Land and Environment Court New South Wales

• Medium Neutral Citation: NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (Goomallee) [2012] NSWLEC 1
• Decision date: 13 January 2012
• Jurisdiction: Class 3
• Before: Biscoe J

Decision

Appeal upheld. Orders for transfer and survey of claimed land.

• Catchwords: ABORIGINAL LAND RIGHTS:- appeal against refusal of land claim - Crown land reserved for purpose of public recreation - land licensed for purpose of grazing - whether use or occupation of land lawful - test of lawfulness.
• Legislation Cited: Aboriginal Land Rights Act 1983 ss 3, 34(1)(b), 36(1), 36(2), 36(5), 36(6), 36(7); Crown Lands Act 1989 ss 1, 3, 6, 7, 10, 34, 34A, 45, 47, 80, 87(1), 112A, 121A, 155; Crown Lands Consolidation Act 1913 s 28; Crown Lands Legislation Amendment Act 2005
• Cases Cited: Ashfield Municipal Council v Roads and Traffic Authority of NSW [2001] NSWCA 370, 117 LGERA 203; Attorney-General v Cooma Municipal Council (1963) 8 LGRA 111; Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act [2006] NSWLEC 180, 149 LGERA 162; 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 Crown Lands Act v NSW 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 Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133; Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154; Muli Muli Local Aboriginal Land Council v Minister Administering Crown Lands Act [2010] NSWLEC 172, 176 LGERA 182; New South Wales v Commonwealth [1926] HCA 23, 38 CLR 74,; New South Wales v Scharer [2003] NSWCA 328, 131 LGERA 208; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35; R v Sieders [2008] NSWCCA 187, 72 NSWLR 417; Council of the Municipality of Randwick v Rutledge [1959] HCA 63, 102 CLR 54; Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419; Western Australia v Ward [2002] HCA 28, 213 CLR 1
• Category: Principal judgment
• Parties: New South Wales Aboriginal Land Council (Applicant); Minister Administering the Crown Lands Act (Respondent)
• Representation: COUNSEL: Dr J Griffiths SC (Applicant); Ms E Lawson (Respondent); SOLICITORS: Chalk & Fitzgerald (Applicant); Crown Solicitor's Office (Respondent)
• File Number(s): 31028 of 2010

Judgment

INTRODUCTION

1 Under the Aboriginal Land Rights Act 1983 (ALR Act), Aboriginal Land Councils are given a right to make a claim for "claimable Crown lands": s 36(2). Section 36(1) defines "claimable Crown lands" in paragraph (a) subject to the exceptions listed in its following paragraphs, of which only paragraph (b) is relevant in this case:

claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,

(b) are not lawfully used or occupied,...

2 On 16 January 2006 the applicant, the New South Wales Aboriginal Land Council, made a claim under s 36(2) of the ALR Act for land with an area of about 9.44 hectares within a much larger rural property called "Goomallee" at Hillview Road, Uralla, in the Armidale region (Lot 210 in DP 755832) (the Land). On 26 August 2010 the respondent, the Minister Administering the Crown Lands Act , refused the claim under s 36(5)(b). The Minister concluded that when the claim was made the land "was not claimable Crown land" within the meaning of the ALR Act because it was "lawfully held and used pursuant to [a licence] for the purpose of grazing". This is an appeal against the Minister's refusal: s 36(6).

3 In such an appeal the Minister bears the legal and evidentiary onus of satisfying the Court that the claimed land is not "claimable Crown lands" under s 36(7), which provides:

The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

4 As Basten JA said in Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138, 166 LGERA 379 (Bathurst) at [202]:

...the Minister, bearing the burden of satisfying the trial judge of the ultimate fact, namely that the lands were not claimable Crown lands, also bore the burden of establishing such primary facts and inferences as must be drawn therefrom in order for his decision to be upheld.

5 In other words, the Minister is required to demonstrate that the claimant should fail: Bathurst at [24]. If the Minister fails to discharge the statutory onus, then the Court, despite the use of the word "may" in s 36(7), is bound to transfer the land to the applicant: Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 (CA) at 135 (Tweed Byron).

6 In 1966 the Land was reserved from sale for the purpose of "public recreation" under s 28 of the Crown Lands Consolidation Act 1913. At the time of the claim the Land was held under a licence issued by the Minister in 2003 for the purpose of "grazing" and was used or occupied for grazing and mustering of livestock. For the purposes of this case, the parties draw no distinction between "used" and "occupied".

7 The only issue on the appeal is whether the Minister has discharged her onus of proving that this use or occupation was lawful, within the meaning of s 36(1)(b). The Land Council contends that it was not because it was not for the purpose of "public recreation" for which the Land had been reserved from sale.

8 In my opinion, the Minister has not discharged her onus and I propose to transfer the Land to the Land Council's nominee.

9 I acknowledge the assistance of Acting Commissioner Edmunds.

ABORIGINAL LAND RIGHTS ACT

10 The ALR Act is aimed at providing a means to remedy the past dispossession of Aboriginal people in New South Wales. The preamble records that:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:

(2) Land is of spiritual, social, cultural and economic importance to Aborigines:

(3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:

(4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation:

11 In Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 Kirby P said at p 157:

The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgement, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia.

