New South Wales Aboriginal Land Council & Anor v Minister Administering Crown Lands Consolidation Act & Ors

His Honour: On 7 September 1988, the applicants (the Land Councils) commenced proceedings against the first respondent (the Minister) seeking a declaration that certain lands within the Tamworth district were "claimable Crown Lands" within the meaning of the Aboriginal Land Rights Act, 1983. They also sought orders that the Minister deal with the claim by the Land Councils and that he be restrained from exercising his powers to reverse the forfeiture of conditional purchases. The conditional purchases were forfeited on 9 November 1987 being 30 days after publication of notification of forfeiture in Gazette No. 189 on 9 October 1987.

Dr. Grant, the holder of the conditional purchases, was made a party to the proceedings. Later, the Council of the Shire of Manilla (the Council) was joined because it was proposing to exercise its powers pursuant to s.602 of the Local Government Act to recover outstanding rates. An order was sought against the Council that it be restrained from exercising its powers under the Local Government Act in a way which could defeat the claims of the Land Councils. Dr. Grant has undertaken to discharge her indebtedness to the Council and has already made certain payments. The Council has informed the Court that it believes the rates will be paid and has resolved that it will not proceed to sell any of the land the subject of the present litigation until any dispute between the Land Councils and the Minister and Dr. Grant is finalised. Accordingly, the Land Councils seek no further orders against the Council and I have been asked to deal with the matter as though the Council was not a party.

The Land Councils made claims under the Aboriginal Land Rights Act on 30 November 1987, 10 December 1987 and 18 August 1988. Although the claims were made on different days, the present litigation can be disposed of as if one claim had been made. The Minister and Dr. Grant assert that the subject land is not "claimable Crown Lands" as defined by s.36 of the Aboriginal Land Rights Act, 1983. Relevantly, the section provides:

"'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, 1909;

(b1) do not comprise lands, which in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands; and

(c) are not needed nor likely to be needed, for an essential public purpose".

The Minister, if satisfied that the whole of the land claimed is "claimable Crown Land" shall grant the claim by transferring it to the claimant (s.36(5)(a)). If the Minister is satisfied that the land is not "claimable Crown Lands" he shall refuse the claim (s.36(5)(b)). If the Minister is not satisfied that the whole or part of the land is "claimable Crown Lands" because the lands are needed for an essential public purpose but that the need for the public purpose would be met if the claim were granted subject to conditions, the Minister may, if the claimant agrees to the condition, grant the claim subject to that condition (s.36(5)(A)). A Land Council may appeal to the Court against the Minister's refusal of the claim (s.36(6)). If the Minister fails to satisfy the Court that the lands are not "claimable Crown Lands", the Court may order that the land be transferred to the claimant. The Court has no discretion once the conditions in the definition of "claimable Crown Lands" are satisfied. If they are (as at the date of the claim being made), the Court must make an order in favour of the claimant (see New South Wales Aboriginal Council v. The Minister Administering the Crown Lands Consolidation Act and the Western Lands Act, Court of Appeal, 23 September 1988, unreported).

The Land Councils, the Minister and Dr. Grant have urged upon me that I concern myself only with the meaning and application of s.36(1)(a) and (b). As will be seen, the land the subject of the litigation comprises approximately 2100ha of grazing land outside Tamworth. The conditional purchases were forfeited because Dr. Grant was in arrears with instalments. Later, the Minister reversed the forfeiture. Between the date of forfeiture and the date of reversal, the Land Councils made their claims. It is scarcely likely that the land would be required for residential purposes. The Land Councils maintain that the lands are not needed and are not likely to be needed for any essential public purpose. Dr. Grant and the Minister have asked me to assume the land is not needed or likely to be needed for that purpose. The Minister's attitude in this regard was more guarded than that of Dr. Grant for the reason, I surmise, that he has assumed his reversal of forfeiture to be valid and, therefore, has not considered whethe r, if it is not, the land is needed or likely to be needed for an essential public purpose. The Land Councils, although seeking the declarations to which I shall shortly refer, will not undertake not to appeal to the Land and Environment Court pursuant to s.36(7) if they are unsuccessful in the proceedings. I shall return to these matters in due course.

