NSW Aboriginal Land Council v The Minister Administering The Crown Lands

The subject land (Winbar) was claimed by the applicant on 26 April 1984. On 8 November 1984 the then Minister refused the claim. An appeal was instituted to the Court on 2l December 1984. On 22 April 1986 the Minister issued a Certificate under section 36(8) of the Aboriginal Land Rights Act (Land Rights Act) to the effect that the land was not claimable Crown land (as defined) because it was needed for an essential public purpose. During the hearing of the appeal the Minister's certificate was sought to be tendered. For reasons I gave on 9 May l986 I ruled that the certificate was admissible (see (1986) 59 LGRA 333). On the same day I ordered the Minister to provide replies to a series of questions asked by the applicant Land Council pursuant to section 36(l4) of the Act. The Minister appealed against this order and on 10 March 1987 the Court of Appeal dismissed the appeal as incompetent. A Summons was then filed by the respondent seeking to prohibit the Land and Environment Court from proceeding further in connection with the order of 9 May l986 and for an order reviewing the making of that order. However, this Summons for prohibition did not proceed to a hearing and on 3 September l987 the Minister cancelled the certificate and approved the land claim.

Following this decision by the Minister the applicant Council amended its application to the Court to seek an order that the Minister grant the claim by transferring the land in fee simple. This application arose from the amendment to the Land Rights Act on 2 May 1986 which inserted section 36(9A). The amendment provided that any transfer of land under the Land Rights Act being land to which the Western Lands Act applies, shall be effected by the granting of a lease in perpetuity under that Act.

The Council seeks a declaration that the Local Aboriginal Land Council is entitled to a transfer of the land the subject of the claim in fee simple or to a transfer in fee simple of such portion of the land as the Minister determines to grant under section 36(5) of the Land Rights Act.

In summary the Council submits that it is entitled to have the land transferred in fee simple, as was provided by the Land Rights Act prior to the amendment on 2 May 1986. On behalf of the Minister, Mr. Coles submits that since the Minister granted the claim after the amendment, effect can only be given to his decision by the transfer to the applicant of a lease in perpetuity under the Western Lands Act and not otherwise.

On behalf of the Council Mr. Terry submits that the Minister's decision on 3 September 1987 to grant the claim involves an admission that he made a mistake of fact (or law) as to its claimability when it was refused in 1984. At that time the Minister had a statutory obligation to transfer the land in fee simple under section 36(9). Mr. Terry argues that by necessary inference, there arises in the claimant Council a right to receive the land in fee simple. Reliance is placed on section 30 of the Interpretation Act, in particular section 30(l)(a), (b) and (d). This provides as follows:-

"(l) the amendment or repeal of an Act or statutory rule does not affect -

(a) the previous operation of the Act or statutory rule or any thing duly suffered, done or commenced under the Act or statutory rule;

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule;

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty

and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act or statutory rule had not been amended or repealed."

There are no relevant savings or transitional provisions in the Aboriginal Land Rights (Amendment) Act, 1986. Mr. Terry submits that no question of retrospectivity arises because the obligation on the Minister to determine the claim is directed to the time when a claim is made, viz., 26 April l984. In his submission the 'right' accrued in the Council at that time and before the 1986 amendment. The grant of the claim should be in accordance with the rights and obligations which had accrued before the amendment as if no mistake or error had been made by the original refusal. He submits that to conclude otherwise would be to give retrospective operation to the amending Act and allow an alteration to accrued rights. Reliance is placed on Maxwell v. Murphy ((1956-57) 96 CLR 26l) and other authorities to support the submission that the amendment has no retrospective effect.