12 The beneficial and remedial purposes of the ALR Act are set out in s 3:

(a) to provide land rights for Aboriginal persons in New South Wales,

(b) to provide for representative Aboriginal Land Councils in New South Wales,

(c) to vest land in those Councils,

(d) to provide for the acquisition of land, and the management of land and other assets and investments, by or for those Councils and the allocation of funds to and by those Councils,

(e) to provide for the provision of community benefit schemes by or on behalf of those Councils.

13 The process for claiming claimable Crown lands is set out in s 36, which has been addressed above at [1] - [5]. The claims process gives, and on one view is the primary mechanism for giving, effect to those purposes: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, 237 CLR 285 at [47] (Wagga Wagga HC).

14 Having regard to the beneficial and remedial nature of the legislation, exceptions to the right to claim land should be narrowly construed and any uncertainty or ambiguity in the language is to be resolved in favour of the intended beneficiaries: Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2] [2001] NSWCA 28, 50 NSWLR 665 (Maroota) per Spigelman CJ at [53] - [54]; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (Bathurst) [2009] NSWCA 138, 166 LGERA 379 at [186] ,[217]; Wagga Wagga HC at [19] - [20] (cf at [48]).

CROWN LANDS ACT

15 In considering the lawfulness of any use or occupation of Crown land, it is necessary to have regard to the scheme of the Crown Lands Act 1989. That Act repealed and replaced the Crown Lands Consolidation Act 1913, under which the Land had been reserved from sale in 1966 for the purpose of "public recreation". The new Act provides in Schedule 8 cl 1 as follows:

Part 1 General provisions consequent on enactment of this Act

1 Existing dedications and reservations

(1) A dedication or reservation in force or taken to be in force under a repealed Act immediately before its repeal has effect as if it had been made under this Act.

(2) The dedication or reservation:

(a) is for the same purpose and on the same terms as the original dedication or reservation, and

(b) dates from the date of the original dedication or reservation.

(3) This clause applies whether or not the original reservation was temporary.

16 Other relevant provisions of the Crown Lands Act 1989 include the following:

3 Definitions

Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) land that has been sold or lawfully contracted to be sold and in respect of which the purchase price or other consideration for the sale has been received by the Crown.

6 Crown land to be dealt with subject to this Act etc

Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989.

7 Relationship with other Acts

This Act shall not be construed so as to affect the operation of a provision of any other Act which:

(a) makes special provision for any particular kind of Crown land, or

(b) authorises Crown land to be disposed of or dealt with in any manner inconsistent with this Act.

10 Objects of Act

The objects of this Act are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular to provide for:

...

(e) the reservation or dedication of Crown land for public purposes and the management and use of the reserved or dedicated land, and

...

34 Powers of Minister in relation to Crown land

(1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines:

...

(b) grant ...licences ...in respect of, Crown land,...

34A Special provisions relating to Minister's powers over Crown reserves

(1) Despite any other provision of this Act, the Minister may grant a lease, licence or permit in respect of, or an easement or right - of - way over, a Crown reserve for the purposes of any facility or infrastructure or for any other purpose the Minister thinks fit. Any such lease, licence, permit, easement or right - of - way is referred to in this section as a relevant interest.

(2) The following provisions apply in relation to the granting of a relevant interest:

...

(b) if the Crown reserve is to be used or occupied under the relevant interest for any purpose other than the declared purpose (as defined in section 112A) of the reserve - the Minister is to specify, by notice published in the Gazette, the purposes for which the Crown reserve is to be used or occupied under the relevant interest,

45 Licences

(1) Without limiting section 34A, a licence may authorise the use or occupation of Crown land for such purposes as the Minister thinks fit.

(2) A licence may be granted for such term as the Minister thinks fit.

...

47 Revocation of licences

(1) A licence (other than a licence granted under section 45 (4) by the holder of a lease) is revocable at will by the Minister or on such notice as may be specified in the licence.

(2) Compensation is not payable on the revocation of a licence even if the licence is revoked before the expiration of its term.

112A Definitions

In this Division:

...

declared purpose, in relation to land comprising a reserve, means the public purpose for which the land has been dedicated or reserved under this Part, and includes any purpose or use permitted under, or in connection with, the declared purpose.

121A Minister may authorise reserve to be used for additional purpose

...

(2) The Minister may, by order published in the Gazette, authorise a reserve specified in the order to be used for a purpose that is additional to the declared purpose of the reserve.

(3) The Minister may not authorise a reserve to be used for any such additional purpose unless the Minister is satisfied that:

(a) the additional purpose is compatible with the declared purpose of the reserve, and

(b) the use of the reserve for the additional purpose is consistent with the principles of Crown land management, and

(c) it is in the public interest for the reserve to be used for the additional purpose.

155 Offences on public land

(1) A person shall not, without lawful authority:

...
(c) graze stock on public land,
(d) drive stock on public land,

...

