Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council - [2009] NSWCA 138

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138

HEARING DATE(S): 7 April 2009

JUDGMENT DATE:
10 June 2009

JUDGMENT OF: Ipp JA at 1; Tobias JA at 85; Basten JA at 190

DECISION: Appeal dismissed with costs

CATCHWORDS: ABORIGINALS – Land rights under legislation – New South Wales – Claim to Crown land – Lawfully used or occupied – Claimed land was nature park containing flora and fauna – Claimed land reserved for the preservation of native flora – At date of claim nature park had been closed to allow reversion of land to woodland area – Maintenance activities and upkeep of fauna continued on land – Whether claimed land lawfully used or occupied at date of claim – Whether use or occupation to a more than notional degree established or was required to be established – Whether primary judge applied correct test of lawful use and occupation – Whether intended cessation of use or occupation relevant to determining whether actual use or occupation at date of claim – What is required for use or occupation of Crown lands reserved for a public purpose - APPEAL – Appeal from Land and Environment Court – Right of appeal – When appeal lies – Error of Law – What is – Difference between question of law and question of fact – Powers of Court of Appeal to determine questions consequential upon finding error of law

LEGISLATION CITED: Aboriginal Land Rights Act 1983
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Crown Lands Act 1989
Crown Lands Consolidation Act 1913
Exhibited Animals Protection Act 1986
Interpretation Act 1987
Land and Environment Court Act 1979
Native Title Act 1993 (Cth)
Suitors’ Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Attorney-General v Cooma Municipal Council (1962) 8 LGRA 111
Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126
Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187
Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82
Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293
Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493
Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140
Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564
Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1
Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304
McCathie v Federal Commissioner of Taxation [1944] HCA 9; 69 CLR 1
McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8
Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1997) 42 NSWLR 641
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505
Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154
New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
New South Wales Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 309
Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1
R v The Inhabitants of St Nicholas, Rochester (1834) 5 B & Ad 219; 110 ER 773
Regina v The District Court; Ex parte White [1966] HCA 69; 116 CLR 644
Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140
Ryde Municipal Council v Macquarie University [1978] HCA 58; 139 CLR 633; 53 ALJR 179
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230
The Church Wardens and Overseers of Lambeth Parish v The London County Council [1897] AC 625
The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; 88 CLR 100
The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; 158 CLR 395
The Queen v Kearney; Ex parte Jurlama [1984] HCA 14; 158 CLR 426
Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419
Western Australia v Ward [2002] HCA 28; 213 CLR 1
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547

PARTIES: Minister Administering The Crown Lands Act (Appellant)
Bathurst Local Aboriginal Land Council (Respondent)

FILE NUMBER(S): CA 40140/08

COUNSEL: S B Lloyd SC; S J Free (Appellant)
J T Gleeson SC; M L Wright (Respondent)

SOLICITORS: Crown Solicitor's Office (Appellant)
Chalk & Fitzgerald Lawyers (Respondent)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 30281/06

LOWER COURT JUDICIAL OFFICER: Pain J - Behrendt AC

LOWER COURT DATE OF DECISION: 28 February 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82

CA 401040/08
IPP JA
TOBIAS JA
BASTEN JA
Wednesday 10 June 2009

MINISTER ADMINISTERING THE CROWN LANDS ACT V BATHURST LOCAL ABORIGINAL LAND COUNCIL

On 21 August 2001, the respondent, Bathurst Local Aboriginal Land Council (BLALC), lodged Aboriginal Land Claim 6616 pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 (ALR Act).

The claimed land at issue covered an area known as the Sir Joseph Banks Nature Park, which was run by the Council of the City of Bathurst (the Council) as a flora and fauna reserve. A variety of native animals were housed in the Nature Park and the public was charged an admission fee for entry. Relevantly, the Nature Park formed part of an area reserved from sale under the Crown Lands Act 1989 for the public purpose of “preservation of native flora”.

On 20 June 2001 the Council resolved to close down the Nature Park and allow the area to revert to a natural woodland area that would be open to the public. The Nature Park was closed on 2 July 2001. As at 21 August 2001, the date of the land claim, the Nature Park was completely fenced and contained a number of improvements such as trails, picnic shelter sheds, barbeques as well as animal enclosures. Two Council employees continued to work at the Nature Park on a daily basis after its closure to tend to the remaining captive animals and undertake obligatory maintenance until the last of the animals had been relocated in December 2001.

The appellant, the Minister administering the Crown Lands Act, refused BLALC’s claim on the basis that the Nature Park was not claimable Crown lands within the meaning of s 36(1) of the ALR Act. BLALC appealed against the Minister’s refusal of its claim in the Land and Environment Court.

The primary judge found that the Minister had not discharged his onus under s 36(7) of the ALR Act of establishing that the claimed land was lawfully used or occupied within the meaning of s 36(1)(b). Accordingly the Nature Park was claimable Crown lands and the primary judge ordered that it be transferred to BLALC.

The Minister appealed against this decision. In accordance with s 57(2) of the Land and Environment Court Act 1979, the appeal was confined to a question of law.

Held

Per Tobias and Basten JJA; Ipp JA dissenting

The Minister failed to discharge his onus of proving that the claimed land was lawfully used or occupied at the date of the claim.

1. As to determining whether land is lawfully used or occupied within the meaning of s 36(1)(b)

Per Ipp, Tobias and Basten JJA:

In order to determine whether land is used or occupied it is necessary to consider the acts, facts, matters and circumstances relevant to the claimed land.

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 applied

Per Ipp JA:

Recurring physical acts on the land is not an absolute and essential element of use and occupation. Land is capable of being used despite the absence of recurring physical acts upon it.

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR; Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 applied; Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 considered.

Actual occupation requires actual and not constructive occupation.

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 applied

The fact that the degree of physical activity is slight may be relevant in determining whether land is used or occupied. However, there should be no limits or judicial gloss imposed on the ordinary meanings of the terms “use” and “occupation”, including any requirement that use or occupation must be to a more than notional degree.

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505; New South Wales Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 considered.

Use or occupation of land as an area closed for the regeneration of vegetation can constitute use and occupation within the meaning of s 36(1)(b) even though no physical activity takes place on the land itself.

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 and Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 applied

Per Tobias JA:

A contemplated or intended but not yet implemented cessation of physical acts of occupation or use existing as at the date of the claim is of itself irrelevant to a determination of whether land is used or occupied at that date.

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192; New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 distinguished

In the case of land reserved for a purpose such as the preservation of native flora, whilst it is accepted the extent of any physical activities on the land will be limited, to constitute use or occupation there must be some activities conducted which are directed to implementing the relevant purpose for which the land is reserved.
Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140; Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 considered

A notional or nominal use or occupation is one which is a constructive rather than an actual use or occupation.

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 considered

Occupation or use to more than a notional degree requires an actual occupation or use which is more than de minimus and in the circumstances of the particular case is of some substance rather than so miniscule, insignificant or token as to be disregarded.

Per Basten JA:

There is merit in construing the words “not lawfully used or occupied” as a whole.

New South Wales v The Commonwealth [1926] HCA 23; (1926) 38 CLR 74 considered
Events subsequent to the date of the claim may be taken into account for the purpose of evaluating the actual use being made of the land at that date.

McCathie v Federal Commissioner of Taxation [144] HCA 9; 69 HCA CLR 1 applied

The degree of permanence or continuity of the relevant use or occupation may affect whether that use or occupation is “actual”.

Per Tobias and Basten JJA:

The fact that Crown land is reserved for a specified purpose does not of itself mean that it is lawfully used or occupied for that purpose.

2. As to whether the primary judge erred in her treatment of the question whether the Nature Park was lawfully used or occupied

Per Ipp JA:

The primary judge attributed an incorrect and technical meaning to the expression “used or occupied” as she considered that because no actual physical activities were taking place on the land with respect to the proposed transition to a woodland area, there could be no use or occupation for the purpose of the preservation of native flora.
There was lawful use and occupation of the Nature Park at the date of the claim.

Per Tobias JA:

The primary judge erred in finding that the Minister had not discharged his onus of showing that the Nature Park was used or occupied as a fauna reserve. She applied the wrong test as she rejected physical acts of occupation relating to fauna activities which she found to have existed on the basis of an intention, not yet implemented, to cease those activities. However, such use or occupation of the land for the purpose of a fauna reserve was not lawful in light of the reserved purpose being “for the preservation of native flora”.

Per Basten JA:

It was open to the primary judge to treat the closure of the Nature Park and maintenance of the animals prior to their relocation as analogous to minor acts of maintenance of land preparatory to sale and therefore insufficient to constitute lawful use or occupation.

Given the manner in which the Minister conducted his case, the primary judge did not err in her treatment of the occupation or use of the Council on the basis limited by a specified purpose, namely the flora activities conducted on the Nature Park.

3. As to what constitutes an error of law

Per Basten JA:

An inference made by the primary judge that was reasonably open, albeit drawn as a result of illogical reasoning, does not constitute an error of law.
The application of statutory language to the facts of a particular case can only involve an error of law where the primary judge: reaches a conclusion which is not reasonably open on the facts found; ignores facts which are legally required to be taken into account; gives little weight to facts which were required to be given significant weight; or applied wrong legal principles in formulating the factual questions to be resolved.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 applied; B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 cited.

