Chalk, Andrew --- "NSW Land Rights... All Just an Act?" [1988] AboriginalLawB 30; (1988) 1(32) Aboriginal Law Bulletin 6

• Nsw Land Rights... All Just An Act?

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NSW Land Rights... All Just an Act?

by Andrew Chalk

Only two jurisdictions in Australia have established a process for Aboriginal land claims - the Northern Territory and New South Wales. The NSW scheme leaves the consideration of claims entirely in the hands of the Minister. Many claims have been granted, but the possibility of the legislative scheme being undermined was suggested by the experience of two claims lodged in 1984 and early 1985. This article by Andrew Chalk examines the issues and explores the still unresolved possibility of judicial protection against misuse of Ministerial power.

Early last yea; a judge in the Land and Environment Court described the New South Wales Aboriginal Land Rights Act as a case of "giving food with one hand and taking it away with the other, before the food has reached the mouth".[1] He made these remarks with particular reference to Section 36(8) of the Act As he saw it, that section could be used to give the Minister for Lands a virtually unchallengeable discretion to refuse the granting of a claim on grounds never envisaged by the Act. To date, many claims have been granted and the use of s.36(8) has been rare. Yet, litigation resulting from decisions taken in the early days of the Act has made it clear that in the hands of an unsympathetic Minister, the section has the potential surreptitiously to undermine the entire land granting strategy of the Act. For this reason it has been the subject of much controversy and no less so for the recent change of Government.

The NSW Land Rights Act entitles Aboriginal Land Councils, (State, Regional and Local) to claim certain pieces of Crown Land. The definition of what amounts to claimable Crown Land is set out in Section 36(1) of the Act. Beginning with the presumption that any Crown land is claimable, the subsection proceeds to list several grounds which seriously qualify that initial presumption. Specifically, Crown lands are not claimable if they are lawfully used or occupied, or (in the opinion of the Minister) are needed or likely to be needed for either an 'essential public purpose' or residential lands. Regrettably the Act provides no definition of either 'essential public purpose' or residential and thus gives the Minister for Lands a discretionary power to refuse otherwise legitimate claims by adopting a broad interpretation of their meaning. This is underlined by s.36(5)(b) which expressly authorises the refusal of claims if the Crown Lands Minister is not satisfied that the lands claimed (or part of them) are claimable Crown Lands. To help ensure the Minister's discretion is not wrongly exercised, Section 36(6) gives an Aboriginal Land Council a right of appeal to the Land and Environment Court.[2]

But the full significance of the Minister's discretion is only appreciated when read together with Section 36(8) of the Act. That subsection states:

A certificate being:-

(a) a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land; or
(b) for an essential public purpose, shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.

The formal purpose of the certificate is to provide an evidential declaration for use in proceedings that challenge a Minister's refusal to grant a claim. The potential effect, however, can be to negate the rights of appeal under s.36(6) of the Act and even to oust the Supreme Court's inherent power to review Ministerial decisions on the grounds of excess of jurisdiction or ultra vires. In 1985, Mr Justice Bignold in dealing with an appeal made the following comment:

Quite obviously if resort to certificates were to become matters of routine the appeal rights conferred upon a claimant Aboriginal Land Council by sub-section (6) would be seriously curtailed, if not entirely emasculated.... Its (s. 36(8)) unexplained presence must be seen to be conceptually hostile in a legislative context which not only confers a clear presumptive entitlement on Aboriginal Land Councils to 'claimable Crown lands' but confers appeal rights to seek to vindicate that entitlement.[3]

So far Ministers have been restrained in rejecting claims on the grounds that the land is or is likely to be needed for an essential public purpose. By May 1988, of the 1379 claims refused, only 64 were on the basis of an essential public purpose.[4] Of these it is quite likely that no more than a handful actually had certificates issued against them, since they are only required where a decision is contested. Despite this apparent restraint the instances where certificates have been issued amply illustrate the threat they pose. Of these instances, two in particular stand out: Winbar and Darkingung have both been the subject of extensive and continuing litigation. They are most significant because, by any layman's reckoning, neither piece of land could be regarded as being needed for an essential public purpose. [See [1985] AboriginalLB 21; 1(13)pg9 & [1985] AboriginalLB 49; 1(15) pg 5 for Darkingung case notes].