17 Section 6, as ameliorated by s7, prohibits any dealing with Crown lands unless the dealing is authorised by the Crown Lands Act or another act. "Any purported dealing with Crown land other than in accordance with that prohibition is unlawful...the Crown has no power to create interests in Crown lands except under the Crown lands legislation": New South Wales v Scharer [2003] NSWCA 328, 131 LGERA 208 at [59] - [60].

18 Part 5 Division 2 empowers the Minister to dedicate Crown land for a public purpose: s 80. Part 5 Division 3 empowers the Minister to "reserve any Crown land from sale, lease or licence or for future public requirements or other public purpose": s 87(1).

19 Sections 34A, 112A and 121A were inserted into the Crown Lands Act by the Crown Lands Legislation Amendment Act 2005. These provisions were not in force when the 2003 licence of the land was granted. The 2005 Act also amended s 45 but not in a way to which the parties attach significance for present purposes.

THE FACTS

20 The facts are not in dispute.

21 In about 1950 Robert Dutton acquired the rural property known as "Goomallee" . His son, Phillip Dutton, was born in 1951.

22 Goomallee is roughly 1 kilometre wide by 2 kilometres long. The Land has an area of approximately 9.44 hectares and is at the heart of Goomallee.

23 On 10 June 1966, pursuant to s 28 of the Crown Lands Consolidation Act 1913, the Minister gazetted reservation of the Land from sale for the purpose of "public recreation".

24 At some stage Robert Dutton acquired a special lease for grazing over the Land. The earliest documentary record in evidence of any such special lease indicates that it expired on 31 December 1966. The evidence does not disclose when it was granted.

25 Robert Dutton died in 1970 and Goomallee was transferred to his widow, Elsie Dutton.

26 On 1 September 1987 a special lease of the claimed land was granted to Elsie Dutton. Its term was for ten years from 1 January 1987 to 31 December 1996. A condition of the lease provided:

(c) The reserve for public recreation within the land leased shall, during the whole currency of the lease, be open to the use of the public without interference or annoyance by the lessee and the lessee shall post in a conspicuous place thereon notice - boards indicating for public information the purpose of such reserve. In fencing the lease, the lessee shall also provide gates and other facilities for the entrance and exit of the public; such notice - boards, gates and facilities to be erected and maintained to the satisfaction of the Regional Manager.

27 No such condition appeared in the two subsequent licences of the claimed land discussed below.

28 On 28 January 1997 Elsie Dutton was granted a licence over the claimed land for the purpose of "grazing" for a term of ten years from 1 January 1997 to 31 December 2006.

29 In June 2002 she contracted to sell Goomallee to her son Phillip Dutton. Goomallee was described in the contract as including the Land.

30 In 2002 Elsie Dutton inquired as to whether her licence could be transferred to her son Phillip Dutton. She and Phillip Dutton were informed by the relevant government department that her licence had to be terminated and a new licence granted. Accordingly, her licence was terminated and a new licence was issued to Phillip Dutton and his wife Pamela Dutton pursuant to s 34(1)(b) of the Crown Lands Act .

31 The new licence to Phillip and Pamela Dutton is dated 20 June 2003 and expressed to be for the purpose of "grazing" (Schedule 1). The commencement date was 16 December 2002. The following terms are relevant or referred to in the parties' submissions:

20 Permitted Use

(a) This licence confers on the Holder a right to occupy the Premises for the purpose [of grazing].

(b) The Holder will not use the Premises or allow them to be used for any purposes other than the purpose [of grazing].

21. No Exclusive Possession

The Holder acknowledges that this licence does not confer exclusive Possession of the Premises upon the Holder...

22. Holder not to Commit Nuisance etc

The Holder will not at any time during the term of this Licence:

(a) carry on or permit to be carried on at the premises any noxious nuisance or offensive trade business.

(b) do or permit to be carried on at the premises any act matter or thing which results in nuisance damage or disturbance to the Minister or owners or occupiers of adjoining or neighbouring lands or buildings.

(c) use the premises for any illegal activity: (6.024).

25. Commencement and Revocation of Licence

(a) This Licence shall commence on [16 December 2002] and shall continue in force until it is revoked in accordance with the provisions of this clause.

(b) The Minister may in his absolute discretion revoke this Licence at any time by serving on the Holder a notice in writing revoking this Licence.

49. Overstocking

Where the Minister is of the opinion that the Holder is overstocking either the whole or part of the Land the Minister may from time to time direct the Holder by notice in writing that the number and type of stock that may be depastured on the Land or such part as may be described in the notice shall not exceed the number and type of stock specified in the notice and the Holder will ensure that the number and type of stock so specified shall not be exceeded.

...

52. Holder Not to Clear Land

(a) The Holder shall not undertake any act upon the Land which would amount to the clearing of any of the land.

...

54. Holder to provide Gates etc

The Holder will if directed by the Minister erect and maintain gates in any fence constructed by the Holder or in any fence situated on the land for use by persons authorised to obtain timber or other material from such land.

60. Clearing of Native Vegetation

The holder expressly acknowledges that the exemptions for clearing under the Native Vegetation & Conservation Act 1997 do not apply. No use shall be made of the area described nor may action be taken thereon which would result in the clearing of Native Vegetation from the land, or would interfere with the natural growth or regeneration of such Native Vegetation, without the prior consent in writing of the Minister administering the Crown Lands Act ...

