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

Statutory provisions 12The central issue in the case ultimately turned on a question of statutory construction, namely if land were reserved from sale for the purposes of public recreation, did the Minister have power to grant a grazing licence over the land to a private interest? 13This starting point for this inquiry was to be found in s 6 of the Crown Lands Act which states: "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." 14No reliance was placed on any provision of the Crown Lands (Continued Tenures) Act 1989 (NSW). Before the primary judge, the Minister relied not only on the licence, but also on an assertion that the land was used or occupied with the knowledge of and thus tacit consent of the Minister which was, in some way, authorised by the Crown Lands Act. That submission was not repeated in this Court. 15The second step in the argument was to identify the authority by which the licence was granted. That was to be found in s 34 of the Act which at the relevant time provided: "34 Powers of Minister in relation to Crown land (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. ... (6) This section does not authorise the sale of Crown land which is reserved for a public purpose. (7) In relation to the granting of licences, a reference in this Part to Crown land includes a reference to: (a) land within a travelling stock reserve under the care, control and management of a rural lands protection board, and (b) land within any other reserves for public purposes under the control of trustees or other authorities." 16Section 34 imposes constraints on the sale, lease or exchange of Crown land to which it is not necessary to refer. The Minister's contention was that the breadth of the powers contained in s 34(1)(b) in respect of licences should not be read down by implied limitations derived from other provisions. The terms of s 34, it was submitted, were apt to apply to all Crown land, a term defined in s 3 as follows: "3 Definitions (1) In this Act: Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being: (a) land dedicated for a public purpose, or (b) land that has been sold or lawfully contracted to be sold ...."