4. As to the extent to which the Court of Appeal can determine a question of law on appeal from the Land and Environment Court

Per Ipp JA:

The Court of Appeal is entitled to formulate a judgment on the basis of facts as found by the primary judge and facts not in dispute.
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 considered.

Per Tobias JA:

The Court of Appeal, if it finds error on the part of the Land and Environment Court on a question of law, has the power to determine any question consequential upon that finding which does not require the finding of any new or further facts or the making of inferences from the facts as found.

Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 considered.

Per Basten JA

The power of the Court of Appeal is limited to the correction of legal error and it will not be able to make final orders disposing of the proceedings unless, on the findings made by the Land and Environment Court and unaffected by legal error, only one conclusion is open.

B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150 considered.

Orders of the Court

Per Tobias and Basten JJA; Ipp JA dissenting

The appeal should be dismissed with costs

________________________________________________________________________________________________________________________________________________

CA 401040/08
IPP JA
TOBIAS JA
BASTEN JA
Wednesday 10 June 2009

MINISTER ADMINISTERING THE CROWN LANDS ACT V BATHURST LOCAL ABORIGINAL LAND COUNCIL

Judgment

: This appeal concerns land in the Bathurst district, approximately 40 hectares in extent, known as the Sir Joseph Banks Nature Park (the “Reserve”). It turns on the meaning of “lawfully used or occupied” in s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) (the “ALR Act”).

The issues on appeal

2 The essential issue is whether, at the relevant date, the Reserve was claimable land as provided by s 36(1)(b). On the facts of this case, that issue raises the question whether, on 21 August 2001, the date when the respondent (the Bathurst Local Aboriginal Land Council – the “BLALC”) lodged a claim for the land, the Reserve was so lawfully used or occupied.

3 The appellant (the Minister administering the Crown Lands Act 1989) refused the BLALC’s claim. The Minister was of the opinion that the Reserve was not claimable Crown land within s 36(1)(b) as, at the date of the claim, it was used and occupied.

4 The BLALC appealed against the Minister’s decision. Pain J of the Land and Environment Court held that the Reserve was indeed claimable Crown land as, at the date of the claim, it was not lawfully used or occupied. Consequently, her Honour made an order under s 36(7) of the ALR Act that the Reserve be transferred to the BLALC.

5 The Minister appeals against Pain J’s decision, and again contends that at the date of the claim the Reserve was lawfully used or occupied.

The facts

6 The facts I recount below are those found by Pain J and facts which were not in dispute. All the facts on which my conclusion, set out in these reasons, are based are facts of this kind. It is therefore unnecessary for me to examine any of the authorities that deal with the power of this Court to make factual findings in appeals on questions of law alone.

7 On 16 February 1968, the Council of the City of Bathurst (“the Council”) was appointed sole trustee of the Reserve pursuant to s 37R of the Crown Lands Consolidation Act 1913. By that Act, the Council was charged with the care, control and management of the Reserve.

8 That Act was repealed and replaced by the Crown Lands Act 1989. By notification in the Gazette dated 12 May 1995, a reserve trust called Bathurst City Council Crown Reserves Trust was established “for the public purpose of preservation of native flora”. The Trust was charged under the Act with the care, control and management of the Reserve. By s 95(1) of the Act, the Council was appointed to manage the affairs of the Trust.

9 For some 25 years prior to the date on which the claim was made, the Reserve was used as a fauna reserve. According to undisputed affidavit evidence:

“[T]he nature park was completely fenced with a person-proof boundary fence and contained various public works, including a toilet block, picnic shelters containing tables and benches, barbecues, rubbish facilities, extensive pathways, information shelters, a building at the main public entrance containing an office, storerooms, reptile and aquatic animal displays, together with a collection of pamphlets and posters and other items for visitors. The structures were used by the members of the public who visited the nature park. There was also a large workshed in the park which was used by Council staff working for the park.”

10 The animal enclosures contained many different kinds of animals, birds, reptiles and fish species. Kangaroos, wallabies and emus roamed freely through the Reserve.

11 A fence around the Reserve, erected and maintained by the Council, controlled public access to the land. This continued to be the case until the date of the claim and thereafter.

12 The Reserve is heavily vegetated, with various trails through the land. The vegetation consists predominantly of eucalypts with an understorey of native and exotic grasses and shrubs. Importantly, by June 2001, the Reserve land was in a state of serious degeneration and required rejuvenation.

13 On 20 June 2001, the Council resolved to “close down the park and remove the infrastructure and allow the area to revert to a woodland area open to the public”. On 2 July 2001, the Reserve was closed to the public and has not been reopened (except for some form of motor race in 2003).

14 On 4 July 2001, a timetable for the implementation of the resolution was proposed. This included moving the animals to other facilities and relocating infrastructure such as the barbeques, picnic tables and shelter sheds. According to the proposal:

“The staff of the Nature Park will remain at the facility to carry out daily feeding of the animals, stocktake the assets to be disposed of and generally assist in the transition of the present facility to a woodland area.”

15 After 2 July 2001, when the Reserve was closed, the proposal began to be implemented and the Council began to remove the animals. Two members of the Council’s staff worked in the Reserve on a daily basis, feeding and tending to the remaining animals and providing “obligatory maintenance”.

16 On 16 July 2001, the Director of Corporate Services (of the Council) gave instructions for “a planting regime [to] be put in place to accelerate the actions that are currently occurring at this facility”. Her Honour found that these instructions were only implemented some time after the date of the claim.

17 As Tobias JA (whose reasons I have had the benefit of reading) points out (at [96]), a report prepared for a Council meeting held on 15 August 2001 gives the impression that there had been few, if any, animals relocated as of that date. Nevertheless, it was expected that the animals would be transported before the end of the month. Tobias JA points out that Pain J did not make any specific findings as to the extent, if at all, that the caged animals had in fact been relocated as at the date of the claim. Her Honour merely said that a number of activities had been undertaken that were designed to facilitate the closure.

18 Pain J (at [99]) accepted that the Council staff time and expenditure at the date of the claim was directed largely to the care of the animals including maintenance of roads to ensure the safety of staff when visiting.

19 On 20 December 2001 the last of the animals housed in enclosures were relocated and the two Council employees that had been on duty at the Reserve left to work elsewhere. On 15 May 2002, the Council projected that over $10,000 per annum would be spent on the nature park in each of the five ensuing years. This was a reduction from $55,220 per annum that had been projected in July 2001.

The reasons of the primary judge

20 Her Honour did not draw any material distinction between “use” and “occupation”. In my view, in the particular circumstances of this case, that approach was correct. As was the position in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 (the Wagga (High Court) Case), it is not necessary in the present case to decide whether “lawfully used or occupied” has a single meaning or is better understood by separate consideration of the words “used” and “occupied”. The present, like the Wagga (High Court) Case is not a case in which “some relevant aspect of the meaning of the word ‘used’ is illuminated by the juxtaposed word ‘occupied’”.

21 The fundamental basis of Pain J’s decision that the Reserve was not used and occupied was her Honour’s acceptance that two absolute and essential requirements have to be satisfied before land can be regarded as “used or occupied” for the purposes of s 36(1)(b). The first is proof that, at the date of the claim, physical acts of occupation (more than mere fencing of the land) were being carried out on the land. The second is proof that, at that date, the degree of physical activities on the land was more than “slight” and the land was being used in “more than a notional sense”.

22 Examples of the emphasis Pain J placed on physical acts of occupation and use are as follows. Her Honour said (at [92]) that, for land to be occupied for the purposes of s 36(1)(b), there must be evidence of physical acts which amount to actual occupation. She made the same point (at [106]) in regard to use. Her Honour said at [102] that exclusion of the public by a fence is not sufficient. She repeated (at [93]), “occupation requires some degree of actual physical occupancy over the land or the carrying out of maintenance on the land without which physical occupancy is insufficient”.

23 Examples of the emphasis her Honour placed on the need for the physical activities to be more than “slight” and for the land to be used “in more than a notional sense” are as follows. Her Honour found (at [104]) that the activities being undertaken at the date of the claim fell “into the category of being ‘so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)’ as described by Stein J [in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (the ‘Department of Education case’)”. Her Honour said (at [106]) “[t]he claimed land must be used in more than a notional sense”. From [107] to [110] her Honour addressed the question whether “use was nominal only” (that being part of the sub-heading to these paragraphs of her Honour’s reasons). At [108] her Honour said “The question now arises whether [the activities on the land at the date of the claim] are more than a notional use of the claimed land”.

24 It is to be noted that her Honour did not first consider whether there had been use or occupation and then go on to consider whether that use or occupation was lawful. Rather, she conflated the concepts of use and occupation with lawfulness. Thus, she said (at [5]) that the “principal issues to be determined” were:

“(1) Whether, at the date of the claim, the land now claimed was ‘lawfully occupied’ within the meaning of s 36(1)(b) of the ALR Act by the Bathurst Regional Council (the Council);

(2) Whether, at the date of the claim, the land now claimed was ‘lawfully used’ within the meaning of s 36(1)(b) of the ALR Act by the Council.”

25 Her Honour appears to have regarded lawful use as being use as “a flora reserve” (see at [100]). More accurately, the question of lawfulness depended on whether the Reserve was being used in accordance with the purpose of the Trust, namely, for the “preservation of native flora”.

