Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 - [2023] NSWLEC 134 - NSWLEC 2022 case summary — Zoe

NSWNSWLEC

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

[2023] NSWLEC 134

Land and Environment Court (NSW)|2022-06-28|Before: Pepper J

View original source

At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2022-06-28

Before

Pepper J

Catchwords

(2014) 254 CLR 1 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57
(1927) 40 CLR 394 Countess of Shrewsbury's Case (1600) 5 Co Rep 13b
77 ER 68 Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180
(2006) 149 LGERA 162 20

Source

Original judgment source is linked above.

Catchwords

(2014) 254 CLR 1 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 Commissioner of Stamp Duties (NSW) v Thomson [1927] HCA 57(1927) 40 CLR 394 Countess of Shrewsbury's Case (1600) 5 Co Rep 13b77 ER 68 Darkinjung v Minister Administering Crown Lands Act [2006] NSWLEC 180(2006) 149 LGERA 162 20(1959) 101 CLR 298 Maxwell v Murphy [1957] HCA 7(1957) 96 CLR 261 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138(2009) 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28(2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359(2012) 193 LGERA 276 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359(2012) 187 LGERA 276 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352(2012) 84 NSWLR 219 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48(2016) 260 CLR 232 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174(2012) 186 LGERA 323 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46

Judgment (14 paragraphs)

[1]

Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 193 LGERA 276 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council [2012] NSWCA 359; (2012) 187 LGERA 276 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2009] NSWCA 352; (2009) 171 LGERA 56 Minister Administering the Crown Lands Act v New South Wales Aboriginal Council (No 2) (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (The Goomallee Claim) [2012] NSWCA 358; (2012) 84 NSWLR 219 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1991) 75 LGRA 133 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2014] NSWLEC 58 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 174; (2012) 190 LGERA 171 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2015] NSWCA 349 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2012] NSWLEC 1; (2012) 186 LGERA 323 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Helensburgh Police Station [2020] NSWLEC 133 New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act - Waverton Bowling Club [2022] NSWLEC 130 Origin Energy LPG Ltd v Bestcare Foods Ltd [2007] NSWCA 321 Payne v Parker [1976] 1 NSWLR 191 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 132; (2011) 244 CLR 144 R Foley; Channell v Foley (1952) 53 SR (NSW) 31 State of New South Wales v Bujdoso [2007] NSWCA 44; (2007) 69 NSWLR 302 State of New South Wales v Kaiser [2022] NSWCA 86 State of New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52 Texts Cited: D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) Category: Principal judgment Parties: Darkinjung Local Aboriginal Land Council (Applicant) Minister Administering the Crown Land Management Act (Respondent) Representation: Counsel: T Prince (Applicant) R White (Respondent)

[2]

Solicitors: Chalk & Behrendt Lawyers & Consultants (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 2021/91046 Publication restriction: Nil

[3]

A Land Claim is Made Over Land

These proceedings concern an appeal pursuant to s 36(6) of the Aboriginal Land Rights Act 1983 ("ALRA") in respect of the part refusal by the Minister administering the Crown Land Management Act 2016 ("the Minister") of a land claim ("the claim") relating to Lot 169 in Deposited Plan 726293 ("the claimed land").
The claim was lodged by Darkinjung Local Aboriginal Land Council ("Darkinjung") on 20 February 2019 ("the claim date").
On 4 December 2020 the Minister wrote to Darkinjung advising that part of the claim was refused on the following grounds: ... when the claim was made the land was not claimable Crown land as it was protected under Schedule 4, Clause 8 Savings, Transitional and Other Provisions of the Aboriginal Land Rights Act 1983. The relevant land was subject (sic) Special Lease 1965/21 Gosford (Crown account 75029), issued to Kenneth Martin Graham which commenced prior to the enactment of the Aboriginal Land Rights Act 1983 and remained in force at the date of Claim.
On 1 April 2021 Darkinjung filed an appeal from the decision pursuant to s 36(6) of the ALRA.
For the reasons that follow, I find that the land was not lawfully occupied and is therefore "claimable Crown lands" under the ALRA. I further find that the savings provision contained in cl 8 of Sch 4 of the ALRA did not apply to deem the claimed land not "claimable Crown lands" under that Act. The appeal must accordingly be upheld.
I acknowledge the assistance of Smith AC during the hearing. All findings, both legal and factual, are, however, my own.

[4]

