Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act

EX TEMPORE Judgment 1The Gandangara Local Aboriginal Land Council (Gandangara LALC), the Applicant, has filed an appeal under s 36(6) of the Aboriginal Land Rights Act 1983 (the ALR Act) in relation to land claim number 6409 refused by the Minister for Lands on 1 February 2011. The Gandangara LALC is a local aboriginal land council within the meaning of s 4 of the ALR Act. The land claim the subject of the appeal was made by the NSW Aboriginal Land Council (NSWALC) on behalf of the Gandangara LALC as provided for under s 36(2). The Applicant wishes to have clarified that its appeal is competent if brought in its own name rather than that of the NSWALC. It seeks a declaration to that effect in its Notice of Motion (NOM) filed on 17 May 2011. Interestingly this is apparently this first time this question has arisen since the ALR Act commenced in 1983. The Minister's representative advises that this is a matter for the Court to determine and makes no submissions on the NOM. 2An affidavit of Kathryn McDougall, solicitor, dated 17 May 2011 states that on 30 March 2000 NSWALC lodged a land claim on behalf of the Gandangara LALC over land at Lucas Heights. By letter dated 1 February 2011, the then Minister for Lands advised NSWALC that the land claim was refused. On 4 April 2011 the solicitors for the Applicant sent a letter to the Minister for Lands informing that it intended to appeal the refusal to the Court and asking if she would take any objection to the Gandangara LALC being the sole appellant. The Land and Property Management Authority responded in a letter dated 21 April 2011 that this was a matter for the Court. On 17 May 2011 the Crown Solicitor's Office confirmed this view and that no point will be taken by the Minister concerning the issue of whether the Gandangara LALC is competent to prosecute the appeal. Copies of the land claim and correspondence are annexed to Ms McDougall's affidavit. 3The documents attached to the affidavit of Ms McDougall identify that the land claim was made by the NSWALC on behalf of the Gandangara LALC. The Minister's refusal conforms with the statutory basis for refusal under s 36(5)(b). The issue for determination is submitted by the Gandangara LALC's lawyer to be whether it is appealing against a refusal of a claim made by it for the purposes of s 36(6). 4If s 36(6) is read broadly, where the Minister has refused a claim brought by the NSWALC on behalf of another LALC the phrase would encompass that LALC whose interest in the area of land has been asserted. A narrow reading confines the right to appeal to the entity lodging the claim, here the NSWLALC. The letter dated 1 February 2011 from the Minister refusing the land claim was addressed to the NSWALC only. 5The Gandangara LALC contends for the broader approach and I agree with that submission for the reasons propounded by its representative. I will summarise and adopt these reasons. 6Principles of statutory construction suggest that a construction which promotes the purpose or objects of the statute should be preferred, s 33 Interpretation Act 1987. The ALR Act contains a preamble and statement of purpose which are important to consider in relation to the application of the Act. The beneficial and remedial nature of the legislation is clear from its purpose and statement of objects in s 3 and has been recognised in numerous authorities, see Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 157 and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; (2008) 237 CLR 285 at 301 (Hayne, Heydon, Crennan, and Kiefel JJ) and at 289 and 292 (Kirby J). 7When read in the context of the preamble and s 3 of the Act, s 36 establishes a regime for the claiming of land as a mechanism to achieve the objects of the legislation. Recognition of the primary role which the land claim process provides is found in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281; (2007) 157 LGERA 18 per Mason P at [20]. A narrow approach to s 36 would be contrary to the purpose of the Act and confound that role. 8There are two methods for a LALC to lodge a land claim, in its own right under s 36(3), or under s 36(2) the NSWALC can make a claim on its behalf. This ensures that claims can be made by those institutions resourced to do so. 9A narrow reading would unduly prevent a legally competent claimant such as the Gandangara LALC availing itself of the statutory appeal mechanism in s 36(6) in its own name. This would appear be an unduly formalistic and narrow interpretation of s 36(6) and contrary to a section of the Act designed to facilitate and accommodate the land rights claims of LALCs. It is also contrary to the overriding and remedial purposes of the ALR Act. A narrow reading has repercussions for who would lodge a land claim and an appeal, leading to potentially unfortunate consequences. For example, having made a claim which is refused by the Minister the NSWALC may not wish to appeal for whatever reason but the LALC on whose behalf action was taken to commence an appeal would be prevented from doing so. 10Section 36(6) must be read in the context of the Act as a whole, along with s 36(2) which provides for the NSWALC to make a claim "on behalf of" one or more LALCs. The phrase "on behalf of" was considered by the High Court in R v Portus; Ex parte Federated Clerks Union of Australia [1949] HCA 53; (1949) 79 CLR 428 where Dixon J stated: ... plainly the rule of the Federation when it uses the words "on behalf of" is not contemplating the legal relation of principal and agent. The language as well as the context and subject matter shows that. For the rule speaks of the employees of the person or corporation who employs persons on behalf of the Commonwealth. The person or corporation is the employer, the principal in the contract of service. The employer is not the Crown of Government. The expression "on behalf of" is used in the wider sense. It means for the purposes of, as an instrument of, or for the wider benefit and in the interest of, the Commonwealth. 11In R v Toohey: Ex parte the Attorney-General for the Northern Territory of Australia [1980] HCA 2; (1980) 145 CLR 374 the High Court considered a section of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which also refers to applications "by or on behalf of Aboriginals". At 386 their Honours stated: In what is perhaps its least specific use, "on behalf of" may be applied to someone who does no more than express support for persons or for a cause, as with one who speaks on behalf of the poor or on behalf of tolerance. It may be used when speaking of an agency relationship, but also of some quite ephemeral relationships, such as that which exists between a party to litigation and the witness he calls, ... Context will always determine to which of the many possible relationships the phrase "on behalf of" is ... being applied. "On behalf of" occurs twice within the space of a few lines in s. 50 (1) (a). Where first occurring it refers to the act of making application; application may be made either personally by Aboriginals or by another on behalf of Aboriginals. In that context the use of the phrase contemplates some representative capacity or agency relationship. 12The meaning of the phrase "on behalf of" in the context of the ALR Act must be considered applying the ordinary meaning of the words used given the context and purpose of the Act. A right against the Crown to the grant of an interest in land is, according to Barwick CJ in Toohey at 382, "an individual right including a group right by an identified or identifiable group". The phrase "on behalf of" suggests a representative capacity by NSWALC. In that sense, the Gandangara LALC is seeking to appeal a claim "made by it" for the purposes of s 36(6) which to date has been advanced on its behalf by the NSWALC. 13The functions of LALCs under s 52(2)(f) include making application to the NSWALC for acquisition by that Council of land on behalf of or to be vested in the LALC. Subsection (g) includes making claims to Crown land. Function includes in s 4(2) power, authority and duty. The land claim of the Gandangara LALC is being made or advanced on its behalf by the NSWALC in the exercise of the statutory duty and power of the Gandangara LALC under the ALR Act. 14Under s 36(7) where a claim is brought by the NSWALC on behalf of a LALC and is successful the Court can order the relevant land be transferred to a LALC if nominated by the NSWALC. That subsection is consistent with the legislative scheme that the Gandangara LALC has standing to bring the appeal in its own name. 15For these reasons a broad construction of s 36(6) should be applied whereby the Gandangara LALC can prosecute this appeal under s 36(6) of the ALR Act in its own name. 16The declaration sought in the NOM should be made.