Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council

Use or occupation 28The Aboriginal Land Rights Act creates a classification of lands described as "claimable Crown lands": s 36(1). Such lands must be lands "vested in Her Majesty" that are able to be "lawfully sold or leased, or are reserved or dedicated for any purpose" under Crown lands legislation: s 36(1)(a). From that broad class the section excludes particular lands. Putting to one side exclusions with respect to land which is the subject of an application for, or a determination of, native title under the Native Title Act 1993 (Cth), there are two other categories of exclusions. Both are expressed in the negative. The first is lands that "are not lawfully used or occupied": s 36(1)(b). The second category is lands which are "not needed or likely to be needed", either as residential lands or for an essential public purpose: s 36(1)(b1) and (c). Thus, relevantly for this case, if lands are lawfully used or occupied, they are not claimable Crown lands. Each aspect of the definition is to be assessed, as indicated in the chapeau, "when a claim is made". 29The distinction between the two main categories of exemption is important. Establishing a likely future need can avoid the difficulties which might arise in resisting a claim for land which has not been committed to an existing public purpose. Where land has been earmarked as surplus to government needs and is proposed to be sold, seeking to resist a claim based on future needs for any public purpose is likely to be implausible. However, the Minister's submission that it would be "breathtaking" (Tcpt, pp 3(35) and 4(5)) if surplus Crown land could not be sold without rendering the land "claimable Crown lands" appears to deny the statutory mandate that, if otherwise claimable, Crown land which is not lawfully used or occupied, can be claimed: see Wagga Wagga Motor Registry Claim, [2007] NSWCA 281 at [24] (Mason P). 30In the Wagga Wagga Motor Registry Claim in the High Court, Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285, Hayne, Heydon, Crennan and Kiefel JJ stated at [73]: "It is not necessary to decide whether 'lawfully used or occupied' has a single meaning or is better understood by separate consideration of the words 'used' and 'occupied'. This is not a case in which some relevant aspect of the meaning of the word 'used' is illuminated by the juxtaposed word 'occupied'. Whether there could be any such illumination in some other case need not be considered. It may be accepted that whether or not the expression is a compound expression having a single meaning, it is an expression that encompasses utilisation, exploitation and employment of the land." 31The joint reasons accepted the description of Mason P in this Court that "use" is a "protean word", meaning that it has connotations which will vary according to the context in which it is deployed: Wagga Wagga Motor Registry Claim, 237 CLR 285 at [69]. 32Much the same might be said of the term "occupied". Occupation, with respect to lands, may be used, relevantly for present purposes, in three broad senses. First, it may refer to gaining control of an area following an invasion or settlement by occupying forces. This involves a political conception. Secondly, the term may be used with respect to rights in relation to particular land, as in the phrase "permissive occupancy", referring to a right to occupy vested in an individual. This is a legal conception. Thirdly, it may refer to physical usage, as in the phrase "lawfully used or occupied". This is a factual conception. 33The three concepts are closely related. As to the first, as Brennan J explained in Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 at 33: "The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or 'settlement', to use the term of the common law)." 34At the other end of the scale, occupancy in a factual sense may evidence the existence of a right to occupy in a legal sense: Mabo [No 2] at 188-190 (Toohey J). 35As accepted by the Minister, that which constitutes use or occupation in a factual sense will depend upon the purpose of the putative user or occupier and the surrounding circumstances. In Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; 96 CLR 493, the High Court considered whether an area of bushland owned by the Hospital, but retained in its natural state, was "used or occupied by the hospital ... for the purposes thereof" so as to be exempt from rating pursuant to the Local Government Act 1919 (NSW), s 132. Kitto J considered that the section sought to observe a distinction between occupation and use of land (at 507) and continued at 507-508: "The three elements, legal possession, conduct amounting to actual possession, and some degree of permanence, seem to me to be involved in the word 'occupy' as used in the Local Government Act (NSW). ... The word 'used', on the other hand, does not involve more than physical acts by which the land is made to serve some purpose. The acts no doubt must be recurring, but the notion of continuity or permanence is absent." 