La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd

[2025] HCA 32

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD AND JAGOT JJ

LA PEROUSE LOCAL ABORIGINAL LAND
COUNCIL & ANOR  APPELLANTS

AND

QUARRY STREET PTY LTD & ANOR  RESPONDENTS

La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd

[2025] HCA 32

Date of Hearing: 13 March 2025
Date of Judgment: 3 September 2025

S121/2024

ORDER

1.Appeal allowed.

2.Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 10 May 2024 and, in lieu thereof, order that:

(a)      the appeal be dismissed; and

(b)the appellant pay the second and third respondents' costs of and incidental to the appeal.

3.The first respondent pay the appellants' costs of and incidental to the appeal.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with O R Jones for the appellants (instructed by Chalk & Behrendt, Lawyers & Consultants)

B K Lim with C J Beshara for the first respondent (instructed by Hall & Wilcox)

Z C Heger SC with O J Ronan for the second respondent (instructed by Crown Solicitor for NSW)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd

Aboriginal and Torres Strait Islander peoples – Land rights – Claimable Crown lands – Where land claimed under s 36(2) of Aboriginal Land Rights Act 1983 (NSW) ("Act") subject to lease granted by Crown – Where lessee had not undertaken purposeful activity on land – Where "claimable Crown lands" in s 36(1) of Act means lands vested in Crown that are "not lawfully used" – Whether land "lawfully used" for purpose of s 36(1)(b) of Act merely because land subject to existing lease from Crown.

Words and phrases – "actual use", "claimable Crown lands", "constructive use", "Crown lands", "doctrine of concurrent leases", "estate or interest in land", "exploitation of rights to land", "land", "land claim", "land vested", "lands", "lands vested", "lawfully used or occupied", "lease", "occupation", "occupied", "physical area", "possession", "purposeful interaction", "remedial or beneficial legislation", "reversionary interest", "rights to land", "rights to the physical area", "used", "vested".

Aboriginal Land Rights Act 1983 (NSW), Pt 2, ss 4(1), 36, Sch 4, cl 8.
Conveyancing Act 1919 (NSW), ss 7(1), 117, 118, 119.
Crown Land Management Act 2016 (NSW), ss 1.5(1), 1.7(a), 1.10, 1.12, 3.3, 3.13(1).
Crown Lands Act 1989 (NSW), ss 3(1), 80(1), 87(1), Sch 7.
Crown Lands Consolidation Act 1913 (NSW), s 5(1).
Interpretation Act 1987 (NSW), ss 3(3), 5, 6, 8(c), 13, 68(3), Sch 4.
Native Title Act 1993 (Cth), ss 10, 184, 186(1)(e), 223(1), 225, 253.
Real Property Act 1900 (NSW), ss 3(1)(a), 13(2), 13D, 13J, 40(3), 42(1), 46C.

1. GAGELER CJ.   The central question in this appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales[1] concerns the scope and operation of s 36 of the Aboriginal Land Rights Act 1983 (NSW) ("the ALR Act"). The purposes of the ALR Act are expressed to include "to provide land rights" for Aboriginal persons[2] and "to vest land" in Aboriginal Land Councils.[3]  

   [1]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534.

   [2]Section 3(a) of the ALR Act.

   [3]Section 3(c) of the ALR Act.

2. Part 2 of the ALR Act is headed "Land rights". Division 2 of Pt 2 is headed "Claimable Crown lands". Within Div 2 of Pt 2, s 36 is headed "Claims to Crown lands". The section pursues those two purposes concurrently.

3. Section 36 permits an Aboriginal Land Council established under Pt 5 or Pt 7 of the ALR Act to make "a claim for land".[4] An Aboriginal Land Council can do so by lodging a written claim describing or specifying "the lands in respect of which it is made" with the Registrar appointed under Pt 9 of the ALR Act.[5] The section goes on to require the Registrar to refer such a claim[6] to the Minister or each Minister administering any provisions of the Crown Lands Consolidation Act 1913 (NSW) ("the CLC Act") or the Western Lands Act 1901 (NSW) ("the WL Act") under which "lands are able to be sold or leased" ("the Crown Lands Minister").[7]  

   [4]Section 36(2) and (3) of the ALR Act.

   [5]Section 36(4)(a) and (b) of the ALR Act.

   [6]Section 36(4)(c) of the ALR Act.

   [7]Section 36(1) (definition of "Crown Lands Minister") and (4)(c) of the ALR Act.

4. Legislative developments since the enactment of the ALR Act have involved the repeal and substantial reenactment of the CLC Act and of the WL Act. Those legislative developments mean that the continuing references in s 36 of the ALR Act to the CLC Act and the WL Act need to be read in accordance with s 68(3) of the Interpretation Act 1987 (NSW) ("the Interpretation Act"). The references in s 36 of the ALR Act to the CLC Act and the WL Act are accordingly to be taken to have referred in the period from 1990 to 2018 to the Crown Lands Act 1989 (NSW) ("the CLA") and the WL Act and to have referred since 2018 compendiously to the Crown Land Management Act 2016 (NSW) ("the CLM Act").

5. The consequence of the Registrar referring a claim made by an Aboriginal Land Council to the Crown Lands Minister is and has always been to require the Minister to make a binary decision under s 36(5) of the ALR Act. The Minister must grant the whole or a part of the claim if "satisfied" that "the whole of the lands claimed is claimable Crown lands" or "part only of the lands claimed is claimable Crown lands".[8] Conversely, the Minister must refuse the whole or a part of the claim if "satisfied" that "the whole of the lands claimed is not claimable Crown lands" or "part of the lands claimed is not claimable Crown lands".[9]

   [8]Section 36(5)(a) of the ALR Act.

   [9]Section 36(5)(b) of the ALR Act.

6. Where the Crown Lands Minister grants the whole or a part of a claim, upon being satisfied that the whole or relevant part of the lands claimed is claimable Crown lands, the Minister is required to make that grant by transferring the whole or relevant part of those lands to the claimant Aboriginal Land Council.[10] Except where the transfer is of lands within a category of claimable Crown lands which is subject to certain provisions formerly contained in the WL Act and now contained in the CLM Act, which are of no present relevance,[11] s 36(9) of the ALR Act requires that "any transfer of lands to an Aboriginal Land Council under [s 36] shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer". If and to the extent the transfer would not otherwise be authorised by the CLC Act or the WL Act or an applicable successor Act "the transfer of the lands in accordance with [s 36] shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer".[12]

   [10]Section 36(5)(a) of the ALR Act.

   [11]Section 36(9A) of the ALR Act.

   [12]Section 36(13) of the ALR Act.

7. The expression "claimable Crown lands" is defined in s 36(1) of the ALR Act to mean "lands vested in Her Majesty" (that is to say, lands vested in the Crown in right of New South Wales[13]) which meet specified conditions when a claim is made. The first of those conditions, specified in s 36(1)(a), is expressed to be that the lands "are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the [CLC Act] or the [WL Act]". The second condition, specified in s 36(1)(b), is that the lands "are not lawfully used or occupied". Other conditions, specified in s 36(1)(b1) and (c) respectively, are that the lands "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 "are not needed, nor likely to be needed, for an essential public purpose". The remaining conditions, specified in s 36(1)(d) and (e) respectively, are that the lands are not the subject of "an application for a determination of native title" or "an approved determination of native title ... (other than an approved determination that no native title exists in the lands)" under the Native Title Act 1993 (Cth) ("the Native Title Act").

   [13]Section 13 of the Interpretation Act.

8. The short but important question at the centre of this appeal concerns the second of those specified conditions. The question is whether lands vested in the Crown in right of New South Wales are "used" within the meaning of s 36(1)(b) of the ALR Act merely by reason of those lands being the subject of an existing lease from the Crown. If so, then the prior grant by the Crown Lands Minister of a lease from the Crown under the CLC Act or the WL Act or successor legislation is enough to prevent lands vested in the Crown from being claimable Crown lands, irrespective of the purpose of the lease and irrespective of whether the purpose of the lease is being fulfilled.

9. The correct answer to that question is "no". Lands vested in the Crown are not "used" within the meaning of s 36(1)(b) of the ALR Act merely by reason of the existence of an unexpired lease of those lands from the Crown. That is because the "use" of "lands" vested in the Crown in right of New South Wales to which s 36(1)(b) of the ALR Act refers is limited to physical deployment of physical lands.

10. Adopting the analysis of the reasoning of the Court of Appeal undertaken by Jagot J, I move immediately to the concepts of "land", "lands" and "use" and to the relationship between those concepts in the context of the ALR Act.

    Land and lands

11. Like the word "property",[14] the word "land" can be employed in two quite distinct senses. One is to refer to a physical thing: in the case of "land", to refer to "the land itself" as a "physical"[15] or "topographical"[16] entity, comprising a "solid portion of the earth's surface"[17] or, more precisely, "the concrete physical mass, commencing at the surface of the earth and extending downwards to the centre of the earth" defined at the surface of the earth to be within described or specified "metes and bounds".[18] The other is to refer to a legal or equitable right in relation to that physical thing: in the case of "land", to refer to a legal or equitable "estate" or "interest" in such a portion of the earth's surface.[19]

    [14]See Yanner v Eaton (1999) 201 CLR 351 at 365-366 [17]-[18] and 389 [86], quoting Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" (1913) 23 Yale Law Journal 16 at 21-22.

    [15]Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 at 162.

    [16]North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 481.

    [17]Risk v Northern Territory (2002) 210 CLR 392 at 407 [42]; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 at 64 [52].

    [18]The Commonwealth v New South Wales (1923) 33 CLR 1 at 33, 37. See also Queensland v Congoo (2015) 256 CLR 239 at 253 [6]; Edgeworth, Butt's Land Law, 7th ed (2017) at 42.

    [19]Gray and Gray, "The Idea of Property in Land", in Bright and Dewar (eds), Land Law: Themes and Perspectives (1998) 15 at 27.

12. Like the different senses of the word "property", the different senses of the word "land" are often conflated in legal discourse. That is nothing new: "[t]he world of the common lawyer has always been a curious blend of the physical and the abstract, a commixture of the earthily pragmatic and the deeply conceptual".[20]

    [20]Gray and Gray, Elements of Land Law, 5th ed (2009) at 6 [1.1.10]. See also Whitman, From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World (2025) at 254-255.

13. Blending of the physical and the abstract is to be seen in the generic definition of "land" in the Interpretation Act: "land includes messuages, tenements and hereditaments, corporeal and incorporeal, of any tenure or description, and whatever may be the estate or interest therein".[21] The generic definition is of long standing and is widespread, having been derived, albeit only in part, from Lord Brougham's An Act for shortening the Language used in Acts of Parliament 1850 (UK),[22] having first appeared in An Act for shortening Acts of the Legislative Council 1852 (NSW) ("the New South Wales Acts Shortening Act"),[23] having been reenacted in the Interpretation Act 1897 (NSW),[24] and having been replicated in the Acts Interpretation Act 1901 (Cth) ("the Commonwealth Acts Interpretation Act")[25] and in the interpretation legislation of other States and Territories.[26]

    [21]Schedule 4 (definition of "land") to the Interpretation Act.

    [22]Section 4 of 13 & 14 Vict c 21: "the Word 'Land' shall include Messuages, Tenements, and Hereditaments, Houses and Buildings, of any Tenure, unless where there are Words to exclude Houses and Buildings, or to restrict the Meaning to Tenements of some particular Tenure". Compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 32 [7].

    [23]Section 6 of 16 Vict No 1.

    [24]Section 21(e).

    [25]Section 2B.

    [26]See Dictionary (definition of "land") to the Legislation Act 2001 (ACT); s 17 (definition of "land") of the Interpretation Act 1978 (NT); Sch 1 (definition of "land") to the Acts Interpretation Act 1954 (Qld).