32 This licence was in force on 16 January 2006 when the Land Council made its claim.

33 Undisputed evidence, which I accept, as to the use of the Land was given by Phillip and Pamela Dutton to the effect set out below.

34 The Land is approximately 80 metres from the sheep yards and wool shed and approximately 250 metres from the Goomallee house on Hillview Road. The Land is divided by Hillview Road.

35 In 2003 Phillip Dutton constructed a causeway over the creek just next to the road. From 2003 until he sold Goomallee in 2007, he grazed and mustered sheep and other livestock over the causeway and through the Land at least weekly to cross to the sheep yards and wool shed. In 2006 there were 50 to 100 sheep grazing in the paddock on the Land.

36 In 2000 Phillip Dutton put up fences on the Land. He maintained the fences constantly. For example, if he had bulls and they fought and damaged the fences he replaced that section of the fences.

37 Phillip Dutton and his wife kept thousands of sheep on Goomallee as well as some beef cattle, alpacas and an emu. As at 30 June 2006 they had 5,700 sheep, 11 beef cattle, 2 alpacas and an emu.

38 Each year he put rams in with the sheep for approximately five weeks, usually one ram with 100 ewes. When the lambs were about three weeks old, he brought them in across the Land to the sheds to be tagged.

39 From the 1950s Phillip Dutton has seen cattle grazing on the Land. Throughout the period he held a licence, he used the Land for grazing for most of each year.

40 The Land was a particularly useful paddock since it was a smaller paddock, it had a creek for the sheep to drink from, and it was quite close to the house. He used the Land for regular stock, or if he had sick sheep he was able to put them on the Land since it was close enough to the house to check on them.

41 Each year Phillip Dutton killed off blackberry bushes by spraying them, baited foxes and dealt with rabbits.

42 When his mother had Goomallee, Phillip Dutton saw signs on the Land that stated that it was for public recreation. When he took his licence for the Land there were signs on the fences stating that the land was for public recreation. There is no evidence that the signs were there subsequently. In the 1980s and again in about the 1990s some people camped on the Land.

43 Mr Dutton sold Goomallee in 2007.

LAWFULNESS OF THE USE

44 The issue is whether the Minister has demonstrated that the Land was "lawfully" used or occupied when the claim was made: s 36(1)(b) ALR Act. As I have said, for the purposes of this case the parties draw no distinction between "used" and "occupied".

45 The reservation of land for a purpose has long been held to constitute a restriction on its use: Bathurst per Basten JA at [239] citing New South Wales v Commonwealth [1926] HCA 23, 38 CLR 74 (The Garden Island case) per Knox CJ, Gavan Duffy, Rich and Starke JJ at 84 and Isaacs J at 91. Except insofar as a statute otherwise provides, the use of reserved or dedicated public land for a purpose which is not properly related to the purpose of the reservation or dedication is beyond power and unlawful: Attorney - General v Cooma Municipal Council (1963) 8 LGRA 111 (Cooma) per Manning J at 121 (Brereton J agreeing at 118.9); Waverley Municipal Council v Attorney - General (1979) 40 LGRA 419 (Waverley) per Hope JA (with whom Glass and Samuels JJA agreed) at 428.

46 Land used for public recreation must be, in the relevant sense, open to the public generally as of right: Waverley at 426 - 427.

47 A court determining whether a use of Crown land is lawful within the meaning of s 36(1)(b) of the ALR Act is concerned with whether the user is "legally authorised": Nowra Brickworks No 2 at 648A; Tweed Byron at 142; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 at [57], [72] (Shoalhaven) per Jagot J. The legal authorisation must be found in the Crown Lands Act or another Act: ss 6, 7 Crown Lands Act ; Ashfield Municipal Council v Roads and Traffic Authority of NSW [2001] NSWCA 370, 117 LGERA 203 at [51]; Bathurst at [169], [180]; Shoalhaven at [53], [67], [71].

48 The Minister submits that the use of the land was lawful because:

 

(a) The Minister had power to grant a licence for grazing over land reserved for public recreation. The actual grazing was by sheep. The licence to graze stock would not prevent the public from using the land for public recreation. It is beneficial to the public recreation purpose for the land to be grazed. The terms of the licence are consistent with public recreation. They did not confer exclusive possession. They gave the Minister an absolute discretion to revoke the licence, they prohibited clearing and there were terms dealing with overstocking and clearing of native vegetation: see [ 31 ] above.

(b) Alternatively, even if the Minister had no power to grant the licence, Mr and Mrs Dutton still had permission from the Minister to lawfully use and occupy the land for grazing because they were doing so with the Minister's knowledge and permission and in good faith and were not trespassers.

49 The Minister further submits that:

 

(a) The power to grant a licence of Crown land under ss 34(1)(b) and 45 of the ALR Act is broad and those provisions contain no relevant express fetter.