36This passage was referred to as relevant in the context of the Aboriginal Land Rights Act in the joint reasons in the Wagga Wagga Motor Registry Claim, 237 CLR 285 at [69]. Thus, although the statutory provision under consideration in Royal Newcastle Hospital expressly involved the concept of a purpose, which needed to be that of a hospital, it was accepted in the context of the Aboriginal Land Rights Act that the purpose of any putative use will, inevitably, assist in identifying the physical activities which may be sufficient to constitute use or occupation. 37In Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 the High Court considered the operation of an exemption from rating of land which, in the language of Fullagar J at 61, "has been dedicated or reserved from sale by the Crown for ... recreation, enjoyment or other public purpose ... and is used for one of those purposes", with respect to Randwick Racecourse. Windeyer J (Dixon CJ, Fullagar and Kitto JJ agreeing) stated at 88: "If, instead of considering in what ways the land might lawfully be used, we consider how in fact it is used and has been used, the respondents are in no less difficulty. There is no suggestion that they and their tenant the club are not acting in accordance with the trusts and conditions of the grant and in accordance with the Australian Jockey Club Act. But is the land used for a public reserve? 'This provision', as Dixon J, as he then was, said in a similar matter, 'looks to the actual use ... of the land' (Stephen v. Federal Commissioner of Land Tax [[1930] HCA 46; 45 CLR 122, at 140]). The only way in which the trustees use the land is by leasing it to the club, to be used by it as a racecourse in accordance with the grant and the Australian Jockey Club Act. Indeed the land is not really used by the trustees at all, for they have parted with the use and occupation of it for the term of the lease.... When the Act speaks of land used for a public reserve it is referring to the actual use to which the land is put by the persons who in law control it for the time being." 38To similar effect, in The Council of the City of Parramatta v Brickworks Ltd [1972] HCA 21; 128 CLR 1, dealing with the concept of "existing use" for the purposes of a planning ordinance, Gibbs J noted that the word "use" meant a present use and did not include a contemplated or intended use: at 21. 39Referring to Royal Newcastle Hospital, Gibbs J further noted that it "is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it." Gibbs J adopted a passage from the judgment of Taylor J in Royal Newcastle Hospital at 515 (at 22): "The uses to which property of any description may be put are manifold and what will constitute 'use' will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 [of the Local Government Act] itself shows plainly enough that the 'use' of land will vary with the purpose for which it has been acquired and to which it has been devoted. ... But where an exemption is prescribed by reference to use for a purpose or purposes it is sufficient, in my opinion, if it be shown that the land in question has been wholly devoted to that purpose even though, the fulfilment of the purpose does not require the immediate physical use of every part of the land." 40The facts of Royal Newcastle Hospital did not provide a close analogy with the present case. In that case, the use of the land for a hospital was consistent and permanent: the question, answered favourably to the Hospital, was whether the surrounding bushland was used or occupied for the purposes of the Hospital. The present case involved intermittent use of the land after June 2009. The circumstances in which intermittent use may qualify as a present and existing use were discussed by Stephen J in Eaton & Sons Pty Ltd v The Council of the Shire of Warringah [1972] HCA 33; 129 CLR 270 at 287-288: "Likewise, what may appear at first sight to be only an infrequent and intermittent use, abandoned prior to the relevant period, ... may, once the purpose of use is properly identified and understood, be seen to be a continuous use; I have in mind such purposes as use for the purpose of the seasonal storage of primary products, the use of land for the purpose of a country racecourse having an annual programme of only one or two meetings a year or the use of paddocks to the rear of bathing beaches as caravan parks during holiday periods. So too a particular type of business may have inherently fluctuating demands for space and may only occasionally physically use the whole of its site for the purposes of its business, yet it cannot be doubted that in that state of facts the whole site is used for the purpose of that particular business at all times. In [Rosenblum v Council of the City of Brisbane [1957] HCA 98; 98 CLR 35, at 46] it was said that most forms of use of land or buildings involve not continuous activity but recurring activities. The periodicity of recurrence may, of course, vary greatly." 