14. The generic definition of "land", now in the Interpretation Act, applies to the word "land" as used in that or another Act of the New South Wales Parliament "except in so far as the contrary intention appears" in that Act or the other Act.[27] The definition needs to be read in conjunction with the further generic definition of "estate", which likewise first appeared in the New South Wales Acts Shortening Act[28] and which the Interpretation Act likewise applies to the word "estate" as used in that or another Act of the New South Wales Parliament except in so far as the contrary intention appears. The generic definition is that "estate includes interest, charge, right, title, claim, demand, lien and encumbrance, whether at law or in equity".[29]

    [27]Sections 3(3) and 5(2) of the Interpretation Act.

    [28]Section 6 of 16 Vict No 1.

    [29]Schedule 4 (definition of "estate") to the Interpretation Act.

15. Expressed as it is to be no more than inclusive, the generic definition of "land" implicitly treats "the physical substance" as "the natural and primary meaning of the word" and operates as "merely extending" that natural and primary meaning.[30] The references to messuages (houses together with their curtilages[31]) and corporeal hereditaments ("substantial and permanent objects"[32]) are references to physical characteristics of the physical land. The reference to incorporeal hereditaments ("creatures of the mind" which "exist only in contemplation" examples of which are easements and profits à prendre[33]) is a reference to legal or equitable rights in relation to the same physical land, as are the references to any tenure and to any estate or interest in the land. The reference to incorporeal hereditaments therefore imports into the definition "every interest which in law is, or savours of, realty".[34] The reference to tenements is more obscure, the term originally and possibly still referring only to types of buildings[35] but having at one stage been said "in its original, proper and legal sense" to signify "everything that may be holden, provided it be of a permanent nature; whether it be of a substantial and sensible or of an unsubstantial ideal kind".[36]

    [30]The Commonwealth v New South Wales (1923) 33 CLR 1 at 49-50.

    [31]Re Lehrer and the Real Property Act 1900-1956 [1961] SR (NSW) 365 at 370.

    [32]Gray and Gray, Elements of Land Law, 5th ed (2009) at 13 [1.2.11], quoting Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 2 at 17.

    [33]Gray and Gray, Elements of Land Law, 5th ed (2009) at 13 [1.2.12], quoting Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 2 at 17. See also Re Lehrer and the Real Property Act 1900-1956 [1961] SR (NSW) 365 at 370-371.

    [34]Re Lehrer and the Real Property Act 1900-1956 [1961] SR (NSW) 365 at 370; Risk v Northern Territory (2002) 210 CLR 392 at 418 [82].

    [35]See also Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 at 163, querying whether a lease is a tenement.

    [36]Re Lehrer and the Real Property Act 1900-1956 [1961] SR (NSW) 365 at 370, referencing Beauchamp v Winn (1873) LR 6 HL 223 at 241-242 quoting Blackstone, Commentaries on the Laws of England (1766), bk 2, ch 2 at 17.

16. The generic definition of "land" is displaced in the context of the entirety of the ALR Act by the contrary intention which appears from the presence of the more specific definition of "land" in s 4(1) of the ALR Act. Read with the chapeau to s 4(1), the more specific definition is as follows: "In this Act, except in so far as the context or subject-matter otherwise indicates or requires: ... land includes any estate or interest in land, whether legal or equitable".

17. The more specific definition of "land" in s 4(1) of the ALR Act resembles the generic definition in the Interpretation Act in implicitly taking as its starting point that the natural and primary meaning of a reference to "land" in a provision of the ALR Act is limited to physical land. Where it applies, the definition extends such a reference to "land" in a provision of the ALR Act beyond physical land to refer also to a legal or equitable "estate" or "interest" in land, its employment of the word "estate" in that context needing further to be understood in light of the generic definition of that word in the Interpretation Act as encompassing "interest, charge, right, title, claim, demand, lien and encumbrance". But the terms in which the definition of "land" in s 4(1) is introduced make clear that the extended meaning has no application to a reference to "land" in a provision of the ALR Act where the context or subject-matter of the provision indicates that the reference does not extend beyond the natural and primary meaning of "land" as a physical entity.

18. There are numerous references to "land" in provisions of the ALR Act in respect of which the extended meaning supplied by the definition in s 4(1) is readily applicable. Most of those provisions are within Divs 4, 4A and 5 of Pt 2. The subject-matter of Div 4 of Pt 2, as indicated by the heading to that division, is "Land dealings by Aboriginal Land Councils". Regulating that subject-matter, Div 4 refers throughout to "land" and to "dealings" with "land" in contexts which readily bear the extended meaning in s 4(1).[37] Divisions 4A and 5 also contain provisions referring to "land" or to "dealings" with "land" in contexts which bear the extended meaning.[38] So much is confirmed in relation to the provisions of Divs 4 and 4A by a note to the definition of the expression "deal with land" for the purpose of Divs 4 and 4A which draws attention to the definition of "land" in s 4(1) and repeats the terms of that definition.[39] Other references to "land" to which the meaning as extended by the definition in s 4(1) can be seen to be applicable are within Pts 5, 7 and 11 in provisions concerning the powers and functions of Aboriginal Land Councils and administrators.[40]

    [37]Sections 40-42P of the ALR Act.

    [38]Sections 42R(1) and (2), 43(1) and 44A of the ALR Act.

    [39]Section 40(1) (definition of "deal with land") of the ALR Act.

    [40]Sections 52C(5) and (6), 116(1)(c) and 230(1) of the ALR Act.

19. In contrast to those other provisions, s 36 of the ALR Act contains numerous indications that its frequent references to "lands" and occasional references to "land" do not extend beyond land as a physical entity and therefore do not attract the application of the extended meaning in s 4(1). The strongest indication inheres in the subject-matter of s 36 which, adopting the description in the heading to the section, is "claims to Crown lands": "claimable Crown lands" being a category of "lands vested" in the Crown in right of New South Wales which the Crown Lands Minister is obliged by the section to grant, on application, to a claimant Aboriginal Land Council by transferring those lands "for an estate in fee simple".

1. To begin with, the word employed in the expression "claimable Crown lands" in s 36 of the ALR Act, and in the definition of that expression in s 36(1) as "lands vested" in the Crown in right of New South Wales meeting specified conditions, is not "land" but "lands". In many legislative contexts, reference to a word in the plural form will include reference to the word in the singular form.[41] In this context, however, the legislative choice to employ the plural form has a significance beyond the semantic. The significance lies in the purposeful consistency at the time of enactment of the ALR Act of the choice of the expression "claimable Crown lands" and of the definition of that expression as a category of "lands vested" in the Crown in right of New South Wales, with the standard expression of "Crown lands" and the standard definition of that expression as "lands vested" in the Crown in right of New South Wales which then appeared in both the CLC Act[42] and the WL Act.[43]

   [41]Sections 5(1) and (2) and 8(c) of the Interpretation Act.

   [42]Section 5(1) (definition of "Crown Lands") of the CLC Act.

   [43]Section 3(1) of the WL Act as at 1983.

2. That standard expression of "Crown lands", defined as "lands vested" in the Crown in right of New South Wales, can be traced to the expressions and definitions first adopted by the Parliament of New South Wales in the Crown Lands Alienation Act 1861 (NSW)[44] and the Crown Lands Occupation Act 1861 (NSW).[45] The expression "Crown Lands" had there been adopted as a different way of referring to "Waste Lands of the Crown", which had been defined in similar terms in the Australian Colonies Waste Lands Act 1842 (Imp)[46] and the Australian Colonies Waste Lands Amendment Act 1846 (Imp)[47] and which had been understood to refer in that context to "the mass of general undisposed of land in the Colony".[48]  

   [44]Section 1 (definition of "Crown Lands") of 25 Vict No 1.

   [45]Section 1 (definition of "Crown Lands") of 25 Vict No 2.

   [46]Section 23 of 5 & 6 Vict c 36.

   [47]Section 9 of 9 & 10 Vict c 104. See Wilson v Anderson (2002) 213 CLR 401 at 436 [66]-[67]; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at 274-280 [104]-[120].

   [48]Williams v Attorney-General for New South Wales (1913) 16 CLR 404 at 441.

3. Before the enactment of the ALR Act, it had been observed that "[t]he underlying object of the Crown lands legislation from 1861 onwards was to control the Crown prerogative of disposing of the waste lands of the Colony at will and to provide the subjects of the Crown with a statutory right, upon the performance of conditions, to have a grant of land from the Crown".[49] Consistently with that observation, the word "vested" in the reference to "lands vested" in the Crown in right of New South Wales in the standard definition of "Crown lands" had been held to have a "legal meaning" not confined to "vested in possession" such as to include land the subject of a perpetual lease in respect of which the Crown was still the legal owner of the reversion.[50] That holding is consistent with the "lands" so "vested" in the Crown – that is to say, the subject-matter in respect of which the Crown has an existing legal interest – being physical land.[51] What is more, the underlying object to which both the CLC Act and the WL Act continued to be directed made it beyond question that the reference to "lands vested" in the Crown in right of New South Wales in the standard definition of "Crown lands" in the CLC Act and the WL Act, as in all predecessor legislation, was to physical land located in New South Wales in respect of which the Crown held "radical title" from which radical title estates and interests were able to be "carved out"[52] by Crown grants made under the authority of those Acts or other legislation.

   [49]Walsh v Minister for Lands (NSW) (1960) 103 CLR 240 at 254.

   [50]Hawkins v Minister for Lands (NSW) (1949) 78 CLR 479 at 492. See also Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 2] (1987) 162 CLR 153 at 161.

   [51]Compare Coverdale v Charlton (1878) 4 QBD 104 at 120.

   [52]Wik Peoples v Queensland (1996) 187 CLR 1 at 91-92; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513 at 635.

4. Shortly before the enactment of the ALR Act, the RealProperty (Crown Land Titles) Amendment Act 1980 (NSW) inserted a new Pt III into the Real Property Act 1900 (NSW) ("the Real Property Act"). Part III of the Real Property Act provided and continues to provide for the Registrar-General to "bring under" the provisions of that Act any "land"[53] that was, was in the course of being or was capable of being "sold, leased, dedicated, reserved or otherwise disposed of or dealt with ... by or on behalf of the Crown" under any of a number of specified Acts, which included the CLC Act.[54] The Registrar-General was and remains empowered to do so by creating a folio in the Land Titles Register recording "The State of New South Wales" as the proprietor of the land[55] in which event "the estate to which that recording relates is an estate in fee simple".[56] The effect of registration was and is to make the State of New South Wales the holder of the registered estate in fee simple.[57] The relevant emanation of the State of New South Wales for the holding of the registered estate in fee simple, subject to applicable legislative provision to the contrary, was and remains the Crown in right of New South Wales.[58]

   [53]Section 3(1)(a) (definition of "Land") of the Real Property Act.

   [54]Section 13(2) of the Real Property Act.

   [55]Section 13D of the Real Property Act.

   [56]Section 13J of the Real Property Act.

   [57]Section 42(1) of the Real Property Act.

   [58]Compare Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at 40-41 [75].

5. Plainly enough, the same concept of "Crown lands" as "lands vested" in the Crown in right of New South Wales as was manifested in the CLC Act and the WL Act at the time of enactment of the ALR Act was carried over into the definition of "claimable Crown lands" in s 36(1) of the ALR Act. The "Crown lands" rendered claimable through the application of the definition in s 36(1) were to be a subset of the "Crown lands" referred to in the CLC Act and the WL Act: physical land located in New South Wales in respect of which the Crown held radical title and in respect of any portion of which the State of New South Wales might or might not be the holder of an estate in fee simple depending on whether the Registrar-General had brought that portion under the Real Property Act.