26 This conflation may have contributed to her Honour disregarding the activities on the land that involved closing down the animal aspect of the Reserve so as to convert it into a woodland area. This may be discerned, particularly from her Honour’s remarks at [110] where she said, “[t]o the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area … the evidence of use at or shortly after the date of claim does not establish lawful use for the purpose of s 36(1)(b)”.

27 I would add that her Honour’s exercise in determining lawful use and lawful occupation is inconsistent with her statement at [112] that, in the light of her decision concerning use and occupation, she was not required “to have regard to whether the nature park was a lawful occupation or use of the claimed land”.

Does the phrase “used or occupied” have a technical meaning?

28 I reiterate that Pain J held that expression “used or occupied” in s 36(1)(b)” included as an absolute and essential requirement, the carrying out of physical activities on the land in question in more than a notional sense. In my view, for the reasons I set out below, her Honour thereby attributed an incorrect (and technical) meaning to the expression (which should be understood in accordance with its common understanding).

29 In my opinion, her Honour’s approach is in conflict with the remarks of Hayne, Heydon, Crennan and Kiefel JJ (the “plurality”) in the Wagga (High Court) Case at [69] and [70]. In fairness to her Honour, I would note that judgment in the Wagga (High Court) case was delivered after her Honour handed down her reasons.

30 In the Wagga (High Court) Case the plurality said (at [69]-[70]):

“No matter whether the question is framed in the statutory terms (‘not lawfully used or occupied’) or, as here, is framed more narrowly as one about use, attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being ‘not lawfully used or occupied’. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land. But three points should be made. First, 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. Secondly, as Mason P rightly said, ‘use’ is a protean word. Thirdly, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital (‘the City of Newcastle Case’) shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be ‘used or occupied by the hospital for the purposes thereof’.

31 The statement of the plurality that “recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land” (my emphasis) demonstrates that physical use of the land is not an absolute and essential element of use and occupation. This point is further emphasised by their Honour’s reference to the City of Newcastle case.

32 The full citation of the City of Newcastle Case is Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, affirmed on appeal to the Privy Council at (1959) 100 CLR 1. In that case, as observed at above, it was held that land, purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be used or occupied. This point was also made by Gibbs J (with whom the other members of the High Court agreed) in Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, where his Honour drew attention (at 22) to the fact that the Privy Council, in the City of Newcastle Case, had said that “an owner can use land by keeping it in its virgin state for his own special purposes”.

33 The plurality pointed out in the Wagga (High Court) Case (at [69]) that “use is a protean word”. The word “occupy” is also a word that, in its ordinary use, is capable of variable meanings. That is why it is important, as the plurality observed at [69], to direct attention to “what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of ‘not lawfully used or occupied’”.

34 For these reasons, as their Honours explained at [69], “nothing said in the earlier decisions of the Court of Appeal … should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied”. It follows, I would, with respect, infer, that nothing said by this Court in the earlier cases should be seen as laying down absolute requirements that have to be fulfilled for land to be lawfully used or occupied within the meaning of s 36(1)(b). This inference is reinforced by what is said in the following paragraph.

35 The plurality (at [69]) mentioned factors that would “usually” constitute “use” or “occupation” of land. One of those factors was “recurring physical acts on the land”. It follows that recurring physical acts on the land is not an absolute and essential element of use and occupation under s 36(1)(b).

36 The plurality emphasised (at [69]) that the factors they mentioned were not propositions that “chart the metes and bounds of those ideas”. Their Honours stated that the propositions stated might merely “identify the most common cases where it can be said that there is use or occupation of the land”. Their Honours thereby, in effect, made the point that no factors, in themselves, are absolute or essential elements of the meanings of the terms, “use” and “occupation” of land and that, in exceptional cases the factors they identified may not be of paramount importance. Everything depends on the circumstances of the particular case.

37 Their Honours identified the City of Newcastle case as a case not to be categorised as “a most common case”. According to the City of Newcastle Case, land is capable of being used despite the absence of recurring physical acts on it. The present case similar to the City of Newcastle Case and is not “a common case”.

38 There are many instances where the proper use and occupation of land require physical activities on the land to be kept to a minimum or prevented entirely. Land set aside for regeneration of vegetation is an obvious example. Afforested valleys and mountains that are difficult to access but which attract many who wish to enjoy the natural beauty of the land in its pristine and undeveloped state, are others.

The difference between “actual” use and occupation and “actual” physical activities

39 The requirement of actual physical activities on the land that her Honour applied was derived, according to her, from the judgment of Priestley JA in

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act

40 In Daruk, Priestley JA (at 161-162) in considering the meaning of “occupation” in par (b) of s 36(1) of the ALR Act, drew a distinction between constructive occupation and actual occupation. His Honour attributed to “constructive occupation” the meaning applied to this term by Denman CJ in R v The Inhabitants of St Nicholas, Rochester (1834) 5 B & Ad 219; 110 ER 773. The statute under consideration in that case provided:

shall be actually occupied

concerned a pauper who had sublet a portion of a parish house leased to him. Denman CJ held that the pauper was only in constructive possession with respect to those parts of the house he had sublet. That is, the subletting did not constitute actual occupation. Denman CJ said (at 776):

“A constructive occupation will not satisfy these words. The statute requires in terms an actual occupation. Here it appears that the pauper underlet the two upper floors, and occupied the ground floor himself. It is impossible to say, in the face of the statute, that the pauper, who occupied the ground floor only, actually occupied the whole house.”

42 The statute considered in St Nicholas, Rochester expressly required the occupation to be actual. Section 36(1)(b) of the ALR Act has no such requirement. Nevertheless, the term “occupation”, as it is used in s 36(1)(b), gives rise to reasonable uncertainty as to whether it comprises both actual and constructive occupation or only actual occupation.

43 In Daruk Priestley JA (with whom Cripps JA agreed) held that “occupation” in s 36(1)(b) did not mean constructive occupation. His Honour said (at 162):

“It seems to me the better reading of ‘occupied’ in its context in par (b) is ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree.”

44 In according the meaning “actually occupied” to “occupied” in s 36(1)(b), Priestley JA followed the reasoning of Denman CJ. Priestley JA did not hold that “occupation” required actual physical activities; he was of the opinion, rather, that “occupation” required actual and not constructive occupation.

45 Of course, actual physical activities on the land may well be highly relevant, but that does not mean that without them use or occupation cannot be established. This is manifest from the Wagga (High Court) Case and is also apparent from several other earlier authorities.

46 In Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Council (1992) 75 LGRA 133 (“Tweed Byron”) (at 140) Clarke JA observed that physical acts of occupation were “relevant” (but did not say that they were essential), and expressly noted that land left in its natural state did not mean that it was not an important recreation area (and, by inference, that it was being used or occupied).

47 In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 (“Nowra Brickworks No 1”) Sheller JA (with whom Priestley JA and Clark JA agreed) pointed out that the judgments of Taylor J in the City of Newcastle Case and Gibbs J in Parramatta City Council v Brickworks Ltd supported the proposition “that in the case of mining activities the lands presently used are not only those being physically mined at any particular point of time but those held as a reserve for mining for some time into the future”. Sheller JA thereby accepted that land held only as a reserve (where no physical activities were performed on it) could be used or occupied within the meaning of s 36(1)(b).

Use (or occupation) to more than a notional degree

48 The requirement that there must be use or occupation to more than a notional degree is derived from remarks by Priestley JA in Daruk [at 162] that have been followed by other decisions of this court.

49 In light of the observations of the plurality in the Wagga (High Court) Case (at [69]-[70]), the “use to a notional degree” requirement cannot be regarded as an absolute or essential element of use or occupation within the meaning of s 36(1)(b). The question arises: Is it, at least, a relevant factor?

50 The requirement in question is similar to that expressed by Stein J in the Department of Education case. In that case, his Honour said (at 198):

“In my opinion the use of the word ‘occupied’ in contra-distinction to ‘used’ leads to the conclusion – applying a beneficial construction – that some actual physical occupancy of the land is required. This does not need to be an occupation of the whole of the land but, in my opinion, the mere exercise of control over or maintenance of the land without any actual occupation is insufficient.”

51 Stein J found that the actual occupation “was so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)”. The occupation in question involved “a mere six officers occupying a miniscule portion of the floor space of the building”. His Honour said “having arrived at this conclusion it seems to me that the mere exercise of some control of the building together with maintenance does not constitute the necessary occupation of the land to take it out of the definition of claimable Crown lands.”

52 Stein J’s reasoning that actual physical occupancy of the land was required and that the occupancy had to be more than “a miniscule portion” of the land was derived from the application of a beneficial construction to the ALR Act. The authorities are clear that the ALR Act has to be beneficially construed. This means nothing more than requiring any uncertainty or ambiguity in the language to be resolved in favour of the intended beneficiaries. Where the words “use” and “occupation” are reasonably capable of bearing different meanings, the meaning more beneficial to a claimant under the Act should be adopted.

53 I do not think, however, that the requirement to construe the Act beneficially carries with it the notion that any possible construction of the phrase that is more beneficial to a claimant than another is to be applied. Relevant ambiguity or uncertainty that may arise in this context has to be reasonable and not artificially contrived. Were that not so, the exception contained in s 36(1)(b) could be rendered devoid of content.

