Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2014] NSWCA 69
• Hearing dates: 20 February 2014
• Decision date: 18 March 2014
• Before: Macfarlan JA at [1]; Barrett JA at [46]; Bergin CJ in Eq at [60]

Decision

(1) Appeal allowed.

(2) The orders made by Pain J on 22 May 2013 be set aside.

(3) In lieu thereof that:

(i) The appeal filed by the NSW Aboriginal Land Council in Land and Environment Court proceedings no. 30052 of 2011 be dismissed insofar as the land claimed in those proceedings comprised Crown land reserved from sale for the purpose of 'future public requirements';

(ii) The appeal filed by the NSW Aboriginal Land Council in Land and Environment Court proceedings no. 30052 of 2011 be allowed insofar as the land claimed in those proceedings comprised Crown land reserved from sale for the purpose of 'public recreation';

(iii) The land claimed in Land and Environment Court proceedings no. 30052 of 2011 which comprises Crown land reserved from sale for the purpose of 'public recreation' be transferred by the Minister in fee simple to Tamworth Local Aboriginal Land Council.

(4) Order the respondent to pay the appellant's costs at first instance and on 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 land reserved for future public requirements - whether land lawfully used or occupied - whether Licence and Permissive Occupancy for grazing valid - whether Ministers exercised powers to grant Permissive Occupancy and Licence for reserved purpose of future public requirements or purposes incidental or ancillary thereto - ascertainment of Ministers' subjective purpose through inference from objective circumstances - relevance of statement in Permissive Occupancy and Licence of intended use of claimed lands for grazing - Aboriginal Land Rights Act 1983 (NSW), s 36; Crown Lands Act 1989 (NSW), ss 6, 34
• Legislation Cited: Aboriginal Land Rights Act 1983; Crown Lands Act 1989; Crown Lands Consolidation Act 1913; Crown Lands (Continued Tenures) Act 1989; Forestry Act 1916; Land and Environment Court Act 1979; Soil Conservation Act 1938
• Cases Cited: A v Corruption and Crime Commissioner [2013] WASCA 288; ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460; Attorney-General (NSW) v Cooma Municipal Council (1962) 63 SR (NSW) 287; 8 LGRA 111; Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; 75 NSWLR 169; Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; 188 LGERA 26; Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649; Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; 38 WAR 276; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358; 84 NSWLR 219; Pascoe v Federal Commissioner of Taxation (1956) 6 AITR 315; Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182; The State of New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74; Thompson v Council of the Municipality of Randwick [1950] HCA 33; 81 CLR 87; Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83; Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491; Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419
• Texts Cited: Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co)
• Category: Principal judgment
• Parties: Minister Administering the Crown Lands Act (Appellant); New South Wales Aboriginal Land Council (Respondent)
• Representation: Counsel: N Williams SC/H El-Hage (Appellant); S Pritchard SC/H Pintos-Lopez (Respondent); Solicitors: I V Knight, Crown Solicitor (Appellant); Chalk & Fitzgerald (Respondent)
• File Number(s): CA 2013/187788

Decision under appeal

• Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67
• Date of Decision: 2013-05-22 00:00:00
• Before: Pain J
• File Number(s): LEC 2011/30052

HEADNOTE

[This Headnote is not to be read as part of the judgment]

On 19 December 2005 the New South Wales Aboriginal Land Council, the respondent, lodged Aboriginal land claims 8734 and 8736 ("the ALCs") in respect of two parcels of Crown land near Tamworth. The presently relevant parts of each parcel of land had been reserved from sale for "future public requirements" by notifications published in the Government Gazette in November 1982, in accordance with s 28 of the Crown Lands Consolidation Act 1913.

Both ALCs were refused by the Minister administering the Crown Lands Act 1989 on the basis that the lands claimed were not "claimable Crown lands" under the Aboriginal Land Rights Act 1983 as they were "lawfully used or occupied" at the date of claim, pursuant to a Licence granted to Mr and Mrs Knee on 17 September 1997 (in the case of ALC 8734) and a Permissive Occupancy granted to Mr and Mrs Hertner as amended on 21 April 1988 (in the case of ALC 8736). The Licence and Permissive Occupancy each specified the use of the land to be for "grazing".