Dr. Grant held eight conditional purchases totalling 2,160.4ha. The land the subject of the litigation forms approximately half of Dr. Grant's property, known as "Bald Rock", which is used for the grazing of sheep and cattle. I will not detail all the improvements to the property. It is clear, however, that there are valuable capital items on the land the subject of the litigation. For example, there is a three bedroom dwelling house, five sheds, a large wool shed (containing a wool press), cattle yards, horse yards, dams, a windmill and seven fenced paddocks. Dr. Grant's conditional purchases were forfeited because she was in arrears in paying the balance of purchase monies owing. Dr. Grant has given evidence in the proceedings and her evidence has not been disputed. During 1987, she was absent overseas in connection with criminal proceedings against her husband. She has not attended to the property since 1986 for reasons, I infer, associated with her domestic problems. Her sheep were confiscated by the Tamw orth Pastures Protection Board in October 1986. During 1987, she periodically visited the property when she was not overseas but she did not receive any communication from the Department concerning the threatened foreclosure until 12 February 1988 because her mail had been mislaid by the Bondi Junction post office. She did not know until February 1988 that in 1987 she had been threatened with forfeiture, that forfeiture had been gazetted or that a claim had been lodged under the Aboriginal Land Rights Act with respect to her holdings.

At the time of the forfeiture in 1987, Dr. Grant was in arrears and owed approximately $834.00. At that date, the total amount of purchase monies outstanding on all conditional purchases, including arrears, was $2907.00. In February 1988, Dr. Grant attended the credit management section of the Lands Account Branch of the Department and requested that the forfeitures be reversed. Her application was accepted conditional upon her paying arrears of purchase money plus interest. In April 1988, it was recommended that the forfeitures be reversed and the reversal was made on 2 September 1988 and notified in the Government Gazette on 9 September 1988. The above short history is accepted by the Land Councils and, although previously there was a dispute concerning Dr. Grant's use and occupation at the relevant time, it is now agreed that as at the date of the making of the claims, Dr. Grant was using and occupying the subject lands. The Land Councils assert, however, that her use and occupation was not, at the date of claim, relevantly "lawful". The following is a chronology of events.

21.8.87 Forfeiture of conditional purchase holdings approved by Credit Manager of Land Accounts branch of Crown Lands Office to delegate of Minister for Lands.

28.9.87 By letter of that date notification was sent to Dr. Grant that approval had been given to forfeit the subject lands.

9.10.87 Notification in Government Gazette of forfeiture Gazette No. 159 of 1987

9.11.87 Forfeiture notified in Government Gazette on 9.10.87 (in the absence of reversal) became effective by operation of Section 206 of Crown Lands Act.

30.11.87 Claims dated 24.11.87 lodged under Aboriginal Land Rights Act by Tamworth Local Aboriginal Lands Council in relation to:-

(a) 434.6 hectares being portion 79 of Parish of Warrabadah and county of Darling within the Shire of Manilla;

(b) 388.5 hectares being portion 38 of the Parish of Warrabadah in the county of Darling within the Shire of Manilla;

(c) 232.9 hectares being Lot 76 of the Parish of Warrabadah in the County of Darling and Shire of Manilla;

(d)266.3 hectares being lot 89 of the Parish of Warrabadah in the County of Darling and Shires of Manilla and Uralla.

10.12.87 Claims lodged under Aboriginal Land Rights Act 1983 by N.S.W. Aboriginal Lands Council on behalf of the Armidale Local Aboriginal Lands Council in respect of:-

(a) 151.2 hectares being Lot 63 in the Parish of Baldwin and County of Hardinge and the land in C.T. Volume 14992 Folio 104;

(b) 242.8 hectares being Lot 54 in the Parish of Baldwin and County of Hardinge and the land in C.T. Volume 15042 Folio 28.

29.1.88 Letter from Dr. Grant to Lands Department requesting reversal of forfeitures.

9.2.88 Dr. Grant attended Lands Department and requested that forfeitures be reversed.

18.8.88 Claim lodged by N.S.W. Aboriginal Land Council in respect of Lot 62 in the Parish of Baldwin and County of Hardinge.

29.8.88 Final payment made by Dr. Grant in respect of arrears. Recommendation made for reversal of forfeiture to Dep. Director of Crown Lands Office.

2.9.88 Forfeiture notified in Government Gazette of 9.10.87 reversed by Dep. Director of Crown Lands Office acting as delegate of Minister for Lands.

