Tweed Byron Local Aboriginal Land Council v The Minister Administering the Crown Lands (Consolidation) Act [1990] NSWLEC 151 (10 December 1990)

IN THE LAND AND No. 30139 of 1989

ENVIRONMENT COURT Coram: Stein J.

OF NEW SOUTH WALES 10 December 1990

TWEED BYRON LOCAL ABORIGINAL LAND COUNCIL

v.

THE MINISTER ADMINISTERING THE CROWN LANDS (CONSOLIDATION) ACT

JUDGMENT

HIS HONOUR: This is the hearing of an appeal by the Tweed Byron Local Aboriginal Land Council, (hereafter referred to as the LAC), against the decision of the respondent, the Minister administering the Crown Lands (Consolidation) Act (the Minister for Natural Resources), refusing a land claim made under the Aboriginal Lands Rights Act, 1983. In accordance with s.37(2) of the Land and Environment Court Act I have been assisted in the hearing of the appeal by Assessors Ridgeway and Okwechime. The appeal has been heard in Class 3 of the Court's jurisdiction.

The land the subject of the claim was described by the LAC as part Reserve 82697, Parish of Terranora, County of Rous, Land District of Murwillumbah (excluding the area presently occupied by the Council Caravan Park). It is land at Fingal Head and part of it was the subject of a Crown lease to Ocean Blue Pty. Ltd. This lease was called into question by the LAC in separate Class 4 proceedings in the Court. However, I am informed that the lease has now expired and is not to be renewed. It is agreed therefore that the lease is no longer relevant to the land claim.

The appeal to the Court was filed by the LAC on 19 June 1989. It annexed the original claim made on 3 January 1989 for this and other lands; a letter of the Minister dated 13 April 1989 and also a certificate bearing the same date and issued by the Minister pursuant to s.36(8) of the Aboriginal Land Rights Act (ALR Act). This certificate stated that the land the subject of the claim was needed for an essential public purpose.

The letter of the Minister refusing the claim set forth the following grounds for refusal:-

"(i) that the land comprised in the claim was not on the date on which the claim was made claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 in that the land was lawfully used and occupied by the public and the Council of the Shire of Tweed (as trustee of the said land) as a public recreation reserve; and

(ii) that the land comprised in the claim was not on the date on which the claim was made claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 in that the land was needed for an essential public purpose."

The letter continued:-

"The Minister has issued a certificate under section 36(8) of the Act in respect of the land I enclose a copy of that certificate for your information. In the case of the grounds of refusal outlined in (i) above I would mention that the Council of the Shire of Tweed was appointed Trustee of the reserve on 23rd September, 1960 and continues in that capacity to the present date. The Council and the public were at all relevant times in lawful use and occupation of the lands comprised in the Reserve."

Subsequent to the issue of the Certificate of 13 April 1989 a second certificate was issued by the Minister on 30 August 1989. This later certificate differed from the earlier one in that it stated that the land was on 3 January 1989 "likely to be needed for an essential public purpose". The Minister relies on this certificate to defeat the land claim.

Two principal issues arise for consideration. Is the Ministerial certificate dated 30 August 1989 valid? If it is then that is an end of the matter bearing in mind the closing words of s.36(8), viz:-

"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."

If on the other hand the certificate is a nullity then the question arises, were the lands the subject of the claim "lawfully used or occupied" under s.36(1)(b) of the Act and therefore not "claimable Crown lands" as defined? Evidence has been lead on this issue.

The Certificate

The claimant Council makes a number of attacks on the validity of the certificate. These are fully set out in the Amended Points of Claim filed in the parallel Class 4 proceedings (40020 of 1989). They include an allegation that the certificate was issued in breach of the rules of natural justice. Because of my conclusion on the primary submission of the claimant it is unnecessary to determine the natural justice or procedural fairness submission, nor the alternative submissions.

Counsel appearing on behalf of the applicant, Mr. Robertson, submits that the certificate (of 30 August 1989) is a nullity because of a failure to comply with a condition precedent to its issue, namely consultation with the Minister administering the Aboriginal Land Rights Act. This person was at the relevant date and is presently the Minister for Ethnic Affairs, the Premier the Hon. N. Greiner.