The Claimed Land

Much of the factual background to the appeal was not in dispute.
The claimed land is located at 25 Pacific Highway, Doyalson, in the parish of Munmorah, County of Northumberland. It is approximately 7.4 ha in size.
The claimed land was previously known as Portion 140 in the Parish of Munmorah.
On 22 April 1960 the claimed land was reserved for coal mining purposes in the Government Gazette.
On 25 February 1965 Kenneth Graham prepared a declaration for a special lease. The next day, Graham applied for a special lease.
The claimed land was demised to Graham on 27 April 1967 under Special Lease 1965/21 Gosford ("SpL 1965/21"), which was granted pursuant to s 75 of the Crown Lands Consolidation Act 1913 ("CLCA"). The stated purpose of SpL 1965/21 was for a "poultry farm".
On 30 June 1967, by notification in the Government Gazette No 72, SpL 1965/21 commenced with a term of 19 years, expiring on 31 December 1986.
SpL 1965/21 was granted subject to the following conditions: 1. condition 6, "the land leased shall be used for the purposes for which the lease is granted"; and 2. condition 11, "all rights…which are conferred by any Mining Act or Acts of New South Wales, with respect to Crown Lands, are reserved with respect to the land leased".
On 15 June 1973 by notice in Government Gazette No 77, the reserve for coal mining was revoked.
On 19 July 1974, again by notification in the Government Gazette No 87, Portion 140 was reserved from sale for future public requirements (reserve 90480).
On 15 November 1974 Graham's application for conversion of SpL 1965/21 was refused.
On 7 November 1980 a small part of Portion 140 was resumed for road purposes. This land became Lot 6 in DP 607916, and the residue became the claimed land.
A complaint of unlawful land clearing and the carrying out of an illegal quarry on the claimed land was made to the Crown Lands Office on 16 November 1982.
On 18 January 1983 the illegal quarry was inspected by the district surveyor.
On 3 April 1985 the Crown Lands Office penalised Graham $3,800 for the illegal removal of 9,500m2 of fill in breach of the terms of SpL 1965/21.

[5]

Issues for Determination

Determination of the central question to the appeal of whether the subject land is claimable Crown lands under the ALRA, demands resolution of the following issues: 1. whether the Minister can satisfy the Court that as at the date of the claim Lot 169 was subject to SpL 1965/21 as granted to Graham on 27 April 1967; 2. whether the Minister can satisfy the Court that the whole or part of Lot 169 was lawfully occupied pursuant to SpL 1965/21, and therefore, was not "claimable Crown lands" within the meaning of s 36(1)(b) of the ALRA; 3. if it was not lawfully occupied, and therefore the claimed land was potentially "claimable Crown lands", whether the Minister can satisfy the Court that as at the date of the claim the land was not claimable Crown lands pursuant to cl 8 of Sch 4 of the ALRA; and 4. what the appropriate orders are for the Court to make in light of the resolution of issues (a), (b), and (c) above.

[6]

Statutory Framework Governing the Appeal

Section 36 of the ALRA sets out what relevantly constitutes "claimable Crown lands" for present purposes: 36 Claims to Crown lands (1) 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, … 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. … (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall - (a) if the Crown Lands Minister is satisfied that - (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring 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) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that - (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. … (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a Claim made by it. (7) 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.

[7]

Evidence of the Parties

Further to an agreed statement of facts, Darkinjung relied upon documents comprising dealings with the claimed land and correspondence between Graham and various governmental entities and as between those entities concerning Graham's use of that land.
In addition to the material referred to above, the Minister relied upon the following affidavits: 1. an affidavit of Peter Draper, Natural Resource Management Project Officer with NSW Crown Lands, affirmed 26 August 2021, detailing reports of a tenure audit program inspection on 7 December 2017 and of a field inspection on 24 July 2018, both of which were undertaken in respect of the claimed land; and 2. an affidavit of Daniel Firli, a Revenue Project Officer with NSW Crown Lands, affirmed 27 August 2021, deposing to the rental history of the claimed land from 1 January 2017 to 3 August 2021. Neither witness was cross-examined.
Draper deposed to an inspection of the land the subject of SpL 1965/21 on 7 December 2017, in order to determine compliance with the terms of the special lease. During that inspection Graham confirmed that he was living on the block after having sold the block of land next door where he had previously been living. The Tenue Audit Program - Inspection report noted that: 1. the property was no longer being used as a poultry farm as of "2012-13" and had been sublet to others; and 2. there was "moderate non-compliance" with the special lease conditions.
Draper undertook a second inspection on 24 July 2018 to assess compliance with the terms of the special lease and to determine if Graham had undertaken corrective action to address the breaches of the lease identified on 7 December 2017. The Field Inspection Report from that visit observed that "Mr Graham and others are living in a dwelling [sic] the poultry farm without authority to do so. Forfeiture of the lease will require removal of the tenants."
In his affidavit, Firli deposed to the assistance he gave to the Principal Legal Officer of the Department of Planning, Industry and Environment regarding the rental payment history of the claimed land. Based on his searches of the CLID he was able to generate a rental statement as far back at the CLID would permit. He was also able to generate a display of the rental history for the period between 1 January 2017 to 3 August 2021. The two documents produced showed that: 1. the "tenure status" of the special lease was "EXPIRED (Wkly Tenancy)"; and 2. at all material times rent was levied and paid in respect of the land the subject of the lease by Graham.

