LAWFULNESS OF THE USE
44The issue is whether the Minister has demonstrated that the Land was "lawfully" used or occupied when the claim was made: s 36(1)(b) ALR Act. As I have said, for the purposes of this case the parties draw no distinction between "used" and "occupied".
45The reservation of land for a purpose has long been held to constitute a restriction on its use: Bathurst per Basten JA at [239] citing New South Wales v Commonwealth [1926] HCA 23, 38 CLR 74 (The Garden Island case) per Knox CJ, Gavan Duffy, Rich and Starke JJ at 84 and Isaacs J at 91. Except insofar as a statute otherwise provides, the use of reserved or dedicated public land for a purpose which is not properly related to the purpose of the reservation or dedication is beyond power and unlawful: Attorney - General v Cooma Municipal Council (1963) 8 LGRA 111 (Cooma) per Manning J at 121 (Brereton J agreeing at 118.9); Waverley Municipal Council v Attorney - General (1979) 40 LGRA 419 (Waverley) per Hope JA (with whom Glass and Samuels JJA agreed) at 428.
46Land used for public recreation must be, in the relevant sense, open to the public generally as of right: Waverley at 426 - 427.
47A court determining whether a use of Crown land is lawful within the meaning of s 36(1)(b) of the ALR Act is concerned with whether the user is "legally authorised": Nowra Brickworks No 2 at 648A; Tweed Byron at 142; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 35 at [57], [72] (Shoalhaven) per Jagot J. The legal authorisation must be found in the Crown Lands Act or another Act: ss 6, 7 Crown Lands Act ; Ashfield Municipal Council v Roads and Traffic Authority of NSW [2001] NSWCA 370, 117 LGERA 203 at [51]; Bathurst at [169], [180]; Shoalhaven at [53], [67], [71].
48The Minister submits that the use of the land was lawful because:
(a)The Minister had power to grant a licence for grazing over land reserved for public recreation. The actual grazing was by sheep. The licence to graze stock would not prevent the public from using the land for public recreation. It is beneficial to the public recreation purpose for the land to be grazed. The terms of the licence are consistent with public recreation. They did not confer exclusive possession. They gave the Minister an absolute discretion to revoke the licence, they prohibited clearing and there were terms dealing with overstocking and clearing of native vegetation: see [ 31 ] above.
(b)Alternatively, even if the Minister had no power to grant the licence, Mr and Mrs Dutton still had permission from the Minister to lawfully use and occupy the land for grazing because they were doing so with the Minister's knowledge and permission and in good faith and were not trespassers.
49The Minister further submits that:
(a)The power to grant a licence of Crown land under ss 34(1)(b) and 45 of the ALR Act is broad and those provisions contain no relevant express fetter.
(b)The test of whether a use permitted by a licence of Crown land is lawful, within the meaning of s 36(1)(b) of the ALR Act, is whether it is not consistent or not compatible with the purpose for which the land is reserved: Waverley at 426 quoting from the High Court in Council of the Municipality of Randwick v Rutledge [1959] HCA 63, 102 CLR 54 (Rutledge); Bathurst at [154], [171 - 173]; the Garden Island case; Western Australia v Ward [2002] HCA 28, 213 CLR 1.
(c)The grazing use, permitted by the licence, was not inconsistent or incompatible with the public recreation purpose for which the land was reserved. The licence did not confer exclusive possession (cl 21), prohibited clearing (cll 60),restricted overstocking (cll 49, 62), was revocable at any time (cl 25(b)), and prohibited the holders from committing nuisances etc (cl 22). At a practical level, grazing had a minimal impact on the Land and, if anything, was beneficial in terms of land management; and people had camped on the Land on two occasions in the 1980s and 1990s: [41] - [42] above.
50I do not accept the Minister's submissions. In my opinion, as the applicant submits:
(a)The test of whether a use permitted by a licence of reserved Crown land is lawful, within the meaning of s 36(1)(b) of the ALR Act, is whether the purpose for which the land is used is the authorised purpose for which it was reserved or a purpose that furthers or is ancillary to the reserved purpose.
(b)In the present case the grazing purpose for which the Land was used was not the reserved public recreation purpose nor did it further that purpose nor was it ancillary to it.