Section 36(8) of the ALR Act states in part:-

"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) a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose,...." (My emphasis added)

The subject certificate recites the following - "after consultation with the Minister for Ethnic Affairs, being the Minister who administers the Aboriginal Land Rights Act, 1983....". It is common ground, however, that no consultation took place prior to the issue of the certificate of 30 August 1989 by the Minister the Hon. Ian Causley. According to the evidence the only "consultation" which took place between the Minister and the Premier occurred on a date prior to the issue of the earlier certificate in April 1989. This certificate is not relied upon by the respondent.

Counsel for the LAC argues that the earlier consultation, some four and a half months or so beforehand, does not satisfy the requirement for consultation provided in s.36(8)(b) of the Act. Consultation must be in relation to "the" certificate, and not some other administrative act relating to another and different certificate. It is, in his submission, a condition precedent to the lawful issue of a certificate under s.36(8)(b) of the Act.

Mr. Robertson draws attention to the draconian nature of the use of such a certificate in evidence. It is said to be final and conclusive evidence of the matters set forth therein. Consultation is therefore the only safeguard for the LAC which is otherwise stripped of its inchoate interest in the land once a certificate issues. In other words the requirement to consult should be seen as mandatory rather than directory. Additionally, it should be a meaningful consultation and not perfunctory or a mere formality, see Port Louis Corp. v. Attorney-General for Mauritius (1965 AC 1111 at 1124).

In the Minister v. N.S.W. Aboriginal Land Council (1987) 8 NSWLR 51 at 54) the Court of Appeal acknowledged that a Land Council "is entitled to show, if it can, that the purported certificate is a nullity and not a document for the purposes of s.36(8)".

As I understand the submission made on behalf of the Minister, reliance is placed on the consultation which took place immediately prior to earlier certificate issued on 13 April 1989. Consultation having taken place, Mr. Maston of Counsel submits that multiple consultations are unnecessary. Further, he submits that the consultation required by s.36(8) is not as to the form of the certificate but rather to the fact of the intention to issue such a certificate. Here, he submits, the consultation, (which took place in April 1989), is proximate to the issue of the second certificate and sufficient to satisfy the requirement of s.36(8).

I prefer the submission of the claimant. The starting point in interpreting s.36 of the ALR Act is the preamble. The recitals clearly set the stage for the remedial and beneficial enactment to follow. It is well to set them forth:-

"WHEREAS:

(1) Land in the State of New South Wales was traditionally owned and occupied by Aborigines:

(2) Land is of spiritual, social, cultural and economic importance to Aborigines:

(3) It is fitting to acknowledge the importance which land has for Aborigines and the need of Aborigines for land:

(4) It is accepted that as a result of past Government decisions the amount of land set aside for Aborigines has been progressively reduced without compensation."

The beneficial nature of the legislation has been recognised by the President of the Court of Appeal in the Minister v. N.S.W. Aboriginal Land Council ((1987) 9 NSWLR 154). At page 157 he said:-

"The Aboriginal Land Rights Act 1983 is beneficial and remedial legislation. Clearly, it was enacted to give important rights in Crown land to the representatives of the Aboriginal people. By common acknowledgement, such people have suffered substantial injustice and loss consequent upon the deprivation of their land following the settlement of Australia. A recent history by Professor H Reynolds catalogues the extent of that injustice, loss and deprivation: see H Reynolds, Frontier: Aborigines, Settlers and Land, (Allen & Unwin, 1987). Against such a background, and given its purposes and context with other land rights and similar remedial legislation, the Aboriginal Land Rights Act 1983 should be given by the courts the most beneficial operation compatible with its language."

The nature of the "interest" of a claimant was expounded by Hope J.A. in N.S.W. Aboriginal Land Council v. The Minister ((1988) 14 NSWLR 685 at 694-696). The balance of the Court of Appeal concurred with His Honour's reasoning. The issue by the Minister of a "conclusive certificate" has dire consequences for a claimant since it defeats any appeal against the refusal of the claim by providing final and conclusive evidence that the land is needed, or likely to be needed, for an essential public purpose and therefore not claimable Crown land under s.36(1) of the Act.