54 In my respectful view, requirements that physical occupation must be more than to a notional degree or be more than miniscule do not arise by reason of any ambiguity or uncertainty in the ordinary usage of the terms “use” and “occupation”. These limits imposed on the ordinary meaning of the terms result from judicial gloss, not from any real difficulty in construing the language.

55 Applying the principles expressed by the plurality in the Wagga (High Court) Case (at [69]-[70]), I nevertheless accept that the facts and circumstances of a particular case may be such that the fact that the degree of physical activities is slight may be relevant in determining whether land is used or occupied. For the reasons that follow, I do not think that this is such a case.

Use or occupation of an area closed for regeneration of vegetation

56 It is common knowledge that vegetation in bushland used as a popular recreational facility, as well as bushland populated by large numbers of browsing animals such as kangaroos, may degenerate over time. It is also common knowledge that, frequently, when that occurs, the public bodies responsible close off public access to the land to protect the vegetation and allow regrowth to occur. This is a familiar, beneficial and important form of use and occupation of land.

57 In Daruk, Mahoney JA, although dissenting in the result, made several observations that are highly pertinent to the resolution of this appeal. His Honour’s reasons carry increased weight in the light of the remarks of the plurality in the Wagga (High Court) Case (at [69]-[70]). His Honour said (at 143):

“If it is necessary to show physical activity in respect of the land to prove the relevant use of it, it is, as I have suggested, necessary to consider what is the kind of physical activity or the like which use of the land for that purpose would be apt to involve … . Use as a native forest might involve little if any physical activity. Use as a wilderness area or as an area for regeneration of native growth might, as I have suggested, preclude physical activity taking place. In such cases, there would, in my opinion, be the ‘use’ of the land for the purposes of s 36(1)(b) merely because the land had been treated in a way appropriate to such a use.”

58 His Honour proceeded (at 143-144):

“There are, I think, some areas, for example, river frontages, whose use consists merely of being available for such a purpose. The shores of Sydney Harbour would, I think, be ‘used’ if reserved as a foreshore park notwithstanding that it or portions of it were seldom, if ever, visited; it would not be necessary to call in aid sophisticated views of the environment or to count the number of bushwalkers and the frequency of their activities. Nor is the matter determined by whether a member of the public can or is likely to be in the area. A valley or a mountain may be used as part of a public recreation reserve notwithstanding that one cannot climb down or up to parts of it.

59 In his quoted remarks, Mahoney JA demonstrates yet again that it is possible for land to be used within the meaning of s 36(1)(b), although left undeveloped. In my view, his Honour’s reasoning compels the inference that use (and occupation) of land as an area for regeneration of native growth is a use (and occupation) within s 36(1)(b), even though no physical activity takes place on the land itself.

60 In my respectful view, the plurality in Wagga (High Court) Case was of a similar mind when stating (at [69]) that the City of Newcastle case showed that land “purposely kept in its natural state to provide clean air and quiet undeveloped surroundings” can be said to be “used or occupied by the hospital for the purposes thereof”.

61 The authorities stress the importance of the purpose of the activities carried out on land when determining whether such land is used or occupied; see, for example, Nowra Brickworks No 1 (at 120) per Sheller JA.

62 In my opinion, as at the date of the claim, the way in which the Council was treating the Reserve was entirely consistent with its resolved purpose of allowing the Reserve to revert to a woodland area. All the activities (and the like) that the Council, at that date, was carrying out in regard to the Reserve were intended for this purpose. In these circumstances, at the date of the claim, in my opinion, the Council was using and occupying the Reserve.

63 In coming to this conclusion I am not making any factual findings. The exercise is akin to that described by Spigelman CJ in Thaina Town (On Goulburn) PtyLtd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [89] “What is involved is the formulation of a judgment on the basis of agreed facts”. The only difference is that this case modifies the formulation of a judgment on the basis of facts found by the primary judge and facts that are not in dispute.

The primary judge’s findings that there was no transitional use pending use as a woodland area

64 In finding that at the date of the claim the Reserve was not used or occupied, Pain J relied on and applied the factors to which I have referred as absolute and essential elements of use and occupation. Because of her Honour’s understanding of the meaning of the terms “used” and “occupied”, she did not consider whether at the date of the claim, absent physical activities on the Reserve, the Reserve was being used or occupied. Her Honour considered that, because no actual physical activities had been undertaken on the land (presumably, such as planting and positive acts of maintenance), the evidence supported only a suggestion “that the woodland area was a future use” (at [101]; see also at [109]). Consistently with that approach, her Honour held (at [99]) that activities (as at the date of the claim) directed to the care of the animals and maintaining the roads to ensure the safety of staff when visiting the animals were not relevant to the question of whether the Reserve was being occupied or used at the date of the claim, and that there were no “activities which justify a finding of occupation on the basis of a transition to a woodland area” (at [102]).

65 Moreover, her Honour said (at [104]):

The Department of Education

“In this way, these activities fall into the category of being ‘so slight as to be insufficient to constitute an occupation of the land’ as required by the definition in s 36(1) as described by Stein J.”

66 Her Honour went so far as to say (at [107]) that, because, by the date of the claim the Council had “moved to close down the nature park”, this showed “an intention to abandon the nature park”.

67 For the same reason, her Honour (at [110]) found that the physical acts involved in closing the fauna aspects of the park were not sufficient “to establish lawful use of the claimed land for the nature park”. Her Honour repeated this view when saying:

“To the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area, also for the reasons already discussed in relation to occupation at par 99 – 100 and in light of the substantially reduced expenditure on the area of the nature park, the evidence of use at or shortly after the date of the claim does not establish lawful use for the purpose of s 36(1)(b).”

68 Pain J noted (at [111]) that the Minister argued that evidence of the plans for the intended use of the land as a woodland area confirmed that at the date of the claim “the use was transitional, moving from nature park to woodland area”. Her Honour concluded in this regard: “Even if considered on that basis it cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the nature park.”

69 It is not entirely clear what her Honour meant when she said (at [107]) that the Council had “moved to close down the nature park” and this showed that the Council intended to “abandon the nature park”. If this meant that the Council intended to abandon using the Reserve for fauna, the finding is correct. But there was no intention to abandon the use of the Reserve as a nature park. Although the Council closed the Reserve and did not admit the public, this was only intended to occur while the vegetation regenerated. When regeneration was achieved, the Reserve would be re-opened to the public as a nature area. Her Honour did not consider whether the steps being taken at the date of the claim to achieve this end were capable of constituting use or occupation.

An error of law

70 In Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, Mason J (with whom the other members of the High Court agreed) referred (at 7-8) with approval to the following observation of Kitto J in New South Wales Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 309 at 512, which his Honour described as “illuminating”:

“The only outstanding question is whether those operations fill the description ‘mining operations upon a mining property’ within the meaning of s 122.

Federal Commissioner of Taxation v Broken Hill South Limited

71 To paraphrase Kitto J, the question for Pain J was whether the Reserve was used or occupied within the meaning of s 36(1)(b). It was first necessary for her Honour to decide as a matter of law whether the ALR Act uses the expressions “used” and “occupied” in any other sense than that which they have in ordinary speech. As to this, it is enough to say that the expressions are not defined in the Act and have no technical legal signification.

72 The common understanding of the words first had to be determined. The acts, facts, matters and circumstances which (according to the Minister) deprived the land of the characteristic of being “not lawfully used or occupied” had then to be measured against that common understanding.

73 Her Honour, however, gave the words a technical meaning, outside their common understanding. Her Honour found that their meaning was such that use and occupation could not be established without proof that, at the relevant date, physical activities were being performed on the land to a greater than notional degree. In my opinion, her Honour thereby made an error of law.

74 By s 57(1) of The Land and Environment Court Act [1979] NSW (“The L and E Court Act), a party to proceedings under s36 of the ALR Act may appeal to this Court against and order or decision “on a question of law”. The question of law involved in this case is whether Pain J gave the words “not lawfully used or occupied” in s 36(1)(b) of the ALR Act the correct meaning under that Act.

75 By s 57(2) of The L and E Court Act, on the hearing of an appeal under subsection (1) of the Act, this Court is empowered to remit the matter to The Land and Environment Court for determination in accordance with this Court’s decision, or to make such other order in relation to the appeal as seems fit.

76 As all the relevant facts necessary for the disposal of the matter have been found by Pain J or are not in dispute, there is no reason why this Court should not finally dispose of the matter.

Was the Reserve used and occupied?

77 At the date of the claim, on the facts found by Pain J, the Council had closed the Reserve to the public, was maintaining the surrounding fence, was proceeding to remove the animals, was caring for the animals that remained on the Reserve, and was maintaining the roads to ensure the safety of staff when visiting the animals. All this was being done to fulfil the Council’s resolution to cease using the Reserve as a fauna reserve and to allow the existing vegetation on the Reserve to regenerate with the intention, upon recovery of the vegetation, to open the Reserve to the public for use and enjoyment as a woodland area.

78 I accept that, at the date of the claim, the Reserve was not being used purely as a woodland area (as there were still animals on the land). But when due regard is had to the purpose with which the activities on the Reserve were being pursued, it is plain on the facts found by her Honour, and those that were common ground or undisputed, that the activities in question and the other measures that the Council was undertaking, were all for the sole purpose of restoring the vegetation on the Reserve to a flourishing state.