9.9.88 Reversal of forfeiture effected on 2.9.88 notified in Government Gazette.

Section 55 of the Crown Lands Consolidation Act, 1913 provides that upon default in the payment of any instalment of purchase money for three months after the day when the same falls due a conditional purchase together with any monies paid in respect thereof shall be liable to be forfeited. Forfeiture may not be effected until the expiration of 30 clear days after the notification of such forfeiture in the Government Gazette (s.206(1)). In the present case, forfeiture was effected on 9 November 1987. Section 206(2) provides:

"Whenever after the passing of this Act the forfeiture of any purchase lease or homestead selection shall have taken effect, the lands therefor comprised in such purchase lease or homestead selection shall (if not already such) become Crown lands, and, unless otherwise notified in the Gazette, the lands theretofor comprised in such purchase lease or homestead selection shall not become available for any application".

"Any absolute reversal of a forfeiture shall relate back to the date when such forfeiture shall have been notified declared or otherwise asserted or enforced, and shall have the same effect as if the forfeiture so reversed had never been notified declared or otherwise asserted or enforced".

The Land Councils amended their claim and now seek the following declarations and order:

"1. A declaration that the lands described in paragraphs 6, 7 and 8 of the Points of Claim were "claimable Crown lands" within the meaning of s.36 of the Aboriginal Land Rights Act, 1983 when the claims were made for those lands, namely, on 30 November 1987, 10 December 1987 and 18 August 1988 respectively.

2. An order that the first respondents herein deal with the claims for land described in paragraphs 6, 7 and 8 of the Points of Claim in accordance with s. 36 and s. 37 of the Aboriginal Land Rights Act, 1983.

3. A declaration that the reversal of forfeiture of the lands by the first respondent on 2 September 1987 and notified in the New South Wales Government Gazette on 9 September 1987 is void and of no effect in relation to the claims described in paragraphs 6, 7 and 8 of the Points of Claim".

At the outset of the proceedings, I raised with the parties the propriety of the Court embarking upon a consideration of the case bearing in mind that although a claim had been made, it had not yet been refused and, if it was refused by the Minister, it was open to the Land Councils to appeal to the Land and Environment Court pursuant to the Aboriginal Land Rights Act. As I have mentioned, the Minister made an admission concerning the likely future need for the land but his admission was said to be limited to the present proceedings. The Land Councils rejected a request made on behalf of the Minister that, if unsuccessful in these proceedings, there would be no appeal pursuant to s.36(7) of the Aboriginal Land Rights Act. Nonetheless, all parties asked me to determine the matter. Dr. Grant is particularly anxious that the matter be determined. Mr. Lloyd, on behalf of the Land Councils, reframed his request for declarations and orders as I have set out above. The Land Councils ask that I determine the applicat ion because, first, there are no disputed facts in the case before me and, secondly, that even if the Land Councils exercised any rights of appeal to the Court pursuant to s.36(6) and (7), it would be "unlikely that there would be any facts additional to those which were before" the Court in these proceedings. The Land Councils urged that "any decision ... in relation to declarations 1 and 3 as sought would operate either as res judicata or issue estoppel between the present parties in relation to the subject land claims and could not be relitigated in subsequent Class 3 appeal relating thereto".

For the Minister, it was submitted that I should consider and determine the application. The Minister submits I should not make either declaration and that I should not make order 2 because the Minister has not been shown to be in breach of any duty upon him to refuse to deal with the claims of the Land Councils. The Minister, like the Land Councils, asserts that the decisions with respect to the first and third declarations would operate by way of issue estoppel and would end the dispute between the parties. The Minister did not submit the Court had no jurisdiction to deal with the second declaration but, as I have said, submitted that it ought not be made. Mr. Ayling floated the suggestion that a jurisdictional question could arise with respect to the making of the second declaration but he did not advance any submission to support the suggestion. I am of the opinion that if otherwise appropriate, the Court would have the jurisdiction to make the second declaration (see s.22 and s.23 of the Land and Environ ment Court Act).

In all the circumstances and not without some misgivings, I have decided that it is appropriate for me, as I am asked by all parties, to determine whether, on the admitted or found facts, the subject land is "claimable Crown lands" within the meaning of s.36 of the Aboriginal Land Rights Act.

