New South Wales Aboriginal Land Council(Appellant) v Minister Administering the Crown Lands Act

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel,Bell,Keane JJ,Gageler J,Nettle,Gordon JJ
• Judgment Date: 14 December 2016
• Neutral Citation: [2016] HCA 50
• Docket Number: S168/2016
• Court: High Court
• Date: 14 December 2016

[2016] HCA 50

HIGH COURT OF AUSTRALIA

French CJ, Kiefel, Bell, Gageler, Keane, Nettle AND Gordon JJ

S168/2016

New South Wales Aboriginal Land Council

Appellant

and

Minister Administering the Crown Lands Act

Respondent

Representation

B W Walker SC with B K Lim for the appellant (instructed by Chalk & Fitzgerald Lawyers)

M G Sexton SC, Solicitor-General for the State of New South Wales with H El-Hage for the respondent (instructed by Crown Solicitor (NSW))

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the Attorney-General of the State of Tasmania, intervening (instructed by Office of the Solicitor-General (Tasmania))

R M Niall QC, Solicitor-General for the State of Victoria with K A O'Gorman for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

P D Quinlan SC, Solicitor-General for the State of Western Australia with J E Shaw for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Aboriginal Land Rights Act 1983 (NSW), s 36.

New South Wales Constitution Act 1855 (Imp) (18 & 19 Vict c 54), s 2.

Real Property Act 1900 (NSW), ss 13D, 13J.

Aboriginal and Torres Strait Islander peoples — Land rights — Claimable Crown lands — Crown land dedicated for public purposes — Where State recorded as registered proprietor — Where Crown land dedicated for gaol purposes — Where Crown land proclaimed as correctional complex and correctional centre — Where gaol closed but dedications continued in force — Where proclamations revoked — Where Crown land held pending decision as to future use — Where activities on Crown land not inconsistent with dedications — Whether land ‘lawfully used or occupied’ under s 36(1)(b) of Aboriginal Land Rights Act 1983 (NSW).

Constitutional law (NSW) — Executive power — Power over Crown lands — Whether executive power abrogated by s 2 of New South Wales Constitution Act 1855 (Imp) — Whether statutory authorisation required for lawful occupation of Crown lands.

Words and phrases — ‘actual occupation’, ‘beneficial and remedial legislation’, ‘beneficial construction’, ‘claimable Crown lands’, ‘Crown lands’, ‘dedication’, ‘lawfully used or occupied’, ‘lawful occupation’, ‘the Crown’.

1 French CJ, Kiefel, Bell AND Keane JJ. This appeal concerns a claim by the appellant, the New South Wales Aboriginal Land Council (‘the NSW ALC’), under the Aboriginal Land Rights Act 1983 (NSW) (‘the ALR Act’) over two adjoining parcels of land in Berrima (together, ‘the claimed land’) which have been the site of a gaol and correctional centre. Different parts of the claimed land have been the subject of dedications under statutes which preceded the Crown Lands Act 1989 (NSW) (‘the CLA’). The first dedication, in 1891, was for ‘Gaol Site (extension)’; the second, in 1894, was for ‘Gaol Purposes’; and the third, in 1958, was for ‘Gaol Site (addition)’. At the date of the claim the dedications continued in force under the CLA. The claimed land was also the subject of various proclamations over the years, most recently in 2001 when it was proclaimed to be ‘Berrima Correctional Centre’ and ‘Berrima Correctional Complex’ pursuant to the Crimes (Administration of Sentences) Act 1999 (NSW). The correctional centre was closed in about November 2011.

2 Following the closure of the correctional centre, Corrective Services NSW (‘CSNSW’), which is a part of what is now the Department of Justice of New South Wales, requested an assessment of the likely future use for the claimed land and buildings thereon. At the date of the claim consideration was being given to the ‘appropriate future ownership and/or management arrangements for the property’. One option being considered was the creation of a Crown Reserve under the management and care of a Reserve Trust.

3 The proclamations of ‘Berrima Correctional Centre’ and ‘Berrima Correctional Complex’ were revoked on 10 February 2012. The NSW ALC's claim was made on 24 February 2012. The claim was refused by the joint Crown Lands Ministers on the basis that the claimed land was ‘lawfully used and occupied’ within the meaning of s 36(1)(b) of the ALR Act.