Winbar is a block of 25,516 hectares situated in the semi-arid, far North West of the state. After severe bush fires in the Cobar region in 1984 the land was offered to graziers affected by the fires to depasture sheep. No one was to take up this offer and evidence presented to the Court showed that the land had not been used for any rural purpose for fifteen years. In November 1984, The Minister for Lands at the time, Janice Crosio, advised the NSW Aboriginal Land Council that she was refusing the Winbar claim on the grounds that the land was needed for farm "build up" to ensure economically viable holdings in the Western Division of the State. It was nearly two years after the claim was lodged and only three weeks before the appeal was due to be heard that the Minister issued the certificate. Although no reasons were given, it could only be assumed that the essential public purpose related to farm "build-up".[5]

Darkingung is a much smaller block of 4843m2 located at Bateau Bay on the Central Coast. After the issuing of the certificate, the Director of Crown Lands responded to a request for information saying that 'reservation for public recreation and the preservation of native flora' was the essential public purpose for which the land was needed. He went on to say it was intended to join the land to a surrounding piece that had been dedicated specifically for that purpose. These remarks fell squarely within the Minister's own definition of essential public purpose. In a circular sent out to Land Councils at the time, she suggested that the phrase included 'land required for national parks, nature reserves, water catchment and storage, forests, flood mitigation, urban development, regeneration areas, public watering places, roads, airstrips, public access to waterways and protection of coastal foreshores'. Unsurprisingly she added that 'this list, of course, is neither exclusive nor exhaustive'.

But the Winbar claim was more contentious still. It is difficult to conceive how the economic viability of a farm can be regarded as a public purpose without defining 'public' so broadly as to deny it any real meaning. Such an interpretation could presumably convert every lawful private purpose into a public one and runs contrary to judicial authority.[6] Moreover, this is without taking account of the additional requirement that the purpose be not only public but also essential. Quite obviously when land that has been unused and unwanted for fifteen years can be covered by a s.36(8) certificate, the Minister has an unlimited and expedient means of refusing any claim. To make a final mockery of the Winbar certificate, two months before it was issued the Minister had offered (without prejudice) to lease the property in perpetuity to the NSW Aboriginal Land Council. The offer had been on condition that the Land Council abandon its appeal seeking the transfer of the land in fee simple.[7]

The history of litigation over both Darkingung and Winbar is tortuous. Delays and interlocutory proceedings were unending with matters being heard in both the Supreme Court and the Land and Environment Court. There is no doubt that although some of the delays were unavoidable many were purely tactical. For instance after hearing dates were set in the Winbar claim the Minister advised the Court that its case was expected to take three weeks thereby ensuring that the allocated dates had to be vacated. It was six months before the matter could again be listed. Ministers have also delayed the issuing of certificates until the last possible moment, sometimes till after the hearing of an appeal had commenced. Similarly, where the validity of a certificate was uncertain, Ministers have issued alternatives. The Darkingung claim actually had four certificates against it.

Sometimes these tactics ran dangerously close to being an abuse of process although quite naturally the Courts were hesitant in so accusing a Minister. However, in the Winbar appeal Stein J. did feel constrained to remark:

It is difficult not to feel some sense of intense surprise at the apparent conduct of the Minister and those who represent or assist him.... I do not make these remarks lightly since it is no pleasure to be critical of a Minister of the Crown. However, I find such conduct to be contrary to the spirit and intent of the Land Rights Act and particularly the recitals to the Act.[8]

But there was clearly a purpose in this conduct. Even if the Court eventually finds that certificates are liable to review, the cost and frustration of litigation would in itself probably act as sufficient deterrent to legal challenges. The success of this approach is perhaps best evidenced by the fact that, despite several years of litigation, there is still no definitive answer to whether judicial review can be used to challenge a certificate and if so what meaning the Court should ascribe to 'essential public purpose.'