6. The scheme of s 36 of the ALR Act was to require the transfer to an Aboriginal Land Council, from the totality of the physical land located in New South Wales from time to time as would continue to comprise "Crown lands", such of that physical land as the Aboriginal Land Council might claim and as the Crown Lands Minister might be satisfied met each of the conditions necessary to constitute claimable Crown lands at the time of claim. The transfer was to be "for an estate in fee simple", necessarily involving the carving out of an estate in fee simple from the radical title by way of the grant itself if an estate in fee simple had not already been created by registration under the Real Property Act.

7. The definition of "land" in s 4(1) of the ALR Act was no more applicable to the definition of "claimable Crown lands" in s 36(1) of the ALR Act than was the generic definition of "land" in the Interpretation Act applicable to the standard definitions of "Crown lands" in the CLC Act and the WL Act for the simple reason that the "lands" in each case were limited to "lands" vested in the Crown in right of New South Wales in respect of which the Crown held either the radical title or through registration an estate in fee simple.

8. Furthermore, the end point of s 36 of the ALR Act being that "lands" which the Crown Lands Minister is satisfied are claimable Crown lands are transferred to the claimant Aboriginal Land Council for an estate in fee simple, the transfer of lands for an estate in fee simple is wholly inconsistent with the "lands" claimed and so transferred being understood in accordance with the definition of "land" in s 4(1) of the ALR Act so as to include "any estate or interest in land, whether legal or equitable" (emphasis added). An estate in fee simple is "the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law", conferring "the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination"[59] and being "for almost all practical purposes, the equivalent of full ownership of the land".[60]

   [59]The Commonwealth v New South Wales (1923) 33 CLR 1 at 42.

   [60]Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43], quoting Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656.

9. Section 36 of the ALR Act could not operate in accordance with its terms to require a transfer of "claimable Crown lands" for an estate in fee simple were the plural "lands" to be read to include the singular "land" and interpreted in accordance with s 4(1) of the ALR Act to include any legal or equitable "estate or interest" in land because a legal or equitable estate or interest in land falling short of an estate in fee simple would be incapable of sustaining a transfer for an estate in fee simple. No transfer from the Crown for an estate in fee simple could be possible, for example, were the Crown merely the lessee of a leasehold estate or the holder of an easement or a profit à prendre. Nor would such a transfer be possible if the Crown merely held an "estate" understood according to the extended meaning of that word in the Interpretation Act to include any "interest, charge, right, title, claim, demand, lien [or] encumbrance". The lesser cannot include the greater.

10. Like the generic definition of "land" in the Interpretation Act, the specific definition of "land" in s 4(1) of the ALR Act can therefore have no application to extend the meaning of the word "lands" in s 36 of the ALR Act. The words "lands" and "land" are employed in s 36 of the ALR Act according to their natural and primary meaning to refer only to physical land.

11. The same conclusion can be couched in language drawn from that of Gummow J in Risk v Northern Territory,[61] in denying the relevance of the generic definition of "land" in the Commonwealth Acts Interpretation Act to the resolution of the issue in that case concerning the territorial reach of the word "land" in the expressions "Crown land" and "unalienated Crown land" in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The conclusion is that the concern of s 36 of the ALR Act in referring to "lands" and "land" in the context of "claimable Crown lands" is not with the identification of "particular interests in realty" but instead with the identification of "a portion of the surface of the earth".

    [61](2002) 210 CLR 392 at 418 [82].

12. The correctness of the conclusion that the "lands" vested in the Crown in right of New South Wales to which the definition of "claimable Crown lands" in s 36(1) refers are confined to physical land is confirmed by the language and, even more so, the substance of the conditions specified in s 36(1)(d) and (e) that those lands "do not comprise lands" that are the subject of an application for a determination of native title that has been registered under the Native Title Act or of an approved determination that native title exists under the Native Title Act. An application for a determination of native title that has been registered under the Native Title Act involves an assertion that a person or persons "hold native title in relation to a specified area of land or waters"[62] the registered particulars of which must include "the area of land or waters covered by the claim".[63] Correspondingly, an approved determination that native title exists under the Native Title Act involves a determination that "native title exists in relation to a particular area ... of land or waters".[64] The definition of "land" for the purposes of the Native Title Act is expressed in terms which make clear that it is concerned only with physical land.[65] That is consistent with the definition of "native title" for the purposes of the Native Title Act, which relevantly refers to "the communal, group or individual rights and interests of Aboriginal peoples ... in relation to land or waters", where "the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples" and "the Aboriginal peoples ..., by those laws and customs, have a connection with the land or waters", and where "the rights and interests are recognised by the common law of Australia".[66] Indeed, it would be a nonsense for the concept of native title as first recognised by the common law of Australia and as "recognised, and protected, in accordance with" the Native Title Act[67] to be sought to be applied to anything other than physical land or waters. Not being "an institution of the common law" but having its origin in and being given its content "by the traditional laws acknowledged by and the traditional customs observed by the [I]ndigenous inhabitants of a territory",[68] native title is a concept that is wholly incapable of meaningful application to a legal or equitable estate or interest in land because a legal or equitable estate or interest in land is the abstract creation of a different system of law.

    [62]Section 184 of the Native Title Act.

    [63]Section 186(1)(e) of the Native Title Act.

    [64]Section 225 of the Native Title Act.

    [65]Section 253 of the Native Title Act.

    [66]Section 223(1) of the Native Title Act.

    [67]Section 10 of the Native Title Act.

    [68]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 58-59; The Commonwealth v Yunupingu (2025) 99 ALJR 519 at 539 [58]-[59]; 421 ALR 604 at 621.

13. For completeness, it needs to be explained how continuing to construe the references to "lands" and "land" in s 36 of the ALR Act according to their natural and primary meaning to refer only to physical land has been and remains consistent with reading references in that section to the CLC Act and the WL Act, in accordance with s 68(3) of the Interpretation Act, to have referred, in the period from 1990 to 2018, to the CLA and the WL Act and to have referred since 2018 compendiously to the CLM Act.

14. Departing from the nomenclature of the CLC Act, the CLA referred to "Crown land" instead of "Crown lands" but defined "Crown land" in relevantly identical terms to the definition of "Crown lands" in the CLC Act as "land that is vested in the Crown".[69]

    [69]Section 3(1) of the CLA.

15. Upon the commencement of the CLM Act, "land" that had been "Crown land" under the CLA became "Crown land" under the CLM Act[70] and thereby became "vested in the Crown ... as an estate in fee simple"[71] irrespective of registration under the Real Property Act.[72] As to the meaning of "land", the CLM Act contains the general definition that "[i]n this Act ... land includes any waters on or under the surface of the land",[73] making clear that "land" is confined to its natural and primary meaning of physical land.

    [70]Section 1.7(a) of the CLM Act.

    [71]Section 1.10(1) and (2) of the CLM Act.

    [72]Section 1.12 of the CLM Act.

    [73]Section 1.5(1) (definition of "land") of the CLM Act.

16. The result is that, at the time of the enactment of the ALR Act and at all times since, the reference to "lands" in the definition of "claimable Crown lands" in s 36(1) of the ALR Act has been confined to the natural and primary meaning of "land" so as to refer only to physical land. The reference has not been extended through application of the definition of "land" in s 4(1) of the ALR Act to include any legal or equitable estate or interest in land. The view that "lands" in s 36(1) is extended by the definition of "land" in s 4(1) to include a legal or equitable estate or interest in land, adopted in the Court of Appeal and defended by the respondents in argument on the appeal to this Court, is wrong.

    Use

17. Once acknowledged that the word "lands" in the definition of "claimable Crown lands" in s 36(1) and throughout s 36 of the ALR Act is and always has been confined to physical land, it cannot seriously be questioned that the words "used" and "occupied" in the reference in s 36(1)(b) to lands "not lawfully used or occupied" are and always have been confined to physical use or occupation. The argument of the respondents that, although "occupied" in s 36(1)(b) can be confined to physical occupation of the physical land, "used" in s 36(1)(b) can be extended to legal utilisation of a legal or equitable estate or interest only needs to be stated to be recognised as unsustainable.

18. There is no reason to read "used" in s 36(1)(b) of the ALR Act differently from the same word appearing in the reference to "land which is vested in the Crown ... and is used for a public reserve",[74] which had been interpreted in Randwick Corporation v Rutledge[75] more than two decades before the enactment of the ALR Act to refer to "the actual use to which the land is put by the persons who in law control it for the time being".[76]

    [74]Section 132(1)(c) of the Local Government Act 1919 (NSW).

    [75](1959) 102 CLR 54.

    [76](1959) 102 CLR 54 at 88.

19. To attribute such a meaning to "used" in s 36(1)(b) of the ALR Act conforms with the understanding of that word in s 36(1)(b) of the ALR Act expressly adopted by the Court of Appeal in each of Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act ("Daruk"),[77] Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council ("the First Nowra Brickworks Claim Case")[78] and Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council ("La Perouse").[79] It is also consistent with the meaning implicitly attributed to that word by this Court in both Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council ("the Wagga Wagga Motor Registry Claim Case")[80] and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("the Berrima Gaol Claim Case").[81]

    [77](1993) 30 NSWLR 140.

    [78](1993) 31 NSWLR 106.

    [79](2012) 193 LGERA 276.

    [80](2008) 237 CLR 285.

    [81](2016) 260 CLR 232.

20. Just as "occupied" was explained in Daruk and confirmed in La Perouse to mean "'actually occupied' in the sense of being occupied in fact and to more than a notional degree", in respect of which "[p]hysical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant",[82] so "used" was explained in Daruk to mean "'actually used' in the sense of being used in fact and to more than a merely notional degree".[83] Neither the Wagga Wagga Motor Registry Claim Case nor the Berrima Gaol Claim Case involved any departure from that conception of "use" as substantial physical use.

    [82](1993) 30 NSWLR 140 at 162-163. See (2012) 193 LGERA 276 at 285-287 [41]-[47].

    [83](1993) 30 NSWLR 140 at 164.

21. The Wagga Wagga Motor Registry Claim Case involved consideration and rejection of an argument that lands were "used" by reason either of a decision having been made to sell the lands or of steps having been taken to achieve that end. The plurality adopted the language of Fullagar J in Council of the City of Newcastle v Royal Newcastle Hospital ("Royal Newcastle Hospital")[84] in highlighting the fallacy of assuming that "deriving an advantage from the ownership of land is the same thing as using the land".[85]

    [84](1957) 96 CLR 493 at 506.

    [85](2008) 237 CLR 285 at 307 [75].

1. The Berrima Gaol Claim Case did not require consideration of whether lands were in any way "used" within the meaning of the ALR Act. Rather, to the extent now relevant, the outcome in that case turned on the majority's consideration and rejection of the proposition that lands which had been the subject of continuous physical possession could be characterised as lands which were not "occupied". Writing separately as a member of the majority in that case, I noted that the explanations in Daruk and the First Nowra Brickworks Claim Case conformed to the distinction between the overlapping concepts of "use" and "occupation" spelt out by Kitto J in Royal Newcastle Hospital, the essential distinction being to the effect that the concept of "occupation" is that of "conduct amounting to actual possession, and some degree of permanence" whereas the concept of "use" is that of "physical acts by which the land is made to serve some purpose".[86] That being so, as the ultimate outcome in Royal Newcastle Hospital itself illustrates, physical acts by which the land is made to serve a particular purpose might well be passive.[87]

   [86](2016) 260 CLR 232 at 269-270 [85]-[87], quoting (1957) 96 CLR 493 at 507-508.

   [87]See Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 3-4; [1959] AC 248 at 255.

2. Within the meaning of s 36(1)(b) of the ALR Act, and conformably with the distinction so recognised, physical "lands" are accordingly "used" only if and to the extent those lands are physically deployed.

