New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim) [2014] NSWCA 377 Hearing dates: 27, 28 May 2014 Decision date: 04 November 2014 Before: Beazley P at [1]; Basten JA at [2]; Preston CJ of LEC at [90] Decision: (1) Allow the appeal from the judgment of the Land and Environment Court given on 11 September 2013 and set aside the order of the Court dismissing the application. (2) Direct that the Court consider and determine any outstanding issues raised by the application filed on 12 November 2010 by the appellants. (3) Order that the respondent pay the appellants' costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ABORIGINAL LAND RIGHTS - claim to Crown lands - claim precluded by opinion of the Minister that land needed or likely to be needed as residential lands - whether opinion required to be held by the Minister personally at the time of the claim - application of the Carltona principle - whether sufficient that the relevant opinion was held by departmental officers at the time of the claim - Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b1)

ADMINISTRATIVE LAW - delegation of statutory powers - implied delegation of power to form opinion - application of Carltona principle - question of statutory interpretation Legislation Cited: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 11, 50 Aboriginal Land Rights Act 1983 (NSW), ss 36, 243 Crown Lands Act 1989 (NSW), ss 10, 12, 30, 32, 33, 34, 180; Pts 3, 4 Land and Environment Court Act 1979 (NSW), s 57 Migration Act 1958 (Cth), s 502 Cases Cited: Buck v Bavone [1976] HCA 24; 135 CLR 110 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Director of Public Prosecutions v Haw [2008] 1 WLR 379 Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 108 La Perouse Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1991) 74 LGRA 176 Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28; 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 151 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; 171 LGERA 56 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 1 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Nambucca (No 2)) [2008] NSWLEC 13 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 O'Reilly v State Bank of Victoria Commissioners [1983] HCA 47; 153 CLR 1 Re Reference under Ombudsman Act, s 11 (1979) 2 ALD 86 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (2013, 5th ed, Lawbook Co) at [6.150]