In the first Darkingung appeal, Bignold J. found that the s.36(8) certificate was bad on its face and accordingly struck it down. He also found that, notwithstanding the ouster clause, such certificates could be subject to judicial review. In reaching this conclusion he adopted the House of Lords' broad definition of jurisdictional errors as set out in the Anisminic case.[9] He also said that in issuing certificates Ministers were.bound to actjudicially because s.36(8) required them to finally and conclusively determine what would otherwise be the "pith and essence" of the Court's judicial function in determining an appeal under s.36(6).

Following this decision a new certificate was issued which resulted in another appeal, this time before Stein J. Contrary to the first decision, Mr Justice Stein held that because certificates were only evidential in nature there was no requirement that the Minister act judicially in issuing them and that except for jurisdictional errors, errors on their face or ultra vires for bad faith, s.36(8) certificates were not amenable to judicial review. On the question of what errors of law would go to jurisdiction, he rejected Anisminic as good authority and approved instead a narrower definition. His approach, if followed would greatly limit the availability of judicial review since he expressly ruled out "review on the grounds of manifest unreasonableness, the taking into account of irrelevant considerations, or the failure to take account of relevant considerations."[10] The other two grounds mentioned are of little practical significance when it is remembered that certificates which are defective on their face can be cured by simply reissuing them in corrected form. Likewise, the evidential problems involved in proving a Minister's bad faith are immense.

A final resolution to the question of which errors may make a certificate liable to review will most likely have to await a High Court appeal. The stakes on both sides are high and the lines of judicial authority conflict. Perhaps the most critical problem standing in the way of the Land Councils is that the formal power assigned to the Minister under s.36(8) is only procedural. Bignold J. got around this by looking to the substantial purpose of the subsection. But in a line of fairly recent tax cases the High Court refrained from interfering with a decision made pursuant to a "conclusive evidence" provision.[11] It considered that once a valid notice was presented, judicial review was unavailable on any ground. Despite the hurdle these tax cases present it needs to be recognised that the general conflict in authority stems in no small part from an often unstated evaluation of the nature and intent of the particular legislation, including the public policy questions involved. Nor should the general position with regard to ouster clauses be forgotten. According to the Chief Justice:

'Notwithstanding the wide and strong language in which these clauses have been expressed, the courts have traditionally refused to recognise that they protect manifest jurisdictional errors or ultra vires acts'.[12]

Assuming judicial review is available to overturn a certificate, Land Councils still face the task of proving that the decision was improperly made. This is made all the more difficult by the lack of compulsion on the Minister to state the essential public. purpose on the certificate's face.[13] One possible way around this dilemma is found in section 36(14) of the Act. That subsection requires the Minister to supply information relating to Crown land to Land Councils upon request. In both the Darkingung and Winbar appeals the Minister has argued that s.36(14) does not apply to the issue of certificates, but each time this has been rejected. Bignold J. commented in the first Darkingung appeal that:

Section 36(14) goes far in eliminating the injustice and unfairness which might otherwise be caused to a claimant by a certificate issued under s.36(8). It is true that such information so obtained cannot be relied on in an appeal under s.36(6) where a certificate has been issued pursuant to s.36(8) because of the "final and conclusive" effect expressly conferred on such a certificate. But at least the claimant will have been informed of the basis or grounds for the Minister's decision. Moreover such information may be vital in any attempt to test the Minister's decision by the process of judicial review.[14]

The information requested using s.36(14) can go to the very heart of the Minister's decision and can include such questions as "How is the purpose for which the land is needed said to be essential?" The broad wording and interpretation of the sub-section has thus created a potentially embarrassing and legally unsteady position for the Minister in his use of s.36(8) certificates. In early May 1988, the Court ordered the Minister to supply answers to questions on the Darkingung certificate and it may well be that the final end to that saga depends on the answers provided.