[8]

Fundamental Legal Principles Applicable to the Determination of the Appeal

Although well traversed, it is worth repeating some of the fundamental legal principles underpinning land claim appeals under the ALRA. First, the ALRA was enacted in an attempt to mitigate the past dispossession of land from First Nations peoples in the State. This is expressly reflected in the preamble and objects of the Act (which are not repeated here). The Act has therefore been described as beneficial and remedial legislation (see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157B).
Nevertheless, care must be taken not to place undue emphasis on the beneficial purpose underpinning the ALRA. As was stated in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 ("Berrima Gaol") (at [33] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted. And see a similar sentiment expressed by Gageler J at [94]): 33. That is not the situation which arises with respect to s 36(1) of the ALR Act, where it is the meaning of particular words which is in question. In Victims Compensation Fund Corporation v Brown it was pointed out that to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used. It is one thing to say that no restricted construction should be given to legislation which confers benefits; but if the focus is on the meaning of specific words, the circumstance for a liberal application may not arise.
Second, exceptions to the right to claim land should be narrowly construed (Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 at [53] ("Maroota") and Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009) 166 LGERA 379; ("Bathurst") at [186]).
Third, it is generally settled law that, as stipulated by s 36(7) of the ALRA, the onus of proof falls on the Minister to satisfy the Court that the claimed land is not claimable Crown lands under the ALRA. If the Minister fails to discharge this statutory onus, then the Court is bound to order the transfer of the land to Darkinjung (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 692D-693D ("Winbar")).

[9]

Whether Lot 169 was Subject to SpL 1965/21 as at the Date of the Claim and Whether SpL 1965/21 had "Ceased"

It is convenient to deal initially, and together, with the issues of whether, as at the date of the claim, the claimed land was subject to SpL 1965/21 granted to Graham on 27 April 1967, and if so, whether that special lease had ceased to be in force for the purpose of cl 8 of Sch 4 of the ALRA. This is because if SpL 1965/21 had not ceased to be in force, then even if the claimed land is otherwise "claimable Crown lands" for the purposes of s 36(1)(b) of the ALRA, by operation of cl 8 of Sch 4 of that Act, the claimed land is deemed not to be claimable Crown lands and the appeal must fail. Resolution of whether SpL 1965/21 was still in force as at the claim date also has a bearing on the determination of whether the claimed land was "lawfully…occupied" within the meaning of that term in s 36(1)(b) of the ALRA.
It was uncontroversial that on the appointment date (10 June 1983), the claimed land was the subject of SpL 1965/21, which had been granted to Graham pursuant to s 75 of the CLCA. The central issue, therefore, is whether the special lease had ceased to be in force as at 20 February 2019 (the claim date).
The Minister argued that by reason of cll 27 and 29 of Pt 6 of Sch 1 of the CLMA, SpL 1965/21 continued from 1 January 1997 onwards, albeit on a monthly basis. The combined operation of the CLA, the CL(CT)A, and the CLMA is to the effect that the continuation of tenure originally granted under the CLCA is provided for, including the continuation of special leases. In other words, immediately before the repeal of the CL(CT)A by the CLMA on 1 July 2018, Graham's occupation of the claimed land was pursuant to SpL 1965/21 which was still extant as at the date of the claim.
The Minister's position may be summarised as follows: 1. first, SpL 1965/21 was granted pursuant to s 75 of the CLCA which was in force on the day the ALRA commenced in 1983. Its term was extended to 31 December 1996 on 22 July 1988; 2. second, notwithstanding the repeal of the CLCA by the CLA (which commenced on 1 May 1990), cll 17 and 21 of the CLA operated to preserve SpL 1965/21 subject to the provisions of that Act; 3. third, s 41 of the CLA empowered the Minister to grant special purpose leases for a period of 100 years, not merely the 40 years permitted under the CLCA. Thus, notwithstanding that SpL 1965/21 commenced in 1967, it could continue in force until 2067, and did not expire in 2007 (that is, after the 40 year maximum term provided for by ss 75 and 229 of the CLCA). Initially the Minister relied upon s 44C of the CLA (which was similarly worded to s 41), but the concession was correctly made in oral argument in reply that the section did not apply because s 44C was inserted into the CLA in 2008 (T92:47); 4. fourth, following the expiry of SpL 1965/21 on 31 December 1996, Graham remained in possession of the claimed land pursuant to cl 6 of Pt 5 of Sch 2 of the CL(CT)A. This tenure was, as the Introductory note to Sch 1 of the CLMA indicated, preserved under cl 29 of Pt 6 of Sch 1 of the CLMA upon the repeal of the CL(CT)A; 5. fifth, Graham's tenancy was not a new and separate statutory interest. Rather, when regard is had to the savings and transitional provisions enacted since the repeal of the CLCA and the relationship between the CLMA and the CL(CT)A, it is clear that SpL 1965/21 was in existence when cl 6 of Sch 2 of the CL(CT)A commenced and its tenure was continued, subject to certain conditions (namely, that the tenancy was monthly, that rent continue to be paid at a rate equal to the rent charged under the tenancy, that the parties remain subject to the same conditions as the special lease, and that the Minister consented to the continued tenancy), when it expired on 31 December 1996; and 6. sixth, there was no requirement that Ministerial consent for the existence of the monthly tenancy be in writing or given personally. It was sufficient for consent to be granted by officers of the Minister's Department acting as his authorised agents. In this instance, consent could be implied having regard to the fact that, as the Firli affidavit demonstrates, Graham remained in possession of the land for decades after the expiry of SpL 1965/21 and had continued to pay rent during the relevant period.