However, Mr. Coles does not submit that the amendment is retrospective in its operation. Rather he submits that the amendment operates only from its commencement date, 2 May 1986. After that date any transfer under the Land Rights Act of land to which the Western Lands Act applies, can only be by lease in perpetuity under that Act. Mr. Coles further submits that the amendment does not relate to past events because it deals only with the mode of transfer of lands and the estate to be taken by the transferee. The Minister, in determining the claim, has to consider the question of claimability and not tenure. The Minister has no power to transfer the land other than in accordance with section 36(9A). In Mr. Coles submission the Minister had no obligation to effect a transfer of the land until he determined to grant the application on 3 September l987.

Mr. Coles further submits that section 30 of the Interpretation Act is irrelevant because the amendment did not affect any "right" in the Land Council. The Council had no accrued right to receive a transfer of the land. Such a right only arises upon the Minister's satisfaction under section 36(5) of the Act that the lands claimed are claimable Crown lands. But this satisfaction does not create a right to a transfer of the land in fee simple as at the date of the claim. Additionally, the respondent submits that the absence of any relevant savings provisions from the Amendment Act is, at the least neutral, but is more likely to be seen to assist the respondent.

Mr. Coles also submits that the tenure of the estate to be transferred is not part of the relief or remedy claimed. The legislation speaks of a "transfer" of the land (section 36(5) and (7)). The mechanics and mode of that transfer are provided by section 36(9) and (9A). The making of a land claim creates no interest in the land as such and it is no more than a right to make a claim and to have it determined according to law.

Having set forth the submissions at some length I have to say that the issue appears to me to be relatively straight forward. Although the Minister's satisfaction as to whether the land claimed is "claimable Crown land" is to be determined as at the date "when a claim is made", it does not follow in respect of any successful claim which relates to lands under the Western Lands Act, (being a claim made before the amendment on 2 May 1986 but determined after that date), that the transfer must be of an estate in fee simple.

In my opinion the fact that on 3 September 1987 the Minister reversed an earlier decision does not signify that the earlier decision was a mistake of fact or law. Nor does the subsequent decision somehow "relate back" to the date of the earlier decision so as to fix accrued rights at that earlier point in time. I accept the submission of Mr. Coles that the Council, by virtue of the making of the claim, and in the context of the subsequent events, has no accrued right to receive a transfer of the subject land in fee simple. Following the Minister's decision to grant the claim in September l987 the Council had a right to have the land transferred in accordance with the Land Rights Act. That is, since the lands in this particular case are under the Western Lands Act, to have the land transferred by way of a lease in perpetuity.

The fact that the decision as to whether the land is claimable is to be determined by reference to the state of events at the time of the making of the claim, does not mean that if the Minister determines to grant the claim the transfer has to be in accordance with the Land Rights Act as it stood when the claim was made. True it is that if the Minister had granted the claim in 1984 (rather than refuse it) the transfer would have had to be by way of an estate in fee simple. However, it does not follow that when the Minister determines to grant a claim after the amendment in relation to a claim made before the amendment, his decision has to be in accordance with the Act as it stood prior to the amendment. It is the issue of the claimability of the land which has to be determined on the state of facts when the claim was made. This is not to give any retrospective operation to the amending Act, indeed, no such retrospectivity is claimed by the Minister.

In my opinion the Minister, having determined to grant the claim after 2 May 1986, has no option other than to transfer the land by way of a lease in perpetuity under the Western Lands Act. I reject the submission that as at the 2 May l986 the Council had an accrued right to receive a transfer of the land in fee simple (or indeed at all as at that date). Therefore, section 30(l) of the Interpretation Act is irrelevant. As I have said, an accrued right to a transfer of the land only arose upon the decision of the Minister to grant the claim in September l987. The fact that the Minister's decision to grant the claim is based upon his satisfaction that the land is claimable Crown land as at the time of the claim, does not fix any accrued right to a transfer as at the date of the claim.

In coming to this conclusion I take account of the remarks by Kirby P. in the Minister for Natural Resources v. N.S.W. Aboriginal Land Council ((l987) 9 NSWLR l54 at l57) that since the legislation is beneficial and remedial it should be given "the most beneficial operation compatible with its language". In my opinion the declaration should be refused and the application dismissed.

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