The Aboriginal Land Council appealed to the Land and Environment Court against the Minister's refusals. By judgment of 22 May 2013 the primary judge upheld the appeal, concluding that the occupancies pursuant to the Licence and Permissive Occupancy were not lawful because the Ministers who granted them had no power to do so in light of the gazetted reservations to which the lands were subject. Her Honour ordered that the claimed lands be transferred to the Tamworth Local Aboriginal Land Council.

Held by the Court, allowing the appeal:

(1) The Minister bore the onus of establishing that the lands were not claimable Crown lands under the Aboriginal Land Rights Act on the basis that they were "lawfully used or occupied" at the date of claim. ([25])

(2) The lawfulness of the Licence and Permissive Occupancy depended upon the purpose for which the relevant Ministers exercised their powers to execute those instruments. Those powers were required to be exercised for the purposes of, or in furtherance of, incidental to or ancillary to, the reserved purpose of "future public requirements". If the Ministers acted for an ulterior purpose, their acts were not authorised and the instruments were invalid. ([28])

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) (2012) 84 NSWLR 219 considered.

(3) The purpose for which the Ministers' powers were exercised was to be determined by reference to the subjective purpose of the decision-makers. In the present case, this was to be inferred from objective factors including the nature of the decision, the circumstances in which it was made and its effect. ([29])

(4) It was to be inferred from these circumstances that the Ministers granted the instruments for the purpose of having the land maintained to facilitate its use in the future for "public requirements" ([32]). The question is not whether the instruments would have that effect, but whether it may be inferred that the Ministers, rightly or wrongly, thought that they would. ([38]) This conclusion does not depend upon the making of a presumption of regularity. ([39])

(5) The Land Council failed to discharge its practical burden of identifying a sensible competing inference that could be drawn. ([33]-[34], [39]) In the absence of any suggestion of personal benefit to be derived by the relevant Ministers or other corrupt purpose, it cannot be inferred that the Ministers acted for the purpose of facilitating private grazing. That was the outcome of the grants, rather than their purpose. ([33])

Judgment

1 MACFARLAN JA: On 19 December 2005 the respondent, the New South Wales Aboriginal Land Council, lodged Aboriginal Land Claims 8734 and 8736 ("the ALCs") in respect of Crown land situated near Tamworth. The Minister administering the Crown Lands Act 1989 ("the appellant Minister") refused the claims upon the basis that the lands claimed were not "claimable Crown lands" under the Aboriginal Land Rights Act 1983 ("the ALR Act"), pursuant to which the claims were lodged. He contended that they were "lawfully used or occupied" at the date of the claims (s 36(1)(b) of the ALR Act), in the case of claim 8734, pursuant to a Licence granted to B W and A J Knee on 17 September 1997 and, in the case of ALC 8736, under a Permissive Occupancy in favour of U P and H Hertner as amended on 21 April 1988.

2 The Land Council appealed to the Land and Environment Court against the refusals (see ALR Act s 36(6)).

3 By judgment of 22 May 2013 Pain J upheld the appeal and ordered that the claimed lands be transferred to the Tamworth Local Aboriginal Land Council.

4 The Minister then appealed to this Court under s 57 of the Land and Environment Court Act 1979. Such an appeal may only be brought "on a question of law" (s 57(1)). The sole issue on the appeal was whether the primary judge was correct in concluding that the occupancies pursuant to the Licence and Permissive Occupancy were not lawful because the Ministers who granted them had no power to do so in light of the gazetted reservations to which the lands were subject. It was common ground that the lands were in fact used and occupied at the relevant time.

5 For the reasons given below, I have concluded that the appeal to this Court should be allowed, with the consequence that the Land Council's challenge in the Land and Environment Court to the Minister's refusal of the ALCs should be dismissed. The error of law justifying appellate intervention is that the Land and Environment Court did not address the critical question of what were the relevant Ministers' purposes in granting the Licence and Permissive Occupancy.

THE LANDS CLAIMED

6 It is unnecessary to repeat the primary judge's description of the land claimed (Judgment [9] - [22]). It is sufficient to note that it is rural land suitable for the grazing of cattle.

7 On 19 November 1982 a declaration was published in the New South Wales Government Gazette by the then Minister for Lands, pursuant to s 28 of the Crown Lands Consolidation Act 1913, that the land which later became the subject of ALC 8734 was reserved "for future public requirements". On 5 November 1982 a similar declaration had been gazetted in respect of that part of the land subject to ALC 8736 which is in issue in these proceedings. ALC 8736 also applied to land that had been reserved for "public recreation". The appellant Minister has conceded that the claim in relation to that portion of land should be granted.