[10]

No Ministerial Consent Was Given

More problematic for the Minister is the fact that irrespective of the proper construction of cl 6 of Pt 5 of Sch 2 of the CL(CT)A, a statutory precondition to both the creation of the new monthly tenure or the continuation of the tenure granted under SpL 1965/21 was the requirement for the Minister's consent.
The Parliamentary intention of the precondition is plain, that is, to afford the Minister a discretion to refuse consent and unencumber the land.
Darkinjung submitted that there was no evidence of any consent by the Minister. No documents were produced in response to a notice to produce seeking copies of all written consents by the Minister in relation to the occupation of the claimed land by Graham from 1 January 1996 to 20 February 2019.
By contrast, the Minister submitted that there is no requirement in cl 6 of Pt 5 of Sch 2 for the consent to be in writing (cf cl 2 of Sch 3 of the CL(CT)A). This may be accepted.
But the Minister also argued that there was no requirement for the consent to be given personally by the Minister and that it was sufficient for the purposes of cl 6 that consent be granted by officers of the Minister's Department acting as authorised agents (citing Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 566).
However, even accepting, without deciding, that this proposition is correct, as the facts above demonstrate, there is no evidence that anyone in the Department, either as a Ministerial delegate or in some other authorised capacity, gave consent to Graham's continued occupancy of the claimed land, or that they turned their mind to the question of consent, let alone gave it any consideration.
On the contrary, the correspondence was overwhelmingly directed to the legal basis upon which Graham remained in occupation of the claimed land and not whether he had been given Ministerial permission to do so. Consent was, at best, presumed. I accept the submission of Darkinjung that at its highest the documentary evidence demonstrates that the Department proceeded upon an assumption that there was a monthly tenancy operating with respect to the land, and moreover, that confusion and uncertainty about Graham's tenure persisted until at least 17 April 2018 (for example, at one point it was thought that the tenancy was weekly and not monthly).

[11]

Was the Claimed Land Lawfully Occupied as at the Date of the Claim?

Darkinjung denies that Graham lawfully occupied the claimed land as at the date of the claim because: 1. first, for the reasons given above, Graham did not have a legal interest entitling him to occupy the claimed land. His occupation was unauthorised and unlawful; 2. second, Graham did not have a lawful interest in the claimed land by reason of the various illegal activities he had engaged in with respect to the claimed land; 3. third, he was not in fact in occupation of the claimed land as at the date of the claim; and 4. fourth, if he was in actual occupation of the claimed land it was not for the permitted purpose for use as a poultry farm and hatchery and was therefore not lawful.
In response, the Minister relied upon evidence of occupation prior to the claim date to demonstrate that the land was actually occupied by Graham for residential and storage purposes and that Graham was in possession and control of the claimed land.
As for the lawfulness of the occupation, the Minister submitted that this was provided by Graham's right of occupation pursuant to s 1.15 and cl 29 of Pt 6 of Sch 1 of the CLMA. The Minister had consented to Graham continuing to occupy the land and he was paying rent in consideration of his right to do so. In the alternative, if the occupation by Graham at the date of the claim was not pursuant to SpL 1965/21, a tenancy at will was created which was sufficient for s 36(1)(b) of the ALRA. Furthermore, there was nothing in the language of s 36(1)(b) that demands that occupation must be consistent with the lease purpose in order to be lawful (citing Berrima Gaol at [95]).

[12]

"Lawfully Used or Occupied" - Applicable Legal Principles

The relevant legal principles derived from the authorities as to whether land is lawfully used or occupied are summarised below. They were not the subject of controversy: 1. the phrase "lawfully used or occupied" should be understood disjunctively by a separate consideration of the words "used" and "occupied". That is to say, either a lawful use or a lawful occupation of the land will defeat the claim (Berrima Gaol at [14], Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Wagga") [2008] HCA 48; (2008) 237 CLR 285 at [69] and Bathurst at [232]); 2. whether the land is lawfully used or occupied is a question of fact. It is therefore necessary to consider the particular acts, facts, matters and circumstances said to deprive the land of the characteristic of being "not lawfully used or occupied". These must be measured against an understanding of what would constitute use or occupation of the land (Wagga at [69]); 3. in respect of the concept of "occupation", usually (but not exclusively) "a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land" (Wagga at [69]); 4. a continuous physical presence over the entirety of the land is not necessary to establish occupation. The fact that some of the land has been left undeveloped does not in and of itself mean that the whole of the land is unoccupied (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council ("Tweed Byron") (1991) 75 LGRA 133 at 140-141); 5. the question of occupation and/or use is measured as at the date of the claim (Berrima Gaol at [25]). This is particularly important where there is, as in the present case, a long history of occupation; 6. occupation includes legal possession, that is, being able to exclude third parties (Berrima Gaol at [18]); 7. for land to be used or occupied, it must be actually used or occupied in the sense of being used in fact and not in a nominal sense or "merely to a notional degree" (Bathurst at [161]-[162] and [227]-[230], Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council ("Malabar NSWCA") [2012] NSWCA 359; (2012) 187 LGERA 276 at [45]-[47] and Berrima Gaol at [17]). Put another way, the use or occupation must be more than de minimis, that is, in light of the circumstances of the case, it must be of substance rather than "so miniscule, insignificant or token as to be disregarded" (Bathurst at [161] and Malabar NSWCA at [46]-[47]); 8. total abandonment is not required to find that the land is not lawfully used or occupied (New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Education Building") (1992) 76 LGRA 192 at 198); and 9. in respect of the term "lawfully", for the purposes of s 36(1)(b) of the ALRA the Minister must satisfy the Court not only that the claimed land was in use or occupied as at the date of the claim, but that such use or occupation was lawful (Bathurst at [240]). That is, that the use or occupation of the particular Crown land was legally authorised (Tweed Byron at 142).