41Against that background, it is necessary to consider the approach adopted in this Court to the proper construction of s 36(1)(b), being an approach which was the subject of challenge by the Minister. The gravamen of the complaint was that in the seminal judgment of Priestley JA (with which Cripps JA agreed) in Daruk Local Aboriginal Land Council the preferable reading of "occupied" in its context was "'actually occupy' in the sense of being occupied in fact and to more than a notional degree": at 162E. Priestley JA adopted a similar approach to the meaning of "used": at 164D. That language, the Minister submitted, involved a gloss on the statutory language and was therefore erroneous. 42The submission implied that there was a line to be drawn between a legitimate exercise in statutory construction or exegesis, and qualification of the words which appeared in the statute by way of a "gloss". However, the use of a pejorative label is not, at least in this context, of great assistance in distinguishing the legitimate from the supposedly illegitimate. Thus, the language adopted in the joint reasons in Wagga Wagga Motor Registry Claim at [69] that "a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land" was a legitimate exercise in statutory exegesis, whereas the phraseology adopted by Priestley JA in Daruk was said not to be. 43To understand the language used by Priestley JA in Daruk it is necessary to refer to the reasoning which resulted in the adoption of the language set out above. The premises to that reasoning involved, in substance, four elements, which may be identified (not necessarily in the order they appear in the judgment) in the following terms: (a) the word "occupation" is used in a wide variety of senses, which depend upon context (161E); (b) when the Aboriginal Land Rights Act was enacted the Crown was treated as the occupant of all Crown lands in New South Wales (at 160F-161B); (c) reservation or dedication for a specified purpose could also imply occupation for that purpose (160F and 161C), and (d) title in the Crown, including where the land was reserved or dedicated for a purpose, was a condition of eligibility for a claim and not a disqualification (160E and 161D). 44In accommodating each of these elements, a purposive construction, which gave effect to the intended beneficial purposes of the legislation, namely to make certain lands available for claim by Aboriginal land councils, as revealed in the preamble and statement of purposes in s 3 of the Act, was to be preferred to a construction which tended to undermine those purposes. To treat the conditions of eligibility for claim as carrying within them the conditions of exemption would have been destructive of the underlying statutory purpose. Accordingly, a concept of occupation which flowed from the vesting of lands "in Her Majesty" should not be imported into the use of that term in s 36(1)(b). Priestley JA stated at 163C-D: "The definition of claimable Crown lands stipulates initially those Crown lands which are claimable and then excludes lands which enjoy particular characteristics from those potentially claimable lands. The lands which are excluded are those lawfully used or occupied, those which, in the opinion of the relevant Crown Lands Minister, are needed or likely to be needed for residential purposes, and those needed or likely to be needed for essential public purposes. In this context I would agree that mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving the question." 45It was in this context that Priestley JA adopted a distinction drawn from the judgment of Denman CJ in R v Inhabitants of St Nicholas, Rochester (1833) 110 ER 773, between "a constructive occupation and an actual one": at 162D. Without attempting, as stated in the paragraph set out above, to formulate a test of occupation, he used the language of actual occupation in the sense of "being occupied in fact and to more than a notional degree". 46The Minister accepted that the term "occupied" was "not intended to include 'notional occupation' by the Crown of the type described in Attorney General v Brown (1847) 1 Legge 312 at 317": written submissions, paragraph 45(a). The only other specific 'gloss' was the adoption of the adjective "actual", which was the obverse of "notional". Further, the Minister did not cavil with the proposition that use of the land must be extant at the time the claim was lodged, with the effect that neither past nor proposed future usage would be sufficient: Tcpt, p 12(5) and (40)-(45). Finally, the Minister accepted that each of the concepts of use and occupation would require, in particular circumstances, evaluative factual assessments, having regard to the purpose to which the land was applied. 47Read in context, it is not possible to describe the approach adopted by Priestley JA in Daruk, expressly stated not to be a definition of use or occupation for application in particular circumstances in particular cases, as involving anything other than a permissible and helpful exercise in statutory construction. Authority supports that conclusion. When the Wagga Wagga Motor Registry Claim went on appeal to the High Court the Minister raised a similar challenge (see 237 CLR 285 at 286), but the Court declined to uphold the submission, except to say that those statements in Daruk and later cases involved responses to arguments there advanced: 237 CLR 285 at [68].