   Disposition

3. I agree with the orders proposed by Jagot J. The effect of those orders is to restore the first instance judgment of Preston CJ in the Land and Environment Court of New South Wales.[88]

   [88]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 [2023] NSWLEC 62.

4. GORDON AND STEWARD JJ. The present appeal concerns part of a land claim lodged on 19 December 2016 under s 36 of the Aboriginal Land Rights Act 1983 (NSW) ("the ALR Act") by the second appellant, the New South Wales Aboriginal Land Council ("the NSW ALC"), in respect of the "Paddington Bowling Club", being Lot 5 of Deposited Plan 1156846 in the State of New South Wales ("the Land").[89] The registered proprietor of the Land is the State of New South Wales ("the State").

   [89]This was part of a bulk land claim lodged under s 36 of the ALR Act for all reserves within the meaning of s 78 of the Crown Lands Act1989 (NSW) within the boundary of the first appellant, the La Perouse Local Aboriginal Land Council, save for three specified areas. The boundary extends from northern Wollongong to North Head and includes Paddington.

5. Part 2 of the ALR Act addresses land rights. Where a claim for land is made under the ALR Act, the Crown Lands Minister[90] ("the Minister") shall, if satisfied that the land is "claimable Crown lands", grant the claim by transferring "the whole or that part of the lands claimed" to the claimant Aboriginal Land Council ("the Land Council") or, where the claim is made by the NSW ALC, to a Local Aboriginal Land Council nominated by the NSW ALC.[91]

   [90]"Crown Lands Minister" is defined in s 36(1) of the ALR Act to mean the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 (NSW) or the Western Lands Act 1901 (NSW) under which lands are able to be sold or leased. The reference to the Crown Lands Consolidation Act is to be read as a reference to, from 1 May 1990 to 1 July 2018, the Crown Lands Act by operation of Sch 7 and Sch 8, cl 21(1) of that Act. From 1 July 2018, it is to be read as a reference to the Crown Land Management Act 2016 (NSW) by operation of Sch 7, cl 39 and Sch 8 of that Act.

   [91]ALR Act, s 36(5)(a).

6. The definition of "land" in the ALR Act is important. It is defined, "except in so far as the context or subject‑matter otherwise indicates or requires", to include "any estate or interest in land, whether legal or equitable".[92] "[C]laimable Crown lands" are then defined in s 36(1)[93] relevantly to mean:[94]

   "... 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 1901,

   (b) are not lawfully used or occupied,

   ...

   (c)are not needed, nor likely to be needed, for an essential public purpose, and …" (emphasis added)

   Any transfer of lands to a Land Council under s 36 of the ALR Act is for an estate in fee simple, subject to any native title rights and interests existing in relation to the lands immediately before the transfer.[95]

   [92]ALR Act, s 4(1) definition of "land".

   [93]Subject to qualifications: ALR Act, s 36(5) and (5A).

   [94]As at the date of the claim, the reference to the Crown Lands Consolidation Act should be read as a reference to the Crown Lands Act: see fn 90 above.

   [95]ALR Act, s 36(9), subject to s 36(9A).

7. At the date of the claim by the NSW ALC, the Land was subject to Reserve 1024528 for community and sporting club facilities and tourist facilities and services,[96] and a registered lease granted by the Minister on behalf of the State of New South Wales[97] to Paddington Bowling Club Ltd (then subject to a Deed of Company Arrangement) ("the Club") for 50 years from 1 December 2010 ("the Crown Lease"). The terms of the Crown Lease included that the initial rent was $52,000 per annum and was subject to CPI adjustments and periodic reviews to market; the lessee was given the right to occupy and use the premises for the purpose of "Community and Sporting Club Facilities, Tourist Facilities and Services, Access" ("the Permitted Use"); the lessee was not required to use the site for those purposes but the lessee was prohibited from using the site for any other purpose; and no assignment, sublease, mortgage or other dealing with the Crown Lease was permitted except with the consent of the State.

   [96]New South Wales Government Gazette, No 200, 11 December 2009 at 6044-6045.

   [97]Crown Lands Act, s 34A.

8. In December 2011, the Crown Lease was assigned by the Club to CSKS Holdings Pty Ltd ("CSKS") pursuant to a registered dealing. By 15 October 2015, the Paddington Bowling Club was described as a "forgotten wasteland" that was "overgrown and neglected", with "[d]ecaying furniture and broken umbrellas" and "abandoned bowling greens, which [were] overrun with weeds". CSKS did not use the Land for the Permitted Use. The bowling greens were unattended. The clubhouse was in disrepair.

9. On 10 April 2016, an officer of the Department of Primary Industries ("the Department") required CSKS to remedy alleged breaches of the Crown Lease in relation to the state of repair of the clubhouse and grounds on the Land within 28 days and foreshadowed the potential forfeiture of the Crown Lease ("the Notice"). On 22 April 2016, CSKS's solicitors responded to the Notice by denying that any of the alleged breaches constituted a breach of the Crown Lease which would justify its forfeiture and requesting that it be given until 31 July 2016 to respond to the Notice. The Department did not respond to that letter.

10. On 6 May 2016, CSKS's solicitors again wrote to the Department in response to the Notice. That letter stated that CSKS did not admit that any of the items listed in the Notice constituted a breach of the Crown Lease sufficient to enable the Crown to terminate the Crown Lease. The letter also stated that "the property [was] unoccupied and it [was] not intended that the property [would] be used for public purposes without substantial renovation and refurbishment" and that CSKS considered that its "only real obligation [was] to keep the building structurally sound and waterproof". However, the letter went on to state that "in order to prevent any attempted claim of forfeiture of the [Crown] Lease, [CSKS] ha[d] engaged contractors to rectify the matters ... raised or to provide certification from a suitably qualified expert that the item [was] not presently a major structural defect". Enclosed with the letter were the identified reports and a response to each of the matters listed in the Notice. During May and June 2016, CSKS and the Crown negotiated about alternative uses of the Land. On 20 June 2016, the Department stated in a letter to CSKS's solicitors that it "remain[ed] available to discuss with [CSKS] alternative uses of the [L]and".

11. On 1 February 2018, the Crown Lease was assigned by CSKS to the first respondent, Quarry Street Pty Ltd ("Quarry Street"), with the consent of the Crown. The assignment was registered in April 2018. One condition of the assignment was that Quarry Street acknowledged that the Land was subject to undetermined Aboriginal land claims and that, if the Land or any part of it was transferred to a Land Council pursuant to a claim under the ALR Act, the Crown Lease (or the relevant part of the Crown Lease) would terminate on the date of the transfer.

12. The claim lodged on 19 December 2016 was determined by the Minister on 10 December 2021 on the basis that he was satisfied that the Land (being part of the claim) was "claimable Crown lands" within the meaning of that term under the ALR Act and was then required to grant the claim by transferring the Land to the La Perouse Local Aboriginal Land Council, the first appellant.

13. By a further amended summons filed on 17 May 2023, Quarry Street sought an order preventing the transfer of the Land, an order in the nature of certiorari to quash the Minister's determination and an order that the application be remitted to the Minister to be determined according to law.

14. The primary judge (Preston CJ of the Land and Environment Court ("the LEC")) dismissed the proceeding. The question on appeal to the Court of Appeal of the Supreme Court of New South Wales was whether the primary judge erred in failing to find jurisdictional error in the decision of the Minister to grant the claim in respect of the Land by reason of the Crown Lease and the material before the Minister regarding the Crown's receipt of rent and its exhibition of a landlord's concern about CSKS's compliance with the Crown Lease. There were two issues on appeal: first, whether it was open to the Minister to be satisfied that the Land met the criterion in s 36(1)(a) of the ALR Act requiring the Land to be able to be lawfully sold or leased or subject to a reservation where the Land was subject to the Crown Lease and, second, whether it was open to the Minister to be satisfied that the Land met the criterion in s 36(1)(b) of the ALR Act requiring the Land not to be lawfully used or occupied.

15. In relation to the second issue, being the only issue relevant to this appeal, the Court of Appeal (White JA, Adamson and Stern JJA agreeing) allowed Quarry Street's appeal on the basis that the phrase "lawfully used or occupied" in s 36(1)(b) was not a composite phrase requiring actual physical occupation and use of the Land. Having adopted that construction, the Court of Appeal found that the Land was lawfully used and therefore not claimable because of the Crown's lease of the Land for value pursuant to s 34A of the Crown Lands Act 1989 (NSW), which authorised the Minister to lease such land for any purpose compatible with the public interest and to apply the rental proceeds for public purposes. The Court of Appeal reached that conclusion based on the precise terms for which the Crown Lease provided. The Court of Appeal held that, in those circumstances, the only conclusion that was reasonably open to the Minister was that the Land was "used" and, therefore, that it was not "claimable Crown lands" within the meaning of s 36(1) of the ALR Act.

16. The appeal should be dismissed. As will be explained, a Crown lease may constitute "use" of land and, in light of the acts, facts, matters and circumstances of this case, the only conclusion that was reasonably open to the Minister was that the Land was "used" within the meaning of s 36(1)(b) of the ALR Act.

    Can land be "used" within the meaning of s 36(1)(b) of the ALR Act by reason of a lease?

17. Where an Act has a remedial or beneficial purpose, that purpose may be relevant to its construction.[98] Against this, it must be acknowledged that legislation "rarely pursues a single purpose at all costs" and, as here, a statutory provision may "strike[] a balance between competing interests".[99] Here, the balance that is struck between those interests must ultimately be determined by reference to the text of the provision, read in context.

    [98]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Berrima Gaol") (2016) 260 CLR 232 at 255-256 [32]-[33], 270‑271 [91]-[94], 288 [146], 297 [174].

    [99]Carr v Western Australia (2007) 232 CLR 138 at 143 [5].

18. Examination of the text of s 36(1)(b) of the ALR Act, considered in context, reveals that the word "used" is not confined to physical or practical uses of land and may include the use of land by a landlord in granting a lease. That construction is confirmed by the improbable and impracticable consequences of the alternative construction for which the appellants ("the Land Councils") contended.

    Meaning of "used" and "land"

19. The ordinary meaning of the word "use" is (like its cognate, "used") "protean",[100] in the sense that it is a term of "wide import" and its meaning "depends to a great extent on the context in which it is employed".[101] In its application to land, the ordinary meaning of "use" is not limited to uses of land which involve physical or practical activity on the land. In Council of the City of Newcastle v Royal Newcastle Hospital, for example, the hospital "used" vacant bushland adjoining the hospital by leaving it undeveloped "for [its] own special purposes"[102] – to preserve the "natural therapeutic qualities" of the land for its patients,[103] or in pursuit of a "use in a less direct form" than "actual physical occupation and enjoyment".[104] In explaining that decision, Gibbs J observed in Parramatta City Council v Brickworks Ltd 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".[105]

    [100]Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Wagga Wagga") (2008) 237 CLR 285 at 306 [69].

    [101]Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 at 637; see also 651. See also Council of the City of Newcastle v Royal Newcastle Hospital (1957) 96 CLR 493 at 515.

    [102](1959) 100 CLR 1 at 4; [1959] AC 248 at 255.

    [103]Royal Newcastle Hospital (1957) 96 CLR 493 at 504.

    [104]Royal Newcastle Hospital (1957) 96 CLR 493 at 515.

    [105](1972) 128 CLR 1 at 21. See also Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Nowra Brickworks (No 1)") (1993) 31 NSWLR 106 at 120.