4 Another fact concerning the claimed land needs to be mentioned. The State of New South Wales was at the date of the claim registered as proprietor of both parcels of land under the New South Wales Torrens system of registration 1. The conversion of some Crown land appears to have followed amendments to the Real Property Act 1900 (NSW) (‘the Real Property Act’) 2.

The ALR Act and ‘claimable Crown lands’

5 The purposes of the ALR Act include the provision of land rights for Aboriginal persons in New South Wales and the vesting of lands in Aboriginal Land Councils in New South Wales 3. The NSW ALC or a Local Aboriginal Land Council may make a claim 4 to lands which fall within the description of ‘claimable Crown lands’ in s 36(1) of the ALR Act.

6 It cannot be doubted that the purposes of the ALR Act are intended to be both beneficial and remedial. Further, land which may be claimed is not restricted to land to which any Aboriginal person or group has a particular historical connection, as is generally the case with other legislation conferring Aboriginal land rights. The definition of ‘claimable Crown lands’ is broad. Section 36(1) provides:

‘In this section, except in so far as the context or subject-matter otherwise indicates or requires:

claimable Crown lands means 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,

• (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,

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

• (d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and

• (e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).

Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.’

7 The claimed land might not be thought to fulfil the first part of the description of ‘claimable Crown lands’, namely ‘lands vested in Her Majesty’, for the reason that the State of New South Wales is now registered as the proprietor of it. However, the effect of s 3(2) of the CLA is that land does not cease to be Crown land merely because of the fact of such registration under the Real Property Act. This appears to have been the basis of the concession by the Minister that the claimed land was vested in the Crown at the date of the claim.

8 The CLA also defines ‘Crown land’ as land vested in the Crown 5. However, s 36(1) of the ALR Act does not define ‘claimable Crown lands’ by reference to the definition of ‘Crown land’ in the CLA. Section 3(1) of the CLA excludes lands dedicated for a public purpose from the definition of ‘Crown land’, whereas s 36(1)(a) of the ALR Act includes lands dedicated for any purpose as ‘claimable Crown lands’.

9 There is no dispute that the dedications fell within one of the two statutes specified in s 36(1)(a). Although the first two dedications of the claimed land were made under an earlier statute, they were deemed to have been made under the Crown Lands Consolidation Act 1913 (NSW) 6 and the third was made under that Act.

10 The balance of s 36(1) provides for exclusions from the definition of ‘claimable Crown lands’.

11 Paragraphs (b1) and (c) of s 36(1) exclude land which is needed or likely to be needed for the purposes there stated. The Minister may certify that the land is needed or is likely to be needed for those purposes 7. The certificate is final

and conclusive evidence of the matters set out in it. The exclusions effected by s 36(1)(d) and (e) are of land which is being dealt with under a different statutory regime, namely the Native Title Act 1993 (Cth).

12 The focus of this appeal is upon s 36(1)(b), which, in effect, excludes land which is lawfully used or occupied. It will be recalled that this was the reason given for the refusal of the NSW ALC's claim. The issue subsequently narrowed to one as to whether the claimed land was ‘lawfully occupied’ at the date of the claim.

13 The Land and Environment Court is given jurisdiction by s 36(7) to hear appeals from decisions with respect to claims to land under the ALR Act 8. The onus is on the Minister to satisfy the Court that the lands, or a part thereof, are not ‘claimable Crown lands’. If the Minister does not discharge that onus, s 36(7) provides that the Court ‘may … order that the lands … be transferred’ to the claimant Aboriginal Land Council or, where the claim is made by the NSW ALC, to a Local Aboriginal Land Council nominated by the NSW ALC. This sub-section provides the Land and Environment Court with the power to transfer land in the event that the Minister does not satisfy it that the land is not claimable Crown lands. It is not a grant of discretion, despite the use of the word ‘may’: in the event that the Minister failed to satisfy the Court that the land is not claimable, the Court would be obliged to order its transfer 9.

Lands lawfully occupied

14 It was not...