Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Ors

[2002] HCATrans 492

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S41 of 2002

B e t w e e n -

MOGO LOCAL ABORIGINAL LAND COUNCIL

Applicant

and

EUROBODALLA SHIRE COUNCIL

First Respondent

REGISTRAR-GENERAL

Second Respondent

STATE OF NEW SOUTH WALES

Third Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2002, AT 9.31 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC:   May it please the Court, I appear with MR M.A. ASHHURST for the applicant.  (instructed by Wroth Wall Solicitor) 

MR V.B. HUGHSTON, SC:   If the Court pleases, I appear with my learned friend, MR G.F. BUTLER, for the first respondent.  (instructed by Kennedy & Cooke Solicitors) 

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR J.G. RENWICK, for the third respondent.  (instructed by NSW Crown Solicitors Office) 

GLEESON CJ:   There is a certificate from the Deputy Registrar that she has been informed by the solicitor for the second respondent that the second respondent enters an appearance and submits to any order of the Court save as to costs.  Yes, Mr Basten. 

MR BASTEN:   If the Court pleases.  Your Honours, the definition of claimable Crown lands in the Aboriginal Land Rights Act is conveniently set out at page 20 of the application book.  It provides, in principle, that, subject to particular categories of exception, land can be claimed by a Land Council if it is, at the time of the claim, vested in the Crown and: 

able to be lawfully sold or leased –

or is –

reserved or dedicated for any purpose, under the Crown Lands Consolidation Act –

The land the subject of this claim was, at the date of claim, reserved under the Crown Lands Consolidation Act, pursuant to a declaration made on 10 July 1981. The declaration was made pursuant to section 28 of the Act, and 28 appears at page 26 of the application book. At no stage has that declaration been challenged or been said to be made without power. Nor, with respect, could it have been. On the same day, the land was subject to a declaration under section 25A of the Act, the effect of which was to permit the land to be dealt with as Crown land or closer settlement land. In other words, the Crown then enjoyed, and in fact exercised, in part, its absolute power to deal with the land as it wished, whether by sale of a fee simple estate, the grant of a lease, or by reservation or dedication.

HAYNE J:   Can you repeat that last step?  It seems to me to involve a slide.  What is the last step that you have just taken? 

MR BASTEN:   The last step is to say that, as a result of the declaration, the Crown was entitled to deal with the land in any way it could under the Crown Lands Consolidation Act, including by grant of a fee simple estate, a lease, a reservation, which it in fact made, or by way of dedication.  The Supreme Court held that the land was and remains vested in the Shire Council in fee simple and as it had been prior to the declaration.  The Registrar‑General took the view at the time that the effect of the declaration was to extinguish the Council’s interest.  That view was entirely consistent with the Crown having an absolute right to deal with the land thereafter. 

HAYNE J:   But do you say that the land was then vested in the Crown? 

MR BASTEN:   Yes, that is so, and we say so on one of two bases.  One basis, which is the secondary way we put the case, is that the term “vested”, for the purposes of the Land Rights Act, should be taken as covering the power of the Crown to deal with the land in any way available to it under the Crown Lands Act.  The second way we put the case is that it is correct to say that the interest of the Council was extinguished, because that is in accord with the purpose of the declaration, which is to enable the Crown to dispose of lands which it has resumed or reacquired. 

The reason why the Supreme Court took a different view was that it was concerned, firstly, that the declaration said nothing about the interest of the public authority in the land and, secondly, that it did not say that the land became Crown land, as the previous section, section 25, did.  That is the basis on which the Court of Appeal appears to have dealt with the matter at page 32, at line 15. 

GLEESON CJ:   If the land was disposed of by sale, who would get the proceeds of sale? 

MR BASTEN: The Crown, your Honour. I should say one other thing. If, indeed, the matter had been dealt with by saying that the land shall become Crown lands, then, of course, there would still be no explicit reference to the existence of an interest in the public authority. Section 25A, of course, envisages that the land may be previously subject to the interest of a public authority, as appears at page 24 of the book, where the section is set out. I need not take your Honours through it, but your Honours will see that at subsection (4) there is a definition of what could constitute a “public authority” for the purpose of this section. It is also notable that in subsection (3), at line 50, no declaration shall be made:

without the consent of that public authority –

So that if ‑ ‑ ‑

GLEESON CJ:   One of the points that is made against you, as I understand it, is the contrast between the provisions of section 25A and section 25.

MR BASTEN:   I will come to that immediately, your Honour.  May I just say that one of the points made against us at one stage was that it would be anomalous that the authority should lose its interest in the land without, as it were, having any say in the matter.  I merely wanted to say that subsection (3) suggests the contrary. 