(b) The test of whether a use permitted by a licence of Crown land is lawful, within the meaning of s 36(1)(b) of the ALR Act, is whether it is not consistent or not compatible with the purpose for which the land is reserved: Waverley at 426 quoting from the High Court in Council of the Municipality of Randwick v Rutledge [1959] HCA 63, 102 CLR 54 (Rutledge); Bathurst at [154], [171 - 173]; the Garden Island case; Western Australia v Ward [2002] HCA 28, 213 CLR 1.

(c) The grazing use, permitted by the licence, was not inconsistent or incompatible with the public recreation purpose for which the land was reserved. The licence did not confer exclusive possession (cl 21), prohibited clearing (cll 60),restricted overstocking (cll 49, 62), was revocable at any time (cl 25(b)), and prohibited the holders from committing nuisances etc (cl 22). At a practical level, grazing had a minimal impact on the Land and, if anything, was beneficial in terms of land management; and people had camped on the Land on two occasions in the 1980s and 1990s: [41] - [42] above.

50 I do not accept the Minister's submissions. In my opinion, as the applicant submits:

 

(a) The test of whether a use permitted by a licence of reserved Crown land is lawful, within the meaning of s 36(1)(b) of the ALR Act, is whether the purpose for which the land is used is the authorised purpose for which it was reserved or a purpose that furthers or is ancillary to the reserved purpose.

(b) In the present case the grazing purpose for which the Land was used was not the reserved public recreation purpose nor did it further that purpose nor was it ancillary to it.

(c) Alternatively, even if the Minister's test of lawfulness (inconsistency or incompatibility) is correct, that test is not satisfied in the present case because:

(i) the actual activities conducted ostensibly pursuant to the licence were objectively not consistent or not compatible with the reservation of the land for public recreation; and

(ii) the terms of the licence which authorised the land to be used for the purpose of grazing and the conditions therein are insufficient to bring the licence within any test of consistency or compatibility.

51 This test involves a narrower construction of "lawfully" in s 36(1)(b) than the Minister's competing test, which is consistent with the principle that "exceptions to the right to claim land [in the ALR Act] should be narrowly construed": Maroota at [9]. In my opinion, this test also better reflects the importance of the authorised purpose for which Crown land has been reserved. It is preferable to some other formulation, such as not inconsistent or not incompatible, which draws attention away from or focuses less sharply on that purpose. A reservation is a setting aside of land for a public purpose. Purposes that are, or are ancillary to, the reserved purpose are lawful, other purposes are not.

52 The parties marshalled dicta, referred to below, to support their competing tests of lawfulness. The language employed in the authorities, and sometimes within the same authority, is variously capable of being read as supporting each of the competing tests advanced by the parties in the present case. However, the test for assessing the lawfulness of a use or occupation, within the meaning of s 36(1)(b) of the ALR Act, was not in issue in the authorities. Caution is therefore required lest too much is read into the language they employed when now searching them for the test. Caution is also required because some of the authorities cited were decided in the context of different legislation. Allowing for caution, I think that the weight of authority favours the test I have adopted.

53 In the Garden Island case Isaacs J explained at 91 that the gazettal of dedicated land "impressed" upon those lands:

...a statutory status limiting their use and benefit and consequently their possession, in conformity to the purpose to which they were dedicated".

54 The Minister submits that the Garden Island case is distinguishable because it was dealing with dedicated land rather than reserved land. In support, the Minister refers to the definition of "Crown lands" in s 3 of the Crown Lands Act , which relevantly says that it means land that is vested in the Crown not being "land dedicated for a public purpose". The Minister points out that the exclusion does not extend to reserved land. I do not accept that the Garden Island case is distinguishable. In the first place, the definition of "claimable Crown lands" in s 36(1) of the ALR Act does not adopt the Crown Lands Act definition of "Crown lands". Indeed, s 36(1)(a) of the ALR Act expressly includes lands that are "reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913". Secondly, in Bathurst at [239] - [240] Basten JA treated the Garden Island decision as applicable equally to dedication or reservation.

55 In Cooma Manning J, in the majority, held that a tourist information centre was not a permitted use of the land because it was "not a use of the subject land for purposes of public recreation": at 121. Herron ACJ dissented, but on the basis that he considered the information centre to be "ancillary to the enjoyment of a park as a park": at 115.

56 In Waverley Hope JA (with whom Glass and Samuels JJA agreed) did not speak in terms of inconsistency or incompatibility. His Honour said at 428:

Except insofar as the statute otherwise provides, the Council has no power to erect upon the park any buildings which are not for the purpose of the use of the land as a public park or for public recreation. Thus the power of the Council to improve the land does not entitle the Council to erect any kind of improvement upon it which it may desire; it may only erect upon it improvements whose purpose is to promote or is ancillary to the use and enjoyment of Bronte Park as a public park and for public recreation.

