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By Jason Behrendt.
The Aboriginal Land Rights Act 1983 (NSW) (‘ALRA’) was enacted in 1983 as a measure to remedy the past dispossession of Aboriginal people in New South Wales. A primary means by which this is to be achieved is through the land claim process established by the Act. Section 36(1) relevantly defines ‘claimable Crown land’ as:
…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;
c) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or likely to be needed as residential land; and
d) are not needed, nor likely to be needed, for an essential public purpose.[1]
Following the lodgement of a claim by an Aboriginal land council, the Minister for Lands (‘the Minister’) determines whether the land is ‘claimable Crown land’. If so, he is required to transfer the land to the claimant land council in fee simple.[2] If he refuses the claim, the claimant land council may appeal the refusal to the Land and Environment Court, where the matter will be determined afresh.[3]
Given the purpose of the ALRA, one might assume that land which is vacant and surplus to the State’s needs would be precisely the type of land intended to be ‘claimable’. However, the State Government has been attempting to sell off disused Crown land; the Minister has been refusing claims over surplus Crown lands where steps were being taken to sell land.
In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council[4] (‘the Wagga Land Claim’) the High Court considered for the first time whether administrative steps towards the sale of land could constitute ‘use’ under s.36 ALRA.
Over the last 25 years, the Court of Appeal has considered what constitutes ‘use’ for the purposes of the s 36(1)(b) ALRA on a number of occasions. It has held that:
• Whether land is ‘claimable Crown land’ is to be determined by reference to the date of claim.[5] The beneficial remedial purposes of the ALRA suggest that exceptions to the right to make claims on Crown land should be narrowly construed;[6]
• Mere proprietorship is insufficient to establish either ‘use’ or ‘occupation’;[7]
• Land must be ‘actually used’ and ‘used in fact’ and not merely used in a ‘nominal sense’ or to a ‘notional degree’.[8] This requirement is consistent with interpretations of ‘use’ in other statutory contexts.[9]
• A contemplated or intended use is not a ‘use’.[10] This is also consistent with interpretations in other contexts.[11]
• While passive use can amount to a ‘use’, this has to date been held to occur where the passive use is part of a physical utilisation of part of the land. Thus in Nowra Brickworks [No:1],[12] land which was not physically being mined was held to be ‘used’ because it formed part of a staged mining operation. This is consistent with the approach in Royal Newcastle Hospital, where land in its natural state on hospital grounds was held to be ‘used’ because it added to the amenity of the hospital.[13] Invariably, such cases require that the land be considered as a whole, rather than as constituent parts.
The Wagga Land Claim related to Aboriginal Land Claim 7351 (‘ALC 7351’), lodged by the New South Wales Aboriginal Land Council (‘NSWALC’) on 23 May 2005. The claimed land comprised a disused building in Wagga Wagga. Up until 29 April 2005, the land had been reserved from sale for building purposes.
As early as 1999, the land and building had been identified by the Department of Lands as being ‘surplus to its requirements and that action should be taken to dispose of the land and improvements’.[14] On 6 December 2004 a Report for Waiving Crown Land Assessment noted that the ‘building has not been used and has been vacant for a number of years, and has fallen into a state of disrepair as a consequence’ and that the site ‘… has been identified as being surplus to departmental needs’.[15] The Report also noted that:
‘There is no known reason for [the land] to be retained by the State of NSW ….’[16]
Accordingly, the Department of Lands started to take administrative steps to sell land under the Crown Lands Act 1989 (NSW) (‘CLA’). Those steps occurred before ALC 7351 was lodged on 23 May 2005.
On 8 March 2006, the Minister refused ALC 7351 because he considered that, at the date the claim was lodged, the land was being ‘lawfully used and occupied by the Department of Lands in preparing the land for sale.’
In the Land and Environment Court,[17] Biscoe J rejected NSWALC’s appeal against the Minister’s determination. Biscoe J purported to apply the test set out in Daruk, requiring ‘actual use’ in more than a notional sense’.[18] Referring to Nowra Brickworks No:1, his Honour held that the degree of immediate physical use required depended on the purpose to which the land was being put.[19] Here the purpose to which the land was being put was ‘sale’. His Honour held that:
‘the decision to sell the subject land and the steps taken in furtherance of that intention were an actual use of the land, notwithstanding that they were passive in the sense the land was not physically being used apart from some storage of some furniture.’[20]
Central to Biscoe J’s reasoning was the fact that, because the CLA provides for the sale of Crown land, it would be ‘paradoxical’ if such sale could not be a ‘use’.[21] His Honour relied on the administrative steps that the Department of Lands had carried out in pursuit of a sale: the Minister had considered whether native title had been extinguished, had waived a Crown Land Assessment, had taken steps to revoke the reserve, and had retained a real estate agent.