8 The Licence to Mr and Mrs Knee was granted pursuant to s 34 of the Crown Lands Act 1989. It conferred on Mr and Mrs Knee a right to occupy the licensed property for the purpose specified in Schedule 1 to the Licence and prohibited use for any other purpose. Schedule 1 stated the "Purpose for which Premises may be used" as "Grazing".

9 The Licence also provided:

• For payment of an annual rent of $100, subject to a five yearly rent review.
• That residence on the property was not permitted.
• That the Minister might at any time revoke the Licence by notice in writing.
• That the licensee should not construct any improvements (defined as "any building structure facility work or pontoon") without the Minister's consent.
• That the property should be kept clean and tidy.
• That the property was not to be cultivated or overstocked.
• That steps were to be taken to eradicate or control all noxious plants, animals and insects.
• That the licensees should comply with the provisions of the Soil Conservation Act 1938.
• That the licensees should not clear any of the land or, without the consent of the Minister, undertake any burning off.
• That the licensees would not "interfere with by ring-barking or otherwise any trees or saplings on the land licenced except under the authority of a permit issued under the provisions of the Forestry Act 1916".
• That the licensees would not, without the consent of the Minister, undertaking any mining, or permit any person to do so.

10 The Permissive Occupancy provided for an annual rent of $34 and that its purpose was "Grazing". Its terms included the following:

• It was terminable at will by the Minister.
• The rent was reviewable on three months' notice.
• The occupiers were not to interfere with the "rights of the public to the use of any roads, streets, lanes or tracks within the premises".
• Use of any part of the property for residence or for business purposes was prohibited.
• The occupier was prohibited from making "any excavation" on the premises.
• Overstocking was prohibited.
• Interference with trees was prohibited except in accordance with the Forestry Act and Regulations thereunder.
• The occupiers were required to destroy noxious plants and weeds and to take steps to keep the land free of noxious animals.
• Fencing was to be erected "so as not to interfere with or divert to any large extent the natural flow of water".

THE CROWN LANDS LEGISLATION

11 Section 6 of the Crown Lands Consolidation Act 1913 ("the CLC Act") relevantly precluded Crown lands being dealt with otherwise than in accordance with the Act. Section 28 authorised the reservation of land "for any public purpose", as occurred in respect of the lands the subject of the ALC claims. Lands dedicated for a public purpose have "a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated" (The State of New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74 at 91). This statement is equally applicable to lands reserved for a public purpose. Section 136K of the CLC Act authorised the grant of a permission to occupy such as was granted to Mr and Mrs Hertner.

12 The CLC Act was repealed by the Crown Lands Act 1989 ("the CL Act"). Section 6 of that Act relevantly precluded Crown land being licensed or otherwise dealt with except in accordance with the Act or the Crown Lands (Continued Tenures) Act 1989 ("the Continued Tenures Act") and Section 34 empowered the Minister to grant licences and permits and otherwise deal with Crown land.

13 By Clause 1 of Schedule 8 of the CL Act, a reservation in force under the repealed CLC Act was given continuing effect. Likewise, s 5 of the Continued Tenures Act gave continued effect to Permissive Occupancies granted under the CLC Act, such as that granted to Mr and Mrs Knee.

THE JUDGMENT AT FIRST INSTANCE

14 The parties accepted before the primary judge and before this Court that the relevant Ministers' powers to grant Permissive Occupancies and Licences (s 136K of the CLC Act and s 34 of the CL Act respectively), although unqualified in their terms, were restricted as a result of the reservation of the subject lands pursuant to s 28 of the CLC Act (which was given continued effect by the CL Act). The Land Council contended, but the appellant Minister denied, that the restriction precluded the relevant Ministers granting the Permissive Occupancy and the Licence.

15 The appellant Minister put two arguments to the primary judge on this topic. They were summarised by the Minister in his submissions in this Court as follows:

"A. A reservation for 'future public requirements', by its terms, does not specify a 'particular' and current purpose for which the land may be used. As such, no conflict arises between the terms of the reservation and the authorisation to use the land for grazing on terms which require the holder to maintain and manage the land in the period before the relevant 'future' requirement(s) arises ...