Your Honours, the reason for the difference, with respect, appears to be this.  If one goes to the definition of “Crown lands” – and there is a definition set out at page 25, at line 16 – it is not entirely in the terms in which I think it was at that time, but perhaps I can simply indicate, without taking your Honours to it, the definition as it then was.  It referred to land “vested in His Majesty and”, firstly, “not permanently dedicated to any public purpose or”, secondly, “granted or”, thirdly, “lawfully contracted” to be granted in fee simple “under the Crown Lands Acts”. 

Now, there is an apparent anomaly between the concept of land vested in the Crown and land granted in fee simple.  In the first half of the last century, one would not think that the drafter had in mind the circumstances which occur today, where grants are made to the Crown.  The explanation would appear to be that the exclusion from the definition of “Crown land” was any land that had ever been granted by the Crown.  That, of course, was consistent with the 1861 legislation, which talked of the wastelands of the Crown, which, of course, were lands which had not been used in any way. 

If that is correct, then that explains, with respect, why the drafter, with some precision, did not say that the lands would become Crown land, because having, on one hypothesis, been granted in fee simple, they could not fall within the definition.  It was therefore appropriate to use the phraseology that they could now be dealt with as Crown lands.  Of course, that difficulty would not arise under section 25 in relation to the concept of dedication, where the land would, one expect, remain with the Crown. 

HAYNE J:   Back at 25A, it is triggered if, but only if, for present purposes, land is “vested in a public authority”.  What aspect of 25A is it that you say works a vesting in the Crown? 

MR BASTEN:   The paragraph after paragraph (b), your Honour, which says that, in the circumstances just identified: 

the land may be dealt with . . . as Crown land –

Those are the terms ‑ ‑ ‑

HAYNE J:   Yes, I see, “may be dealt with . . . as Crown land”. 

MR BASTEN:   Yes.  I take out the words in between, because they were separately added and do not bear on the present case.  So that it is the meaning of those words which is in issue, but it confers, we would say, a power on the Crown which is not qualified as to what act of disposal may be undertaken and which would render anomalous the idea that some other person might continue to have a fee simple estate in the land. 

HAYNE J:   But under 25 could there be a revesting in the Crown? 

MR BASTEN:   We would say, no, your Honour, because although land can be vested in trustees for the purpose of a dedication – matters discussed in Ward’s Case – it seems to have been envisaged that the permanent dedication which is revoked pursuant to section 25 will be in relation to land vested in the Crown.  Therefore there is no difficulty, as we would understand it, with the concept that the land becomes Crown land. 

With respect, the practice, which had been uniform up until this case, on the part of the Registrar‑General in treating the land as being Crown land, subject to no other interest, by cancelling the entry on the certificate of title, and the comments made, of which we have referred to one, in the written submissions, of Ministers at times of amendment, that the effect of this was that the land was, in effect, Crown land, was uniform – and it made sense.  The suggestion now that land which may have been vested in a public authority somehow remained vested in that authority so that it could not appropriately afterwards be dealt with creates difficulties and anomalies.  We say, for that reason, the judgment below is wrong and could have significant broader effects in terms of other land in New South Wales, many areas of which have been subject to this legislation. 

HAYNE J:   Is the relevant question whether it remains vested in the public authority, or is the relevant question whether, by reason of these events, it is now vested in the Crown? 

MR BASTEN:   The latter, your Honour, and subject to the purposive construction of that term in the Aboriginal Land Rights Act.  But I do not say that the first question is an irrelevant consideration.  It obviously has some potential bearing on the outcome, in answer to the second.  The reason that we say that, in relation to the latter, the terms of the Land Rights Act are sufficient is that it is clear from section 36(1) that, subject to the exceptions where the land is otherwise needed or used, if the land is in the power of the

Crown to deal with it, then that is the sort of land which it was anticipated might be the subject of claim. 

Your Honours will appreciate that this has nothing to do with any native title or traditional interest in land.  It is simply a question of whether land is available.  If it is, then it can be claimed, and that was why the claim was made in the present case.  Enough of section 31 is set out at page 20 to illustrate that point.  Your Honours, unless there are other matters, those are my submissions. 

GLEESON CJ:   Thank you, Mr Basten.  Yes, Mr Hughston. 

MR HUGHSTON:   If your Honours please. Your Honours, the first respondent says that this application simply does not raise a question of sufficient public importance to warrant a grant of special leave, that it is an application to appeal from a unanimous decision of the Court of Appeal construing a legislative provision which is no longer in force. There is currently in New South Wales no legislative provision of similar wording to section 25A as it was in 1981.

Now, although section 25A was added to the Crown Lands Consolidation Act back in 1917, as the judgment of the Court of Appeal makes clear, it did not reach anything like its form in 1981 until 1974, and then the provision was repealed by the Crown Lands Act 1989. There was, for a time, a section, section 138, which was in somewhat similar form to the form of section 25A, but even that was amended in 1991 so that it bore no resemblance to section 25A.