20. The owner of land may be said to "use" their land, within the ordinary meaning of that term, by leasing it to another person, especially where they derive an income or some other benefit by doing so. In Ryde Municipal Council v Macquarie University, Gibbs A-CJ accepted that a person who "owns land may be said to use it for his own purposes notwithstanding that he permits someone else to occupy it, even under a lease".[106] His Honour observed that that is "almost beyond argument when the owner's purpose is to acquire income".[107] His Honour continued by observing that "an owner of premises who leases them is making use of those premises by employing or applying them for the purpose of letting".[108] In that case, the question whether the land was in fact used by the tenant for a particular purpose arose because the rating statute in issue required the relevant use or occupation to be for a particular purpose.[109]

    [106](1978) 139 CLR 633 at 638. See also Tourapark Pty Ltd v Federal Commissioner of Taxation (1982) 149 CLR 176 at 181.

    [107]Macquarie University (1978) 139 CLR 633 at 638.

    [108]Macquarie University (1978) 139 CLR 633 at 638.

    [109]Macquarie University (1978) 139 CLR 633 at 636-637, 640‑641, 651, 653.

21. There is no basis in the text of s 36(1)(b) or its context to construe the word "used" more narrowly so as to require physical use of land. Three aspects of the text are relevant. First, s 36(1)(b) relevantly requires that the land be "lawfully used". It does not specify use of the land of a particular kind or "for" a particular purpose. This case may be distinguished from cases decided in different statutory contexts where the relevant question was, by contrast, whether the "dominant use" of land (by reference to specified activities) meant that it was used "for primary production",[110] whether land was "used exclusively for or in connection with" public charitable purposes,[111] or whether land was used "for a public reserve".[112] Second, the text of s 36(1)(b) is not expressly limited to particular users of the land; it refers to "lands" which are "used or occupied". Third, the term "used" in s 36(1)(b) appears in conjunction with the term "lands", the singular form of which is defined in s 4(1) of the ALR Act to include "any estate or interest in land, whether legal or equitable" – that is, rights to land.

    [110]Chief Commissioner of State Revenue v Metricon Qld Pty Ltd (2017) 224 LGERA 236 at 252 [48], 253 [49], 255 [61].

    [111]Commissioners of Taxation v Trustees of St Mark's Glebe [1902] AC 416 at 419‑421.

    [112]Randwick Corporation v Rutledge (1959) 102 CLR 54 at 88.

22. Taking those features together, it is necessary to examine any uses of the concurrent interests in land (including, as here, both the use of the reversionary interest of a landlord and the use by a tenant in possession). The landlord's reversionary interest is capable of being "used" without any physical or practical activity on the land. Indeed, where the Crown's interest is the estate in land, the only way it can "use" that estate is to grant a leasehold or other right or interest in relation to it, which reinforces the conclusion that the lease of land may constitute "use".

23. Just as the grant of a lease for a specified period of time on specific terms may constitute "use" of the Crown's interest in land, so too may the ongoing operation of that lease for the term of the lease. The lease may, commonly will, and in this case did, impose conditions on use by the tenant in possession. The lease may, and here did, provide for forfeiture if the tenant did not comply with the terms of the lease. The landlord's use of the land constituted by leasing it does not end with the grant of the lease. The landlord's use continues for the term of the lease. The rights and duties created and conferred by the lease record the ongoing use of the fee simple by the landlord and the duties the tenant owes the landlord are the price for which the landlord gives up exclusive possession to the land. That is an ongoing use by the landlord of the land and its rights to the land for the whole of the term of the lease. The landlord continues to use its rights in the land in accordance with the terms of the lease so long as the lease remains on foot.

24. Moreover, s 36(12) identifies certain rights and interests in land to which a transfer of land under s 36 is subject. If a lease were not capable of being a "use", one would expect a transfer of land to be subject to any lease in s 36(12), yet a lease is not listed in s 36(12).

25. The Land Councils submitted that the definition of "land" in s 4(1) of the ALR Act was to be read as referring to the piece of physical land and not extending to any estate or interest in the land. That submission must be rejected. First, "land" is expressly defined to include "any estate or interest in land", and there is nothing in the context of the provision to suggest that meaning is displaced. Second, and in any event, the passage in The Commonwealth v New South Wales stating that "land" referred to "the concrete physical mass" (in the context of explaining why metals present in the land form part of the land)[113] on which the Land Councils relied is no obstacle to the conclusion that "land" in s 36(1)(b) includes a landlord's reversionary interest: a landlord can be said to deploy the concrete physical mass of land by leasing it to a tenant.

    [113](1923) 33 CLR 1 at 33.

1. Contrary to the Land Councils' further submission, there is no tension in the concept of "land" having a particular meaning when employed in connection with the term "used" as compared to the term "occupied" in s 36(1)(b). Those terms have separate meanings.[114] The definition of "land" applies throughout the ALR Act subject to a contrary intention, and so it may apply distributively. There is therefore no difficulty that an "estate or interest" is not usually described as "occupied". Equally, the fact that, when the term "land" or "lands" is used throughout s 36, different aspects of its meaning have significance does not demand a particular conclusion as to the aspects of its meaning which are engaged when the term is employed in the particular context of s 36(1)(b).

   [114]Berrima Gaol (2016) 260 CLR 232 at 250-251 [14].

2. Moreover, it may be accepted that one purpose of the definition of "land" as applied to s 36(1)(b) might be to clarify that "the particular legal characterisation of the Crown's holding in claimed land does not give rise to any doubt that the land is eligible to be claimed". That, however, does not preclude the defined term from also being used to assist in determining which potential "uses" of land are relevant.

3. The conclusion that the construction of the term "used" in connection with land in s 36(1)(b) is not limited to physical use is not denied by examining how the term "Crown lands" (or the singular form, "Crown land")[115] has been defined or understood in other Acts or historical contexts. Reference to historical or other uses of the term "Crown lands" in other contexts does not establish that that term refers only to physical land and not estates or interests in land.[116] Those historical or other uses of the term shed no relevant light on whether the definition of "land" in the ALR Act applies according to its terms. More particularly, they provide no foundation for concluding that the ALR Act reveals any contrary intention to applying the definition in the Act according to its terms when considering whether land is "used" within the meaning of s 36(1)(b) of the ALR Act.

   [115]See, eg, Crown Lands Act, s 3(1) definition of "Crown land".

   [116]cf Crown Lands Consolidation Act, s 5 definition of "Crown Lands" ("lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee-simple under the Crown Lands Acts") (emphasis added); Hawkins v Minister for Lands(NSW) (1949) 78 CLR 479 at 492 (as to the meaning of "vested in His Majesty").

   Lease may be use of land under s 36(1)(b)

4. The Land Councils' submissions that a lease cannot constitute use of land for the purposes of s 36(1)(b) should be rejected.

5. First, there is no incongruity in the qualifying and disqualifying conditions for "claimable Crown lands". The Land Councils contended that it would be incoherent if a qualifying condition for a land claim in s 36(1)(a) (that the land is "able to be lawfully … leased") were also a disqualifying condition, namely that the land is in fact used by being leased. There is no incongruity in the ALR Act treating the existence of a lease as a disqualifying condition for land claims while providing that lands "able to be" leased are claimable. Those are different concepts. It may be accepted that it would be incongruous if the mere notional occupation of land (such as by reference to the fiction that the Crown occupies land regardless of its use[117]) were sufficient to exclude land from liability to claim. But the grant of a Crown lease in exchange for substantial rent and in pursuit of a reserved purpose is not a mere notional or constructive use.

   [117]Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276 at 286-287 [44]-[46], relevantly citing Attorney‑General v Brown (1847) 1 Legge 312 at 317. See also Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 162.

6. Second, the fact that any transfer of land to a Land Council under s 36 of the ALR Act will be for an estate in fee simple[118] concerns the nature of the title to be transferred to the Land Council. It has no bearing on what constitutes use of the land prior to the transfer. On the contrary, the fact that the ALR Act describes what is being transferred when a land claim is granted as the "fee simple"[119] or a "lease in perpetuity"[120] confirms that the extended definition of "land" is being used.

   [118]ALR Act, s 36(9).

   [119]ALR Act, s 36(9).

   [120]ALR Act, s 36(9A).

7. Third, the Land Councils referred to the existence of 29 different types of leases or licences under Crown lands legislation when the ALR Act was enacted, which varied in their terms and conditions, as support for their narrower construction of "use". They contended that the decision of the Court of Appeal "suggests" that the mere existence of a lease could amount to "use" without an inquiry into the nature or operation of the particular lease. The issue in this appeal is whether this Crown Lease, which required payment by the lessee in exchange for exclusive possession and whose terms were enforced by the Crown, amounted to use of the Land within the meaning of s 36(1)(b) of the ALR Act. That question does not raise for consideration any question about whether other forms of lease of a different character and in a different factual situation would constitute use of land within the meaning of s 36(1)(b) of the ALR Act.

8. Fourth, the Land Councils contended that the transitional provision in cl 8 in Pt 2 of Sch 4 to the ALR Act would be rendered otiose if a lease could constitute "use" within the meaning of s 36(1)(b) of the ALR Act. That provision provides that:

   "Where, but for this clause, any lands would be claimable Crown lands as defined in section 36, those lands shall not, if they were, on the appointed day, the subject of a lease, licence or permissive occupancy, be claimable Crown lands as so defined until the lease, licence or permissive occupancy ceases to be in force."

   The Land Councils contended that, since that transitional provision preserves existing leases from the definition of "claimable Crown lands" until they cease to be in force, that provision would have been unnecessary if a lease could constitute "use" of land. That argument should be rejected. It is not unusual for transitional provisions to be included out of caution and Parliament is sometimes guilty of "surplusage".[121] In any event, the transitional provision employs a composite expression which reflects the range of tenure under the Crown Lands Consolidation Act,[122] not all of which will necessarily result in land being "used" by its owner. The provision has relevant work to do in respect of gratuitous licences and permissive occupancies, in relation to which the Crown does not obtain a profit or lose the right to engage in activities on the land, unlike in the case of a lease requiring the payment of rent and conferring exclusive possession on a tenant.

   [121]Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679; Western Australian Planning Commission v Southregal Pty Ltd (2017) 259 CLR 106 at 122 [55].

   [122]Nowra Brickworks (No 1) (1993) 31 NSWLR 106 at 118.

   Improbable consequences

9. The text and context tend strongly in favour of the conclusion that "used" in s 36(1)(b) is not confined to physical or practical uses of land and may include the landlord's use of the land by granting a lease. The correctness of that construction is reinforced by the improbable and impracticable consequences of the Land Councils' construction, which suggest that it is unlikely to have been intended.[123]

   [123]See CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78]; Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 389‑390 [25], 404-405 [68].

10. A consequence of the Land Councils' construction would be that the Crown's fee simple would be liable to claim under the ALR Act whenever its tenant ceases to conduct activities on Crown land. The Crown's fee simple would therefore depend on the diligence of a tenant in pursuing the permitted purpose under the lease. Further, as the Minister submitted, frequent monitoring would be required, not only of tenants but also potentially of Crown land managers, to ensure that Crown land was practically "used" to more than a notional degree. And even assuming such monitoring was feasible, the Crown's fee simple would be liable to claim in the period in which the Crown allowed existing tenants time to remedy any inactivity in breach of the lease, and during the period in which it sought to install a new tenant. All of that assumes that the relevant Crown lease, unlike the Crown Lease in issue in this appeal, contained a term prohibiting tenants from inactivity which the Crown could seek to enforce.

11. The Land Councils' construction would also mean that, during periods of development or structural work by private tenants, Crown land may be at risk of claim. Such risk may discourage the deferred use of land by private tenants while they engage in offsite preparatory work which may, in turn, discourage investment in the redevelopment of Crown land in pursuit of the purpose for which the land was reserved.