In these circumstances it is my opinion that the requirement for consultation before such a certificate is issued is mandatory and a condition precedent to the issue of a valid certificate under s.36(8). Subsection (b) of s.36(8) refers to "the" certificate and I do not accept the submission that a consultation held with respect to an earlier (and different) certificate qualifies. In my view there must be consultation prior to the issue of a certificate under s.36(8)(b) for that document to be valid. Further, such consultation must be reasonably proximate to the issue of the certificate otherwise it will become stale. Such temporal proximity is a matter of fact and degree. However, in this case a consultation which occurred some 4-1/2 months earlier does not, in my opinion, qualify temporally. Additionally, such consultation was for an earlier differently worded certificate, albeit one with respect to the same land claim.

Further, since the "essential public purpose" is not disclosed on the face of the certificate it cannot be assumed, without evidence, that it will have been the same as the subject matter of the earlier consultation in April 1989. While I accept that the consultation is required to the intention to issue a certificate rather than to its form, this seems to me to be irrelevant to the particular circumstances of the case. Here there was no consultation at all before the issue of the certificate relied on by the respondent.

It follows in my opinion that the certificate is not a certificate under s.36(8)(b) and is a nullity. No other evidence, (other than the purported certificate), has been adduced that the lands are needed, or likely to be needed, for an essential public purpose. It is also relevant to note that with respect to this issue the Minister carries the onus of proof - see s.36(7) of the Act.

Lawful use or occupation

By notice published in the Government Gazette of 23 September 1960 the Council of the Shire of Tweed was appointed as trustee of Reserve No. 82697 being the subject land at Fingal Head. The Reserve had been notified for "Public Recreation" in the Government Gazette of 22 July 1960. The Minister maintains that the land the subject of the land claim is not "claimable Crown lands" because it is being lawfully used or occupied by the Tweed Shire Council and the public. The relevant time for the determination of this issue is the date when the claim was made, viz., 5 January 1989.

For the purposes of general description the land may be divided into two areas. The northern end of the Reserve and the southern end, which is a disused quarry area. There is no doubt on the evidence that all of the northern portion of the land, that is the whole of the land claimed with the exception of the disused quarry land to the south, was lawfully used or occupied as at the relevant date. There is abundant evidence of the Tweed Council, as trustee, exercising control and superintendence over this portion of the Reserve. There is also evidence of active use and development of the area for public recreation. Improvements have been effected, picnic shelters, tables and other facilities, cleared grassed areas, tree and shrub planting and the erection of signs. This portion of the Reserve has also been regularly maintained by the Shire Council. In the face of this evidence the LAC, by its Counsel, all but conceded in his final address that the Minister has established that this portion of the Reserve was lawfully used or occupied for public recreation. In my opinion it was appropriate that this concession be made.

However, it is necessary to examine the evidence relating to the issue with respect to the disused quarry land at the southern end of the Reserve. In my opinion the mere reservation of land for public recreation does not of itself equate to lawful use or occupation under s.36(1) of the Aboriginal Land Rights Act. This is made clear by the inclusion of reserved land in s.36(1)(a) "as claimable Crown lands" and also the reference in s.36(10). The mere fact of the reservation for public recreation cannot of itself prove lawful use or occupation under the ALR Act. Section 36(1)(b) requires not only that the land be used or occupied but that it be done "lawfully" that is, with a legal right to use or occupy the land.

What is the evidence of use or occupation of the old quarry area at or about the time of the claim? Essentially it relates to three aspects. Firstly, and apparently on an irregular and occasional basis, a small area of the disused quarry floor is used to stockpile blue metal for road repair. This is done by the Shire Council and the Roads and Traffic Authority. Secondly, a formed track leads from the floor of the quarry across the sand dunes to Dreamtime Beach. This is used for pedestrian access to and from the beach by swimmers and also as access for professional fishermen. Lastly, and adjacent to the access track over the dunes, an area of the quarry is used as an informal car parking area by visitors to the beach.