(c)Alternatively, even if the Minister's test of lawfulness (inconsistency or incompatibility) is correct, that test is not satisfied in the present case because:
(i)the actual activities conducted ostensibly pursuant to the licence were objectively not consistent or not compatible with the reservation of the land for public recreation; and
(ii)the terms of the licence which authorised the land to be used for the purpose of grazing and the conditions therein are insufficient to bring the licence within any test of consistency or compatibility.
51This test involves a narrower construction of "lawfully" in s 36(1)(b) than the Minister's competing test, which is consistent with the principle that "exceptions to the right to claim land [in the ALR Act] should be narrowly construed": Maroota at [9]. In my opinion, this test also better reflects the importance of the authorised purpose for which Crown land has been reserved. It is preferable to some other formulation, such as not inconsistent or not incompatible, which draws attention away from or focuses less sharply on that purpose. A reservation is a setting aside of land for a public purpose. Purposes that are, or are ancillary to, the reserved purpose are lawful, other purposes are not.
52The parties marshalled dicta, referred to below, to support their competing tests of lawfulness. The language employed in the authorities, and sometimes within the same authority, is variously capable of being read as supporting each of the competing tests advanced by the parties in the present case. However, the test for assessing the lawfulness of a use or occupation, within the meaning of s 36(1)(b) of the ALR Act, was not in issue in the authorities. Caution is therefore required lest too much is read into the language they employed when now searching them for the test. Caution is also required because some of the authorities cited were decided in the context of different legislation. Allowing for caution, I think that the weight of authority favours the test I have adopted.
53In the Garden Island case Isaacs J explained at 91 that the gazettal of dedicated land "impressed" upon those lands:
...a statutory status limiting their use and benefit and consequently their possession, in conformity to the purpose to which they were dedicated".
54The Minister submits that the Garden Island case is distinguishable because it was dealing with dedicated land rather than reserved land. In support, the Minister refers to the definition of "Crown lands" in s 3 of the Crown Lands Act , which relevantly says that it means land that is vested in the Crown not being "land dedicated for a public purpose". The Minister points out that the exclusion does not extend to reserved land. I do not accept that the Garden Island case is distinguishable. In the first place, the definition of "claimable Crown lands" in s 36(1) of the ALR Act does not adopt the Crown Lands Act definition of "Crown lands". Indeed, s 36(1)(a) of the ALR Act expressly includes lands that are "reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913". Secondly, in Bathurst at [239] - [240] Basten JA treated the Garden Island decision as applicable equally to dedication or reservation.
55In Cooma Manning J, in the majority, held that a tourist information centre was not a permitted use of the land because it was "not a use of the subject land for purposes of public recreation": at 121. Herron ACJ dissented, but on the basis that he considered the information centre to be "ancillary to the enjoyment of a park as a park": at 115.
56In Waverley Hope JA (with whom Glass and Samuels JJA agreed) did not speak in terms of inconsistency or incompatibility. His Honour said at 428:
Except insofar as the statute otherwise provides, the Council has no power to erect upon the park any buildings which are not for the purpose of the use of the land as a public park or for public recreation. Thus the power of the Council to improve the land does not entitle the Council to erect any kind of improvement upon it which it may desire; it may only erect upon it improvements whose purpose is to promote or is ancillary to the use and enjoyment of Bronte Park as a public park and for public recreation.
57Waverley and Cooma were decided in a different statutory context. In Waverley the issue was whether provisions of the Local Government Act 1919 authorised a council's proposal to erect a building in a "public reserve". That term was defined to include a public park dedicated or reserved for sale by the Crown for public recreation and enjoyment. The application of those provisions to a public reserve had earlier been considered by the High Court in Rutledge in the context of the rateability of the Randwick racecourse. The Court of Appeal in Waverley at 426 quoted from Rutledge , which spoke of various matters being "not incompatible" with the public reserve. However, in Bathurst at [236] - [237] Basten JA cautioned that it does not necessarily follow that results obtained in rating cases such as Rutledge will necessarily dictate the same result under the ALR Act and that rating cases may provide a less than complete analogy.
58Western Australia v Ward was decided in the context of Commonwealth native title legislation. Gleeson CJ, Gaudron, Gummow and Hayne JJ referred to "devote the land to the stated purpose and no other purpose": at [241]. They referred to inconsistency at [241] but then noted an amendment which made explicit what was already implicit "to ensure that the land is used for the purpose".