B. Alternatively, the exercise of power to grant the Licence and to grant the PO was 'in furtherance of, or incidental to' or 'ancillary to' the reservation for future public requirements, in circumstances where the 'public requirement' has not been determined, but might/will arise in the future. This is so because, on their terms, the Licence and PO require the land to be maintained, managed and looked after at least until the future public requirement arises (or until they are terminated), without the need for any public expenditure (given that the Crown would otherwise have to manage/maintain the land). When the public requirement crystallises, the Minister may terminate the relevant instrument at will".

16 The primary judge rejected both arguments but the Minister only appealed to this Court against the rejection of the second argument.

17 The primary judge's rejection of this argument was founded upon the decision of this Court in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee) [2012] NSWCA 358; 84 NSWLR 219 ("Goomallee") to which it is accordingly necessary to refer now.

The decision in Goomallee

18 In Goomallee a claim was made under the ALR Act in respect of Crown land that had been reserved from sale for the purpose of "public recreation". The land was subject to a grazing licence.

19 Basten JA (with whom the other members of the Court relevantly agreed) expressed the view, not challenged in the present appeal, that the exercise by the Minister of powers with respect to particular land "may foreclose the exercise of others" (at [20]), with the consequence, in that case, that the exercise of the power to reserve the claimed land from sale had the effect of limiting the purposes for which it could be leased or licensed and precluded the grant of the subject grazing licence. His Honour continued:

"26 ... [T]he scope of the power to grant the licence did not depend on the use of the land, actual or potential, under the licence. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used, but the purpose for which it could be used. To define a power by reference to purpose is a quite different exercise to defining a power by reference to permitted activity. The Minister's submission erroneously conflated purpose and activity, as restraints on power."

20 His Honour noted that the Licence in that case required the holder to use the land for the purpose only of grazing and that it contained no reference to its use for public recreation, nor to public access and that the Licence permitted grazing "not for the amusement or entertainment of the public, but for the private purposes of the grazier" (at [28]). His Honour concluded that "[w]here the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised" (at [37]). In referring earlier to Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419, his Honour had however noted that it was sufficient in this respect that the activities to be carried out on the land be "in furtherance of, or incidental to, the relevant public purpose" ([33]).

Her Honour's reasoning

21 The primary judge said in relation to the Minister's argument that "the grant of the Permissive Occupancy and Licence was ancillary to, incidental to or in furtherance of the reservation of the lands for future public requirements":

"92 While Goomallee did not consider this precise argument, a number of observations by Basten JA suggest that it cannot be correct. The stated purpose of the permissive occupancy and licence is grazing, similar to findings in Goomallee referred to by the Applicant. The licence in Goomallee also had a number of land management provisions relating to weed and feral animal control but that was not considered to alter its overall purpose of grazing at [28]. I accept that whether such conditions did alter its overall purpose or were ancillary to that purpose was not expressly before the Court of Appeal but it is relevant to observe that is the thrust of Basten JA's consideration at [28]. His Honour there held that the licence permitted grazing and not any other purpose and identified a number of clauses in the licence similar to those set out above. His Honour noted that the licence contained no reference to use of the land for public recreation, nor to public access. His Honour concluded that the licence was for the private purposes of the grazier."

22 Relying again on Goomallee, her Honour rejected the Minister's submission that "the appropriate test was whether the use for grazing was inconsistent with the purpose of the reservation for public recreation" by saying that "[t]he power depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used but the purpose" ([93]).

23 Her Honour continued:

"94 ... While it can be accepted that the conditions relied on by the Minister [see [9] and [10] above] are conditions serving the objectives of land maintenance and management they are nevertheless directed to serving the private purpose of grazing. As the Applicant's submissions at [69] identify, it is not self evident that conducting the private purpose of grazing is conducive to the preservation of land for future public requirements, such as recreation or conservation for example, regardless of whether the conditions of the licence or permissive occupancy are complied with ..."

24 Her Honour's reasoning concluded with the observation that if she were correct the Minister's powers to grant licences in respect of lands reserved for future public requirements were more limited than would appear from the Minister's practice in granting them.