79 In my view, applying the approach adopted by the plurality in the Wagga (High Court) Case, the Council used and occupied the Reserve at the date of the claim.

Was the use and occupation lawful?

80 The basic question is whether, at the date of the claim, the Council was using the Reserve “for the public purpose of preservation of native flora”. If not, the use and occupation was in breach of the Trust and unlawful.

81 I have expressed the opinion that the sole purpose of all the steps that were being taken by the Council at the date of the claim was the preservation of the native flora on the Reserve. The fact that, before the date of the claim, the Reserve was being used as a fauna reserve is irrelevant. That use, as her Honour found had ceased. The presence of some animals on the Reserve at the date of the claim did not constitute a breach of the purpose of the Trust. At that date, the animals were only temporarily on the reserve. They were being kept there pending their removal. All were removed by 20 December 2001.

82 Thus, at the date of the claim, the Council was in the process of removing the animals in order to comply with the Trust. At that date, the Council was doing nothing that contravened the terms of the trust. At that date, the steps the Council was taking were designed to preserve the native flora on the reserve. Those steps were in accordance with the Trust.

83 In the circumstances, I consider that the use and occupation of the Reserve at the date of the claim were in accordance with the terms of the Trust.

Conclusion

84 I would uphold the appeal with costs and set aside the orders made by Pain J. I would order that the respondent’s appeal to the Land and Environment Court be dismissed with costs. I would grant the respondent an order under the Suitors’ Fund Act 1951 if it is otherwise entitled.

85 TOBIAS JA: On 21 August 2001, the respondent, Bathurst Local Aboriginal Land Council (BLALC), lodged Aboriginal Land Claim 6616 (ALC 6616) pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 (the ALR Act). The claimed land was at Mount Panorama, Bathurst and covered an area of approximately 40 hectares. It included an area known as the Sir Joseph Banks Nature Park (the Nature Park) and adjoining land. On 8 February 2006 the Minister administering the Crown Lands Act 1989 (the Minister) refused, pursuant to s 36(5)(b) of the ALR Act, ALC 6616 on the basis that the claimed land was not claimable Crown lands within the meaning of s 36(1) of that Act.

86 On 7 April 2006 BLALC lodged a Class 3 Application in the Land and Environment Court under s 36(6) of the ALR Act, appealing against the Minister’s decision to refuse its claim. BLALC subsequently withdrew its appeal insofar as it related to the Crown public roads on the claimed land and the area beyond the fence surrounding the Nature Park. Accordingly, the Land and Environment Court was required to determine whether the Nature Park (excluding the Crown road) was, at the date of the claim, “claimable Crown lands” within the meaning of s 36(1) of the ALR Act.

87 On 28 February 2008, Pain J determined that the Nature Park was claimable Crown lands. Her Honour ordered the relevant land to be transferred to BLALC in accordance with s 36(7) of the ALR Act: Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82. The Minister appeals against this decision. Such an appeal is confined to questions of law: Land and Environment Court Act 1979, s 57(1) (the Court Act).

The facts relevant to the Nature Park as found by the primary judge

88 On 23 June 1967 by notification of the Gazette pursuant to s 28(1) of the Crown Lands Consolidation Act 1913 (the 1913 Act), the then Minister for Lands reserved from sale land described as Reserve No. 86,313 (the Reserve) for the specified public purpose being for “preservation of native flora”. The Nature Park forms part of the area of the Reserve. On 16 February 1968, the Council of the City of Bathurst (the Council) was appointed as sole trustee of the Reserve pursuant to s 37R of the 1913 Act. As such the Council was charged with the care, control and management of the Reserve: 1913 Act, s 37R.

89 The 1913 Act was repealed and replaced by the Crown Lands Act 1989 (the CL Act). Pursuant to s 92(1) of that Act, by notification in the Gazette dated 12 May 1995, a reserve trust called Bathurst City Council Crown Reserves Trust (the Trust) was established and was appointed trustee of the Reserve “for the public purpose of preservation of native flora”. Pursuant to s 92(5) of that Act the Trust was charged with the care, control and management of the Reserve and pursuant to s 95(1) the Council was appointed to manage the affairs of the Trust.

90 In 1968 the Council proposed the establishment of a flora and fauna reserve on the claimed land. At or about that time a fence was erected around the perimeter of so much of the Reserve that was to become the Nature Park. In September 1971 the Nature Park was opened to the public. It contained various animal enclosures and had trails constructed within it. The name “Sir Joseph Banks Nature Park” was gazetted on 11 April 1986.

91 From December 1997 members of the public were charged an admission fee for entry to the Nature Park and Council staff were in daily attendance. The Nature Park contained infrastructure including a toilet block, picnic shelters, rubbish facilities, pathways and an entrance building. It also contained animal enclosures that housed koalas, dingos, wallabies, wombats, quolls and native birds, reptiles and fish species. The Council held licenses under the Exhibited Animals Protection Act 1986 authorising the use of the Park as animal display premises. There were also kangaroos, emus and other wallabies that roamed freely within the Nature Park. It was fenced so that the free ranging animals would be kept off the Mount Panorama racetrack and also because entrance to the Nature Park was not free.

92 In 1999 the Council engaged Goldney & Associates to prepare a report on the future of the Nature Park. After considering the various options proposed by their report, on 20 June 2001 the Council resolved to close down the Nature Park, remove infrastructure and allow the area to revert to natural woodland and to be open to the public. On 2 July 2001 the Nature Park was closed to the public. From 20 June 2001 onwards, the Council progressively relocated the animals and some of the infrastructure from the Nature Park. On 20 December 2001 the last of the animals were relocated.

93 As I have noted, ALC 6616 was lodged on 21 August 2001. As at that date, the Nature Park remained completely fenced and still contained a number of improvements and structures such as picnic shelter sheds, picnic tables, seats and barbeques as well as the animal enclosures. Two Council employees continued to work at the Nature Park on a daily basis to feed the remaining captive animals and undertake obligatory “maintenance” until the last of the animals had been relocated in December 2001. According to the evidence of Mr Navin (who was the relevant Council officer with responsibility for the management of the Park), those maintenance activities related to weed control and fence repair.

94 On 19 September 2001 the Council established a working party to consider the future of the Nature Park and the creation of a woodland area open to the public. There was a substantial decrease in expenditure on the Nature Park in the financial year after its closure. On 15 May 2002 the Council projected expenditure for the five ensuing years of approximately $10,000 per annum whereas the expenditure in the two years before the Nature Park was closed was around $117,000 per annum. However, as at July 2001, according to the evidence of the City Treasurer, the council had projected operating expenses of $55,220 with respect to the Nature Park for the 2001/2002 financial year.

95 Although the removal of the animals from their enclosures was said by Mr Navin to be a “gradual process beginning in June 2001”, a report prepared by him for a Council meeting held on 15 August 2001 gives the impression that there had been few, if any, animals relocated as at that date although they were “expected to be transported before the end of the month [August]”.

96 The primary judge, although referring to Mr Navin’s evidence (at [41]) and his 15 August 2001 report (at [98]), did not make any specific finding as to the extent, if at all, that the caged animals had in fact been relocated as at the date of the claim. Her Honour went no further than stating (at [98]) that as at that date:

that were designed to facilitate

97 I do not regard her Honour’s statement as a finding that as at the date of the claim all or any of the caged animals had been actually relocated although Mr Navin’s evidence, which she appeared to accept and to whose report she refers, does establish that arrangements to relocate the animals and the tourist-related infrastructure had been or were in the course of being finalised but were not yet implemented. Thus at [99] she agreed with the submission of BLALC

“that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintenance of roads to ensure the safety of staff when visiting”.

98 It will be necessary to refer further to her Honour’s findings (or lack of them) with respect to the issue of the use or occupation of the Nature Park for fauna purposes later in these reasons.

The relevant provisions of the ALR Act

99 The purpose of the ALR Act as stated in s 3 is, relevantly, “to provide land rights for Aboriginal persons in New South Wales” and “to vest land in … [representative Aboriginal Land] Councils”. Section 36 establishes the regime by which land can be claimed. It is convenient to set out the relevant provisions of this section:

“36 Claims to Crown lands

(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires:

claimable Crown lands

Crown Lands Consolidation Act 1913

Western Lands Act 1901

(2) …

(3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.

(4) …

(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:

(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.”

The reasoning of the primary judge on whether the Nature Park was “lawfully used or occupied”

100 During the course of the hearing the parties reached agreement over originally pleaded issues based upon s 36(1)(c) of the ALR Act relating to whether the claimed land was likely to be needed for an essential public purpose including electricity supply, water mains or access to public roads. Therefore her Honour’s determination was confined to whether at the date of the claim, the Nature Park was neither “occupied” nor “used” within the meaning of s 36(1)(b) of the Act. She held that as at 21 August 2001, the Nature Park was not “occupied” by the Council as it was not occupied to more than a notional degree. The primary judge also held that the Nature Park was not “used” by the Council at that date in the sense of having been used in more than a notional sense. In these circumstances her Honour considered that it was unnecessary to determine whether, had she found that the claimed land was “occupied” or “used”, that occupation or use was lawful.