Application of principles 48The trial Court dealt with the relevant issues in a relatively short compass at [60]-[72]. There was reference to the reasoning in Wagga Wagga Motor Registry Claim in the High Court at [77] and [69]: at [60]-[61]. Royal Newcastle Hospital was referred to at [62], including reference to the judgment of Kitto J which underlay the discussion of "occupation" in the Wagga Wagga Motor Registry Claim. 49The Court then distinguished Royal Newcastle Hospital, entirely appropriately, but continued, in a passage to which objection was taken: "In the present case, on the other hand, the subject land is isolated, and any intention to use it has not been demonstrated. The use to which it has been put is for the purpose of defeating the land claim, to facilitate the sale." 50The Minister relied upon this passage to suggest that all physical activities on the land had been disregarded on the basis that they were undertaken for the sole purpose of defeating the land claim. However, as the subsequent discussion in the judgment demonstrated, that was not the approach adopted; however, the primary motive of the police in taking particular steps was a permissible consideration in the evaluation of the significance of those steps: see [55] below. At [66] the Court set out a passage from the judgment of Tobias JA in Bathurst Fauna Reserve Claim at [158]-[160]. Tobias JA had perceived a difficulty in identifying "what is an occupation which, although an actual physical occupation, is only nominal or notional" and expressed a preference for the approach of Kirby J in Wagga Wagga Motor Registry Claim that a "nominal or notional use or occupation is one which is only intended in the future or is a potential use or occupation which has not yet been translated into an actual use or occupation". 51At [67]-[69], the trial Court then identified the visits by officers prior to Operation Silva, the use of the site for Operation Silva itself and noted the "distinct lack of evidence, post-Operation Silva". The Court adopted the distinction accepted by Kirby J in Wagga Wagga Motor Registry Claim and Tobias JA in Bathurst as the proper distinction between notional and actual use, concluding that the activities proposed by Inspector Dengate months after the claim constituted no more than notional use. The Court concluded at [71]: "Visits by officers to maintain a level of possession to exclude others, or to do security checks, and visits by cleaning and maintenance contractors, are transitory visits which do not amount to use or occupation beyond a notional degree. Despite the invoices for maintenance and other services, asserted as showing that the Site was maintained (mostly post the date of claim), so that it could be used at short notice for police work, the photographs taken by Mr Ingrey on the day before the claim, while they do not lead to the conclusion the property could not be used for policing purposes, portray a general lack of maintenance as at the date of the claim." 52As may be seen from the brief history set out above, during the first period from September 2009 until Operation Silva in December, there were visits to the property described as "inspections" which were at least consistent with the possibility of future use. In the second period, between Operation Silva and the date of the claim (December 2009 - 17 February 2010) there was no evidence of any access to the premises and the photographic evidence of the state of the premises, taken on the day before the claim was lodged, was supportive of the finding made that regular maintenance had been abandoned. The absence of any cleaning invoices in that period is consistent with that conclusion. 53The third period involved the post-claim evidence. That was admitted on the basis of the principle stated in Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547, a case involving valuation of land upon resumption. The operation of that principle in respect of evidence in a land claim was considered in Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council [2009] NSWCA 289; 168 LGERA 71 at [66]-[69]. The principle that "evidence of future events is admissible not to prove a hindsight, but to confirm a foresight", extracted from Falconer at 558B, was said to have been given aphoristic status, although it had a somewhat Delphic quality: at [69]. In the present case, the post-claim evidence was relied upon to demonstrate a continuing intention to use the property as and when the occasion arose. If it had demonstrated some degree of continued use of the premises from time to time as a command post, it might have enjoyed a substantive quality beyond that noted by the trial Court. However, as noted above, the evidence did not extend so far. Accordingly, it was open to the trial Court to reject such evidence as not demonstrating continuing use and occupation for the purpose identified. 