[13]

Conclusion and Orders

For the reasons detailed above, I find that as at the claim date the claimed land was "claimable Crown lands" within the meaning of s 36 of the ALRA and that the interest that Graham held in the land was not an interest that was protected by cl 8 of Sch 4 of that Act, SpL 1965/21 having ceased to have any force on 31 December 1996. The appeal must therefore be upheld.
During the hearing Darkinjung reserved its position as to the form of the orders if it was successful on the appeal. This was because it expressed a desire to seek orders in relation to the clean-up of the claimed land, including the removal of all chattels, prior to its transfer in order to give vacant possession as one of the incidents of fee simple. Darkinjung relies upon s 39(2) of the Land and Environment Court Act 1979, which confers upon the Court "all functions and discretions which the person or body whose decision is the subject of the appeal had in the respect of the matter the subject of the appeal", as the source of the Court's power to craft the orders that it seeks.
The argument not having been fully ventilated, and the Minister not having been given the opportunity of responding to it, it is not appropriate to resolve it at this juncture.
I therefore propose to make the orders below, but grant liberty to restore to either party within 28 business days (excluding public holidays) from the date of the publication of this judgment to approach the Court for alternative orders.
The orders of the Court are therefore that: 1. the appeal is upheld; 2. the respondent is to transfer Lot 169 DP 726293 in fee simple to the applicant; 3. the respondent is to do all things necessary to enable the transfer of the claimed land in accordance with order (2) within 12 months of the date of these orders; 4. no order as to costs; 5. the parties are granted liberty to restore to approach the Court for alternative orders within 28 business days (excluding public holidays) from the date of the publication of this judgment; and 6. the exhibits are returned.

[14]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023

However, the CLCA was repealed by Sch 7 of the Crown Lands Act 1989 ("CLA") commencing on 1 May 1990. The latter Act relevantly provided as follows: 6 Crown land to be dealt with subject to this Act etc Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the occupation, use, sale, lease, licence, reservation or dedication or other dealing is authorised by this Act or the Crown Lands (Continued Tenures) Act 1989. 34 Powers of Minister (1) The Minister may, in such manner and subject to such terms and conditions as the Minister determines: (a) sell, lease, exchange or otherwise dispose of or deal with Crown land, or … (b) grant easements or rights-of-way over, or licences or permits in respect of, Crown land, on behalf of the Crown. … (3) The Minister may not, under subsection (1): (a) sell or exchange Crown land, (b) lease Crown land for a term exceeding 5 years, or (c) lease Crown land for a term that, by the exercise of an option, could exceed 5 years, unless the relevant date for the sale, exchange or lease is at least 14 days after notice of intention to sell, exchange or lease the land has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State. 41 Term The term of a lease of Crown land (including any option for the grant of a further term) granted by the Minister is not to exceed 100 years. … 155 Offences on public land (1) A person shall not, without lawful authority: (a) reside on public land; (b) erect a structure on public land; (c) depasture stock on public land; (d) drive stock on public land; (e) clear, dig up or cultivate public land; (f) enclose public land (other than a road or watercourse to which section 63 applies); (g) fail to pay any rent due and payable in respect of the enclosure of public land that is a road or watercourse; (h) remove from public land, or cut, dig up, disturb, displace, stack, heap or in any other way interfere with, any tree, timber, turf, stone, clay, shells, earth, sand, gravel or any other things, whether growing on or in, or being in, on or under or forming part of, public land; or (i) deposit or leave on public land- (i) any rubbish, litter, refuse, dead animal, filth or other similar matter; or (ii) any matter of a prescribed class or description, whether or not of a kind referred to in subparagraph (i), except in a place or receptacle provided for the purpose.