101 Her Honour set out the principles relevant to determining whether land is subject to “lawful occupation” in the following terms:

“[54] For the land to be ‘occupied‘ for the purposes of s 36(1)(b), there must be some physical occupancy over at least part of the land, as opposed to constructive occupation, that is, it must be ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ( Daruk ) at 162 per Priestley JA (Cripps JA concurring, Mahoney JA dissenting) in the NSW Court of Appeal.
[55] Mere proprietorship is insufficient to establish that claimed lands are occupied within the meaning of s 36(1)(b). Clarke JA (Samuels and Meagher JJA concurring) in Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ( Tweed Byron ) at 140:

[M]ere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether the Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in other[s] the use to which the land is put might be determinative…

[C]ontinuous physical presence on every part of the land does not have to be shown to establish occupation. For instance, the fact that a public authority charged with the care, control and maintenance of land reserved for public recreation improves only part of the land for public use and leaves the rest in a natural state does not lead inevitably to the conclusion that the part it has not improved is not occupied by it. The fact that land is left in its natural state does not mean it is not an important recreation area.

[56] The mere exercise of control over or maintenance of the land without any occupation is insufficient: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (“The Department of Education Claim”) (1992) 76 LGRA 192 at 198 per Stein J; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180 at [39].”

102 Her Honour then set out the principles relevant to “lawful use”:

“[57] ‘Use’ for the purposes of s 36(1)(b) must be to more than a notional degree: Daruk ; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (“Nowra Brickworks (No 1)”) at 121 per Sheller JA (Clarke and Priestley JJA concurring). Nor is the fact that land is reserved for a particular purpose sufficient to establish that it is lawfully used within s 36(1)(b); the Wagga Wagga case at [55] per Mason P (Giles and Tobias JJA concurring) [ New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281]. Something more is needed to establish whether the use of the land is lawful.

[58] In determining whether lands are being lawfully used, it is necessary to consider the purpose for which they are being used. The purpose will then dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense; Nowra Brickworks (No 1) at 120.

[59] The Minister has to establish that there was actual use at the date of the claim, that is, it cannot be just a contemplated or intended use; Wagga Wagga at [32].”

103 Her Honour then summarised in some detail the submissions of the parties on each of these issues. She noted that the Minister bore the onus of establishing that at the date of the claim the Nature Park was lawfully occupied and/or used.

104 At [96] the primary judge relevantly stated that

“[t]he dominant activity in terms of the Council’s activities in the few years before the date of the claim appears to have been the care and display of native fauna in enclosures and in a natural bushland setting”.

105 Her Honour then referred (at [97]) to the evidence relating to the Council’s expenditure on the Nature Park and stated that it was difficult to determine on the evidence how much of this was directed to the care and upkeep of the animals rather than the preservation of flora. At [99] she found that although there was affidavit evidence that the staff at the Nature Park undertook activities including weeding, planting and maintaining vegetation, that evidence did not establish the extent to which instructions to the staff focused on the Nature Park as a flora reserve.

106 The primary judge then considered the Minister’s submission that the activities of the Council’s staff on the land had been directed toward supporting a flora reserve. She rejected this submission relevantly in the following terms:

“[99] …I agree with [BLALC’s] submissions that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintaining the roads to ensure the safety of staff when visiting … That is confirmed by the two dedicated staff being moved in December 2001 elsewhere after all the animals were removed. Regardless of whether the nature park was fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards. …

[100] As to the aspects of the nature park which focussed on flora reserve … there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve … While there is a Council staff minute of 16 July 2001 stating that a planting regime should be put in place to accelerate the actions currently occurring there is no evidence of this being physically implemented at the date of the claim.
[101] After the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the park which included its reversion to a woodland area open to the public. That suggests that the woodland area was a future use rather than a current use at the date of the claim and not therefore the subject of activity which could support a finding of occupation on that basis.

[102] While the Minister’s submissions focused on the activities giving rise to occupation being in a transitional phase while the nature park closed and it changed to use for a woodland area, in accordance with the Council’s resolution of June 2001, the evidence supports only a finding that the nature park was closed and at the date of the claim the only activity by Council staff was directed to achieving that outcome. This process was finalised shortly after the date of the claim in December 2001 when the last animals were relocated and the two dedicated staff then moved elsewhere. That activity after the date of claim confirms the finality of the decision to close the nature park but does not suggest there were any activities which justify a finding of occupation on the basis of a transition to a woodland area.”

107 Her Honour accepted BLALC’s submission that the occupation which she found to have occurred was analogous to the situation in New South Wales Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (the Department of Education case).

108 In that case, at the time of the claim, the Department of Education had decided to sell its building and relocate its premises. Most of the furniture and equipment in the building had been removed and a small area of it remained occupied by six staff members. The Department had retained and paid for the services to the building such as telephones, electricity, water and gas, cleaning was provided on a regular basis and a caretaker had been appointed. Stein J (as he then was) found that as a matter of fact, the occupation was “so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)”.

109 Her Honour therefore held (at [104]) that

so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)

110 The primary judge thus concluded (at [105]) that the Minister had not discharged his onus under s 36(7) of the ALR Act of establishing that the Nature Park was lawfully occupied under s 36(1)(b) of that Act.

111 The primary judge then considered whether the claimed land was lawfully used as at 21 August 2001. She referred at [109] to the Council’s establishment of a working party in September 2001 to advise it on future directions for the Nature Park including its reversion to a woodland area open to the public. She also found that this evidence suggested that the woodland area was an intended future use rather than a use which was occurring at the date of the claim. For the reasons discussed in relation to occupation at [99]–[100] of her judgment and in light of the Council’s substantially reduced expenditure on the Nature Park, her Honour found that the evidence did not establish lawful use for the purposes of s 36(1)(b). Further, she held that the actions of the Council after the date of the claim reflecting an intention to use the land as a woodland area “cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the Nature Park”.

223 These countervailing factors need, in the specific context of this legislation, to be read together with the permissive factor in par (a). A proper reconciliation of these paragraphs requires that reservation or dedication for a specified purpose does not, of itself, mean that the lands are lawfully used or occupied for that purpose. If the purpose of the reservation is an essential public purpose, but the reservation has been outstanding for some lengthy period, it may be found that the lands are not, or are no longer, needed for that purpose.

224 In relation to native title, it is necessary to look backwards to see if native title rights and interests in particular land have been extinguished by past actions of government. By contrast, under the Land Rights Act such questions of extinguishment are irrelevant. The question posed is not backward-looking but focuses on the present. To whatever use the land may have been put in the past, and whether or not is has been alienated in the past, so long as it is now vested in the Crown and otherwise satisfies par (a) of s 36(1), a claim must be granted unless one of the exceptions is shown to be satisfied.

225 It is for this reason that the legal status of the Crown as the holder of the land (whether by way of radical title, fee simple or other interest), being a precondition to land being claimable, must be treated as insufficient to constitute lawful use or occupation, even though it may carry with it a right of control and, possibly, statutory obligations attaching to land ownership. Thus in Daruk (1993), in relation to the concept of occupation, Priestley JA stated at 162:

Aboriginal Land Rights Act

226 Priestley JA continued at 163:

“In this context I would agree that mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in others the use to which the land is put might be determinative.

Where the land in question is reserved for public recreation it may be singularly inappropriate to inquire whether the land is fenced or whether the party claiming to be the occupier has reserved to itself the power to exclude persons therefrom. What is, in my view, more to the point is whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land.”

227 Priestley JA also commented on the meaning of “used” in s 36(1)(b) in the following terms at 164:

Ryde Municipal Council v Macquarie University

Aboriginal Land Rights Act

228 None of these principles was challenged in the present case by the Minister. They have been applied in a number of subsequent cases. In particular, they were recently applied by this Court in New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 (“the Wagga Wagga Claim”). As explained by Mason P at [1], the land in question was urban land:

“It is a rectangular parcel of approx 815 sq metres located on the corner of Beckwith and Gurwood Streets. A two storey building, once a motor registry, stands on part of the land. The site has a bitumen surfaced car park and it is fenced.”

229 His Honour continued:

[27] The respondent points out that ordinary activities preceding a sale (including inspection, valuation, appointment of an agent, survey, requesting council certificates) had taken place in the weeks before lodgement of the claim. There was also continuing (albeit minor) occupation of the premises for the purpose of storage of office furniture. This low level of occupation was not relied upon to demonstrate that the land was ‘occupied’ at the relevant time, but it was said to add colour to the ‘use’ that was occurring.”

230 In the Wagga Wagga Claim, both Giles JA and Tobias JA concurred in the conclusion reached by the President, Giles JA adopting a different approach in one respect not presently relevant. The matter went to the High Court, which granted special leave but dismissed the appeal: see Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 82 ALJR 1505. As was noted in the High Court, the question was framed more narrowly than the statutory exclusion, by reference only to lawful use. The joint judgment (of Hayne, Heydon, Crennan and Kiefel JJ) noted that earlier decisions of this Court had not attempted any exhaustive definition of lawful use or occupation “or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands”. Their Honours also adopted the comment by Mason P that “use” is a protean word. Their Honours continued in the following terms at [69]:

legal

actual

Council of the City of Newcastle v Royal Newcastle Hospital

City of Newcastle Case

231 Their Honours’ reference in relation to occupation to “some degree of permanence or continuity” was derived from the judgment of Kitto J in the City of Newcastle Case (referred to below as Royal Newcastle Hospital) [1957] HCA 15; 96 CLR 493 at 507.