My friend has pointed in the submissions in reply to the fact that he says there are perhaps 30 applications under the Land Rights Act which may be affected, in the sense that they may be affected by section 25A declarations. He is relying, in making that statement, on a letter which appears at page 1 of the supplementary application book, which is a letter from the Crown Solicitor saying that of the 960 outstanding applications in New South Wales, 460 of them have been checked sufficiently to say that there are section 25A declarations affecting only 14 of those applications.

What that letter does not say is give a date for when the section 25A declarations were made. Bearing in mind that section 25A, in the form considered by the Court of Appeal, was only in that form for a period of 14 years, the failure to identify a date in the Crown Solicitor’s letter makes it impossible for this Court to say whether any of those 14 applications may or may not be affected by the decision which the Court of Appeal has made.

On the substantive argument which the applicant puts forward, the first respondent says that the effect of the section 25A declaration is simply

to empower the Crown to deal with land which it could not otherwise deal with. It makes lawful actions which would otherwise be unlawful. Again, as pointed out in the judgment of the Court of Appeal, the difference in language used in section 25A to section 25 is stark. Section 25 provides that upon the revocation of a dedication, the land:

shall forthwith be vested in His Majesty . . . and shall become Crown lands –

Section 25A, which is the immediately following section, does not use the word “vest” and certainly does not use the term “Crown land”. It simply empowers the Minister to deal with land in a way that the Minister would not otherwise be able to deal.

It may well be, as my friend has said in his written submissions, that the term “vest” is a term of elastic import, but it is not a term which is used at all in section 25A of the Crown Lands Act. “Vest” is, however, used in section 536A of the Local Government Act. If I could take your Honours very quickly to page 23 of the application book, at about point 20. Your Honours will there see section 536A(1) set out in relevant terms. This is the section under which the land was vested in the Council, and your Honours will see that it became:

vested in the Council for an estate in fee simple in possession freed and discharged from all trusts, obligations, estates, interests, contracts, charges, rates, rights of way, or easements whatsoever.

So in the Council’s submission, the interest which was vested in the Council was clearly a fee simple interest, and that fee simple interest was not taken away by the section 25A declaration. It simply empowered the Minister to deal with that land in certain ways. If your Honours please, unless there is anything further that we can assist with, they are the submissions of the first respondent.

GLEESON CJ:   Thank you.  Mr Solicitor. 

MR SEXTON:   Your Honours, I do not think I can usefully add to what has been said by my learned friend, Mr Hughston. 

GLEESON CJ:   There is one question I wanted to ask you, Mr Solicitor.  What was the legislative purpose behind an arrangement under which the Minister could deal with lands vested in the Council? 

MR SEXTON:   I am assuming, your Honour, that the purpose of that kind of provision is to allow land that is owned by the Council to nevertheless be used for certain governmental or State purposes, and that is why the

Minister has that power.  In other words, purposes that the Council themselves may not wish to use, or may not be able to use the land for. 

GLEESON CJ:   I thought I saw somewhere in the papers that this land in question was used for some kind of a dump at one stage. 

MR SEXTON:   Originally.  That was the first ‑ ‑ ‑

GLEESON CJ:   That is what the Council did with it. 

MR SEXTON:   Originally.  That is right, your Honour, yes. 

GLEESON CJ:   Council used it for a dump and then there was an ‑ ‑ ‑

MR SEXTON:   In part.  I am sorry, your Honour, in part.  There were a number of mixed uses. 

GLEESON CJ:   And then there was an intention that it should have a wider or different use, is that right? 

MR SEXTON:   Yes. 

GLEESON CJ:   And it would be to permit a use going beyond the powers of the Council that the Minister would be empowered to deal with the matter? 

MR SEXTON: Well, possibly beyond the powers, or, I suppose, in some cases, although there is a provision for the consent of the Council, as required under section 25A.

GLEESON CJ:   Consent to the declaration? 

MR SEXTON:   Yes. 

GLEESON CJ:   Yes, thank you, Mr Solicitor.  Yes, Mr Basten. 

MR BASTEN: Just in relation to my friend’s last answer, your Honour, the land which had been the subject of a dump, I think, remains subject to public uses of the Council and was not part of the land which was reapplied. The point that my friend, Mr Hughston, addresses in relation to the conferral on the Council pursuant to section 536A of an estate in fee simple in the broad terms set out at page 23 really emphasises the anomaly that results from this case. The consent of the Council having been obtained to the declaration, it can now be dealt with despite, on his view, the fact that the Council has that unlimited fee simple estate in the matter. That is the issue we seek to agitate, your Honours.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter. 

AT 9.52 AM SHORT ADJOURNMENT

UPON RESUMING AT 9.53 AM:

GLEESON CJ:   We are of the view that there are insufficient reasons to doubt the correctness of the decision of the Court of Appeal in this matter to warrant a grant of special leave to appeal and the application is refused with costs.

We will adjourn for a short time to reconstitute.

AT 9.54 AM THE MATTER WAS CONCLUDED