(a) statutory power to grant licence 17As the Minister correctly noted, reserved land fell within the definition of Crown land, being land vested in "the Crown" which did not fall within one of the exceptions. The Minister was correct in noting the breadth of the language used in s 34. However, as was also acknowledged, that provision cannot be read in isolation and without regard to other sections of the Crown Lands Act. For example, the fact that land is reserved from sale must mean that, until the reservation is revoked, the Minister cannot sell the land, despite the terms of s 34(1)(a). Further, pursuant to s 87(1), the Minister may reserve the land from any lease or licence. If that step were taken, it must follow that no power to grant a licence would continue to operate in respect of that land under s 34(1). 18The Minister's submission then proceeded in the following terms: "The Act confers concurrent powers on the Minister to deal with Crown land. Thus, where there is an overlap in the exercise of two powers under the Act to authorise two different uses of the same Crown land, as is the case here, the wording of s 6 suggests that the relevant issue is one of reconciling those two powers rather than giving precedence to one power over another." 19That submission misstated the issue in two respects. First, it is implausible to suggest that the Crown Lands Act authorises two different powers with inconsistent effects which may be exercised with respect to the same land; secondly, the absence of any express indication of appropriate precedence, which would be necessary in such an event, suggests that the proposed analysis is misconceived. 20The preferable understanding of the Crown Lands Act is that it confers a broad range of powers on the Minister, the exercise of any one of which, with respect to particular land, may foreclose the exercise of others. As already explained, the mere fact that reserved land remains Crown land does not mean that the Minister can exercise a power which is inconsistent with the terms of the reservation, but which would be available in respect of Crown land which was not so reserved. 21The Minister also submitted that - "in the circumstance where the power in s 34 is exercised to grant a licence for use of a Crown reserve for a purpose which differs from the purpose for which the land has been reserved, the exercise of powers to (i) reserve the land for one purpose and (ii) authorise the use of the land for another purpose can be reconciled by adopting a test of compatibility between the purpose for which a licence is issued under s 34 and the purpose for which the Crown land over which the licence applies has been reserved under s 87." 22That submission had in common with the previous submission the misconceived formulation of a question by assuming the existence and exercise of the power to grant a licence for a purpose other than the purpose of the reservation. The logical formulation of the question which the Minister should have asked himself or herself, before granting the licence, must be 'Is a licence for the proposed purpose one which can be granted given the terms of the reservation of the land for a different purpose?'. A prospective identification of the availability of a power, taking into account the current status of the land at the time the power is to be exercised is preferable to asking, retrospectively after the exercise of both powers, whether they can be "reconciled" by a test of "compatibility". In any event, the proposed test of 'compatibility' impliedly accepts that the power conferred by s 34 must be limited by reference to the reserved status of the land and the purpose of the reservation. 23The approach adopted by the primary judge, accepting the contentions of the Land Council, was, in effect, that a reservation under the Crown Lands Act bound the Minister according to its terms, until revoked. Thus, land reserved from sale could not be the subject of the power of sale contained in s 34. It could, however, be the subject of the exercise of other powers so long as those powers were exercised for the public purpose stated in the reservation, namely public recreation, or for some purpose incidental thereto. All other purposes were excluded. Grazing, as carried out by a private property owner, did not involve use of the land for the identified purpose. An instrument which purported to confer such a right was therefore invalid. 24By contrast, the Minister sought to apply the test of inconsistency or incompatibility to the permitted use of the land, or, in the alternative, the actual use made of the land. The Minister could, according to that submission, authorise uses of the land for any purpose, private or public, so long as those uses were not inconsistent or incompatible with the use resulting from the purpose identified in the reservation. On that approach, although grazing was not a form of public recreation, if it were not inconsistent or incompatible with public recreation, it was a permissible use of the land. The appellant's written submissions identified the primary issue before this Court in the following terms: "Is the correct test for determining lawfulness under the Crown Lands Act whether the use and occupation under that licence is for the reserved purpose, or to further it, or be ancillary to it (as the primary judge found) or merely to be consistent or compatible with it (as the Minister contends)." 25It is convenient to address first the suggestion that the actual use of the land could determine the issue on the appeal. It was common ground that the appeal was restricted to a question of law: Land and Environment Court Act 1979 (NSW), s 57. That requirement was satisfied on the Minister's primary argument that the validity of the grazing licence did not depend on the actual use made of the land but on the scope of the statutory power to grant the licence. Even though the scope of the reservation for "public recreation" involved ordinary English words, as did the purpose of the licence for "grazing", the meaning of which did not give rise to a question of law, the construction of the statutory instrument did: Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395-397. That question was not to be addressed by reference to the actual use of the land by the licensee, nor its actual use by members of the public, and evidence of such usage was irrelevant. That is why the challenge to the fact-finding exercise undertaken by the primary judge need not be addressed. 26However, the scope of the power to grant the licence did not depend on the use of the land, actual or potential, under the licence. Rather, it depended on the terms of the restraint imposed by the reservation. Those terms did not refer to the manner in which the land could be used, but the purpose for which it could be used. To define a power by reference to purpose is a quite different exercise to defining a power by reference to permitted activity. The Minister's submission erroneously conflated purpose and activity, as restraints on power. 27Even if the Minister's contention were correct, the test of inconsistency or incompatibility of use would be answered by reference to the legal rights or privileges of the public and the rights conferred on the licensee in respect of grazing. Public recreation on the land would include camping and picnicking by members of the public at any time and in such numbers as the land might accommodate, and by such means of ingress and egress as might be reasonably necessary. 28By contrast, the licence permitted the holder to use the land for the purpose of grazing but not for any other purpose: cl 20. While the holder of the licence was required to acknowledge that the licence did not confer exclusive possession (cl 21), the holder was required to enclose the land whether separately or conjointly with other lands held in the same interest with a substantial fence and to maintain that fence in effective repair (cl 53); and the holder was required "if directed by the Minister" to erect and maintain gates in any fence "for use by persons authorised to obtain timber or other material from such land" (cl 54). The licence contained no reference to use of the land for public recreation, nor to public access. While the Minister was entitled, if of the opinion that the holder was overstocking the land, to give directions limiting the number and type of stock that might be depastured (cl 49), the licence otherwise permitted the holder to run such stock in such numbers as the holder considered appropriate. The latter was limited only by the identified purpose and the express terms of the licence, for example with respect to overstocking. The licence thus permitted bulls and alpaca, as well as sheep, to be depastured on the land, not for the amusement or entertainment of the public, but for the private purposes of the grazier. 29Assuming, contrary to the conclusion reached above, that the Minister's approach was correct and a licence could be granted for any purpose which was not inconsistent nor incompatible with public recreation, the grazing licence in question did not satisfy that test.