232 Of direct relevance for present purposes is the opening comment of the joint judgment in the passage referred to above, to the following effect:

“No matter whether the question is framed in the statutory terms (not lawfully used or occupied) or, as here, is framed more narrowly as one about use, attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being ‘not lawfully used or occupied’. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land.”

233 Implicit in the joint judgment of the High Court in the Wagga Wagga Claim is the need for care in adopting language used in considering the circumstances of one claim in relation to the circumstances of another. The definition of “claimable Crown lands” identifies as available for claim all lands vested in the Crown which are able to be lawfully sold or leased, or are reserved from sale, whether temporarily or for public purposes, or are dedicated for any purpose. From the broad ambit of such lands, various categories are then withdrawn. Thus, land subject to a native title claim or an approved determination of native title (but presumably not vested in native title holders or their prescribed body corporate) are excluded: pars (d) and (e). Also excluded are lands needed or likely to be needed either for an essential public purpose or as residential lands: pars (c) and (b1) respectively. The final (but first listed) exclusion is the one presently relevant, namely lands which are lawfully used or occupied. The variety of the interlocking concepts inevitably requires a discrete assessment to be made in cases falling within different categories.

234 The language of reservation and dedication (used in par (a)) has a long history in Australia, and particularly in New South Wales, as described by Windeyer J (Dixon CJ agreeing) in Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 at 69-76. His Honour explained at 70:

“The term ‘public reserve’ – and the word ‘reserve’ alone, when not controlled by a definition or a context indicative of a different sense – have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right.”

235 After noting that at common law, the reservation of a road in a Crown grant amounted to a dedication, his Honour continued at 74:

“But it seems more probable that ‘dedicate’ came to be used in New South Wales without any concern for its limited common law sense. It seems to have been thought to indicate something more formal than mere reservation from sale, something binding the Crown and creating some right in members of the public or of a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons.”

236 Where land is reserved for a public purpose (or for any other purpose) quite specific issues will arise as to what constitutes lawful use or occupation. For example, there may well be a question as to whose use or occupation is relevant and, in particular, what may be sufficient where the lands are retained in a natural state but are subject to access by the public and where land is set aside by the Government without public access. Nor does it necessarily follow that results obtained in rating cases such as Rutledge or Royal Newcastle Hospital, will necessarily dictate a similar result under the Land Rights Act. As was noted by Kitto J in Royal Newcastle Hospital at 508:

“One other point should be mentioned concerning the word ‘occupied’. The English authorities as to rateable occupation belong to a specialised field of law, and great care is needed in using them out of context. … I do not think it is correct to take from the English rating cases the principle that title in fee simple in possession is prima facie evidence of occupation and to conclude that, since any occupation which the Royal Newcastle Hospital has must be for its hospital purposes, its title to the subject land is prima facie evidence of occupation for those purposes.”

237 To similar effect, Taylor J, in discussing the word “used” in the relevant statutory provision noted at 515:

“The uses to which property of any description may be put are manifold and what will constitute ‘use’ will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 itself shows plainly enough that the ‘use’ of land will vary with the purpose for which it has been acquired and to which it has been devoted. … Each of the forms of user referred to in the section relate to use by the owner and some of them, no doubt, contemplate a use which is synonymous with actual physical occupation and enjoyment. Others contemplate a use in a less direct form.”

238 One reason why the rating cases may provide a less than complete analogy is that they impose a liability either on the occupier or the owner. Further, in relation to Crown land, they may depend upon an implication that the land is generally not rateable or is rateable unless expressly exempted: see Rutledge at 79. Windeyer J continued:

“Most of the exemptions, however, relate to land used for public purposes, and depend upon the manner in which the land is in fact used and occupied.”

239 Further, there is merit in construing the words of paragraph (b), “are not lawfully used or occupied”, as a whole, especially in circumstances where the lands have been reserved. The Crown Lands Consolidation Act 1913 (NSW) provided that lands could be reserved by the Minister “by notification in the Gazette” declaring the portions of Crown lands reserved and the public purpose for which they were reserved, whereupon “the lands which are the subject of any such notifications shall thereupon be reserved from sale accordingly”: s 28(1). The Crown Lands Act 1989 (NSW) makes similar provision for reserving by notification in the Gazette and states that the reservation “takes effect” on publication of the notification: s 87. As was accepted in New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74 (the Garden Island Case) a dedication or reservation of land for the purposes of a naval depot “restricted the use of the land” at 84 (Knox CJ, Gavan Duffy, Rich and Starke JJ). Isaacs J, who dissented as to the outcome, but not in relation to this principle, after referring to the predecessor to s 28 of the Crown Lands Consolidation Act referred to above, stated at 91:

“That impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated.”

240 Because s 36(1) of the Land Rights Act does not envisage use or occupation at large, but only lawful use or occupation, at least in relation to reserved or dedicated lands, the inquiry to be undertaken by the Minister (and the L&E Court) is restricted to such lawful use or occupation. Because the factual inquiry depends, as explained above, on the purpose for which lands are used or occupied, it is important to identify those lawful purposes in addressing the statutory test. Often that will occur by default because the Minister who bears the statutory onus in the L&E Court will not present a case based on use and occupation falling outside that which is lawful in accordance with the terms of the reservation or dedication.

Reasoning of primary judge

241 The reasoning of the primary judge must be understood in the context of the case presented to her Honour. The first issue to identify in that regard is that, unlike civil litigation generally, the case did not commence with a pleading filed by the party bearing the burden of proof. Rather, it commenced with an application filed by the Land Council seeking to appeal against the Minister’s refusal of the land claim. The proceedings are thus more in the nature of a merit review of an administrative decision, but one in which the decision-maker is required to demonstrate that the claimant should fail. Nevertheless, the Minister was not required to plead his case prior to the commencement of the hearing. (A “statement of issues” filed by the Minister did no more than identify the paragraph of s 36(1) relied upon and the identity of the user or occupier of the identified land.)

242 The primary judge identified the issues remaining to be determined (other issues having been disposed of by agreement) as whether the area of land in question was “lawfully occupied” or “lawfully used” at the date of the claim: at [5]. This formulation omitted reference to the onus of proof on the Minister to disprove that the land was “not lawfully used or occupied” at the date of claim, but that is of no consequence because her Honour recognised where the onus lay elsewhere in the judgment, including in stating her conclusions at [105] and [110].

243 Secondly, as her Honour expressly identified, the Minister relied upon occupation and use of the land by the Bathurst Regional Council: at [5] and [7].

244 The key passages in her Honour’s judgment have been set out by Tobias JA above at [100]–[111]. In relation to occupation, they appear at [103] and [104] in her Honour’s reasons and in relation to use at [110].

245 In summary, a fair reading of her Honour’s judgment was that, while not determining whether use as a nature park was lawful under the terms of the reservation or not, she treated it as having ceased prior to the lodgement of the claim. It appears to have been common ground, and her Honour’s finding, that on “2 July 2001 the nature park was closed to the public”: at [35]. That finding of primary fact was not challenged, nor could it have been. There was evidence to support it. As to the activities subsequent to the closure of the nature park, her Honour was satisfied that they did not relate to the purpose of the reservation, namely the preservation of native flora. They clearly did not; all that they involved was the maintenance of the remaining fauna which had not been disposed of prior to 21 August. Presumably there were reasons why the Council did not simply release the birds, animals and snakes which were no longer required in the park, but sought a new controlled environment for them: no finding was made (or required to be made) in that regard.

246 In respect of some, the Council was successful almost immediately following the closure of the park. Others were not disposed of until 21 December 2001. Between 30 June and 21 December the Council expended some $8,153 attributable to the work of two officers responsible for feeding the animals. It was open to her Honour to find that the use of the park for the purpose of holding the fauna until disposed of was transitory, was not part of any on-going purpose of the Council with respect to the land and was undertaken on the land because there were existing cages available to continue to hold the fauna. Keeping the fauna alive for the purposes of transfer to another site was treated by her Honour as analogous to minor acts of maintenance of land preparatory to sale, including storage of items no longer required, pending disposal. That required an assessment of the factual circumstances against the statutory test. It was held insufficient to constitute occupation or use for the statutory purposes.

247 Her Honour treated the exclusion of the public by the fence as insufficient to indicate a different outcome. The reasoning was that once the nature park had closed, exclusion of the public was not a particular purpose of the Council. At least in part, the fence was sought to be justified by a Council officer as required to keep kangaroo off the motor racing circuit on the other side of Mount Panorama from the fauna reserve. The fence, together with the other improvements on the land which had also lost their purpose as a result of the closure of the park, it was open to them as analogous to the improvements on the land in the Wagga Wagga Claim or the Department of Education Claim and insufficient to demonstrate lawful use or occupation.

248 There are three other aspects of the judgment which need to be noted. First, her Honour addressed questions of occupation separately from those of use. However, once it had been accepted, in her Honour’s language, that there must be “more than constructive occupation of land and evidence of physical acts which amount to actual occupation” (at [92]), the distinction lacks substance. That fact was demonstrated by the relatively brief consideration of lawful use. Adoption of that course did not constitute a material error with respect to a question of law.