57 Waverley and Cooma were decided in a different statutory context. In Waverley the issue was whether provisions of the Local Government Act 1919 authorised a council's proposal to erect a building in a "public reserve". That term was defined to include a public park dedicated or reserved for sale by the Crown for public recreation and enjoyment. The application of those provisions to a public reserve had earlier been considered by the High Court in Rutledge in the context of the rateability of the Randwick racecourse. The Court of Appeal in Waverley at 426 quoted from Rutledge , which spoke of various matters being "not incompatible" with the public reserve. However, in Bathurst at [236] - [237] Basten JA cautioned that it does not necessarily follow that results obtained in rating cases such as Rutledge will necessarily dictate the same result under the ALR Act and that rating cases may provide a less than complete analogy.

58 Western Australia v Ward was decided in the context of Commonwealth native title legislation. Gleeson CJ, Gaudron, Gummow and Hayne JJ referred to "devote the land to the stated purpose and no other purpose": at [241]. They referred to inconsistency at [241] but then noted an amendment which made explicit what was already implicit "to ensure that the land is used for the purpose".

59 The connection between "lawful" use, within the meaning of the ALR Act, and the purpose for which Crown land is reserved was considered by the Court of Appeal in Bathurst . In order to be lawful, a use of reserved land must be one that is authorised by the purposes of the reservation: Bathurst per Tobias JA at [179] - [180], [182] - [183] and Basten JA at [239] and [262]. Tobias JA said in Bathurst at [180]:

In the present case the Nature Park was reserved for a purpose which did not include its occupation or use as a fauna reserve. As I have noted, s 6 of the [Crown Land s ] Act in effect prohibited its occupation or use for any purpose not authorised by that Act. As its occupation as a fauna reserve was not so authorised, it must follow that the effect of s 6 is to render unlawful not only the use but also the occupation of the Nature Park as a fauna reserve.

60 In Bathurst Ipp JA at [80] (dissenting on other issues) said:

The basic question is whether, at the date of the claim, the Council was using the Reserve "for the public purpose of preservation of native flora". If not, the use and occupation was in breach of the Trust and unlawful.

61 In Bathurst Tobias JA at [154] did say that there must be activities which are "consistent" with the relevant purpose for which land is reserved. But his Honour immediately explained at [155] that, in other words, there must be evidence, if the Minister is to discharge his onus, of some activities which are "directed to implementing that purpose". His Honour gave as examples of implementing the reserved purpose of preservation of native flora: the construction of fire breaks or trails, the eradication of noxious weeds, or the provision of barriers to exclude the public from areas of endangered native flora.

62 The applicant submits that consideration of the Crown Lands Legislation Amendment Act 2005, amending the Crown Lands Act , confirms that the test of the lawfulness of a use, within the meaning of s 36(1)(b) of the ALR Act, is whether it is for, or ancillary to, the purpose of the reservation, rather than whether it is not inconsistent or not incompatible with the purpose of the reservation. The Minister submits that the use of an amending statute as an aid to interpretation of earlier unamended sections runs contrary to prevailing authorities, and that in any event it is not of assistance in this case.

63 An amended statute may be interpreted in light of an amendment if the words of the amended statute are ambiguous, but if the words of the amended statute are clear little assistance may be gained from the amending statute. Also, care must be exercised to ensure that the words in the amending statute have not been inserted to remove possible doubts. See R v Sieders [2008] NSWCCA 187, 72 NSWLR 417 per Campbell JA (James and Johnson JJ agreeing) at [118] - [134] where the authorities are reviewed, particularly at [127] - [128].

64 The applicant submits that ss 34A and 121A of the Crown Lands Act (quoted at [ 16 ] above), introduced by the Crown Lands Legislation Amendment Act 2005, confirm that the test of whether a use is lawful is whether it is for, or ancillary to, the purpose for which the land is reserved, rather than whether it is not inconsistent or not incompatible with the purpose of the reserve. The applicant refers to the Second Reading Speech in the Legislative Assembly for the Amending Bill, which explained:

Currently the public purpose for which Crown land is reserved or dedicated restricts the use that can be made of the land. Examples...include public recreation...Some dedications were set in stone over a century ago and may not reflect modern community needs. Yet unless a use of the reserve is closely aligned with the purpose it is not permitted.

...

This Bill is very clear, however, that additional uses of land can only be approved where they are in the public interest...

65 The new s 121A empowers the Minister, by order published in the Gazette, to "authorise a reserve specified in the order to be used for a purpose that is additional to the declared purpose of the reserve", but the Minister must not do so unless she is satisfied that (inter alia) the additional purpose "is compatible with the declared purpose of the reserve". The applicant submits that if the Crown Lands Act had already provided that it was sufficient that the use merely be compatible, s 121A would be otiose insofar as it introduces a criterion of compatibility. If this is correct, it is not a sufficient answer that (as the Minister points out) s 121A also introduces other requirements. However, it is possible that the new provision was merely introduced for clarification. As for s 34A, it expands the power of the Minister to issue a licence, lease etc in respect of land by empowering the Minister to do so for any purpose that the Minister thinks fit. However, s 34A(2)(b) mandates that where such a licence, lease etc is for a purpose additional to the purpose of the reserve, the additional purpose must be specified by notice published in the Gazette. The applicant submits that, inferentially, failure to comply with this mandate affects the validity of the interest granted. I am not persuaded that these amendments cast much light on the issue with which I am concerned.