RESOLUTION OF THE APPEAL

25 As the primary judge noted, the ALR Act is remedial and the exceptions stated in the Act to the right to claim Crown land should be narrowly construed (Judgment [5]). Further, the appellant Minister accepted that he bore the onus of establishing that lands were not claimable under the ALR Act by reason of an exception such as that in question in the present case, being that the lands were "lawfully used or occupied" (see s 36(7) ALR Act; Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 at [202] and [262]).

26 The lawfulness of the relevant Ministers' grant of the Permissive Occupancy and Licence is to be determined by consideration of the applicable legislation. Both the CLC Act and its successor, the CL Act, prohibited the Minister dealing with Crown lands otherwise than in accordance with the Act. Powers to grant Permissive Occupancies and Licences of Crown lands were contained in the Acts but the lands claimed here had been reserved from sale "for future public requirements".

27 As noted earlier, the Minister did not argue in this Court that the reservation "for future public requirements" was not exhaustive as to the use for which the lands could be put, such that pending determination of the future public requirements, the lands could be put to any use, subject presumably to that use not prejudicing the lands' use for future public requirements. I do not therefore express any view on the correctness of such an argument.

28 The appellant Minister's argument in this Court was confined to a contention, put also to the primary judge, that the relevant Ministers' powers to grant Permissive Occupancies and Licences were limited by the terms of the reservation of the lands only to the extent that an exercise of the powers must be for the purposes of, or in furtherance of, incidental to or ancillary to, the reserved purpose of "future public requirements" (Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 at 428; Goomallee at [33]). The issue that arose for determination in relation to this argument was whether the relevant Ministers, in granting the Permissive Occupancy and Licence, so acted. If they did not, but acted for an ulterior purpose, their acts were not authorised and were invalid (Thompson v Council of the Municipality of Randwick [1950] HCA 33; 81 CLR 87 at 105 - 6).

29 The issue concerns the subjective purpose of the decision-maker, although that is frequently, as here, to be inferred from objective factors "including the nature of the decision, the circumstances in which it was made and its effect" (Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; 38 WAR 276 at [66] - [67]; Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at [5.490]).

30 As Kirby P noted in Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 at 509, it will often be difficult to establish an ulterior purpose. Spigelman CJ referred in Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154; 75 NSWLR 169 at [98] - [100] to means by which direct evidence of purpose might be sought to be obtained (see also Aronson and Groves, Judicial Review of Administrative Action at [5.580]). However, in the present case ascertainment of purpose was left to inference from objective circumstances.

31 In Goomallee there was no difficulty in inferring from the terms of the Licence there in question that the Minister's purpose was not that the claimed lands be used for the reserved purpose of "public recreation" or for some ancillary use. The Licence required the land to be used for grazing. This was a private activity not involving the use of the land by the public, or much less for public recreation. The Minister's purpose was not therefore a permissible purpose and the land was not therefore exempted from claim under the ALR Act.

32 The present case is different because the reserved purpose is more amorphous ("public requirements") and is stated to relate to the future. Neither party contended that the "public requirements" have yet been identified. The appellant Minister however submitted that it could be inferred from the terms of the Permissive Occupancy and Licence that the relevant Ministers intended those instruments to facilitate the preservation of the lands for their use in the future for "public requirements" by placing the lands in the possession and under the care of Mr and Mrs Knee and Mr and Mrs Hertner who were to conduct on them the limited activity of grazing, subject to the various care and maintenance obligations referred to earlier (see [9] - [10]).

33 In my view this inference can readily, and should, be drawn in the absence of any identification by the respondent of any sensible alternative inference. The respondent submitted that the terms of the Licence and Permissive Occupancy indicated that the Ministers' purpose must have been that the lands be used for private grazing. However in the absence of any suggestion of personal benefit to be derived by the relevant Ministers or other corrupt purpose (any such suggestion being eschewed by the respondent), there is no commonsense in the suggestion that the Ministers acted for the purpose of enabling the licensees and occupants to conduct grazing on the lands. That was the outcome of the grants not, so it should be inferred, their purpose. By analogy, if a property owner lets his or her premises to a tenant for use as a grocery store the property owner's purpose is likely to be to obtain rental from the lessee, rather than to promote or facilitate the sale of groceries.