54The Minister complained that the trial Court had erred by dismissing the visits by officers prior to Operation Silva as "miniscule or insignificant", on the basis that they "only involved officers providing access to the Site for cleaning and service staff", thereby dismissing their cumulative effect when taken in conjunction with the evidence of Operation Silva: Tcpt, pp 2(10), 8(30) and 16(10)-(15). The central element of the challenge was directed to the reasoning of the Court at [68]: "The use of the Site for Operation Silva is also to be considered in light of the directives for senior officers that it be utilised to defeat the land claim, as suggested in the memorandum of 15 September 2009, and it was not suggested in any of the evidence that a decision was made not to proceed with divestment. However, under s 36(1)(b), it is actual use or occupation as at the claim date that is relevant." (Emphasis in original.) 55The Minister submitted that the Court had treated the use of the site for Operation Silva as legally irrelevant, apparently because the use was merely intended to defeat the land claim: see [50] above. That, however, is an implausible reading of the paragraph. Read in the context of the earlier discussion of the evidence, the trial Court saw its role, correctly, as being to assess the significance of the physical activities which took place in December 2009 for the purpose of determining use or occupation as at 17 February 2010. Operation Silva involved activities limited to a period of four days: it was not an on-going or recurrent activity. However, the Minister asserted that it was one in a series of events, sufficient to demonstrate on-going use and occupation, even though no prior event had occurred in the preceding three months since the putative purpose was first articulated and none took place in the subsequent two months up to the date of the claim. Furthermore, none took place in the months succeeding the claim. In assessing the Minister's submission, the trial Court was entitled to take into account the circumstances in which the event took place, which included, (a) that it was pursuant to a directive that the land be utilised in order to defeat the land claim, (b) the reluctance of the senior officer responsible for implementing the directive to direct resources to such a purpose when the intention was to sell the land and (c) the lack of activity after the transfer of that officer until the officer replacing him sought to take further steps, after the date of the claim and without active implementation of those further proposed steps. 56In Wagga Wagga Motor Registry in the High Court, where the only purpose for using or occupying the land was to prepare it for sale, the joint reasons stated at [76]: "In the present case, subject to the possible qualification required by reference to some transitory visits to the land, nothing was being done on the land when the claim was made, and nothing had been done on the land for a considerable time before the claim was made. There was no physical use of the land during that time. The only possible qualification to that general proposition is that, in the present case, the land was surveyed and the agent appointed to sell the land had gone there and looked inside the building. But even if the agent did this more than once (and there is nothing to suggest that the agent had visited the land more than once) such transitory visits by surveyors and a real estate agent could not be said to amount to a use of the land. ... Everything that was being done towards selling the land, apart from the survey and the agent's inspection, occurred at places other than the land. ... They did not amount to a use of the land." 57Three points may be made in this context. First, it is clear from the approach of the High Court that transitory physical activities on land do not necessarily amount to use or occupation. Secondly, there is, thus, an evaluative process to be undertaken in respect of the facts of each case. Thirdly, it is a function of the trial court to undertake that evaluation. 58In the present case, the Minister did not submit that the conclusion reached by the Court, namely that the Minister had not established that the land was lawfully used or occupied, was not open on the materials before the Court. Rather, his submission focused on the proposition that the Court had not addressed the evidence by reference to the correct legal test. Once it is accepted that the Court did not err in its understanding of s 36(1)(b), the Minister's submissions are reduced to a disagreement with the outcome of the assessment, which is not an available ground of appeal. 59The appeal should be dismissed: the appellant must pay the respondent's costs in this Court. 60MACFARLAN JA: I agree with Basten JA. 61SACKVILLE AJA: I agree with the orders proposed by Basten JA. I shall briefly state my reasons. 62As Basten JA has pointed out (at [5]), the appeal to this Court from the decision of the Land and Environment Court ("L&E Court") is limited to an appeal on a question of law: Land and Environment Court Act 1979, s 57(1). Such an appeal encompasses a mixed question of law and fact: Maurici v Chief Commissioner of State Revenue [2003] HCA 8, 212 CLR 111, at [8], per curiam; NSW Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18, at [8], per Mason P (with whom Tobias JA agreed) ("Wagga Wagga CA"). 