66 In the final analysis, it does not matter on the evidence which of the competing tests of lawfulness is adopted. That is, in my opinion, the use in this case was not in fact lawful on either test.

67 Importantly, in Tweed Byron in a passage which is directly relevant to the facts in the present case, Clarke JA said at 142:

I would agree that for instance, permission to use land reserved for public recreation for grazing of sheep would almost certainly be insufficient to establish that grazing of sheep on the land was lawful. But the reason for this would be that public recreation was the only permissible use of the land...

68 Although this was obiter, it was said with the concurrence of the other two members of the Court of Appeal (Samuels and Meagher JJA) and as part of the Court's response made "in deference to the extensive and helpful arguments of counsel": at 142. It was quoted without disapproval by a differently constituted Court of Appeal in Nowra Brickworks No 2 at 648. I propose to follow it. It is directly on point. Thus, the grazing of sheep on the Land was unlawful.

69 The conclusion of unlawfulness is fortified by the fact that the actual use made of the Land involved more than just grazing of sheep. Sheep were mustered across the Land frequently and in large numbers to the sheep yards from paddocks throughout Goomallee. Rams were put in to mate with the ewes. It seems that bulls fought and damaged fences. Cattle grazed. Sick sheep were put there. See [ 34 ] - [ 40 ] above. This is not a case of a couple of harmless ewes and their lambs in a corner of a paddock while people picnic. The Land was not the sort of place that any person wanting to recreate would be well advised to be. The fact that twice in two decades, prior to the issue of the relevant licence, persons camped there does not significantly affect that proposition: [ 42 ] above.

70 Secondly, in my opinion, the licence itself was invalid because it was a licence to use the Land for the purpose of grazing, not for the purpose of, or ancillary to, recreation. Even on the Minister's proposed test, the licence conditions to which the Minister refers ([ 49 (c) ] above) do not really prevent inconsistency or incompatibility. In my opinion, even on the Minister's proposed test, the licence was invalid to the extent that it authorised the Land to be used or occupied for a purpose which was inconsistent or incompatible with the reservation of the Land for the purpose of public recreation. The licence did not restrict the type of livestock which may graze on the Land, opening in theory the Land to be grazed by a wide range of livestock, some of which might present greater danger to the public than others. The licence contained no provision which expressly required or permitted the holders to let the public enter the Land for public recreation purposes. That is in contrast to the express provision in the 1966 lease, which expired in 1987: see [ 26 ] - [ 27 ] above. Although the licence holders did not have a right to exclusive occupation of the Land for the purpose of grazing (cl 21), cl 54 suggested that the only members of the public who might enter the Land as of right were those authorised to obtain timber or other material from the Land. On one view, cl 20(b) prohibited the holders from allowing the Land to be used for any purpose other than grazing, including the purpose of recreating.

71 For these reasons, in my opinion the Minister has not made out her primary case of lawfulness of the use.

72 I turn to the Minister's alternative submission that even if the licence is invalid, still the use or occupation was lawful because the Minister was aware that Mr and Mrs Dutton were on the land and using and occupying it for grazing; they used it in good faith having paid a fee to do so; and therefore they could not be said to be trespassing. I accept, of course, that Mr and Mrs Dutton acted in good faith in using the Land. This, and an awareness on the part of the Minister of their use, may be relevant matters in theoretical proceedings for trespass. But, in my view, they do not determine the issue of lawfulness within the meaning of s 36(1)(b) of the ALR Act.

73 In my opinion, the Minister's alternative submission cannot stand consistently with the prohibition in s 6 of the Crown Lands Act , that Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the dealing is authorised by the Crown Lands Act (or another nominated Act that is not relevant in these proceedings). Further, s 155 prohibits grazing or driving stock on Crown land without lawful authority. Section 7 ameliorates in part the prohibition in s 6 because it provides that the Crown Lands Act shall not be construed so as to affect the operation of a provision of any other Act which (relevantly) authorises Crown land to be disposed of or dealt with in any manner inconsistent with the Crown Lands Act . Therefore if the licence is invalid, which is the premise of the Minister's alternative case, the Minister would need to point to some other provision of the Crown Lands Act or of another Act which authorised the use or occupation of the Land by the Duttons. The Minister points to no such provision. Rather, the Minister asks the Court to proceed on the basis that even if the licence were invalid, the Minister permitted the Duttons to use the Land for grazing.

74 Sections 6 and 7 indicate that the permission needs to be sourced back to a provision of the Crown Lands Act (or the other statute nominated in s 6): Ashfield Municipal Council v Roads and Traffic Authority of NSW at [51]; Bathurst at [169], [180]; Shoalhaven at [53], [67], [71]. As the Minister points to no such provision, the Minister's alternative case is unappealing. Section 155 tends to reinforce the point in ss 6 and 7: one has to point to a lawful authority in order to avoid an offence against s 155(1)(c) and (d).