34 The respondent contended that the conditions attaching to the Permissive Occupancy and Licence were either directed towards regulating the effects of grazing "or contain[] no land management obligation at all" (written submissions dated 18 December 2013, [53]). The prohibition on overstocking was advanced as one condition supportive of the former proposition. However, not all of the terms and conditions contained within the respective instruments are susceptible to this characterisation. For instance, provisions concerning the eradication or regulation of noxious plants, weeds and animals and those prohibiting mining, excavation, burning off and the taking of timber and other materials all appear to be directed towards ensuring that the land's present condition and quality is preserved. These land management and maintenance provisions apply throughout the currency of the occupancies irrespective of whether grazing in fact occurs and therefore they cannot be said, as the respondent contended, to be solely "directed to serving the private purpose of grazing" (compare Judgment [94]).

35 That the Permissive Occupancy and Licence seek to regulate to some degree the activity (that is, grazing) which each authorises to be carried out on the land does not detract from the inference that the relevant Ministers' purpose in granting the Licence and Permissive Occupancy was to facilitate the use of the land in question for "future public requirements".

36 In some cases the inference might be available that Ministers acted for the purpose of generating public revenue from the rental to be paid by a licensee. Whilst this would ordinarily be an entirely proper public purpose, a question would arise if there had been reservations such as in the present case whether that was a purpose ancillary to that of use for "future public requirements" for which the land was reserved. In such a case, the validity of the Minister's first argument before the primary judge, which was not put on appeal in this case, might have to be considered (see [15] above).

37 However, the question of rental is not in my view of significance in the present case as under both the Permissive Occupancy and Licence it was so low that no inference could be drawn that generation of it was a significant purpose of the grants.

38 That leaves remaining as the only reasonable inference available that the Ministers made the grants for the purpose of having the land maintained to facilitate its use in the future for "public requirements". The various obligations imposed upon the grantees (see [9] and [10] above) appear to have been conducive to that end. The question for the Land and Environment Court was not (and for this Court is not) whether those provisions would have had that effect. The question was instead one for the Ministers. The question for the Land and Environment Court was simply whether it may be inferred that that was what the Ministers, rightly or wrongly, thought would be the case.

39 This conclusion does not depend upon the making of a presumption of regularity (see Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48; 188 LGERA 26 at [111] - [120]; Industrial Equity Ltd v Deputy Commissioner of Taxation [1990] HCA 46; 170 CLR 649 at 671 - 2; A v Corruption and Crime Commissioner [2013] WASCA 288 at [140]; Aronson and Groves, Judicial Review of Administrative Action at [5.470]) upon which the appellant Minister disclaimed reliance. Rather, it depends upon the drawing of a commonsense inference. The fact that the Minister, as he accepted, bore the burden of proving that the Permissive Occupancy and Licence were lawfully granted does not preclude the Court taking account of the respondent's failure to adduce evidence of, or identify in submissions, any sensible competing and alternative inference that could be drawn. It is in effect an example of a party failing, by evidence or argument, to discharge an evidential, as distinct from a legal or persuasive, burden that rests upon it in the particular circumstances of a case (see Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [46] - [64]).

40 My conclusion therefore is that the primary judge erred in finding that the Minister had not established that the claimed lands were "lawfully used or occupied". Her Honour's reasoning unduly focused upon the use of the claimed lands, mandated by the Permissive Occupancy and Licence, for grazing. This led her Honour to conclude, seemingly, that the Licence and Permissive Occupancy were for the private purpose of grazing (Judgment [94]). This did not address the critical question of why the relevant Ministers granted the Permissive Occupancy and Licence. That question required attention to the potential benefits to the Crown from the grants, as distinct from the obvious benefit to the grantees of the ability to graze cattle on the lands. As I noted earlier, the position in Goomallee was different because of the different purpose for which the land was reserved. In that case the inference clearly could not be drawn that in granting a licence for land to be used for private grazing, the Minister had the purpose of facilitating the use of the land for "public recreation". The mandated use and the required purpose were incompatible.

41 This conclusion is consistent with the decision in Attorney-General (NSW) v Cooma Municipal Council (1962) 63 SR (NSW) 287 in which the Full Court held that the respondent Council's construction of a tourist information centre on land dedicated "for the purpose of public recreation" was an impermissible exercise of its powers. The Council's purpose in establishing the tourist information centre was expressly stated to be the "selling of the town" in a letter written by it to the District Surveyor (at 289). In those circumstances, it appeared "beyond doubt" (Manning J at 296) that the Council's purpose was to encourage recreation elsewhere in the municipality for the commercial benefit of the local community. It was clear that the Council did not intend that the land itself be used for public recreation. No further inquiry was therefore necessary.