By contrast, Darkinjung contended that the claimed land was not the subject of SpL 1965/21 as at the date of the claim because it had ceased to be in force on 31 December 1996 when it expired, and that no monthly tenancy was validly created pursuant to the Crown lands legislation. It reasoned that: 1. first, a special lease could neither be issued nor its term extended for a period of greater than 40 years (ss 75(1) and 229 of the CLCA). The CLCA was repealed by the CLA and existing special leases granted under the former enactment remained subject to the conditions which had previously been imposed (see cl 3(1) of Pt 5 of Sch 2 of the CL(CT)A). Before the special lease's term expired, the holder of a special lease could apply to purchase the land or to apply for a new lease under the CLA (cl 4 of Pt 5 of Sch 2 of the CL(CT)A); 2. second, s 41 of the CLA was not material because it only applied prospectively to the creation of new special leases under that Act, not retrospectively to extend the 40 year term limit to 100 years in relation to special leases already granted by the Minister under the CLCA. As at the expiration of SpL 1965/21 on 31 December 1996, there was no statutory power to extend the 40 year term limit of that lease to beyond 2007. Therefore, SpL 1965/21 was not in force and cl 8 of Sch 4 of the ALRA was not engaged; 3. third, cl 6 of Pt 5 of Sch 2 of the CLA, properly construed, provides that if the Minister consents to a monthly tenancy after a special lease has expired, the monthly tenancy is not a continuation or extension of the expired special lease. Rather, it is the creation of a new statutory lease albeit subject to the same conditions as those in existence immediately prior to its expiry. Accordingly, on its terms and in accordance with the CLA and the CL(CT)A, SpL 1965/21 expired on 31 December 1996, that is, decades prior to the date of the claim. If SpL 1965/21 did continue on a monthly basis, it was as a new interest; 4. fourth, a monthly tenancy was not created because cl 6 only allowed for the creation of a monthly tenancy where the holder of the expired special lease remained in possession after the expiry of the special lease with the consent of the Minister. In the present case there was no evidence of any Ministerial consent being provided. On the contrary, the evidence disclosed that SpL 1965/21 was recorded as having been terminated. At its highest, the evidence disclosed an intention to create a month-to-month lease and the Department was acting on the assumption that such a tenancy had been created; and 5. fifth, even if Graham held a monthly tenancy after the expiry of SpL 1965/21, it did not survive the repeal of the CL(CT)A by the CLMA on 1 July 2018, the latter of which only provided for "continued tenures" which, as defined, did not include monthly tenancies. Although Pt 5 of Sch 1 allows for the continuation of a special lease, this was only as defined in the CL(CT)A and as explained above, SpL 1965/21 had already expired and was not in force when the CL(CT)A was repealed.

The principles were succinctly summarised in State of New South Wales v Kaiser [2022] NSWCA 86 (at [57]): 57. The relevant principles of statutory construction are well established and may be stated briefly. They are: 1. it is the duty of the Court to give the words of the statutory provision under consideration the meaning that the legislature is taken to have intended them to have. While, ordinarily, the grammatical meaning and the intended meaning will coincide, it is not always so: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 28 at [78]; 2. in the interpretation of a statute the Court is to prefer a construction that would promote the purpose or object underlying the Act to one that would not achieve that purpose: Interpretation Act 1987 (NSW), s 33; 3. the starting point is always the text of the provision to be construed. But the text of the provision to be construed is not to be taken in isolation. It is to be read "in the context" of the legislation as a whole. "Context" is not to be treated as something to which resort may be had when consideration of the text alone fails to yield a satisfactory answer: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48 per Mason J; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 per Brennan CJ, Dawson, Toohey and Gummow JJ, both quoted by Gageler J in SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34 at [37]; The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507; [2019] HCA 35; 4. courts must strive to give meaning to every word of the provision to be construed (Project Blue Sky at [71]) and should "strain against a construction which gives no work whatsoever to legal language": Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77] per Leeming J; if possible, some meaning and effect should be given to all the words used in a statute: The Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11, cited by Mason CJ in Chu v Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 12-13; [1992] HCA 64 ("the presumption against surplusage"). The rule is subject to the qualification that it may be displaced if there is good reason to do so: Lim, at 13. 5. a statute will not be construed so as to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by unambiguous language that indicates that the legislature has turned its mind to the rights or freedoms in question and has consciously decided upon abrogation or curtailment ("the principle of legality"); Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19], per Gleeson CJ; 6. legislation that affects personal liberty will be given a strict construction: Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139; [1980] HCA 49, and the authorities there cited.

Although the issue is one of statutory construction, the above analysis is, with few exceptions, consistent with the documentary evidence before the Court that some other form of tenure applied to the claimed land upon SpL 1965/21 expiring, albeit with the same conditions as that previously attaching to SpL 1965/21 immediately prior to its expiration, viz: 1. on 8 July 1997, upon becoming aware that Graham's 1993 application to purchase the leased land had not been dealt with, the District Manager of the Department wrote to the Revenue Branch noting that SpL 1965/21 had "expired" and recommending that the "lease should be kept current on a month to month basis". No legal basis for that request was referred to in the communication and there was no power under the CLA to extend or reinstate an expired lease (which had occurred seven months earlier); 2. the description of SpL 1965/21 as "still terminated" as at December 1997, was consistent with various entries in the CLID to the effect that the term of special lease had expired on 31 December 1996, and that the current account associated with it should be terminated; 3. the letter from the NSW Department of Land and Water Conservation to the Council on 30 August 2001, explaining that SpL 1965/21 had expired but that Graham continued to occupy the site on a month-to-month basis. Similar correspondence was sent to the CLID Helpdesk; 4. the notation in a Department of Lands field inspection report dated 9 January 2007, which stated that SpL 1965/21 had expired on 31 December 1996 but that the land was currently occupied under a month-to-month tenancy. It was recommended that because the special lease had expired, the monthly tenancy should be terminated due to non-compliance by the tenant; 5. the notation by Crown Lands on 16 January 2007 that the occupation of the land was on the basis of a monthly tenure pending determination of Graham's purchase application; 6. on 22 March 2011 Crown Lands sought the removal of all expired special leases, including SpL 1965/21. The reference to SpL 1965/21 was subsequently removed from the Register pursuant to s 13G(1) of the Real Property Act 1900. Although removal was an administrative act, as Darkinjung observed, it was effected pursuant to a direction that was premised upon a belief that SpL 1965/21 had ceased to be in force; 7. on 20 March 2017 Property NSW could not "find a current lessee/licensee" for the claimed land. In response to a query, a letter was sent from the Department of Industry to Property NSW on 23 March 2017, stating that the land was held under "Special Lease 75029" by Graham; 8. a copy of SpL 1965/21 was provided to the Council on 4 October 2017, in reply to a request for a copy of the "Licence" demonstrating that Graham had occupancy rights on the property; 9. in an answer to a request from the Council enquiring whether the tenure of Graham under Special Lease 75029 (SpL 1965/21) was continuing and current, on 17 April 2018 Property NSW confirmed that the special lease had expired but that "holding over provisions" were granted to Graham to remain in possession of the land as a "weekly tenancy", subject to the same conditions as the expired special lease (relying upon cl 6 of the CL(CT)A); and 10. on 24 July 2018 the NSW Department of Industry noted that the lease had "expired" and was "on holding over provisions".

