Behrendt, Jason --- "Aboriginal Land Rights Act 1983 (NSW): 'lawfully used and occupied' -- Some Recent Interpretations" [1993] AboriginalLawB 5; (1993) 2(60) Aboriginal Law Bulletin 13

• Aboriginal Land Rights Act 1983 (Nsw): ‘Lawfully Used And Occupied’ – Some Recent Interpretations
• The Education Building Case
• The Cumberland Reach Claim
• Conclusion

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Aboriginal Land Rights Act 1983 (NSW):
‘lawfully used and occupied’ – Some Recent Interpretations

by Jason Behrendt

The New South Wales Aboriginal Land Rights Act 1983 (the Act) has often been criticised for its ineffective land claims procedures. For example, of the 4375 claims which had been lodged up until 30 June 1992, only 653 had been granted, with another 1211 claims outstanding[1] The total land granted in NSW represents less than 0.05% of the State[2] A number of recent decisions in the NSW Court of Appeal and NSW Land and Environment Court - with their broad interpretations of what constitutes land that is 'lawfully used or occupied under s.36(l)(b) of the Act - have not made the Land claims procedure any more effective.

The Act allows an Aboriginal Land Council - other than a Regional Aboriginal Land Council - to lodge a claim for 'claimable Crown lands', defined by s.36(1) as lands that:

"(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;

(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands; and

(c) are not needed, nor likely to be needed, for an essential public purpose..."

In The Minister Administering the Crown Lands Act v Tweed Byron Local Aboriginal Land Council[3] (the 'Tweed Byron Case), Clarke J., of the NSW Court of Appeal, gave 'occupied' in s.36(1)(b) a broad interpretation. He stated:

"... continuous physical presence on every part of the land does not have to be shown to establish occupation. For instance, the fact that a public authority charged with the care control and maintenance of the land reserved for public recreation improves only part of the land for public use and leaves the rest in a natural state does not lead inevitably to the conclusion that the part it has improved is not occupied by it. The fact that land is left in its natural state does not mean it is not an important recreational area."

This passage, along with others in the same decision, is proving to be an obstacle for Aboriginal land claims. Of most concern is the decisions effect on s36(5) of the Act under which the Minister is obliged to grant part of a claim if that part falls within the definition of lawfully used or occupied. It would appear that the practical consequence of the decision is to exclude all land reserved for public recreation from claim where it can be shown that even the smallest part of that land is subject to some actual use or occupation which is also lawful. Such an interpretation is completely contrary to the beneficial interpretation which the Court of Appeal has said in an earlier decision was to be applied to the Act.[4]

As two subsequent land claim appeals in the NSW Land and Environment Court have shown, the Byron Tweed decision is open to varying interpretations. Furthermore, the Land and Environment Court has given the other component to s.36(1)(b), lawful use', an even broader interpretation which will no doubt stifle the land claims process even further.

The Education Building Case

New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Acts[5] (the 'Education Building Case) involved a claim by the NSW Aboriginal Land Council (the 'ALC') over land located at 35 Bridge St, Sydney, and included an 8-storey building owned by the Department of Education. At the time of the claim, on 22 February 1991, the building was being prepared for lease. The majority of the furniture had been removed from the building. Only 6 of the former 400-500 Department of Education staff remained in the building (utilising around 3.5% of the floor space), a security officer controlled access to the site, the building's amenities (lifts, toilets, etc.) continued to operate and be maintained and additionally, prospective lessees were given access as part of the marketing of the building.

The ALCs claim was rejected by the Minister on 22 April 1991, on the basis that the land was lawfully used or occupied. The ALC appealed pursuant to s.36(6) of the Act.

During the course of the appeal the Crown argued that because of the physical occupation, the exercise of control over the building by a security officer and the maintenance of the site, the land was lawfully occupied. Its argument relied on Clarke J's statement in the Tweed Byron Case.

Stein J., in the Land and Environment Court, noted that 'use' and 'occupation' were two separate concepts (at pps-io). With regard to 'occupation, he stated:

"In my opinion the use of the word "occupied" in contradistinction to "used" leads to the conclusion - applying a beneficial construction - that some actual physical occupancy of the land is required. This does not need to be an occupation of the whole of the land but, in my opinion, the mere exercise of control over or maintenance of the land without any actual occupation is insufficient"(pp.to-n).

Stein J. found that the presence of the 6 employees was "so slight as to be insufficient to constitute an occupation of the land as required by the definition in s.36(1)"(p.in. With regard to the other factors argued by the Crown, he concluded that

"... it seems to me that the mere exercise of some control of the building together with maintenance does not constitute the necessary occupation of the land to take it out of the definition of claimable Crown lands."(pp.ll-12).

