Editors --- "Mogo Local Aboriginal Land Council v Eurobodalla Shire Council - Case Summary" [2002] AUIndigLawRpr 40; (2002) 7(3) Australian Indigenous Law Reporter 11

• Mogo Local Aboriginal Land Council V Eurobodalla Shire Council
• Facts:
• Held, Dismissing The Appeal:

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Court and Tribunal Decisions - Australia

Mogo Local Aboriginal Land Council v Eurobodalla Shire Council

New South Wales Court of Appeal (Giles JA, Hodgson JA, Rolfe AJA)

February 2002

[2002] NSWCA 12; (2002) 54 NSWLR 15

Aboriginal and Torres Strait Islanders — real property — council resumed land — land later dedicated as public reserve — consideration of nature and extent of council’s fee simple — then declared that land may be dealt with as Crown land — whether thereby council divested and land vested in Crown — Registrar General deleted council as registered proprietor, recorded land as having become Crown land — whether conclusive that council divested and land vested in Crown — Aboriginal Land Rights Act 1983 (NSW) s 36(1) — Local Government Act 1919 (NSW) ss 340D(1) 536 — Crown Lands Consolidation Act 1989 (NSW) ss 25A and 28 — Real Property Act 1900 (NSW) s 40

Facts:

In December 1989 the Mogo Local Aboriginal Council (the Land Council) lodged a claim pursuant to the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) to an area of land at Broulee on the south coast of NSW. This claim, including Lot 8 in Deposited Plan 258299 (Lot 8) was refused by the Minister administering the Crown Lands Consolidation Act 1989 (NSW) (CLC Act) in 1998. The Land Council appealed against the refusal of the claim in the Land & Environment Court.

The Eurobodalla Shire Council (the Shire Council) had resumed the land in 1971, thus acquiring over it an estate in fee simple, and the land was then dedicated as a public reserve in 1979 upon the registration of Deposited Plan 258299. It was thereafter declared on 10 July 1981 that Lot 8 could be dealt with as Crown land, and on 29 July 1981 the Registrar General made entries on Certificate of Title Vol 14114 folio 35, by which the name of the Shire Council as registered proprietor was ruled through and the land described as Crown land. After these entries were made, a stamped ‘cancelled’ was placed on the Certificate of Title. The Shire Council sought a declaration in the Supreme Court of NSW that Lot 8 was not within the definition of claimable Crown land in the ALR Act. Windeyer J made the declaration sought and ordered that the shire council be registered as proprietor. The Land Council appealed.

Held, dismissing the appeal:

1. (Per Giles JA, Hodgson JA and Rolfe AJA agreeing): The Shire Council obtained on resumption an estate in fee simple not confined by statutory functions in relation to a public reserve. The dedication of Lot 8 as a public reserve affected how the Shire Council could deal with Lot 8. But it was not a vesting in the Shire Council of some confined interest as may be necessary to enable it to discharge its functions of control and management over it: [28]-[32]. Yanner v Eaton (1999) 201 CLR 351 referred to; Ex parte the Registrar General; re the Council of the Municipality of Randwick (1951) 51 SR 220 considered.

2. Section 25A of the CLC Act provided a mechanism by which land not falling within the definition of Crown land could be dealt with as Crown land. It could apply to land acquired otherwise than by declaration, including by gift or straightforward purchase, and so cannot be construed as providing a mechanism for divesting by declaration where there had been a vesting by declaration. Moreover, s 25A in its present form does not merely supplement the powers set out in ss 28 and 29 of the CLC Act, which deal with the reservation of Crown land from sale or lease. The declaration of 10 July 1981 thus did not have the effect that Lot 8 became Crown land: [34], [37]. Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 referred to; The Watson’s Bay and South Shore Ferry Company Ltd v Whitfield (1919) 27 CLR 267 distinguished.

3. Section 40 of the Real Property Act 1900 (NSW) requires conclusive evidence ‘that any person recorded on the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of that estate or interest’. The entry made on 29 July 1981 that Lot 8 ... ‘has become Crown land within the meaning of the Crown Lands Act’ is not a record of a person as a registered proprietor and has no statutory force. Moreover, if the above opinion as to the effect of s 24A of the [CLC Act] be correct, the Registrar General’s belief that Lot 8 had been vested in the Crown was erroneous. It would be remarkable if there was no power to rectify the steps erroneously taken by the Registrar General, apparently of his own motion: [51], [52].

4. The definition of the claimable Crown land in the ALR Act carefully delineates the land which may be transferred, with the evident intention that third parties are not to be deprived of their interests and rights when the fee simple is transferred. Hence, even if the declaration of 10 July 1981 gave the Crown effective control and power of disposition over Lot 8, the land was not vested in Her Majesty: [56], [57]. ?