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NSW Aboriginal Land Council v Minister for Natural Resources
NSW Land and Environment Court, Stein J.
9 May 1986
Casenote by Glen Hennessy
On Friday, 9 May, 1986 the New South Wales Land and Environment Court made its first determination under Section 36(7) of the Aboriginal Land Rights Act, 1983. In accordance with its powers it ordered that a parcel of land, known as Utah Well Paddock comprising 3,672 hectares and located approximately 145 kilometres north west of Bourke be transferred to a claimant Local Aboriginal Land Council.
The history of the matter goes back to 26 April, 1984 when a claim was lodged on behalf of the Wanaaring Local Aboriginal Land Council by the New South Wales Land Council. The claim was refused by the Minister for Natural Resources in a letter dated 8 November, 1984. The Minister stated as her grounds for refusing the claim:
‘I have had regard to the fact that these lands are required to ensure the maintenance of viable farming units in terms of the requirements for economically effective agricultural holdings in the western division.... and the need for farm 'buildup' to meet these requirements.’
An appeal against the refusal was lodged in the Land and Environment Court on 21 December, 1984.
Prior to the claim, the land was held by a family called Mooring under a lease which expired in June, 1981. Following the expiration of the lease the grazier continued to keep sheep on the land although no further lease was granted. In July, 1982, the Minister purported to grant a permissive occupancy over the land which was back dated to the date of expiry of the lease. In January, 1984 notification was given in the Government Gazette setting aside the land for disposal by way of lease. Then the Land Council lodged its claim. No mention of this occupation was made by the Minister during the course of the proceedings until 2 April, 1986 some 14.5 months after the appeal was lodged and nearly 2 years after the date of the original claim.
The matter had a long history of mentions and listings which eventually, caused the. Matter to be set down for hearing for 3 weeks commencing 21 April, 1986. The matter came on for hearing before His Honour, Mr Justice Stein assisted by Assessors Green and Cook.
In his judgement His Honour noted that the history of the matterdisclosed a poor state of affairs. His Honour was of the view that as soon as there was the slightest evidence of any occupancy, all efforts ought to have been made to contact the occupant and advise the Court and the Land Council of its existence. The Minister’s failure in this regard was characterised by His Honour as 'an unfortunate example of poor public administration'. Due to this and some subsequent delays Mr Mooring was not a party to the proceedings when they commenced. Indeed, he wasjoined as a party to the proceedings as the Second Respondent only on the third day.
The Court heard evidence in the Applicant's case by a Dr Carter, a consultant in environmental biology and pastoral management. Dr Carter's inspection was limited to what could be seen of the land from the main roads because he had been ref used access to the property by the Western Lands Commission. His Honour found that the refusal was entirely inexcusable and a matter of some concern that such a serious obstruction should have been placed in the way of the Applicant. He opined that it might also be seen as an attempt to prevent the Court from receiving relevant evidence.
In His Honour's view, Dr Carter was able to make a reasonable assessment, however, which allowed the Court to conclude that the land is seriouslydegraded, run down and that the fencing on the property was generally in a poor condition, including no sub-divisional fencing at all.
Dr Carter's conclusion was that the cost of remedying the defects in the property is beyond the capacity of the income that would be available from the land.
Under Section 36(7) of the Act, if the Minister fails to satisfy the Court that the lands are not claimable Crown Lands the Court may order the lands to be transferred to the Land Council. In this case, the Minister sought to show that the land was not claimable for two reasons: firstly, because when the claim was made the land we lawfully used or occupied; and secondly, because the land was needed for an essential public purpose.
In respect of the first reason, the lawful use or occupancy, the Land Council made three submissions:
1. The permissive occupancy granted to Mr Mooring was not lawful since there was no power under any Act to grant it.
2. If there was a powerto grant a permissive occupancy then it was a power of the Minister alone, and in the absence of any evidence of delegation the exercise of the power bythe Secretary of the Western Lands Commission was ultra vires, that is to say in excess of the Secretary's power.
3. If the permissive occupancy was validly granted, it was determined by virtue of the notice in the Government Gazette of January, 1984.
The Minister sought to meet each of these submissions as follows:
1. There is and was power in the Minister under Section 136K of the Crown Lands Act to grant permissive occupancies in the Western Division the existence of which was placed beyond doubt by an amendment to the Western Lands Act in 1985 which introduced Section 45 into the Act. (This amendment commenced to operate on 11 April, 1986, 10 days before the hearing of the appeal was to commerce).