59The connection between "lawful" use, within the meaning of the ALR Act, and the purpose for which Crown land is reserved was considered by the Court of Appeal in Bathurst . In order to be lawful, a use of reserved land must be one that is authorised by the purposes of the reservation: Bathurst per Tobias JA at [179] - [180], [182] - [183] and Basten JA at [239] and [262]. Tobias JA said in Bathurst at [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 [Crown Land s ] 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.
60In Bathurst Ipp JA at [80] (dissenting on other issues) said:
The basic question is whether, at the date of the claim, the Council was using the Reserve "for the public purpose of preservation of native flora". If not, the use and occupation was in breach of the Trust and unlawful.
61In Bathurst Tobias JA at [154] did say that there must be activities which are "consistent" with the relevant purpose for which land is reserved. But his Honour immediately explained at [155] that, in other words, there must be evidence, if the Minister is to discharge his onus, of some activities which are "directed to implementing that purpose". His Honour gave as examples of implementing the reserved purpose of preservation of native flora: the construction of fire breaks or trails, the eradication of noxious weeds, or the provision of barriers to exclude the public from areas of endangered native flora.
62The applicant submits that consideration of the Crown Lands Legislation Amendment Act 2005, amending the Crown Lands Act , confirms that the test of the lawfulness of a use, within the meaning of s 36(1)(b) of the ALR Act, is whether it is for, or ancillary to, the purpose of the reservation, rather than whether it is not inconsistent or not incompatible with the purpose of the reservation. The Minister submits that the use of an amending statute as an aid to interpretation of earlier unamended sections runs contrary to prevailing authorities, and that in any event it is not of assistance in this case.
63An amended statute may be interpreted in light of an amendment if the words of the amended statute are ambiguous, but if the words of the amended statute are clear little assistance may be gained from the amending statute. Also, care must be exercised to ensure that the words in the amending statute have not been inserted to remove possible doubts. See R v Sieders [2008] NSWCCA 187, 72 NSWLR 417 per Campbell JA (James and Johnson JJ agreeing) at [118] - [134] where the authorities are reviewed, particularly at [127] - [128].
64The applicant submits that ss 34A and 121A of the Crown Lands Act (quoted at [ 16 ] above), introduced by the Crown Lands Legislation Amendment Act 2005, confirm that the test of whether a use is lawful is whether it is for, or ancillary to, the purpose for which the land is reserved, rather than whether it is not inconsistent or not incompatible with the purpose of the reserve. The applicant refers to the Second Reading Speech in the Legislative Assembly for the Amending Bill, which explained:
Currently the public purpose for which Crown land is reserved or dedicated restricts the use that can be made of the land. Examples...include public recreation...Some dedications were set in stone over a century ago and may not reflect modern community needs. Yet unless a use of the reserve is closely aligned with the purpose it is not permitted.
...
This Bill is very clear, however, that additional uses of land can only be approved where they are in the public interest...
65The new s 121A empowers the Minister, by order published in the Gazette, to "authorise a reserve specified in the order to be used for a purpose that is additional to the declared purpose of the reserve", but the Minister must not do so unless she is satisfied that (inter alia) the additional purpose "is compatible with the declared purpose of the reserve". The applicant submits that if the Crown Lands Act had already provided that it was sufficient that the use merely be compatible, s 121A would be otiose insofar as it introduces a criterion of compatibility. If this is correct, it is not a sufficient answer that (as the Minister points out) s 121A also introduces other requirements. However, it is possible that the new provision was merely introduced for clarification. As for s 34A, it expands the power of the Minister to issue a licence, lease etc in respect of land by empowering the Minister to do so for any purpose that the Minister thinks fit. However, s 34A(2)(b) mandates that where such a licence, lease etc is for a purpose additional to the purpose of the reserve, the additional purpose must be specified by notice published in the Gazette. The applicant submits that, inferentially, failure to comply with this mandate affects the validity of the interest granted. I am not persuaded that these amendments cast much light on the issue with which I am concerned.
66In the final analysis, it does not matter on the evidence which of the competing tests of lawfulness is adopted. That is, in my opinion, the use in this case was not in fact lawful on either test.
67Importantly, in Tweed Byron in a passage which is directly relevant to the facts in the present case, Clarke JA said at 142:
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...