75 Section 6 is an important provision which weighed heavily with the Court of Appeal, particularly Tobias JA, in Bathurst , and with Jagot J in Shoalhaven . In Bathurst at [169] and [180] Tobias JA said:

169. At the date of the claim the Nature Park was Crown land reserved for the purpose of the "preservation of native flora". As already noted, the Trust had been appointed as trustee of the land and the Council had been appointed to manage the reserve trust pursuant to s 95(1) of the [Crown Land s ] Act . Section 6 of that Act relevantly provided that Crown land which is reserved for a purpose shall not be used or occupied unless the occupation or use is authorised by the [Crown Land s ] Act . It was not suggested by the Minister that the use or occupation of the Nature Park for the purpose of a fauna reserve had been authorised by that Act.

...

180. In the present case the Nature Park was reserved for a purpose which did not include its occupation or use as a fauna reserve. As I have noted, s 6 of the [Crown Land s ] Act in effect prohibited its occupation or use for any purpose not authorised by that Act. As its occupation as a fauna reserve was not so authorised, it must follow that the effect of s 6 is to render unlawful not only the use but also the occupation of the Nature Park as a fauna reserve.

76 If there were to be substituted in those paragraphs the words "public recreation" for " preservation of native flora" and "grazing" for "a fauna reserve", the same logic would apply to produce the same result of unlawfulness in the present case.

77 In Shoalhaven at [53], [67] and [71] Jagot J addressed the importance of s 6 as follows:

53 The observations of Heydon JA in Ashfield Municipal Council about s 6 tend to undermine rather than support the Minister's submissions. Heydon JA distinguished between an entitlement to use land and a mere series of trespasses (at [45]). While prepared to accept the possibility of a bare gratuitous licence Heydon JA did not consider any of the relevant expressions in s 6 of the Crown Lands Act (including "used") to be narrow, and observed that the acts of the Crown in permitting use as a road contravened s 6 unless authority for the use could be found in the statutes (at [51]).

...

67 Accordingly, I do not accept the Minister's submissions about either lawful use in this case by reason of the mere presence on the land of members of the public not objected to by the Crown or the operation of the Crown Lands Act and its significance for s 36(1)(b) of the ALR Act. I also do not accept that the references to mere sufferance ( Georgeski at [90]) or a bare gratuitous licence (as contemplated by Heydon JA in Ashfield Municipal Council at [50]) provide the Minister with any material support on the facts of this case. Neither observation suggested that these characterisations would avoid the operation of s 6 of the Crown Lands Act . In any event, the Minister bears the onus of establishing that the land was not claimable Crown lands when the claim was made...

...

71 These facts fall for assessment in the face of s 6 of the Crown Lands Act . Section 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land. The section operates on all of the provisions of the Act (including ss 10 and 11 emphasised by the Minister). There is no reason not to give effect to s 6 according to its terms. Supplemented by s 159 of the Crown Lands Act the Crown (through authorised persons) has power to ensure that any unlawful use or occupation of Crown land is brought to an end. In context, such unlawful use or occupation is any use or occupation not authorised under that Act.

78 Her Honour at [71] observed that s 6 operates "on all of the provisions of the Act". That includes ss 34 and 45, which empower the Minister to grant a licence.

79 The Minister cites Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act [2006] NSWLEC 180, 149 LGERA 162 at [29] where Pain J said that "lawful use and occupation under the ALR Act is not restricted only to lawful use and occupation as provided under the [Crown Lands] Act ". That observation was premised on an acceptance by her Honour of a submission that 'use' and 'occupation' under the ALR Act have a different meaning to that in the Crown Lands Act . This proposition in relation to use was rejected by the Court of Appeal in Minister Administering Crown Lands Act v NSW Aboriginal Land Council [2009] NSWCA 352, 171 LGERA 56 (Berowra) at [170] - [171]. The observation in Darkinjung is not consistent with the approach of Jagot J in Shoalhaven for the lengthy reasons given at [44] - [45], [53] - [62], [67] and [71] - [72]. The latter approach was approved by the Court of Appeal in Berowra at [170] - [171]. In Muli Muli Local Aboriginal Land Council v Minister Administering Crown Lands Act [2010] NSWLEC 172, 176 LGERA 182 at [52] Pain J herself adopted a similar approach to Jagot J in Shoalhaven and the Court of Appeal in Berowra :

Whether the use and occupation of the claimed land was lawful depends on whether s 6 of the [Crown Lands] Act has been complied with. Section 6 states that Crown land must not be occupied unless the use is authorised by the [Crown Lands] Act.

80 For these reasons, I do not accept the Minister's alternative case.

CONCLUSION AND ORDERS

81 In my opinion, the Minister has not discharged the onus of satisfying the Court that the Land was lawfully used and occupied as at the date of the claim.

82 The orders of the Court will be as proposed by the applicant:

1. The appeal is upheld.

2. The respondent is to transfer the land claimed in Aboriginal Land Claim 9844 in fee simple to Armidale Local Aboriginal Land Council.

3. In order to give effect to Order 2, if the land has not been surveyed, the Minister is to survey the land within six months.

4. The exhibits may be returned.

Amendments

30 May 2012 - Typographical errors in legislation and cases cited on coversheet.
Amended paragraphs: 4, 13, 14, 17, 45, 49, 63, 79

Decision last updated: 18 July 2012