12. Two further matters should be considered. Quarry Street submitted that, if land subject to a lease was claimable Crown lands, and part of the land covered by a Crown lease was transferred to a Land Council, then the Land Council would receive the fee simple subject to the existing leasehold interest, which would pose practical difficulties not contemplated by the ALR Act. It may be accepted that, following a successful claim in relation to part of the land covered by the lease, the ALR Act does not provide for how a tenant's rights under a lease are to be affected where they would have two landlords in respect of different parts of the land subject to the lease. It is unnecessary to resolve that issue. It is, however, at least arguable that ss 117 and 119 of the Conveyancing Act 1919 (NSW) would apply in such a case so that, on "severance" of the reversionary estate, the rent would run with the reversionary estate in the land and conditions of the lease in respect of the severed parts of the estate could be apportioned to those parts.

13. In the Court of Appeal White JA observed:

    "For the [Land Councils], it was submitted that the Minister could avoid claims by [Land Councils] by entering into a 'paper lease' where the Crown had ceased its use of lands but had not made a decision as to whether to sell lands that were surplus to the Crown's requirements. [Quarry Street] submitted that [a Land Council] could procure a lessee from the Crown not to use all or part of the lands leased so as to make a claim for land not physically used.

    Parliament would not have contemplated that either the Minister or [a Land Council] would abuse his, her, or its position either, in the case of the Minister, to defeat a land claim that was properly available or, in the case of [a Land Council], to procure a transfer of land to which it was not entitled. These are 'extreme examples and distorting possibilities' that are not useful guides for construction".[124]

    [124]Citing Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 at 43 [32]; Mondelez Australia Pty Ltd v Australian Manufacturing Workers Union (2020) 271 CLR 495 at 527 [86].

14. The phrase "paper lease" appears to be an adaptation of the phrase "paper subdivision", a term used to describe a "subdivision of land that may be effected without the necessity for any building work"[125] or "a subdivision that does not facilitate any change to the buildings or works on the land or the nature of the occupation of the land and simply creates lots capable of separate disposal".[126] The possibility that the Crown might enter into a "paper lease" (namely, a lease not contemplating any real use of the land by the tenant) as a form of sham was rightly rejected by the Court of Appeal as a basis for construing "used" in s 36(1)(b) to mean "physical use".

    [125]Bowen v Willoughby City Council (2000) 108 LGERA 149 at 155 [30].

    [126]GNL Developments Pty Ltd v Monash City Council [2019] VCAT 1635 at [40].

    Cases

15. None of the cases on which the Land Councils relied concerned a claim to land leased by the Crown. Rather, the Land Councils' argument proceeded by seeking to draw analogies with those cases. That argument paid insufficient heed to the plurality's observation in this Court in Minister Administering the Crown Lands Act v NSW Aboriginal Land Council ("Wagga Wagga") that "nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands".[127] Put in different terms, it is important and necessary to recall what was said by Windeyer J, albeit in a different context: the Court should read its previous judgments "in relation to the circumstances of each case and to the arguments which were then adduced" and "[t]o select passages from them and to subject their words to detailed analysis as if they provided a definitive exegesis of [the relevant provision] can be most misleading".[128]

    [127](2008) 237 CLR 285 at 305-306 [69].

    [128]Ex parte Professional Engineers' Association (1959) 107 CLR 208 at 268. See also Spratt v Hermes (1965) 114 CLR 226 at 272.

16. This Court's decision in Wagga Wagga is important for other reasons. It is true that the plurality observed that there "can be no doubt that sale of the land would amount to exploitation of the land as an asset of the owner" and that it did not follow that "exploitation, by sale, amounts to lawful use of the land let alone its lawful occupation".[129] It is one thing to conclude, as the plurality did in Wagga Wagga, that an owner in possession does not "use" land where it takes steps to sell the land but does not otherwise make any use of the land.[130] The sale of land, involving as it does the disposing of the asset, is more akin to an anti-use. It is quite another thing for the Crown to lease land which has been reserved for a public purpose to a private tenant on terms that permit the tenant to use the land for that purpose, in exchange for the ongoing payment of substantial rent.

    [129]Wagga Wagga (2008) 237 CLR 285 at 307 [74].

    [130](2008) 237 CLR 285 at 307 [74].

17. Moreover, the plurality did not say that use requires physical activity on the land, nor is that a necessary consequence of the plurality's reasoning. Significantly, the plurality described the applicable inquiry as "identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being 'not lawfully used or occupied'" and then measuring "those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land".[131] That is the task. Unsurprisingly, the inquiry will vary from case to case because the acts, facts, matters and circumstances will vary from case to case. The decided cases must be read paying close attention to what was said in Wagga Wagga.

    [131]Wagga Wagga (2008) 237 CLR 285 at 305 [69]. See also Minister Administering Crown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379 at 429 [232].

18. So, for example, the passage from Gibbs J's reasons in this Court's decision in Parramatta City Council 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"[132] demonstrates that this is only part of the inquiry of whether a use falls within the terms of s 36(1)(b). The answer is determined by applying the approach explained by the plurality in Wagga Wagga, to which reference has just been made.

    [132](1972) 128 CLR 1 at 21.

19. In the Court of Appeal of New South Wales in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act, Priestley JA (with whom Cripps JA agreed) considered that the word "used" in s 36(1)(b) meant "'actually used' in the sense of being used in fact and to more than a merely notional degree".[133] Priestley JA was not suggesting that the "use" inquiry is concerned only with practical activity on the land, as is confirmed by his Honour's rejection of the argument that "members of the public made use of [the relevant part of] the land by looking at it".[134] That argument was rejected on the basis that there was no evidence to support that conclusion, not because such activity would not constitute "use".[135]

    [133](1993) 30 NSWLR 140 at 164.

    [134]Daruk (1993) 30 NSWLR 140 at 164-165.

    [135]Daruk (1993) 30 NSWLR 140 at 165.

20. In Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council ("La Perouse"), Basten JA (Beazley, McColl and Macfarlan JJA agreeing) considered that "transitory physical activities on land do not necessarily amount to use or occupation".[136] Again, the statement is not absolute and nor could it be. The reference to "necessarily" makes that clear. Moreover, it does not follow that their Honours were of the view that physical activity is necessary to establish "use". As in Wagga Wagga, the focus on "physical activities"[137] which took place on the land is explained by the fact that the Crown was the owner in possession of the land.

    [136](2012) 193 LGERA 276 at 289 [57].

    [137]La Perouse (2012) 193 LGERA 276 at 284 [36].

21. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act ("Berrima Gaol"), the plurality referred to statements by Priestley JA in Daruk that the "occupied" limb could not be satisfied by constructive occupation, that "mere proprietorship could not suffice" and that "[p]hysical acts of occupation, the exercise of control and maintaining the lands were all factors which are relevant".[138] Their Honours went on to conclude that the words "used" and "occupied" "require an examination of activities undertaken upon the land in question".[139] Again, it does not follow from those statements that only physical activities on land may constitute "use". It may be accepted that, where the Crown is in possession of land, an examination of activities undertaken on the land is required; it is quite a different proposition to say that physical activity on the land is required where the Crown is a landlord not in possession.

    [138]Berrima Gaol (2016) 260 CLR 232 at 251-252 [17]-[18], citing Daruk (1993) 30 NSWLR 140 at 160-162, 164.

    [139]Berrima Gaol (2016) 260 CLR 232 at 256 [34].

22. Subject possibly to the first instance decision of the LEC in New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act,[140] the cases do not foreclose the conclusion that a Crown lease may constitute "use" under s 36(1)(b). That is unsurprising because, to the extent that the cases have considered whether a lease of land amounts to "use" of the land, they have done so by reference to the activities of the lessee.[141] And that was the position in Little Bay, where a land claim was granted in part in respect of land the subject of a lease to a surf lifesaving club. Under a term of the lease, the club was required not to use the curtilage to a building on the land except for the purposes of access.[142] In granting the claim in part in relation to the curtilage, the trial judge concluded that the lease was relevant to establish that the occupation and use were lawful but did not consider it "appropriate to consider the [l]ease divorced (either actually or notionally) from the facts, matters and circumstances of the actual use or actual occupation of the [c]laimed [l]and by" the surf lifesaving club.[143]

    [140][2022] NSWLEC 142.

    [141]See, eg, Nowra Brickworks (No 1) (1993) 31 NSWLR 106 at 120-121.

    [142]Little Bay [2022] NSWLEC 142 at [63], [65].

    [143]Little Bay [2022] NSWLEC 142 at [59].

1. Other aspects of the Aboriginal Land Rights Act confirm this construction.

2. The overall framework within which s 36 of the Aboriginal Land Rights Act operates is that a land claim will be in respect of lands vested in Her Majesty able to be transferred for a fee simple interest and that, if granted, the Crown Lands Minister is to transfer the claimed land to the claimant Aboriginal Land Council "for an estate in fee simple". As Deane, Dawson and Gaudron JJ have explained:[291]

   "While the theory of our land law is that the radical title of the Crown lies between the physical land and a freehold estate in it, the ownership of the freehold estate has long been, for almost all practical purposes, the equivalent of full ownership of the land. As a result, the freehold estate is, as a matter of legal and popular language, commonly treated as the land itself".

   [291]Nullagine Investments Pty Ltd v Western Australian Club Inc (1993) 177 CLR 635 at 656, referring to Williams, Principles of the Law of Real Property, 23rd ed (1920) at 6-7, Megarry and Wade, The Law of Real Property, 5th ed (1984) at 13 and Gray, Elements of Land Law (1987) at 58.

3. This reflects the common law orthodoxy that:[292]

   "A fee simple is the most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the beginning of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination".

   [292]The Commonwealth v New South Wales (1923) 33 CLR 1 at 42, quoting Sweet, Challis's Law of Real Property, 3rd ed (1911) at 218. See also Fejo v Northern Territory (1998) 195 CLR 96 at 126 [43], 146-147 [93].

4. The formula of words used in s 36(1)(a), "are able to be lawfully sold or leased, or are reserved or dedicated", assumes that the State owns a physical mass or tract of ground and is able, by transfer, to vest such ownership in an Aboriginal Land Council.

5. Thereafter, s 36(1)(b1) refers to lands which, in the opinion of the Crown Lands Minister, are not needed or likely to be needed as residential lands. Section 36(1)(c) refers to lands not needed, nor likely to be needed, for an essential public purpose. Section 36(1)(d) refers to lands the subject of a registered application for a determination of native title. Section 36(1)(e) refers to lands that are the subject of an approved determination of native title (other than that no native title exists in the lands).

6. Working backwards from s 36(1)(d) and (e), "land" is defined in s 253 of the Native Title Act 1993 (Cth) in these terms: "land includes the airspace over, or subsoil under, land, but does not include waters". That is, the concept of "land" in the Native Title Act is a physical mass or tract of ground. Accordingly, "lands" the subject of a registered application for or an approved determination of native title in s 36(1)(d) and (e) of the Aboriginal Land Rights Act must also be understood as a physical mass or tract of ground subject to a registered application for a determination of native title or an approved determination that native title exists. Consistently with this, s 223(1) of the Native Title Act provides that "[t]he expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where ...". Accordingly, land is the physical mass or tract of ground and native title is a right or interest (analogous to an estate or interest in land at common law) in respect of that physical mass or tract.

7. In s 36(1)(b1) and (c), the concept of "lands" that may be needed or likely to be needed as residential lands or for an essential public purpose also involves the physical mass or tract of ground so needed or likely to be needed. It would make no sense to refer to an estate or interest in land (such as a lease or an easement) as being so needed or likely to be needed.