68Although this was obiter, it was said with the concurrence of the other two members of the Court of Appeal (Samuels and Meagher JJA) and as part of the Court's response made "in deference to the extensive and helpful arguments of counsel": at 142. It was quoted without disapproval by a differently constituted Court of Appeal in Nowra Brickworks No 2 at 648. I propose to follow it. It is directly on point. Thus, the grazing of sheep on the Land was unlawful.
69The conclusion of unlawfulness is fortified by the fact that the actual use made of the Land involved more than just grazing of sheep. Sheep were mustered across the Land frequently and in large numbers to the sheep yards from paddocks throughout Goomallee. Rams were put in to mate with the ewes. It seems that bulls fought and damaged fences. Cattle grazed. Sick sheep were put there. See [ 34 ] - [ 40 ] above. This is not a case of a couple of harmless ewes and their lambs in a corner of a paddock while people picnic. The Land was not the sort of place that any person wanting to recreate would be well advised to be. The fact that twice in two decades, prior to the issue of the relevant licence, persons camped there does not significantly affect that proposition: [ 42 ] above.
70Secondly, in my opinion, the licence itself was invalid because it was a licence to use the Land for the purpose of grazing, not for the purpose of, or ancillary to, recreation. Even on the Minister's proposed test, the licence conditions to which the Minister refers ([ 49 (c) ] above) do not really prevent inconsistency or incompatibility. In my opinion, even on the Minister's proposed test, the licence was invalid to the extent that it authorised the Land to be used or occupied for a purpose which was inconsistent or incompatible with the reservation of the Land for the purpose of public recreation. The licence did not restrict the type of livestock which may graze on the Land, opening in theory the Land to be grazed by a wide range of livestock, some of which might present greater danger to the public than others. The licence contained no provision which expressly required or permitted the holders to let the public enter the Land for public recreation purposes. That is in contrast to the express provision in the 1966 lease, which expired in 1987: see [ 26 ] - [ 27 ] above. Although the licence holders did not have a right to exclusive occupation of the Land for the purpose of grazing (cl 21), cl 54 suggested that the only members of the public who might enter the Land as of right were those authorised to obtain timber or other material from the Land. On one view, cl 20(b) prohibited the holders from allowing the Land to be used for any purpose other than grazing, including the purpose of recreating.
71For these reasons, in my opinion the Minister has not made out her primary case of lawfulness of the use.
72I turn to the Minister's alternative submission that even if the licence is invalid, still the use or occupation was lawful because the Minister was aware that Mr and Mrs Dutton were on the land and using and occupying it for grazing; they used it in good faith having paid a fee to do so; and therefore they could not be said to be trespassing. I accept, of course, that Mr and Mrs Dutton acted in good faith in using the Land. This, and an awareness on the part of the Minister of their use, may be relevant matters in theoretical proceedings for trespass. But, in my view, they do not determine the issue of lawfulness within the meaning of s 36(1)(b) of the ALR Act.
73In my opinion, the Minister's alternative submission cannot stand consistently with the prohibition in s 6 of the Crown Lands Act , that Crown land shall not be occupied, used, sold, leased, licensed, dedicated or reserved or otherwise dealt with unless the dealing is authorised by the Crown Lands Act (or another nominated Act that is not relevant in these proceedings). Further, s 155 prohibits grazing or driving stock on Crown land without lawful authority. Section 7 ameliorates in part the prohibition in s 6 because it provides that the Crown Lands Act shall not be construed so as to affect the operation of a provision of any other Act which (relevantly) authorises Crown land to be disposed of or dealt with in any manner inconsistent with the Crown Lands Act . Therefore if the licence is invalid, which is the premise of the Minister's alternative case, the Minister would need to point to some other provision of the Crown Lands Act or of another Act which authorised the use or occupation of the Land by the Duttons. The Minister points to no such provision. Rather, the Minister asks the Court to proceed on the basis that even if the licence were invalid, the Minister permitted the Duttons to use the Land for grazing.
74Sections 6 and 7 indicate that the permission needs to be sourced back to a provision of the Crown Lands Act (or the other statute nominated in s 6): Ashfield Municipal Council v Roads and Traffic Authority of NSW at [51]; Bathurst at [169], [180]; Shoalhaven at [53], [67], [71]. As the Minister points to no such provision, the Minister's alternative case is unappealing. Section 155 tends to reinforce the point in ss 6 and 7: one has to point to a lawful authority in order to avoid an offence against s 155(1)(c) and (d).