These uses are shown in a number of photographs tendered in evidence. The parking of vehicles occurs principally in the summer months when the main Fingal Beach is crowded. The adjacent Dreamtime Beach is said to be popular with surfers. No signs of any nature whatsoever have been erected by the Shire Council in or near this area. Cars apparently park informally and no improvements, no markings or tree plantings have been effected to the quarry area, apparently over the last 30 years since the gazettal as a Public Reserve. This is in marked contrast to the northern end of the Reserve. The only man-made erection in the quarry area is two posts near the beginning of the access track to the beach erected it seems to hinder and prevent vehicular access to the beach. They are respectively stamped with the words "No Entry" and "No Parking". Professional fishermen are apparently permitted by Tweed Shire Council to use this track. Immediately to the south of the old quarry is a small remnant rain forest area, partly within the Reserve and partly on private property. The remaining area of the quarry is fairly rough and unused by members of the public.

Does this evidence amount to lawful use or occupation of the land for public recreation? So far as the occasional use of the land for storage of the blue metal is concerned I fail to see how it can be maintained that this constitutes lawful use or occupation for public recreation. Passing across the land to use the track over the dunes to the beach is in my opinion a transitory use only. As such I have difficulty in seeing how such a use can constitute a lawful use or occupation as a reserve for public recreation. It is but a passageway over the old quarry area in order to gain access to the track across the dunes to Dreamtime Beach. It may be a lawful use in the sense that it is not prohibited and is apparently "permitted" by the trustee. But I fail to see how it can amount to a lawful use of the old quarry land for public recreation, although it may enable the beach to be so used. However, the beach is not part of the Reserve.

The use of portion of the quarry floor as an informal car park is more problematic. The Shire Council does not appear to have taken any action to either discourage or encourage the parking of vehicles in this area. They know that it happens and have apparently taken no steps to prevent such a use by means of the erection of signs, barriers or otherwise. Nor has it resolved to regulate and control the use of the Reserve for public recreation for the parking of vehicles, as it is empowered to under s.351A of the Local Government Act. I would not conclude that the use of the area by members of the public for informal car parking is necessarily lawful. But even if it be lawful, such use or occupation is not for the purpose of Public Recreation on the Reserve. It is for access to the beach. In approaching this issue I mention that I have attempted to give ordinary meaning to the words "lawfully used or occupied" as I think is appropriate.

In my view the Minister, who carries the onus of proof, has failed to satisfy the Court that the old quarry site, being portion of the land claimed, was lawfully used or occupied as a Reserve for Public Recreation on the relevant date. Therefore it follows that this part of the land claimed is "claimable Crown lands".

However, on behalf of the Minister, Mr. Maston submits that in examining the claim the land ought not be dissected. In his submission there is no power to grant part of a claim. I disagree. Section 36(7) provides as follows:-

"The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council." (My emphasis)

It will be observed that the subsection refers to the situation of the Minister failing to satisfy the Court that the lands "or a part thereof" is not claimable Crown lands. On its face the subsection empowers the Court to grant part of a land claim. The old quarry site is in fact fairly discrete although, for the purposes of the transfer to the Land Council, it may be necessary for a survey to be performed or the precise metes and bounds otherwise delineated. In general terms the evidence discloses the area to be that land south of a generally west to east walkway or access track to the Fingal Head lighthouse. Reference to the attached plan annexed to the affidavit of John Francis Callaghan sworn 16 November 1989 should assist.

In my opinion the claimant Land Council is entitled to have that portion of the claim to the south, constituting the disused quarry site, transferred to it in accordance with s.36(7) and (9) of the Aboriginal Land Rights Act. The application is therefore upheld in part and I propose to make the order transferring the land to the claimant when an appropriate and sufficient description is provided to the Court. In view of the evidence it is also appropriate that the title to be granted to the Land Council be impressed with a covenant ensuring a continuation of public access over the old quarry site to Daydream Beach via the track and that the land be maintained by the claimant for the purposes of public recreation. Indeed, this was suggested by Mr. Robertson (for the LAC) in his final address. The parties are asked to bring in Short Minutes of Order giving effect to my Judgment.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE PAUL L. STEIN.

Associate