As at the date of claim by the Land Councils, the forfeiture had not been advertised in the Gazette pursuant to s.206(2) and was therefore not available for any application under the Crown Lands Consolidation Act. It would seem to me, therefore, that, at the time the claim was made, the subject lands, although forfeited were not relevantly able to be "lawfully sold or leased ... for any purpose under the Crown Lands Consolidation Act". That, in my opinion, would be so whether or not the Minister had later reversed the forfeiture. The principal submission on behalf of the Minister and Dr. Grant is that whether or not the land was gazetted as being available for application and disposition pursuant to s. 206(2), the land was not claimable Crown land because of the of the reversal by the Minister pursuant to s.209(2). That is, it was submitted that because the forfeiture "so reversed had never been notified declared or otherwise asserted or enforced" and that, therefore, the land was not relevantly able to be la wfully sold or leased at the date the claim was made. It would seem to me that if at the time the Land Councils made their claim the forfeiture had been made and had not been reversed and if there had been notification pursuant to s.206(2), the lands would have been "able to be lawfully sold or leased ... under the Crown Lands Consolidation Act" and would therefore come within s.36(1)(a). It is clear, I think, that s. 209(2) was intended to operate to effect the result that if a forfeiture is reversed as between the Crown and the tenure holder it is as if the forfeiture had never been effected. But until it is reversed, the tenure is forfeited. In my opinion, s.209(2) does not operate to nullify a claim made under the Aboriginal Land Rights Act valid and effective when made. If the claim had been made after the forfeiture and after gazettal pursuant to s.206(2) and later the forfeiture was reversed pursuant to s. 209(2), the lands would relevantly be "able to be lawfully sold or leased ... under the Crown Lan ds Consolidation Act" at the date the claim was made. However, as I have said, the lands in the present case had not become available for any application under the Crown Lands Consolidation Act because there had been no notification pursuant to s.206(2). Furthermore, I am of the opinion that s.36(13) of the Aboriginal Land Rights Act does not affect the meaning and application of s.206(2) of the Crown Lands Consolidation Act. Section 36(13) of the Aboriginal Land Rights Act provides that where a transfer of land would not be authorised by the Crown Lands Consolidation Act the transfer of the land in accordance with s.36 of the Aboriginal Land Rights Act shall be deemed to have been authorised. In my opinion, s.36(13) operates to facilitate the transfer of "claimable Crown land". It does not operate to make non-claimable Crown land "claimable Crown land".

As to the second matter, I am of the opinion that Dr. Grant was relevantly "lawfully" using or occupying the land. As I have said, she continued to occupy the subject land and continues to occupy it to the present time. Her occupation and use is not, and was not, notional. At the date of the claim, neither the Minister nor any authorised person had asked her to leave the property. She is, and was at all relevant times, in possession of the land. I am of the opinion, therefore, that as at the date of claim i.e. after forfeiture but before the Minister had exercised his power to reverse the forfeiture, the continued occupation and use of Dr. Grant was relevantly "lawful". It is true that notice of forfeiture had been gazetted and had taken effect. However, the scheme of the Act persuades me that in the absence of any gazettal pursuant to s.206(2), in the circumstances of the present case, Dr. Grant's continued use and occupation of the land was not unlawful. It was pressed upon me by Mr. Lloyd, on behalf of the claimant, that the Aboriginal Land Rights Act is legislation of a remedial and beneficial kind and that, accordingly, the words "lawfully used or occupied" should be construed strictly from the point of view of the Land Councils. The Aboriginal Land Rights Act deals with Crown lands. The use and disposition of Crown lands is regulated by the Crown Lands Consolidation Act. The provisions of Part 8 Division 7 could likewise be described as remedial and beneficial. The conditional purchases of Dr. Grant are as close as a title in fee simple as she could hold under the Crown Lands Consolidation Act. Part 8 Division 7 provides that before forfeiture certain conditions must be fulfilled. The notification in the Gazette forfeiting the tenure cannot take effect for thirty days. Thereafter, the land cannot be the subject of another application unless there is a further notification to that effect in the Gazette. Provision is made for reversal of the forfeiture which, if exercised, is deemed never to have occurred. Dr . Grant's continued use and occupation of the subject land was, in my opinion, as at the date of the claim and in the circumstances established, a "lawful use and occupation" within the meaning of s.36(1)(b) of the Aboriginal Land Rights Act.

In my opinion, the lands are not "claimable Crown lands" within the meaning of s.36 of the Aboriginal Land Rights Act. I am of the opinion that it is not open to the Minister to determine that as at the relevant date the subject parcels of land or any one of them were "claimable Crown lands" within the meaning of the Aboriginal Land Rights Act. I should add that if I had come to a contrary conclusion, I would not have made an order directing the Minister to deal with the claims for the reason that no breach of duty has been proved. In these circumstances, I refuse to make the declarations and order as asked. Neither the Minister nor Dr. Grant asked the Court to make declarations. Accordingly, the appropriate order of the Court is that the application be dismissed.

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