75Section 6 is an important provision which weighed heavily with the Court of Appeal, particularly Tobias JA, in Bathurst , and with Jagot J in Shoalhaven . In Bathurst at [169] and [180] Tobias JA said:
169. At the date of the claim the Nature Park was Crown land reserved for the purpose of the "preservation of native flora". As already noted, the Trust had been appointed as trustee of the land and the Council had been appointed to manage the reserve trust pursuant to s 95(1) of the [Crown Land s ] Act . Section 6 of that Act relevantly provided that Crown land which is reserved for a purpose shall not be used or occupied unless the occupation or use is authorised by the [Crown Land s ] Act . It was not suggested by the Minister that the use or occupation of the Nature Park for the purpose of a fauna reserve had been authorised by that Act.
...
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 [Crown Land s ] 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.
76If there were to be substituted in those paragraphs the words "public recreation" for " preservation of native flora" and "grazing" for "a fauna reserve", the same logic would apply to produce the same result of unlawfulness in the present case.
77In Shoalhaven at [53], [67] and [71] Jagot J addressed the importance of s 6 as follows:
53 The observations of Heydon JA in Ashfield Municipal Council about s 6 tend to undermine rather than support the Minister's submissions. Heydon JA distinguished between an entitlement to use land and a mere series of trespasses (at [45]). While prepared to accept the possibility of a bare gratuitous licence Heydon JA did not consider any of the relevant expressions in s 6 of the Crown Lands Act (including "used") to be narrow, and observed that the acts of the Crown in permitting use as a road contravened s 6 unless authority for the use could be found in the statutes (at [51]).
...
67 Accordingly, I do not accept the Minister's submissions about either lawful use in this case by reason of the mere presence on the land of members of the public not objected to by the Crown or the operation of the Crown Lands Act and its significance for s 36(1)(b) of the ALR Act. I also do not accept that the references to mere sufferance ( Georgeski at [90]) or a bare gratuitous licence (as contemplated by Heydon JA in Ashfield Municipal Council at [50]) provide the Minister with any material support on the facts of this case. Neither observation suggested that these characterisations would avoid the operation of s 6 of the Crown Lands Act . In any event, the Minister bears the onus of establishing that the land was not claimable Crown lands when the claim was made...
...
71 These facts fall for assessment in the face of s 6 of the Crown Lands Act . Section 6 discloses in terms the legislature's consideration of the need to control the use and occupation of Crown land. The section operates on all of the provisions of the Act (including ss 10 and 11 emphasised by the Minister). There is no reason not to give effect to s 6 according to its terms. Supplemented by s 159 of the Crown Lands Act the Crown (through authorised persons) has power to ensure that any unlawful use or occupation of Crown land is brought to an end. In context, such unlawful use or occupation is any use or occupation not authorised under that Act.
78Her Honour at [71] observed that s 6 operates "on all of the provisions of the Act". That includes ss 34 and 45, which empower the Minister to grant a licence.
79The Minister cites Darkinjung Local Aboriginal Land Council v Minister Administering Crown Lands Act [2006] NSWLEC 180, 149 LGERA 162 at [29] where Pain J said that "lawful use and occupation under the ALR Act is not restricted only to lawful use and occupation as provided under the [Crown Lands] Act ". That observation was premised on an acceptance by her Honour of a submission that 'use' and 'occupation' under the ALR Act have a different meaning to that in the Crown Lands Act . This proposition in relation to use was rejected by the Court of Appeal in Minister Administering Crown Lands Act v NSW Aboriginal Land Council [2009] NSWCA 352, 171 LGERA 56 (Berowra) at [170] - [171]. The observation in Darkinjung is not consistent with the approach of Jagot J in Shoalhaven for the lengthy reasons given at [44] - [45], [53] - [62], [67] and [71] - [72]. The latter approach was approved by the Court of Appeal in Berowra at [170] - [171]. In Muli Muli Local Aboriginal Land Council v Minister Administering Crown Lands Act [2010] NSWLEC 172, 176 LGERA 182 at [52] Pain J herself adopted a similar approach to Jagot J in Shoalhaven and the Court of Appeal in Berowra :
Whether the use and occupation of the claimed land was lawful depends on whether s 6 of the [Crown Lands] Act has been complied with. Section 6 states that Crown land must not be occupied unless the use is authorised by the [Crown Lands] Act.
80For these reasons, I do not accept the Minister's alternative case.