(b) authorities 30Where land is reserved for a specified public purpose (or indeed for public purposes) the power to lease, licence or vest land in trustees in order to effectuate the purpose has long been accepted. It may be that a public purpose can properly be effectuated by making the land available to a private interest which can make a profit from providing facilities to the public, so as to effect the relevant public purpose, so long as those profits are devoted to the public purpose: Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 at 92-93 (Windeyer J). However, that is not this case. 31The approach adopted above is illustrated by two of the authorities referred to by the primary judge. First, in Attorney General v Cooma Municipal Council (1962) 8 LGRA 111, the Full Court held that the construction of a tourist information centre was not permissible on land reserved for the purposes of public recreation because it was not a use of the land for that purpose: at 121 (Manning J). Herron ACJ dissented, but applied a similar test, as to whether the tourist information centre could properly be described as "ancillary to" the enjoyment of a park as a park (at 115), as indeed did Jacobs J from whose judgment the appeal was brought (see per Manning J at 119). The other member of the majority, Brereton J, stated at 118: "To my mind the dedication of land 'for purposes of public recreation' necessarily involves the use of such land by the public for their recreation; land used by an individual or a council to manufacture or provide entertainment media for some subsequent enjoyment by the public or to disseminate information as to where recreation may be found is not land used for public recreation. It is obviously not necessary that the public must at all times have access to all parts of the land; indeed the type of recreation provided on it may require the exclusion of the public from parts of it, but any restriction upon the public's access to the whole of the area for the purpose of recreation can be justified only on the basis that it is in the interest of the public and to provide for their recreation within the area that they are so excluded from part of it." 32In Waverley Municipal Council v Attorney General (1979) 40 LGRA 419, a question arose as to the power of the local council to construct buildings in Bronte Park. This Court held that the power of the council to erect improvements was limited, in respect of Bronte Park, to improvements the purpose of which was "to promote or [was] ancillary to" the use and enjoyment of the public park for public recreation: at 428 (Hope JA, Glass and Samuels JJA agreeing). 33To make lands available for public recreation it may be necessary for a manager to have control of the land in order to maintain it. It may also be appropriate to allow for the construction of sporting facilities for public use. Other facilities may be constructed which are ancillary to public recreation, such as public toilets. It may be appropriate for areas to be fenced to control public access, for example by shutting gates at sunset. All of these activities on land and the vesting of land in bodies other than the Crown in order to carry out such activities could reasonably be held to be in furtherance of, or incidental to, the relevant public purpose. 34Although dismissing it as obiter, the Minister also referred to the reasoning in Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133. In considering whether certain land was subject to lawful use, Clarke JA (with whom Samuels and Meagher JJA agreed) stated at 142: "I do not think that the definition of claimable Crown land is concerned with nice distinctions of town planning laws nor do I accept that a court charged with determining whether a user is lawful is concerned to investigate whether the actual use conforms in every respect with the minute detail of particular town planning schemes or ordinances. What the court is concerned with is whether the user of the particular Crown land is legally authorised. I would agree that, for instance, permission to use land reserved for public recreation for grazing of sheep would almost certainly be insufficient to establish that grazing of sheep on the land was lawful. But the reason for this would be that public recreation was the only permissible use of the land and not because of any local town planning scheme. On the other hand it may be that it would be wrong to find a particular user a legal one when it contravened the zoning regulations of a particular scheme." 35It is clear that Clarke JA was not concerned with the proper construction of the Crown Lands Act, but was making a more general statement of approach with respect to the operation of s 36(1)(b) of the Aboriginal Land Rights Act. Nevertheless, the comments were made in the context of a reserve for public recreation, part of which operated as a caravan park and had grassed picnic areas, while another part involved a disused quarry and some walking paths. The first part was conceded to be lawfully used and occupied for public recreation, the dispute being limited to the extent to which the remainder of the land, which was under the control of the shire council, was occupied by it although the area was not fenced and there were no improvements on the land. (The Court accepted that the Minister had made good his claim for lawful occupation.) 36In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [No 2] (1997) 42 NSWLR 641 ("Nowra Brickworks (No 2)"), this Court was concerned with lawful use and occupation in respect of land the subject of a mining tenement which was not being actively mined. Sheller JA (with whom Priestley and Handley JJA generally agreed) set out, with no indication of disapproval, the passage from the judgment of Clarke JA in Tweed Byron. Further, in reaching his conclusion, Sheller JA stated at 654: "The Mining Act 1906 provided the means by which the holder of ML2 obtained the right lawfully to occupy or use Crown land for specified mining purposes (s 23). That right of occupation or use was for the purpose of mining for brick clay and purposes connected with such mining, being mining purposes within the Mining Act, and for no other purpose. Undoubtedly had the lessee used the ML2 land for some other purpose, that use would have been unlawful, but it did not so use the land." 37It is not necessary to adopt the same approach to construction of a mining lease and a reservation, but in broad terms the reasoning in Tweed Byron and in Nowra Brickworks (No 2) supports the reasoning accepted in this case. Where the use of land is restricted to a particular purpose, the use for some other unrelated purpose is not authorised.