42 Likewise, in Waverley Municipal Council v Attorney-General the purpose for which the relevant land was reserved was very specific - namely, use "as a public park and for public recreation" and a comparison between it and the Council's purpose evident from its proposed use of the land could readily be made. The same cannot be said in relation to the more indeterminate reservation purpose here of "future public requirements" which invites a closer analysis of the decision-makers' purposes in dealing with the land.

43 I should add the Minister acknowledged on appeal that at at least one point his written submissions at first instance lapsed into shorthand, when formulating the central question for determination, by referring to "the purpose of the PO and the Licence" rather than the purpose of the exercise of powers to execute those instruments (see submissions dated 26 February 2013, at [6]). It was the latter purpose which the Court was required to ascertain in order to determine whether the grants of the Licence and Permissive Occupancy were lawful.

ORDERS

44 For the reasons given above, the appeal should be allowed.

45 I propose the following orders:

(1) Appeal allowed.

(2) The orders made by Pain J on 22 May 2013 be set aside.

(3) In lieu thereof that:

(i) The appeal filed by the NSW Aboriginal Land Council in Land and Environment Court proceedings no. 30052 of 2011 be dismissed insofar as the land claimed in those proceedings comprised Crown land reserved from sale for the purpose of 'future public requirements';

(ii) The appeal filed by the NSW Aboriginal Land Council in Land and Environment Court proceedings no. 30052 of 2011 be allowed insofar as the land claimed in those proceedings comprised Crown land reserved from sale for the purpose of 'public recreation';

(iii) The land claimed in Land and Environment Court proceedings no. 30052 of 2011 which comprises Crown land reserved from sale for the purpose of 'public recreation' be transferred by the Minister in fee simple to Tamworth Local Aboriginal Land Council.

(4) Order the respondent to pay the appellant's costs at first instance and on appeal.

46 BARRETT JA: I agree that orders should be made as Macfarlan JA proposes. His Honour's clear exposition of the issues and the factual, statutory and documentary background enables me to be brief in stating my reasons.

47 The purpose for which the relevant parcels of land were reserved from sale was the purpose of ensuring the land's availability to meet "future public requirements", that is, public requirements the nature and scope of which were, at the time of the reservation, neither fixed nor ascertainable. The primary judge held at [75]-[76] (and I do not understand it to be disputed on appeal) that the reservation was for the immediate public purpose of retention and preservation pending future identification of public requirements that the land was to satisfy.

48 That immediate public purpose does not envisage any form of use of or activity upon the reserved land pending its being devoted to public requirements. Nor does it imply absence of use and activity. Land can be retained and preserved pending a decision as to its ultimate dedication yet used in certain ways in the meantime.

49 In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358; 84 NSWLR 219 at [23], Basten JA said, with the concurrence of Beazley, McColl and Macfarlan JJA, that land reserved from sale could be made the subject of an exercise of the power to grant a licence so long as that power was "exercised for the public purpose stated in the reservation . . . or for some purpose incidental thereto". His Honour said at [26] that the scope of the power to grant a licence depended not on "the use of the land, actual or potential, under the licence" but on "the terms of the restraint imposed by the reservation". He continued:

"Those terms did not refer to the manner in which the land could be used, but the purpose for which it could be used. To define a power by reference to purpose is a quite different exercise to defining a power by reference to permitted activity."

50 In that case, the public purpose for which the land was reserved from sale was public recreation. That immediately operative purpose involved a particular form of use or activity. The Court held that the grant of a licence permitting use for grazing did not involve the public purpose identified in the reservation. Incidents of grazing activities for the grazier's private benefit, such as the enclosing of the land to contain livestock (the licence positively required enclosing by "a substantial fence"), were incompatible with the freedom of access by the public that was implied by the purpose of public recreation.

51 The alternative question posed by Basten JA's formulation was whether the grant of the licence was for some purpose incidental to the public purpose for which the land was reserved. That question too was answered in the negative for essentially the same reasons.