249 That is not to say that there are not circumstances in which occupation will properly be considered separately from use. At least in the context of a rating statute, the owner of land may confer a right of occupation on a licensee or lessee, with the result that the owner is no longer in occupation, but may still be using the land for its purposes: see Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304; affirmed in Ryde Municipal Council v Macquarie University [1978] HCA 58; 139 CLR 633; 53 ALJR 179. Whether that which was described by Gibbs ACJ in the High Court (at 181 col 2B) as an “indirect use” would be a sufficient use for the purposes of the Land Rights Act need not be considered.

250 It has also been held, for the purposes of a rating statute, that despite legal possession, a Council which owned a park which it held for the use of the public did not occupy it: see The Church Wardens and Overseers of Lambeth Parish v The London County Council [1897] AC 625.

251 Secondly, her Honour discussed the use that could be made of activities of the Council immediately after the claim date. Such material was apparently relied upon by the Minster to show that the Council intended to use the land as a “woodland area”. Her Honour rejected, as she was entitled to, the suggestion that the park was as at the date of the claim so used. That being so, intended future use was irrelevant to the determination of the dispute.

252 What appears not to have been in issue was that the Minister could rely upon evidence of continued use of the land to keep the animals up until their disposal. As at the date of the claim, the period during which the animals would remain may have been a matter for speculation, with the possibility that they would be removed within days. The use then being made of the land could properly have been described as impermanent or transitory. However, there appears to have been no objection to the Minister calling evidence to demonstrate that some of the animals remained for a further four months.

253 The relevance of evidence of subsequent events must depend upon the precise question being addressed by the Court. It has been held that subsequent events can be taken into account to determine the proper weight to be attached to circumstances existing at the material date, in the case of valuation of shares upon death: see McCathie v Federal Commissioner of Taxation [1944] HCA 9; 69 CLR 1 at 16 (Williams J). His Honour continued at 16-17:

“These were matters existing and to be taken into account at the date of death, and the court should not be forced to speculate as to their future when the facts are known and can speak for themselves.”

254 On this approach, subsequent events were available to be taken into account for the purpose of evaluating the actual use being made of the land at the material date, namely the date of the claim.

255 The third issue to be noted is of more direct relevance, namely that, having found that there were activities undertaken by the Council on the land as at the date of claim, the Court proceeded to evaluate those activities according to their purpose and likely permanency.

256 Satisfaction that the relevant use or occupation is “actual”, involving physical activity on the land having a degree of permanence or continuity, appears to follow from the need to identify the nature of any use or occupation as at the date of the claim. If it ceased seven days later, it might be characterised as nominal or lacking sufficient permanency as at the date of the claim, but it is assumed that the lodgement of a claim cannot be contingent upon the use terminating. Thus, if there were actual use on the date of the claim, which terminated shortly thereafter, the assumption underlying the Court’s reasoning was that the Land Council would need to lodge a further claim, to be assessed according to the later date of claim to take advantage of the cessation of actual use or occupation.

257 The assumption is based on the accepted view that the rights of claimants crystallize as at the time of the claim, a conclusion affirmed in relation to the Northern Territory Land Rights Act in The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; 158 CLR 395 and, in relation to the Land Rights Act, in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 696 (Hope JA, Samuels and Clarke JJA agreeing) (the “Winbar Claim”). However, those cases were concerned with subsequent events which might remove the entitlement of the claimants; whether, under the Land Rights Act, the reasoning applies where subsequent events have rendered lands claimable has not been addressed. It was not raised in this case.

Conclusions

258 Given that her Honour was entitled and required to make an evaluative judgment as to the existence of lawful occupation or use as identified by the Minister, at the date of claim, the Minister’s challenge in this case can only succeed if:

(a) her Honour’s conclusion was not reasonably open on the facts found;

(b) in reaching that conclusion she ignored facts which she was legally required to take into account;

(c) in reaching that conclusion she gave little weight to facts which were by law required to be given significant weight, or

259 The only complaint which has substance is that her Honour treated as insignificant the activities of maintaining the animals prior to disposal. That, it was contended, was an actual physical use of the land which, whether or not it constituted occupation, satisfied the requirements of s 36(1)(b). The asserted error occurred because her Honour sought to evaluate the activity according to the identified purposes. In relation to the operation of a nature park, her Honour held that the relevant purpose had been abandoned prior to the claim; in relation to the use of the land for a flora reserve, her Honour held that “there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve”: at [100].

260 The reason why her Honour adopted that approach appears to be found in the way in which the Minister presented his case. That was summarised by her Honour in the following terms:

“94 The physical occupation of the land asserted in this case by the Minister is by the Council’s conduct of the nature park. It was submitted that the purpose of the nature park was as a reserve for native flora and fauna.

95 The Minister has the onus of establishing that at the date of the claim there were activities occurring which supported his submissions that the occupation was for the purposes of, firstly, the nature park and, secondly, the flora reserve aspects of the nature park.”

261 On the appeal, the Minister did not challenge the correctness of that categorisation of his case. Rather, he attacked her Honour’s factual findings with respect to the characterisation of the activities.

262 In my view, that challenge is not, given the manner in which the case was run, adequate to demonstrate any error of law on the part of the primary judge. This was not a case in which the occupier or user of the land was exercising full rights of ownership, but limited by the legal constraints of obtaining necessary development approvals: cf Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGERA 133 at 142-143 (Clarke AJA); see also Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641. Rather, it was a case in which the only lawful use and occupation relied upon was undertaken pursuant to the reservation for the preservation of native flora. Given that the Minister needed to establish “lawful” use or occupation, it was understandable that he presented his case on a basis limited by specified purposes.

263 Next to the claimed land was an area used for disposal of waste. If that use had extended to the claimed land, it would clearly not have been a lawful use upon which the Minister would have sought to rely. Similarly, if the land had been used for storage of road-making equipment and material, that would not have been a lawful use. Similar questions might have arisen if the purpose of keeping the animals on the land was no longer related to the nature park or to the preservation of native flora. That her Honour addressed herself to the case as presented by the Minister did not involve any question of law which was erroneously answered. On that case, the evaluative judgments reached were reasonably open.

264 It follows that the Minister has failed to demonstrate an error on a question law and the appeal should be dismissed with costs.

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Citations

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138

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CITATION:	Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138
HEARING DATE(S):	7 April 2009
JUDGMENT DATE:	10 June 2009
JUDGMENT OF:	Ipp JA at 1; Tobias JA at 85; Basten JA at 190
DECISION:	Appeal dismissed with costs
CATCHWORDS:	ABORIGINALS – Land rights under legislation – New South Wales – Claim to Crown land – Lawfully used or occupied – Claimed land was nature park containing flora and fauna – Claimed land reserved for the preservation of native flora – At date of claim nature park had been closed to allow reversion of land to woodland area – Maintenance activities and upkeep of fauna continued on land – Whether claimed land lawfully used or occupied at date of claim – Whether use or occupation to a more than notional degree established or was required to be established – Whether primary judge applied correct test of lawful use and occupation – Whether intended cessation of use or occupation relevant to determining whether actual use or occupation at date of claim – What is required for use or occupation of Crown lands reserved for a public purpose - APPEAL – Appeal from Land and Environment Court – Right of appeal – When appeal lies – Error of Law – What is – Difference between question of law and question of fact – Powers of Court of Appeal to determine questions consequential upon finding error of law
LEGISLATION CITED:	Aboriginal Land Rights Act 1983 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Exhibited Animals Protection Act 1986 Interpretation Act 1987 Land and Environment Court Act 1979 Native Title Act 1993 (Cth) Suitors’ Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Attorney-General v Cooma Municipal Council (1962) 8 LGRA 111 Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 McCathie v Federal Commissioner of Taxation [1944] HCA 9; 69 CLR 1 McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8 Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1997) 42 NSWLR 641 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 New South Wales Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 309 Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1 R v The Inhabitants of St Nicholas, Rochester (1834) 5 B & Ad 219; 110 ER 773 Regina v The District Court; Ex parte White [1966] HCA 69; 116 CLR 644 Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140 Ryde Municipal Council v Macquarie University [1978] HCA 58; 139 CLR 633; 53 ALJR 179 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 The Church Wardens and Overseers of Lambeth Parish v The London County Council [1897] AC 625 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; 88 CLR 100 The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; 158 CLR 395 The Queen v Kearney; Ex parte Jurlama [1984] HCA 14; 158 CLR 426 Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
PARTIES:	Minister Administering The Crown Lands Act (Appellant) Bathurst Local Aboriginal Land Council (Respondent)
FILE NUMBER(S):	CA 40140/08
COUNSEL:	S B Lloyd SC; S J Free (Appellant) J T Gleeson SC; M L Wright (Respondent)
SOLICITORS:	Crown Solicitor's Office (Appellant) Chalk & Fitzgerald Lawyers (Respondent)
LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S):	LEC 30281/06
LOWER COURT JUDICIAL OFFICER:	Pain J - Behrendt AC
LOWER COURT DATE OF DECISION:	28 February 2008
LOWER COURT MEDIUM NEUTRAL CITATION:	Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82