(c) conclusion 38The opinion of the primary judge that the issue of a grazing licence over the claimed land was not a valid exercise of the Minister's power under the Crown Lands Act in respect of that land was correct and involved no error of law.

Whether land claimable 39The next question was whether the use and occupation of the land for the purpose of grazing, without a valid licence, involved a lawful use and occupation of the land. It did not: rather it was an offence for a person "without lawful authority" to graze stock on public land: Crown Lands Act, s 155(1)(c). For the purposes of that provision, "public land" is defined to mean "Crown land or land within a reserve as defined in Part 5 or any other land ... reserved for a public purpose": s 153. The claimed land was Crown land, it was within a reserve as defined in Pt 5 and it was reserved for a public purpose. Accordingly, the prohibition applied. The claimed land, not having been shown by the Minister to be land which was lawfully used or occupied, constituted claimable Crown lands under s 36(1) of the Aboriginal Land Rights Act.

Challenge to Bathurst Fauna Reserve 40The position of the Minister in respect of the Bathurst Fauna Reserve case was somewhat confusing. Having referred to two passages in the judgment of Tobias JA (in the majority) the Minister submitted that that judgment was "not necessarily contrary to the position put by the Minister here". There was then reference to the dissenting judgment of Ipp JA which determined on the facts, contrary to the view of the primary judge, that the steps taken by the Council on the land were "for" the reserved purpose of preservation of native flora. However, Ipp JA did not address the question which might have arisen had he made different findings of fact. No member of the Court in Bathurst Fauna Reserve appears to have identified a test which would necessarily determine the outcome in the present case. However, the test applied by all members of the Court was consistent with the approach adopted above. There is, accordingly, no error in any proposition of law for which that case stands.

Orders 41The appeal should be dismissed; the Minister should pay the respondent's costs in this Court. 42MACFARLAN JA: I agree with Basten JA. 43SACKVILLE AJA: I agree with the reasons given by Basten JA, subject to one qualification. 44I do not think it is necessary to determine in this case whether the Minister was correct in submitting that a licence could validly be granted under s 34(1) of the Crown Lands Act 1989 for any purpose that was not inconsistent or incompatible with public recreation. Assuming that submission to be correct, the terms of the grazing licence purportedly granted on 20 June 2003 ("Licence") were plainly inconsistent with the reservation of the land for public recreation. 45The Licence required the licensee to fence the land (cl 53) and contemplated that no gates would be erected in the fence unless the Minister so directed for the use of those authorised to obtain timber or other material from the land (cl 54). In addition, the Licence obliged the licensee not to allow the land to be used for any purpose other than "Grazing" (cl 20(b)). That purpose could include (as in fact apparently occurred from time to time) the pasturing of bulls or other animals even if their presence was likely to create a threat to any member of the public intrepid and agile enough to venture on to the reserved land. 46In Randwick Corporation v Rutledge [1959] HCA 63; 102 CLR 54, Windeyer J (with whom Dixon CJ, Fullagar and Kitto JJ agreed) said (at 88) that: "In principle, for land to be used for public recreation and enjoyment, so as to be in some sense akin to a public park ... two conditions must be fulfilled. The land must be, in the relevant sense, open to the public generally as of right; and it must not be a source of private profit". See also Storey v North Sydney Municipal Council [1970] HCA 44; 123 CLR 574, at 579, per Owen J (with whom Barwick CJ agreed); Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419, at 426-427, per Hope JA (with whom Glass and Samuels JJA agreed). 47As Basten JA observes, there may be some limited circumstances in which land reserved for the purpose of public recreation may be used for private profit. And as Windeyer J acknowledged in Randwick Corporation v Rutledge, at 88, it is not necessary for all members of the public to have free access to all parts of the land so reserved at all times. But it is hardly consistent with the reservation of land for public recreation that the holder of a grazing licence is obliged to fence the land in a manner that may well deny the public ready access to it and is entitled to use the land in ways that have nothing to do with public recreation in order to derive private profit. 48I agree with the orders proposed by Basten JA.

Amendments 28 January 2014 - Deleted "by" before "bisected" in [8].Changed "were" to "was" in [28].Added the word "some" before "subsequent" in the quote in [31]. Amended paragraphs: [8], [28], [31] 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: 28 January 2014