The Court of Appeal noted that s 6 of the CLA prohibited the occupation or use of the land for any purpose not authorised by that Act and that the use of the land other than as a public reserve for the preservation of flora, was for an unauthorised purpose that rendered unlawful not only its use but its occupation. In that case, the use of the Park as a fauna reserve was therefore unlawful. Accordingly, the test of lawful occupation, as that term is understood in the context of s 36(1)(b) of the ALRA, "must include that the acts establishing actual occupation are for a purpose authorised by the statute conferring the right to occupy" (at [185] per Tobias JA). Tobias JA opined as follows (at [180]-[182] and [185]): 180 In the present case the Nature Park was reserved for a purpose which did not include its occupation or use as a fauna reserve. As I have noted, s 6 of the CL Act in effect prohibited its occupation or use for any purpose not authorised by that Act. As its occupation as a fauna reserve was not so authorised, it must follow that the effect of s 6 is to render unlawful not only the use but also the occupation of the Nature Park as a fauna reserve. 181 Although, as Sheller JA observed in Nowra Brickworks (No 2) at 653; 266, claimable Crown lands may embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied, there is a further permutation being land that is both occupied and used but not lawfully. The present is such a case. The Nature Park was both occupied and used for an unauthorised and, therefore, unlawful purpose. 182 Although in the joint judgment of the High Court in Wagga Wagga at [73] their Honours found it unnecessary to decide whether "lawfully used or occupied" was a compound expression having a single meaning or was better understood by separate consideration of the words "used" and "occupied", they nevertheless considered that it was an expression that encompassed utilisation, exploitation and employment of land. It would be difficult to imagine a case where land was utilised, exploited and employed other than for a purpose. Where that purpose is unauthorised and, therefore, unlawful as in the present case, it is not to the point for the Minister to argue that lawful occupation is achieved merely by virtue of the status of the Trust and/or the Council. … 185 I would therefore accept BLALC's argument at para 6.36 of its written submissions on the appeal that if "occupation must be lawful, and also must be considered by reference to its purpose to establish that it is actually rather than merely constructively occupied, then the test of "lawful occupation" per s 36(1)(b) must include that the acts establishing actual occupation are for a purpose authorised by the statute conferring the right to occupy."

However, the High Court did not accept the proposition put by the claimant that for land to be lawfully occupied it had to be actively used for the purpose for which it was dedicated, namely, as a gaol. This is because to do so would be to deny the distinction between the "use" and the "occupation" of the land and their separate spheres of operation (at [37]-[40] per French CJ, Kiefel, Bell and Keane JJ, footnotes omitted): 37 The NSW ALC's submissions direct attention to the terms of the dedications. It may be recalled that only one part of the claimed land was actually dedicated for "Gaol Purposes". The balance was dedicated in more passive terms, for the purposes of "Gaol Site (extension)" and "Gaol Site (addition)". 38 Clearly enough, the purpose for which lands are dedicated may be relevant to the question of whether they are occupied. The discussions in the cases referred to above show that different factors may assume importance depending upon the purpose for which land is reserved or dedicated. Thus, in the case of land reserved for public recreation, such as an extensive forestry park, fencing was not an important factor, whereas the exercise of control over the land was. 39 This is not the exercise to which the NSW ALC's argument is addressed. In reality the NSW ALC's argument is that the dedicated purpose of the land must be actively pursued by the acts which are relied on as constituting occupation of the land. The central submission is really that land dedicated for gaol purposes is to be used as a gaol and that it is not lawfully occupied unless it is actively used as a gaol. The submission again denies the distinction between the use and the occupation of land and it denies occupation its separate sphere of operation35. 40 The NSW ALC's argument also creates a further requirement for the test of use or occupation. It would necessitate the addition of words to s 36(1)(b), to read it as if it said "lands … not lawfully used or occupied for the purposes for which they are dedicated or reserved".