The Court of Appeal[22] unanimously overturned Biscoe J’s decision. In response to the paradox posited by Biscoe J, Mason P (with whom Tobias JA agreed) noted that the power to sell Crown land had given rise to the very circumstances which the ALRA was intended to remedy.[23] He also held that Biscoe J’s emphasis on the provisions of the CLA had not properly considered the effect of s 7 CLA, which made the CLA subject to other legislation, including the ALRA.[24] More fundamentally Mason P noted that s 36(1)(a) ALRA identifies land that is capable of being ‘lawfully sold or leased’ under the CLA as one of only two types of land capable of being ‘claimable Crown land’. Mason P held it would be ‘internally contradictory’ if a qualifying matter under s 36(1)(a) constituted a disqualifying feature under s 36(1)(b) ALRA.[25]
The Court of Appeal unanimously held that the mere sale of land was not a ‘use’ of land as that term is understood in Daruk, although both Mason P and Giles JA held that the sale of land in conjunction with other activities may amount to a ‘use’.[26]
Finally, the Minister had sought to characterise the purpose to which the land was being put not as ‘sale’ but as ‘preparing the land for sale.’ Aboriginal land councils are entitled to be concerned about such an approach; it would effectively allow the Minister to formulate ‘purpose’ in a way that circumvents the requirements of present use. Mason P (with whom Tobias JA agreed) rejected this approach, describing it as ‘self-levitating’ and indicating that it was first necessary to determine whether sale is a ‘use’.[27]
The Minister sought to reverse the Court of Appeal’s decision before the High Court, arguing that the requirements of ‘actual use’ and use to more than a ‘notional degree’ placed inappropriate ‘glosses’ on the terms of the statute.[28] The Minister argued that the words ‘lawfully used and occupied’ should be read as a single phrase and given a plain English meaning.[29] The Minister argued that steps towards sale constituted ‘use’.
On 2 October 2008, the High Court unanimously dismissed the Minister’s appeal. Justices Hayne, Heydon, Crennan and Keifel (‘the joint judgment’) did so by noting that the starting point for understanding what constitutes “use” is the relevant statutory text.[30]
Despite the Minister’s submissions, the Court did not hold that the decisions in Daruk and Nowra Brickworks [No:1] were wrong. The joint judgment implicitly endorsed those decisions by noting that they were in response to the specific questions raised in those cases. They added that:
… nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands.[31]
However, they did observe that ‘recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land’[32] and:
‘…a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land.’[33]
The majority specifically noted, as was the case in Royal Newcastle Hospital, that passive use of land in association with physical use of part of it, could also constitute a use of the land.[34] In all cases, however, it is necessary to consider the ‘acts, facts, matters and circumstances which are said to show that land does not meet the description of ‘not lawfully used or occupied’[35].
As to whether taking steps to sell land constituted ‘use’, the joint judgment stated that the words ‘use and occupation’ in s 36(1)(b) encompass ‘utilisation, exploitation and employment of the land’.[36] The joint judgment accepted that the sale of land amounts ‘to exploitation of the land as an asset of the owner’ but held that it such exploitation does not necessarily amounts to ‘use’. Further, it does not follow that
‘preliminary steps that are inevitably required in order to effect a sale, whether considered separately or together, will amount to lawful use, even if they could be described as steps directed to exploiting the land by selling it’.[37]
Deriving an advantage from the mere ownership of land is not sufficient to establish ‘use’.[38] The joint judgment concluded that the administrative steps to progress the sale in this matter were properly characterised as ‘steps directed to deriving the advantages of disposing of the asset and receiving the proceeds of sale. They did not amount to a use of the land.’[39] This was so despite some minor physical activity on the land, including transitory visits by a surveyor and a real estate agent.[40] This conclusion is consistent with the requirement in Daruk that there be ‘actual use’ and use to more than a ‘notional degree’.
The joint judgment specifically noted that the ALRA was remedial and beneficial legislation.[41] However, the Court did not rely on this principle of interpretation because there was no contest in the ALRA between broad and narrow statutory constructions.[42]
In a separate judgment, Kirby J agreed with the conclusions contained in the joint judgment but emphasised a construction of the ALRA that gave greater scope to the rules governing beneficial and remedial legislation.[43] Kirby J also endorsed requirements of ‘actual use’ set out in Daruk, confirming that a contemplated or intended use is insufficient for the purposes of the Act.[44]
When the ALRA was enacted, the NSW Government described the land claim process as one that
...will be simple, quick and inexpensive. Vast tracts of Crown land will be available for claim and will go some way to redress the injustices of dispossession.’[45]
Given the ALRA’s remedial purposes, it is hard to accept that Crown land was only intended to be transferred to Aboriginal people if the Government did not prefer to sell it. Aboriginal land councils are entitled to be concerned over claims being refused on this basis. To allow such an approach would effectively elevate the sale of Crown land over the fundamental objects and purposes of the ALRA. At one level, therefore, the Wagga Land Claim simply negates an attempt to limit the ALRA in a way that was never intended. On another level, however, the Wagga Land Claim affirms the Court of Appeal’s interpretation of s 36(1)(b) in cases such as Daruk and Nowra Brickworks No: 1.