2. There was a presumption of lawfulness or regularity in the granting of the permissive occupancy. Alternatively, that the Minister had delegated his.power validly to the Secretary by Regulation.
3: The publication of the Gazette Notice did nothing to determine the existing permissive occupancy.
His Honour dealt with each of these matters in turn. From a review of the precedents and a reading of the Crown Lands Act and the Western Lands Act, His Honour concluded that it was apparent that the Crown's prerogative to deal with Western Division land is limited to that contained in the legislation. The Crown's power to dispose or grant interests in Crown land is governed and limited to such power as it is given by the legislation. The Crown, in granting any interest over land, must act in accordance with legislative authority and cannot act without it. His Honour found that there was no power in the Minister to grant a permissive occupancy in the Western Lands Act as it stood before Section 45 was inserted. Thus it was necessary for him to consider the effect of the new Section. It provides:
'For the avoidance of doubt it is declared that Section 136K of the Crown Lands Consolidation Act, 1913 and any other provision of that Act relating to a permission to occupy Crown Land or a permissive occupancy of Crown Lands apply, and shall be deemed always to have applied, to land in the Western Division.'
His Honour decided that, despite its tenor, the Legislature was attempting to alter the law rather than to declare its true meaning. This had the effect that the presumption against an act operating retrospectively applied and that the provision could not be so construed. He was of the view that the Legislature had adopted an incorrect approach to what it was attempting to effect. He said:
‘To declare something to be black when it is undoubtedly white is of no effect.’
Although it was unnecessary to decide, His Honour tended to accept the submission that the Section was not sufficiently clear so as to render its effect retroactive to the date of claim. He found that as that was the relevant date to examine the lawfulness of the permissive occupancy one must look to the state of the law as it then was. At that date there was no Section 45 in the Western Lands Act and therefore the amendment was of no assistance in validating the permissive occupancy.
His Honour proceeded to consider the delegation argument. Under the various Acts the Minister is permitted by an instrument in writing to delegate any of his powers or functions to an officer of the Western Lands Commission. No such instrument was in evidence. The Minister sought to rely on a maxim to apply a presumption of regularity in the administrative actions. His Honour found that the maxim was inapplicable to the situation especially as there was a procedure specifically provided for in the statute He found that the regulation was not a sufficient delegationn and that all it did was to specify the officers to whom the Minister might have delegated his powers or functions. He did not consider it an 'instrument in writing' for the purposes of the Sections, in respect of the third point the notification in the Gazette, His Honour found that it did not revoke any tenures and that it did no more than to call for applications for a lease.
The second leg of the case required His Honour to consider what was meant by the statutory expression that the land was not claimable Crown land under the Aboriginal Land Rights Act if it was 'needed for an essential public purpose'. He found that 'public' had connotations of the community, state or nation as a whole. 'Purpose' may be defined as the object in view or the object for which something is done. 'Public' may be distinguished from'private'. His Honour found that the remarks of Romer L J in Bank Voor Handel Den Scheepvaart v Slatford (1953) 1 QB 248 at 298 where it said:
'That public purposes' must be such as are required and created by the Government of the country and are therefore deemed part of the use and service of the Crown'... Such purposes are 'the purposes of the administration of the Government of the country'.
His Honour found that the evidence fell well short of providing that the land was needed for the purposes of administration of the Government of the community or the State, and this without taking account of the qualifying word essential. His Honour found on the evidence that the land might have been desirable for Mr Mooring's own private purposes, but even assuming fora momentthat his own position was transformed into a public purpose, his evidence of need was scant and unreliable.
In a valuable observation His Honour found that it was possible that, with a good deal of comprehensive evidenceconcerning the need in the locality (or of a much wider region) for extra land to constitute 'home maintenance areas' as defined in Section 3 of the Western Lands Act that Mr Mooring's private purpose could be translated into a public purpose. One must, however, give some meaning to the word 'essential'. He expressed the opinion that 'essential' in its juxta position to 'public purpose' connotates something which is indispensible or at least material and important.
In consequence, His Honour found that the Minister had failed to convince the Court that the land was either lawfully used or occupied or needed for an essential public purpose. As a result he did not conclude that the land was not claimable Crown lands and ordered that the land be transferred in accordance with Section 36(7) of the Act.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1986/36.html