) - ADMINISTRATIVE LAW – procedural fairness – foreseeable inferences drawn from tendered evidence to support case other than that of tendering party – whether such inferences available in absence of warning to tendering party - APPEAL – statutory appeal from Land and Environment Court – appeal against erroneous decision on a question of law – denial of procedural fairness – whether capable of grounding appeal - EVIDENCE – Aboriginal land claim – permissible use of evidence of events and conduct post-dating claim – whether such events and conduct irrelevant considerations - STATUTORY INTERPRETATION – remedial legislation – principle of beneficial construction – whether adopted impermissibly in treatment of gaps in evidence - WORDS AND PHRASES – 'needed or likely to be needed' – 'appropriate level of government' – 'beneficial construction'