Further, the joint judgment makes a clear distinction between mere incidents and advantages of ownership of land on the one hand and the ‘use’ of land on the other. The joint judgment also emphasises the need to focus on what is being done on the land in determining ‘use’. While the Court noted that this decision is not intended to comprehensively define ‘use’, it is clear that mere administrative activity occurring off the land will be insufficient to for the purposes of the ALRA.
Finally, the ALRA makes a clear distinction between current use and occupation in s 36(1)(b), and future needs in ss 36(1)(b1) and 36(1)(c). Parliament clearly intended to limit the extent to which future needs could be used to defeat Aboriginal land claims to land for residential lands and ‘essential public purposes’. There will be many instances where administrative processes relating to future use of land will be underway at the time a land claim is lodged. By emphasising what is actually occurring on the land, rather than administrative processes taking place off the land, the observations of the High Court in the Wagga Land Claim will make it more difficult for the Minister to reformulate the description of ‘use’ to include preparatory steps towards a future use. This is important because, were it otherwise, the words of limitation in s36(1)(b1) and (c),[46] and the requirement that there be an actual rather than a future use[47], could be entirely circumvented.
Jason Behrendt is a solicitor at Chalk & Fitzgerald who acted for NSWALC in these proceedings. The statements in this article are his own views and not those of NSWALC or his employer.
[1] Emphasis added.
[2] S 36(5) ALRA.
[3] S 36(7) ALRA.
[5] New South Wales Aboriginal Land Council v The Minister Administering the Crown Lands Act (Winbar No:3) (1988) 14 NSWLR 685, 691F-G (Hope JA).
[6] Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No:2] (2001) [2001] NSWCA 28; 50 NSWLR 665, [53]-[54] (Spigelman CJ).
[7] Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (‘Daruk’) (1993) 30 NSWLR 140, 163C-D,160F-G (Priestley JA).
[8] Ibid, 164 D-E . See also Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 (‘Nowra Brickworks [No:1]’) 119G (Sheller and Clarke JA) and 108D, 108E (Priestley JA,).
[9] Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1971) 128 CLR 1 Gibbs J, 23; The Council of the City of Gladstone v The Gladstone Harbour Board [1964] Qd R. 505, 526 and Stephen v Federal Commissioner of Land Tax [1930] HCA 46; (1930) 45 CLR 122, 140 (Dixon J).
[10] Nowra Brickworks [No:1], above n 8, 121C.
[11] Parramatta City Council v Brickworks Ltd , above n 9, 21; Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, 285-286 (Stephen J); and The Council of the Town of Gladstone v The Gladstone Harbour Board [1964] Qd R . 505, 512-513 (Mansfield CJ) and 524-525, 526 (Gibbs J) .
[12] Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106.
[13] Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493.
[14] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWLEC 158, [15].
[15] Ibid, [23].
[16] Ibid.
[17] Ibid,.
[18] Ibid, [65].
[19] Ibid,.
[20] Ibid, [67].
[21] Ibid, [63].
[22] New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281.
[23] Ibid, Mason P, [49].
[24] Ibid, Mason P [22]-[23], [25].
[25] Ibid, Mason P [57].
[26] Ibid, Mason P, [55], Giles J [70].
[27] Ibid, Mason P, [55].
[28] Minister’s Submissions, 25 July 2008, High Court Proceedings S217/08, [43].
[29] Ibid, [45].
[30] Above n 4, [68].
[31] Ibid [69].
[32] Ibid [69].
[33] Ibid.
[34] Ibid [69].
[35] Ibid [70].
[36] Ibid [73].
[37] Ibid [74].
[38] Ibid [75].
[39] Ibid [76].
[40] Ibid [76].
[41] Ibid [44].
[42] Ibid [48].
[43] Ibid [8], [29], [30] (Kirby J).
[44] Ibid [31] – [32], [35] (Kirby J).
[45] See Explanatory Notes to the ALRA, Hansard Assembly, 24 March 1983, 5095.
[46] The fact that s.36(1)(c) contains words of limitation which are required to be given effect were noted in Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council, above, n 6 [54] – [56] (Spigelman CJ, Heydon and Powell JA).
[47] See also for example New South Wales Aboriginal Land Council (No:2) v Minister Administering the Crown Land Act [2008] NSWLEC 13, [128] – [130] (Jagot J).
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URL: http://www.austlii.edu.au/au/journals/IndigLawB/2008/46.html