63The appellant ('the Minister") does not challenge any finding of fact made by the L&E Court. The principal argument advanced by Dr Renwick SC, who appeared with Mr Lenehan for the Minister, is that the L&E Court erred in law by treating as legally irrelevant acts done on or in relation to the claimed land where those acts are done for the purpose of defeating the land claim or facilitating the sale of the land. 64Had the L&E Court taken the approach attributed to it by Dr Renwick, it would have involved an error of law. In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 237 CLR 285 ("Wagga Wagga HC"), the Court expressly left open (at [77]) whether steps taken on land in preparation for its sale could constitute "use or occupation" of the land for the purposes of s 36(1)(b) of the Aboriginal Land Rights Act 1983 ("Land Rights Act"). However, the mere fact that a relevant authority proposes to sell the land, or is motivated by a desire to defeat a possible land claim, would not justify disregarding acts on the land that are otherwise capable of constituting use or occupation of the land: Wagga Wagga CA, at [58], per Mason P; at [80], per Tobias JA. 65The Minister's case in the L&E Court was set out in written submissions as follows: "[T]he New South Wales Police, at the date of the claim (17 February 2010) was lawfully using and/or lawfully occupying the relevant land .... Eastern Beaches Local Area Command had continued to maintain lawful occupation of the land at this date even though the nature of the occupation had recently changed from that of a 24 hour a day police 'station' with a counter service, to a police building used for a variety of policing purposes. This occupation consisted of physical acts on the land, exercise of control over the land and maintenance of the property." The factual issue before the L&E Court was therefore whether the Minister had established that the acts upon which he relied showed that the land had been used or occupied at the relevant time "for a variety of policing purposes". 66The reasons of the L&E Court address this contention. When read as a whole, the reasons do not rely on or apply the erroneous principle identified by Dr Renwick. It is true that in one passage (at [63]), the L&E Court states that the use to which the land has been put: "is for the purpose of defeating the land claim, to facilitate the sale". Nonetheless, the Court's reasons explain why the evidence relied on by the Minister was insufficient to establish actual use or occupation of the land at the relevant date for policing purposes. The reasons make it clear that the fundamental difficulty faced by the Minister was the paucity of evidence demonstrating use of the land for policing purposes after Operation Silva had concluded on 6 December 2009. When the absence of evidence of use was coupled with the evidence as to the neglected state of the premises when the claim was lodged on 16 February 2010 (at [32]), the conclusion reached by the L&E Court was neither surprising nor indicative of error. 67The Minister also submits in this Court that the L&E Court impermissibly imposed a gloss on the statutory language by stating (at [65]) that use or occupation "beyond a notional degree is required". As Basten JA has pointed out (at [8]), this language was used in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140, at 162, 164, per Priestley JA (with whom Cripps JA agreed) and has frequently been adopted in later cases. In Wagga Wagga HC, the plurality referred (at [62]) to Mason P's adoption of the expression in that case (Wagga Wagga CA, at [33]) without apparent disapproval. Their Honours interpreted the expression as directing attention to the need for "some physical use of the land". This understanding of the expression is consistent with the approach taken in Daruk, at 162. 68It is by no means clear that the task of applying the language of s 36(1)(b) of the Land Rights Act to the facts of a given case is materially advanced by using the expression "a notional degree". As Wagga Wagga HC suggests (at [62], [74]-[75]), the expression may do no more than direct attention to the need to consider physical use of or activities on the claimed land, as distinct from exploitation of the land or of rights of ownership without physical activities on the land itself. Alternatively, a finding that land has only been used to "a notional degree" may simply be a shorthand way of concluding that the Crown has not satisfied the statutory test. 69The plurality judgment in Wagga Wagga (at [69]) explains the difficulty of attempting an exhaustive definition of when land is (or is not) lawfully used or occupied for the purposes of s 36(1)(b) of the Land Rights Act. However, the judgment provides guidance as to the approach that should be taken in terms quoted by the L&E Court in the present case (at [61]). The plurality judgment in Wagga Wagga HC also emphasises (at [70]): "the importance of directing attention to what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of 'not lawfully used or occupied'. It is the specification of those acts, facts, matters and circumstances which will provide the greatest help in deciding whether land meets the relevant description." 70The approach taken by the L&E Court to the appeal by the present respondent (the Land Council) is consistent with the guidance laid down in Wagga Wagga HC. The L&E Court appreciated that the Minister's case was that the land was used and occupied at the relevant time for policing purposes (at [71]), but found that the evidence relied on by the Minister simply did not support that case. This conclusion did not involve any error.

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