52 In each of the present cases also, the permitted use under the licence or permissive occupancy is the grazing of livestock. There is, however, no provision of either instrument requiring that the land be enclosed (in the case of the permissive occupancy it is merely provided that such fencing as the licensee elects to undertake must not interfere with the natural flow of water). Additional provisions of each instrument are referred to by Macfarlan JA at [9] and [10] of his judgment and need not be repeated. It is sufficient to note some features common to both: residence on the land is prohibited, as is overstocking; eradication of noxious plants and animals is positively required; and there are provisions directed towards the protection of trees. The licence and the permissive occupancy are both revocable by the Minister at will. There is no fixed term. The annual occupation fee is $100 in one case and $34 in the other.

53 In seeking the purpose for which the relevant Minister granted the licence or the permissive occupancy, the court below did not have what Fullagar J, in Pascoe v Federal Commissioner of Taxation (1956) 6 AITR 315 (at 320), referred to as the "best evidence" of purpose (although evidence to be treated with "the greatest caution"), being "the person's statements in the witness box". Nor did the court have contemporary briefing papers, submissions or other like documents. It was therefore in the position that prevailed in ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 where the best evidence of the purpose of the participants in a course of dealing came from looking at "what was actually done" (at 482). In Transfield Pty Ltd v Arlo International Ltd (1980) 144 CLR 83 at 108, Wilson J said that the purpose of a provision of a contract "must be gleaned from the words used, and its context".

54 In this case, the only evidence available in relation to either parcel of land was that the Minister had, in purported exercise of statutory power, granted the particular licence or permission to occupy. The purpose for which each concession was granted must therefore be ascertained from the terms of the relevant instrument, viewed in the statutory context in which the concession was granted.

55 It was submitted on behalf of the respondent that, having regard to those matters, the judge was correct to regard the Minister's purpose in granting each right of occupancy as a purpose of promoting or fostering the sole activity that could be conducted on the land conformably with the provisions of the instrument (namely, the grazing of livestock) and that a grant for that purpose was inconsistent with the restraint imposed by the reservation from sale.

56 That, to my mind, affords undue prominence to one aspect of the terms on which the rights to occupy were granted. In a search for the purpose for which the grant was made, regard must be had to the provisions of the instrument as a whole. There is no reason why the permitted use provision deserves greater attention or emphasis than, for example, the provision requiring eradication of noxious plants and animals, the prohibitions upon residence and overstocking and the provision directed towards the protection of trees.

57 In the absence of evidence indicating any other purpose, the conclusion must be that the purpose of the grant of each right of occupation was that, pending termination of the licence or permissive occupancy at the will of the Minister, the grantees should have all the rights and be subject to all the obligations created by the particular instrument in respect of the land; and the State should bear the detriments and enjoy the benefits arising from the grantees' rights and obligations. Under each instrument, the grantees were entitled (but not bound) to use the land for grazing until termination of the right of occupation by the Minister; and the State incurred such detriment as would arise from the depasturing of livestock that the grantees chose to undertake in exercise of that right. The grantees also gave several promises, both positive and negative, performance of which involved keeping the land well managed, maintained and free from human habitation - or, in words used by Macfarlan JA (at [34]), "ensuring that the land's present condition and quality is preserved". The State obtained the benefit of the grantees' performance of those promises.

58 Having regard to those benefits to the State and viewing them in the light of the sole identified detriment, it can be seen the purpose of the grant of each right to occupy was consistent with and incidental to the public purpose for which the reservation from sale had been made, being the purpose of retention and preservation of the land pending future identification of the public requirements that it is to satisfy.

59 That being so, the primary judge should have concluded that, even though the reservations from sale were in force, the licence and the permissive occupancy were granted in due exercise of power vested in the relevant Minister by applicable Crown lands legislation, that the subject parcels were accordingly "lawfully used or occupied" as referred to in s 36(1)(b) of the Aboriginal Land Rights Act 1983 and that those lands were therefore not "claimable Crown lands" as defined by that Act. The appeal is correctly characterised as brought "on a question of law" as referred to in s 57 of the Land and Environment Court Act 1979 and must be allowed. The other orders proposed by Macfarlan JA flow from that conclusion.

60 BERGIN CJ in EQ: I agree with the reasons of Macfarlan JA and the orders his Honour proposes. I also agree with the additional reasons of Barrett JA.

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Decision last updated: 18 March 2014