8. Section 36(4A)(a) and (5) contemplate, respectively, that part of the land the subject of a land claim may not be vested in Her Majesty or may not be "claimable Crown lands", in which event, respectively, that part of the land claim may not be referred to the Crown Lands Minister and cannot be granted by the Crown Lands Minister. The concepts of the whole or "part" of the claim relating to lands, as referred to in s 36(4A)(a), and the whole or part "of the lands claimed" being or not being "claimable Crown lands", as referred to in s 36(5), contemplate that the "land" in question is a physical mass or tract of ground. The same conclusion follows in respect of s 36(5A) and (8), which respectively concern "the whole or part of the lands claimed" and "any land the subject of a claim" being needed, or likely to be needed, in the case of s 36(5A), for an essential public purpose or, in the case of s 36(8), as residential land. In both cases, the need or likely need relates to the physical mass or tract of ground, not the whole or a part of any estate or interest in the land.

9. The language of s 36(9) is also important. On the grant of a land claim, what is to be transferred is the "lands ... for an estate in fee simple".[293] Section 36(9), accordingly, treats the land as the physical mass or tract of ground and the transfer of that physical mass or tract as for an estate in fee simple (in contrast to some lesser freehold or non‑freehold estate or interest in the land). This is consistent with the fact that "land claim" is defined in s 4(1) as a "claim for land made under [s] 36".[294] That is, the claim is for a physical mass or tract of ground and, if granted, what is transferred is the "most extensive in quantum, and the most absolute in respect to the rights which it confers, of all estates known to the law" in that physical mass or tract of ground.

   [293]Emphasis added.

   [294]Emphasis added.

10. Section 36(9C), (10) and (12) are also relevant. By s 36(9C), land transferred to two or more Aboriginal Land Councils under s 36 may be transferred to them as joint tenants or as tenants in common. Section 36(9C) therefore contemplates that the "land" is a physical mass or tract of ground and the estate transferred is the fee simple as a joint tenancy or tenancy in common. By s 36(10), a transfer of lands under s 36 operates to revoke any reservation or dedication of the lands. Section 36(10) therefore contemplates that the "lands" are a physical mass or tract of ground and the transfer has the effect of revoking those two interests in the lands. By s 36(12), a transfer of lands under s 36 is subject to specified estates and interests in respect of the lands. Section 36(12) therefore contemplates that the "lands" are a physical mass or tract of ground and the transfer is subject to the estates and interests in respect of the lands which are specified in s 36(12).

11. Perhaps most importantly, cl 8 of Sch 4 to the Aboriginal Land Rights Act specifically identifies those estates or interests in land which mean that land subject to such an estate or interest is not "claimable Crown lands". By cl 8 of Sch 4, if land is subject to a lease, licence or permissive occupancy, that fact alone does not take the land outside of the scope of "claimable Crown lands" unless two conditions are satisfied. First, the lease, licence or permissive occupancy must have been in force on 10 June 1983. Second, the lease, licence or permissive occupancy must continue to be in force at the time when a claim is made for the land.

12. Clause 8 of Sch 4 accords with the manifest object of the legislation, to make available a pool of land vested in the State for land claims which are to be determined having regard to facts made relevant by the statute rather than administrative discretions (including the grant of estates or interests in land after the appointed day of 10 June 1983). That legislative object would be readily defeatable if, contrary to cl 8 of Sch 4, the mere existence of a lease, licence or permissive occupancy of land vested in the State, at the time of a claim being made, operates to take the land outside of the scope of "claimable Crown lands" for the duration of the lease, licence or permissive occupancy. This is particularly so given that, under the Crown lands legislation, a "lease" of land need not involve a grant of exclusive possession and may be granted for a term of up to 100 years.[295]

    [295]eg, Crown Lands Act, ss 41-42.

13. Clause 8 of Sch 4, by only taking land subject to a lease, licence or permissive occupancy that existed as at 10 June 1983 and continues to exist as at the date of the claim outside of the scope of "claimable Crown lands", evinces a manifest statutory intention that lands otherwise subject to a lease, licence or permissive occupancy – being a lease, licence or permissive occupancy granted after 10 June 1983 – may be "claimable Crown lands" depending on other relevant acts, facts, matters and circumstances.[296] This is hardly surprising. If land subject to a lease (or a licence or permissive occupancy styled as a lease) were "used or occupied" within the meaning of s 36(1)(b) by reason of nothing more than the existence of such an estate or interest in the land, the Aboriginal Land Rights Act could be made a dead letter by executive action. Clause 8 of Sch 4 is irreconcilable with any such construction of s 36(1)(b).

    [296]By analogy to Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7.

    Avoiding statutory incoherence

14. A "legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions."[297]

    [297]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] (footnotes omitted).

15. That lands "able to be lawfully sold or leased" and lands "reserved or dedicated" are independent qualifying conditions for land to be "claimable Crown lands" is important. The former concerns legal capacity (to sell or lease). The latter concerns a fact (of reservation or dedication). If, as is the case, the fact of the reservation or dedication is a qualifying condition and the capacity to sell or lease is also a qualifying condition, it makes no sense for the mere exercise of the capacity to lease to be a disqualifying condition by necessarily constituting either the use or occupation of land within s 36(1)(b). Otherwise, s 36(1)(a) and (b) would be incoherent and incongruent.

16. This potential for incoherence and incongruence has long been recognised and avoided.

17. Some 30 years ago, Priestley JA, with whom Cripps JA agreed, first explained the potential for incoherence and incongruity.[298] As his Honour explained:[299]

    "Although at the time of its second reading the Bill which became the Aboriginal Land Rights Act was vigorously criticised ... the Minister's claim [in the second reading speech] that it went far beyond the Commonwealth Act [the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)] seems to have been well founded, at least in regard to who could claim land, and what land could be claimed. This is of some relevance in construing the words of s 36(1). In particular, it seems to me, the fact that under the Commonwealth Act the setting apart of land for a public purpose disqualifies it from being claimable, whereas under the Aboriginal Land Rights Act reservation for any purpose under the Crown Lands Consolidation Act 1913 is a qualifying condition, must have a bearing on the meaning of s 36(1)(b). This is because reserved Crown land is ipso facto lawfully occupied in at least some senses of the word."

    [298]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140.

    [299]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 160 (emphasis in original).

18. Priestley JA continued, saying:[300]

    "The juxtaposition of par (a) and par (b) of s 36(1) of the Aboriginal Land Rights Act makes it clear that occupation in the foregoing broad sense [that is, 'the doctrine of acquisition of sovereignty of territory "by occupation (or 'settlement' to use the term of the common law)"'[301]] is not what par (b) refers to or means. The word 'occupied' in par (b) must have a more limited meaning. How should the limitation be described?"

    [300]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 161.

    [301]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 160, quoting Mabo v Queensland [No 2] (1992) 175 CLR 1 at 33.

19. Priestley JA conceived of the required limitation on the meaning of "occupied" in s 36(1)(b) as emerging from the distinction between "constructive occupation" and "actual occupation", so that "occupied" in s 36(1)(b) means "'actually occupied' in the sense of being occupied in fact and to more than a notional degree".[302] Recognising that the same incongruity would otherwise arise in respect of the concept of "used" in s 36(1)(b), Priestley JA said that the same "considerations in my opinion lead to the conclusion that 'used' in par (b) means 'actually used' in the sense of being used in fact and to more than a merely notional degree".[303] In so saying, Priestley JA did not suggest that an actual use, in fact, of land to more than a merely notional degree could not be a passive use for a purpose achievable by ensuring that people do not carry out activities on land.

    [302]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 162.

    [303]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 164.

20. Subsequent authorities have not doubted this approach.[304] Priestley JA was and remains correct that it would be self-defeating for the Aboriginal Land Rights Act, on the one hand, to require "claimable Crown lands" to be vested in Her Majesty (so that, at common law, the lands would be occupied by the Crown) and, on the other hand, to disqualify land from being "claimable Crown lands" if it is "occupied" in this constructive sense. The same self-defeating consequence would follow if the mere existence of an estate or interest in land such as or styled as a "lease" suffices to make necessary the conclusion that the land is "used" within the meaning of s 36(1)(b).

    [304]See, eg, Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276 at 279 [8], 287 [47]; the Berrima Gaol case (2016) 260 CLR 232 at 251-253 [17]-[23], 258 [44]-[46], 268-270 [81]-[88], 298-299 [179]-[182], 300-301 [185].

21. It is this very same potential paradox in legislative operation that underlies the reasoning in the Wagga Wagga case. As Mason P said in the decision of the Court of Appeal in that case, in respect of steps in the sale of land, a "qualifying pre-condition (compliance with para (a)) cannot in the same breath constitute a disqualifying condition (pursuant to para (b)). Were it so, the statutory scheme would be self-contradictory."[305]

    [305]NSW Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 157 LGERA 18 at 25 [23].

22. The Court of Appeal in the present case recognised that "[i]t has always been accepted that ... notional occupation [by land merely being vested in the Crown] is not sufficient to engage the exception in s 36(1)(b). Were it otherwise, the Act would be a dead letter".[306] The Court of Appeal, however, relied on the uncontroversial proposition that "lawfully used or occupied" in s 36(1)(b) is not a composite phrase but is to be read as meaning two separate concepts of "lawfully used" or "lawfully occupied" to conclude that there was "no reason not to apply the definition of 'land' in s 4 where the issue is the use, rather than the occupation, of land".[307] This latter proposition, however, does not follow from the former and creates the very same incoherence and incongruence previously avoided.

    [306]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534 at 545 [43].

    [307]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534 at 557 [118], applying the Berrima Gaol case (2016) 260 CLR 232 at 250-251 [14].

23. Whatever function the remedial and beneficial purpose of the Aboriginal Land Rights Act might or might not have in construing any individual provision of that Act,[308] s 36(1)(b) is not to be construed in a way that renders the Act effectively incapable of achieving the vesting of any land in Aboriginal Land Councils by the merest expedient, after 10 June 1983, of the grant of any estate or interest in land in the State vested in Her Majesty, including a "lease", thereby placing such land outside the scope of "claimable Crown lands" for up to 100 years. It is not to be accepted that the New South Wales Parliament intended this legislation to be so readily avoided in perpetuity.

    [308]cf the Wagga Wagga case (2008) 237 CLR 285 at 288-289 [3]-[5], 290 [9], 293 [19], 296 [28], 300 [44], 301 [47]-[48]; the Berrima Gaol case (2016) 260 CLR 232 at 255-256 [30]-[34], 270-271 [91]-[94], 288 [146], 297 [174], 298 [178], 300-301 [185].

    A "use" of land may be passive but not "constructive"

24. The Court of Appeal's reasoning, adopted in the submissions of Quarry Street in this appeal, also assumes that because a "use" of land under s 36(1)(b) does not necessarily involve the carrying out of any physical activity on the land, the concept of "use" is therefore broad enough to encompass the kind of mere constructive or notional use that is involved in land merely being subject to a lease at the date of a claim.

25. For example, the Court of Appeal said that the "fact that CSKS did not physically use the land does not mean that the Minister did not use it by leasing it to CSKS for the purpose stated in the lease".[309] The Court of Appeal also said that "the authorities on s 36(1)(b) have consistently construed the words 'lawfully used' as referring to physical activities on the land".[310] This statement overlooks the observations in the cases that the purpose of the use "will dictate the degree of immediate physical use required to decide whether [lands] are actually used in more than a notional sense".[311] In rejecting the (false) concept that a "use" of land always requires the carrying out of physical activity on land (which has never been the law), the Court of Appeal conflated a passive use of land with a mere constructive or notional use of land. That conflation is in error.

    [309]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534 at 557 [119].

    [310]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534 at 556 [111].

    [311]Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 at 121, quoted in, eg, NSW Aboriginal Land Council v Minister Administering Crown Lands Act (2007) 157 LGERA 18 at 25-26 [34]. See also Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276 at 284-285 [35]-[40].