Justice Gageler (as his Honour then was) explained the difference between "use" and "occupation" for the purposes of s 36(1)(b) of the ALRA this way (at [88]-[90]): 88 The aspect of the distinction between occupation of land and use of land that assumes critical importance in the present case concerns the significance of purpose. Occupation of land can be occupation for a purpose, and the purpose for which physical acts are undertaken can inform whether those acts amount to occupation in fact. Unlike the concept of use, however, purpose is not intrinsic to the concept of occupation. Physical acts can be sufficient to amount to occupation in fact irrespective of the purpose for which they are undertaken. To expand on the illustration given by the Privy Council, a farmer might remain in occupation of his farm by staying in his farmhouse and maintaining his fences despite having chosen to cease farming and despite not yet having chosen what else he might do with the farmland. 89 Had the question here been whether the land on which Berrima Gaol is situated was used at the date of the claim, an argument of the kind now advanced by the Land Council would have been unanswerable. The only lawful use to which the land could then have been put was use for the dedicated public purposes of a gaol. What was then happening on the land could not be described as use of the land for those purposes. 90 But the question tendered for the determination of the Land and Environment Court was not one of use. The question was one of occupation. Although Corrective Services NSW was not doing anything with the land at the date of the claim, Corrective Services NSW had a continuing presence on the land and remained active in asserting control over the land. The buildings were being kept locked and were not being allowed to fall into disrepair. There was someone on site 24 hours a day. The lawns and gardens were being maintained on a weekly basis. That state of affairs had been in place for some months and it could be expected to continue until the future use of the land was settled. The evaluative conclusion of the Land and Environment Court that the land was occupied was open.

The almost sacrosanct nature of the prohibition on the dealing with Crown lands other than in accordance with the Crown lands statutory regime was described in State of New South Wales v Scharer [2003] NSWCA 328; (2003) 131 LGERA 208 (at [59]-[60]): 59 Furthermore, s 6 of the CLC Act prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. That prohibition is tempered by the requirement of s 54(4)(b)(i) of the MWS&D Act that before any lease, licence or permit is granted in respect of Crown lands within a catchment area, the concurrence of the Board must be obtained. But that requirement does not subvert the prohibition on the dealing with Crown lands other than under and subject to the provisions of the CLC Act. Any purported dealing with Crown land other than in accordance with that prohibition is unlawful. Therefore, to the extent that either the Department or the Board purported to promise Miller a proprietary interest in the nature of an easement or right of way in the road, it was doing so other than in accordance with the proscription contained in s 6. This is particularly so given that the CLC Act contains no power authorising the Governor or the Minister to grant easements or rights of way over Crown land: see [31] above. Consistent with the decision of the Privy Council in Chalmers and the overriding control of s 6 referred to by Bryson J in Fensom, it thus follows that no proprietary estoppel could arise from the conduct of the Board for which a court of equity could or would provide a remedy. 60 Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation. In Lukey v Sydney Harbour Trust Commissioner (1902) 2 SR (NSW) 152 at 165, Owen J (with whom Darley CJ agreed) rejected the trial Judge's finding that an interest in certain Crown land was created in the plaintiff and enforceable against the Crown who was estopped from denying it. He did so on the basis that the effect of such a finding would be to repeal ss 5 and 6 of the Crown Lands Act 1884 (reproduced in s 6 of the CLC Act): "for the Crown could then deal with Crown lands otherwise than under and subject to the provisions of that Act. Not only are the powers of the Crown limited by that Act, but the Crown is thereby expressly prohibited from leasing or dealing with Crown lands, except under and subject to the provisions of the Act."

In short, there is a need for strict compliance with Crown lands legislation (Valuer-General v Sydney Fish Market Pty Ltd [2023] NSWCA 52 at [70]-[71]). In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Kinchela claim) [2009] NSWLEC 46; (2009) 166 LGERA 137 Lloyd J opined as follows (at [71]-[73]): 71 In Project Blue Sky, the joint judgment of McHugh, Gummow, Kirby and Hayne JJ, approved at [93] the criticism by the New South Wales Court of Appeal in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24, of the continued use of the "elusive distinction between directory or mandatory requirements". The joint judgment adopted as a test for determining the issue of whether an act done in breach of a statutory power is valid: "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". 72 In relation to Crown lands legislation, however, both before and after Project Blue Sky, the courts have insisted on strict conformity with the relevant statute. A failure to comply with the statutory process will invalidate any purported exercise of the power to grant an interest in Crown land. In Mabo v Queensland (No. 2) (1992) 175 CLR 1, Brennan J (Mason CJ and McHugh J concurring) said at 63: "The validity of a particular grant depends upon conformity with the relevant statute"; and at 72 his Honour added, "a purported lease granted without statutory authority is ineffective to dispose of any interest in land". I am inclined to the view that if strict conformity with the statute is required for a grant, then the same principle should apply to a sale of Crown lands. 73 In New South Wales v Scharer (2003) 131 LGERA 208, the New South Wales Court of Appeal (Tobias JA, with Sheller and Ipp JJA concurring) held at [59] - [60]: Furthermore, s 6 of the [Crown Lands Act] prohibits any dealing with Crown lands "except under and subject to the provisions of" that Act. ...Any purported dealing with Crown land other than in accordance with that prohibition is unlawful... Authority extending for a century in this State supports the foregoing conclusions, that the Crown has no power to create interests in Crown lands except under the Crown lands legislation.

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (14 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (78)

Cited By (2)