Regardless of the Court's current inability to provide adequate remedies against a Minister who is intent on subverting the Act, it is certain the best solution to the problem is political. Since land claims have tended to be both numerous and meagre in size, the economics and logistics of fighting each claim in in the Courts is simply unthinkable. Land Councils have been quick to appreciate this and accordingly their frontline tactics have instead concentrated on cultivating Ministerial support while at the same time structuring and timing their submission of claims so as to best capitalise on that support. A recent audit of grants confirms their success. Of a total of 565 claims that have been granted since the Act took effect five years ago, 44% of those were made in the four month period from the beginning of December 1987. Much of the credit for that surge must go to the strong and positive direction of Labor's last Minister for Land, Jack Hallam.

Land Councils have also learnt the value of resubmitting claims. Just as the Act doesn't bar the Government from issuing multiple certificates it doesn't prevent Land Councils from testing a new Minister's sympathies by submitting previously rejected claims. Moreover, in the long term this facility combined with a patient outlook may well be the best form of insurance against arbitrary Ministerial decisions. But the final success - or failure - of the NSW land granting scheme will not depend greatly on the personal preferences of any individual Minister. The Act is ultimately too vulnerable for one person alone to preserve. For better or worse its final success is tied to a much broader base of public support which is likely to be determined both by the manner in which granted land is used to benefit the Aboriginal community and also by the way those benefits are publicised. As the new Government threatens to stop the grants, this is the next challenge which Land Councils have already begun to address.

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[1] Stein J. Darkingung Local Aboriginal Land Council v The Minister for Natural Resources (No2) 19/2/87 NSW Land and Environment Court at p 20.

[2] Section 36(5A), which is part of 1986 Amendments, allows the Minister to grant a claim subject to an easement or covenant, notwithstanding that the land is needed for an essential public purpose so long as the purpose can be met by the imposition of the condition.

[3] Bignold J. Darkingung Local Aboriginal Land Council v Janice Crosio as Minister for Natural Resources 27/11/85 NSW Land and Environment Court at p 7.

[4] By far the most common reason for refusal (967 claims) was because the land was being carefully used or occupied. 199 claims were refused because the land was outside the constituted area of the Land Council. 453 claims were withdrawn and 149 were rejected because the special provisions of either s.37(3) or (4) were not satisfied.

[5] The real reason for refusal became apparent after the 1986 amendments to the Act. It seemed to be based on non Aboriginal resentment to the granting of freehold title in the Western Division where all other land is leasehold.

[6] The meaning of "public policy" and "essential public policy" was considered briefly by Stein J. in NSW Aboriginal Land Council v The Minister for Natural Resources (The Tredega Claim) 9/5/1986 NSW Land and Environment Court at p He accepted the remarks of Romer L.J. in Bank Voor Hander En Scheepvaart v Stafford (1953) IQB 248 at 298. He took "public purpose" to mean "for the purposes of the administration of the Government of the community or the State". There was no certificate in that case and it was decided on other issues.

[7] After the Act was amended in 1986 (s.36(9a)) the Minister granted a perpetual lease of the Winbar property to the Local Land Council. Their right to title in fee simple is the issue in an appeal currently before the Supreme Court.

[8] NSW Aboriginal Land Council v The Minister for Natural Resources (The Winbar Claim) 9/5/1986 NSW Land and Environment Court at p 3.

[9] . [1968] UKHL 6; (1969) 2 A.C. 147

[10] Darkingung Local Aboriginal Land Council v The Minister for Natural Resources (No 2) 19/2/1987 N. S. W. Land and Environment Court at p 18.

[11] See F.J. Bloeman Pty Ltd v Commissioner of Taxation [1981] HCA 27; (1981) 147 C.L.R. 360 and Clyne v Deputy Commissioner of Taxation (1982) 43 A.L.R. 342.

[12] Mason J. (as he was then) The Church of Scientology v Woodward [1982] HCA 78; (1983-84) 154 C.L.R 25 at 56.

[13] Bignold J. in Darkingung Nol held that there was no requirement that the purpose be specified (p 19). This was followed by Stein in The Winbar Claim (p 6)

[14] Darkingung No 1 at p.22.