26. In the context of s 36(1)(b), it has long been conventional that the correct approach to "use" does not require any physical activity on the land because the fact of "use" depends on the purpose of the use. Accordingly, as observed by Basten JA, with whom Beazley, McColl and Macfarlan JJA agreed, in Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council: (a) "the purpose of any putative use will, inevitably, assist in identifying the physical activities which may be sufficient to constitute use or occupation"; (b) what is required is the "actual use" of land in fact, in the sense of a more than merely notional, present and not merely contemplated or intended, use of the land; and (c) while what is required is such an actual use of land, such actual use need not involve physical acts on the land, as some uses of land are for a purpose which requires no physical activity at all.[312] Examples in the authorities of passive uses of land not necessarily requiring any physical activity but involving the present physical deployment of the land for a purpose include: bushland used as curtilage to a hospital, rifle range or powder magazine;[313] fallow land and soil regeneration areas;[314] and nature reserves and foreshore parks.[315] In contrast, the mere holding of land for a future development opportunity has been held not to be a use of land.[316]

    [312](2012) 193 LGERA 276 at 284-285 [35]-[41], referring to the Royal Newcastle Hospital case (1957) 96 CLR 493 at 515, Randwick Corporation v Rutledge (1959) 102 CLR 54 at 88, Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 21, Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 287-288 and Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 162.

    [313]The Royal Newcastle Hospital case (1957) 96 CLR 493 at 514-515; Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1 at 4; [1959] AC 248 at 255.

    [314]Rainn Pty Ltd v Commissioner of State Revenue (Vic) 2016 ATC ¶20-597 at 19,247 [35].

    [315]Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 143.

    [316]Chief Commissioner of State Revenue v Metricon Qld Pty Ltd (2017) 224 LGERA 236 at 257 [67].

1. The Court of Appeal's expressed understanding of the reasoning of Fullagar J (in dissent in the result) in the Royal Newcastle Hospital case[317] further exposes its erroneous view that the authorities say that a "use" of land necessarily involves physical activity on the land.[318] Fullagar J's point was that it is a fallacy to conflate the deriving of an advantage from land and the use of land.[319] According to the Court of Appeal, Fullagar J's reasoning assumes "use" of land requires a physical use.[320] Fullagar J, however, was saying only that the mere deriving of an advantage from land (eg, rent, an outlook, a buffer) was not necessarily a use of land. Nor does Fullagar J's agreement with the reasoning of Kitto J carry any proposition that "use" needs to involve physical activity on the land.[321] Kitto J, for example, accepted that it was "easy to imagine a case in which hospital buildings may take up a small part only of a large park-like area and yet the proper conclusion of fact may be that the whole area is occupied or used for the purposes of the hospital".[322]

   [317](1957) 96 CLR 493.

   [318]cf the Wagga Wagga case (2008) 237 CLR 285 at 307 [75].

   [319](1957) 96 CLR 493 at 506.

   [320]Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 (2024) 114 NSWLR 534 at 555 [102].

   [321](1957) 96 CLR 493 at 505.

   [322](1957) 96 CLR 493 at 508-509.

2. In conflating, on the one hand, the possibility that land may be "used" passively without any physical activity being carried out on the land with, on the other hand, land being "used" because of the mere existence of an estate or interest in the land, the difference between a mere constructive use of land and an actual use of land in fact is lost.

3. Quarry Street, in its submissions in this appeal, makes the same error. It sought to draw an equivalence between the concept of an owner passively using land, such as the curtilage to a hospital, and the concept of an owner passively using land by parting with exclusive possession of it by grant of a lease such as the lease in this case. No such analogy is available.

4. Nor does Ryde Municipal Council v Macquarie University[323] support the arguments of Quarry Street. Gibbs A-CJ said in that case that, as a general observation, a "person who owns land may be said to use it for his own purposes notwithstanding that he permits someone else to occupy it, even under a lease".[324] The relevant issue in that case, however, was whether the university was using land which it had leased for university purposes. There was no dispute about the fact that the leased land was being used to provide facilities and services to staff and students of the university. In that context, the idea that the university itself had to provide those facilities and services to use the land for its purposes and could not lease the land so that others could provide those facilities and services on its behalf without losing its rates exemption was understandably rejected.[325]

   [323](1978) 139 CLR 633.

   [324](1978) 139 CLR 633 at 638.

   [325]See, eg, (1978) 139 CLR 633 at 640.

5. The facts in Ryde Municipal Council v Macquarie University[326] bear no similarity to the present case, in which Quarry Street, it may be inferred, was driven to argue the novel point that the existence of the lease was a "use" of lot 5 by the Crown because CSKS, at the date of the claim, being the person in exclusive possession of lot 5 under the lease, was neither carrying out any physical activity on lot 5 nor passively using that land for any purpose.

   [326](1978) 139 CLR 633.

   Transfer of part of land effects a statutory severance of the reversionary estate

6. Quarry Street submitted that the Aboriginal Land Rights Act specifically contemplates that only part of the land is claimable, "but has no mechanism for dealing with a registered lease in this circumstance". According to this submission, it follows that land subject to a lease must be outside of the scope of "claimable Crown lands".

7. That submission must be rejected.

8. It is true that s 36 may operate so that the whole or only a part of land subject to a lease may be transferred to an Aboriginal Land Council. If the whole of such land is transferred, the Aboriginal Land Council will own the land subject to the lease and therefore be the lessor under the lease. If only part of such land is transferred, the Aboriginal Land Council will own the part of the land subject to the lease and the State will own the balance of the land subject to the lease. Therefore, there will be two lessors under the lease.

9. It cannot be assumed or inferred, however, that this indicates a legislative intention against land subject to a lease being "claimable Crown lands". To the contrary, s 46C of the Real Property Act specifically deals with transfers of land to a person by operation of a statute. By s 46C the "Registrar-General may, of the Registrar-General's own motion, and shall, at the written request (made in the approved form) of a person in whom there has been such a vesting ... register the person in whom any such land is vested as the proprietor of such estate therein as the Registrar-General deems to be appropriate".

10. Sections 117 and 118 of the Conveyancing Act 1919 (NSW) also operate to ensure that severance of a reversionary estate does not affect the annexure of lease obligations of the lessee and the lessor(s) to that reversionary estate. Most importantly, s 119(1) of the Conveyancing Act provides that:

    "Notwithstanding the severance by conveyance, surrender, or otherwise of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term granted by a lease as to part only of the land comprised therein, every condition or right of re-entry, and every other condition contained in the lease, shall be apportioned and shall remain annexed to the severed parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each severed part is reversionary, or the term in any land which has not been surrendered or as to which the term has not been avoided, or has not otherwise ceased, in like manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease."

11. In other words, no difficulty is caused by the fact that the provisions of the Aboriginal Land RightsAct enable transfer of part only of land but do not specify the consequences of such a transfer for land subject to a lease. The provisions of the Real Property Act and the Conveyancing Act will operate according to their terms in the event of the transfer of part of land subject to a lease. In any event, any concern about the transfer of part only of land subject to a lease overlooks the capacity of a court of equity to mould a remedy suitable to resolve any dispute between the lessee and the lessors after transfer of part of the land subject to the lease as "claimable Crown lands".

    No statutory intention to prevent "loss" of land by the State

12. Quarry Street submitted that if the existence of a lease over land is not sufficient to constitute a use of the land "the Crown's fee simple would be liable to claim whenever its tenant ceases to conduct 'activities on the land'". According to Quarry Street, and submissions of the Crown Lands Minister to the same effect, it could not have been intended that the status of land as "claimable Crown lands" might depend on the actions or inactions (and thus "delinquency") of the lessee.

13. This submission wrongly assumes a legislative intention of the Aboriginal Land Rights Act that land on which no activities are being conducted (including passive activities), but from which the State is deriving money, should not be "claimable Crown lands". This submission is underpinned by numerous unjustified assumptions, such as that the interest of the State is not to "lose" lands vested in it to an Aboriginal Land Council and that the public purpose for which the Crown Lands Minister granted an estate or interest in the land would be "defeat[ed]" by a transfer of the land to an Aboriginal Land Council.

14. These submissions are irreconcilable with the text, context and remedial and beneficial purpose of the Aboriginal Land Rights Act, which the Minister for Aboriginal Affairs described in the second reading speech for the Bill as representing the New South Wales Government's "clear, unequivocal decision that land rights for Aborigines is the most fundamental initiative to be taken for the regeneration of Aboriginal culture and dignity, and at the same time laying the basis for a self-reliant and more secure economic future for our continent's Aboriginal custodians", with the Bill providing "a substantial amount of resources for the 40 000 Aborigines in New South Wales to secure land", including by "claims upon unused Crown land".[327]

    [327]New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 24 March 1983 at 5088-5090.

15. In the face of the manifest remedial and beneficial purpose of the Aboriginal Land Rights Act, notions of the State's title to land being "imperilled" by delinquent tenants, of the prospect of the State having to "monitor[]" land to ensure its tenants continue to use it, and of the State having to "cajol[e]" tenants into action to prevent a successful land claim, and thereby an Aboriginal Land Council "defeat[ing]" the State's title to the land, are profoundly misconceived.

    Conclusions on construing s 36(1)(b)

16. For the purposes of s 36(1)(b) of the Aboriginal Land Rights Act, it is difficult to improve on the observation of Windeyer J (Dixon CJ, Fullagar and Kitto JJ agreeing) in Randwick Corporation v Rutledge in respect of land that is leased. His Honour said:[328]

    "'This provision', as Dixon J, as he then was, said in a similar matter, 'looks to the actual use … of the land' ... 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."

    [328](1959) 102 CLR 54 at 88, quoting Stephen v Federal Commissioner of Land Tax (1930) 45 CLR 122 at 140.

17. By analogy, the State in this case was not using lot 5 at all at the date of the claim. The State had parted with exclusive possession of lot 5 so that only the person with exclusive possession, CSKS, could use lot 5. But at the date of the claim CSKS was not using lot 5. To the contrary, CSKS was merely maintaining the lease to avoid forfeiting it while it worked out what, if any, future use could be made of lot 5, with a view to the future transfer of the lease. The lease was insufficient to constitute the use of lot 5.

    Orders

18. For these reasons, the appeal must be allowed, the first respondent is to pay the appellants' costs of and incidental to the appeal and the orders made by the Court of Appeal of the Supreme Court of New South Wales on 10 May 2024 are to be set aside and, in lieu thereof, it is to be ordered that: (a) the appeal to that Court be dismissed; and (b) Quarry Street pay the Land Councils' costs of and incidental to that appeal.

19. As to the order for costs of the appeal to this Court extending to the second respondent, the Crown Lands Minister, the Minister submitted that the Minister did not contend for any outcome in the appeal. Before this Court (in contrast to the position adopted below), however, the Crown Lands Minister did not submit only that the mere grant of the lease was part of the "acts, facts, matters and circumstances"[329] which inform whether the land was used in accordance with s 36(1)(b), but also put a series of arguments against the appellants by reason of asserted consequences of acceptance of their construction. While none of those arguments carried any ultimate weight (because they wrongly assumed that it is a part of the function of the management of Crown lands to ensure that land which might otherwise be "claimable Crown lands" continues to be in fact used in accordance with any estate or interest in the land granted by the Crown Lands Minister so as to avoid successful land claims), minds may differ as to whether the putting of those arguments involved the Minister adopting an adversarial position in the appeal in substance if not in form. On balance, the Crown Lands Minister should be given the benefit of doubt that the Minister was doing anything more than merely assisting the Court to understand the practical operation of the statutory provisions on the competing constructions of s 36(1)(b). Therefore, no order for costs should be made against the Crown Lands Minister.

    [329]The Wagga Wagga case (2008) 237 CLR 285 at 307 [75].