He then turned his mind to the question of what constituted lawful 'use' and found what constitutes lawful 'use' depends on the circumstances. The circumstances in this case, he considered, were sufficient for him to find that the building was lawfully used. He found that :

• the physical occupation (although minimal);
• the continued maintenance of the building;
• the active marketing of the building;
• the presence of some office furniture (although being removed); and
• the security guard at the entrance;

although insufficient to establish lawful 'occupancy', were sufficient when considered together as constituting a lawful ‘use’ of claimable land sufficient to defeat the claim (pp.13t4).

Stein J. made no attempt to assess the quality of each claimed use by reference to their purpose nor did he give any justification for his decision. that the uses could be considered cumulatively.

The Cumberland Reach Claim

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act[6] (the 'Cumberland Reach Case') involved an even broader interpretation of lands that are lawfully used and occupied'.

This case involved a refusal to grant a claim over part of Cumberland Reach on the Hawkesbury River. The land claimed covered an area of 57ha. which formed part of Reserve trust under schedule 2 of the Crown Lands Act 1989 (NSW).

The claim was initially refused on the basis that it was needed for the essential public purpose of public recreation under s36(l)(c), but on appeal, Counsel for the Minister argued that the land was lawfully used and occupied under s36(l)(b).

In the area claimed there were only two parts which were used for public recreation - a lookout and a picnic area. At the lookout there were no facilities or signs and the area was used for dumping rubbish. Other sites on the claim were also used for dumping rubbish. The picnic area consisted of one dilapidated concrete picnic table which was covered in graffiti. Bannon J. agreed that the picnic area looked "forlorn and neglected... [and that]... the Council maintenance was generally sub-standard."(at p.1i).

Nevertheless, he concluded, after applying the Tweed Byron Case, that the Council's 'sub-standard maintenance of a small portion of the claimed area did amount to lawful occupation of the whole (at p.14). This is in complete contrast to the approach of Stein J. in the Education Building Case, where it was held that maintenance of land without physical occupation is insufficient.

Of even more concern however, was Bannon J's apparent finding that there was 'use' of the land because of its visual attraction! (at p.14). The Minister had lead no evidence on this point and it was only raised in the submissions from the Minister's counsel. The appeal was dismissed.

This extremely unbeneficial interpretation of 'use' was justified on the basis of Newcastle City Council v Royal Newcastle Hospital.[7] In that case there is no mention of 'visual attraction' of a parcel of land constituting a use',- it was merely held that an owner can 'use' land by keeping it in its virgin state for his/her own special purposes. The land subject of the claim was reserved for the purpose of public recreation, yet there was sufficient evidence to show that unlike other recreational areas nearby, the land claimed was not intensively used for sporting or recreational pursuits. The fact that Bannon 1. considered that the area claimed was scenic, should not have constituted a basis for defeating the claim.

Conclusion

The Education Building Case and the Cumberland Reach Case provide an illustration of how easily claims lodged under the Act can be dismissed. In their interpretations of s.36(1)(b), the Court of Appeal and the NSW Land and Environment Court have effectively ensured that Aboriginal people in NSW will find it even more difficult to utilise the Act to build on the 0.05% of the State that they own.

With such a broad interpretation on what constitutes lawful use', it will be open to the Minister determining claims to reject nearly any claim on the basis of the broad interpretation of that provision and to place a greater burden on poorly resourced Land Councils to establish otherwise.

The Cumberland Reach Case is currently under appeal. Bannon J's interpretation of what amounts to 'lawful occupation' goes much further than the more reasonable construction applied by Stein J. in the Education Building Case or even Clarke J's interpretation in the Tweed Byron Case. Furthermore, Bannon Js finding that the scenic attraction of land can assist in it being classified as land that is 'used', borders on the absurd. It is so broad that it will no doubt further undermine the already battered integrity of the land claim process.

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[1] Chalk, A., Private communication.

[2] Extracted from land Claims Briefing Paper prepared by NSWALC, and NSWALC AnnualReport,1990, cited in Chalk, A., ibid.

[3] The Minister v Tweed Byron Local Aboriginal Land Council, Court of Appeal, 19 March 1992, unreported.

[4] Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157.

[5] New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act, Stein J., Land and Environment Court of New South Wales, 24 July, 1992, unreported.

[6] Daruk Local Aboriginal Land Council v The Minister Administering the Crown Lands Act, Bannon J., Land and Environment Court of New South Wales, 12 August 1992, unreported.

[7] Newcastle City Council v Royal Newcastle Hospital [1959]AC 248.