New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) - [2014] NSWLEC 58

Land and Environment Court

New South Wales

Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58
Hearing dates: 13, 14 August 2013
Decision date: 26 May 2014
Jurisdiction: Class 3
Before: Craig J
Decision:
1. Appeal allowed.
2. The Respondent must transfer the land claimed in Aboriginal Land Claim 16751, being the land known as Lot 7016 in DP 1056711, in fee simple to Red Chief Local Aboriginal Land Council.
3. The Minister must do all things necessary to enable the transfer of the land in accordance with Order 2, including surveying the land if required, within 12 months from the date of these orders.
4. Exhibits may be returned.

Catchwords: ABORIGINAL LAND CLAIM - land claim under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) - land dedicated for a permanent common under Crown lands legislation - whether claimable Crown land - control and use of land governed by the Commons Management Act 1989 (NSW) - registered proprietor of claimed land under the Real Property Act 1900 (NSW) recorded as the State of New South Wales - whether the land was vested in the common trust appointed under the Commons Management Act and not in the State ('Her Majesty') - whether in the circumstances s 14 of the Commons Management Act overrode the operation of s 42 of the Real Property Act - whether land was lawfully used or occupied - interim licence for grazing in respect of the claimed land - whether interim licence validly granted under Commons Management Act - whether knowledge and consent of reserve trust administrator sufficient to render use or occupation lawful - whether determination of invalidity of interim licence open to collateral challenge in appeal under s 36(6) of Aboriginal Land Rights Act
Legislation Cited:
Aboriginal Land Rights Act 1983 (NSW)

Acts Interpretation Act 1901 (Cth)

Commons Management Act 1989 (NSW)

Commons Management Regulation 2006 (NSW)

Commons Regulation Act 1898 (NSW)

Crown Lands Act 1884 (NSW)

Crown Lands Act 1989 (NSW)

Crown Lands Consolidation Act 1913 (NSW)

Customs Act 1901 (Cth)

Interpretation Act 1987 (NSW)

Land Acquisition (Just Terms Compensation) Act 1991 (NSW)

Land and Environment Court Act 1979 (NSW)

Local Government Act 1919 (NSW)

Real Property Act 1900 (NSW)

Real Property and Conveyancing Legislation Amendment Act 2009 (NSW)
Western Lands Act 1901 (NSW)
Cases Cited:
Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Armidale) [2001] NSWLEC 268; 118 LGERA 356

Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196

Ashfield Municipal Council v Roads and Traffic Authority of New South Wales [2000] NSWLEC 117

Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83

Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401

Breskvar v Wall [1971] HCA 70; 126 CLR 376

City of Perth v Crystal Park Limited [1940] HCA 35; 64 CLR 153

Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186

Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 337

Director of Housing v Sudi [2011] VSCA 266; 33 VR 559

El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293

Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96

Frost v Collector of Customs (Qld) (1985) 9 FCR 174

Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223

Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459

Harrington v Lowe [1996] HCA 8; 190 CLR 311
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Wagga) [2008] HCA 48; 237 CLR 285

Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69

Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009)166 LGERA 379

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Gooomallee) [2012] NSWCA 358; 194 LGERA 1

Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1991) 75 LGRA 133

Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12; 54 NSWLR 15

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Goomallee) [2012] NSWLEC 1; 186 LGERA 323

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act [Windbar Claim No 3] (1988) 14 NSWLR 685

Olsen v City of Camberwell [1926] VLR 58

Ousley v R [1997] HCA 49; 192 CLR 69

Pidoto v Victoria [1943] HCA 37; 68 CLR 87

Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 19 LGERA 75

South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; 62 CLR 603

St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147

State of New South Wales v Kable [2013] HCA 26

Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224

Tweed Shire Council v The Minister Administering the Crown Lands Act (1995) 89 LGERA 187

Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80

Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 3] [the Fingal Claim] (1995) 89 LGERA 220
Yanner v Eaton [1999] HCA 53; 201 CLR 351
Category: Principal judgment
Parties: New South Wales Aboriginal Land Council (Applicant)
Minister Administering the Crown Lands Act (Respondent)
Representation: S E Pritchard SC (Applicant)
A M Stewart (Respondent)
Chalk & Fitzgerald (Applicant)
I V Knight, Crown Solicitor (Respondent)

File Number(s): 30039 of 2012

Judgment

The New South Wales Aboriginal Land Council (the Land Council) lodged Aboriginal Land Claim 16751 (ALC 16751 or the Land Claim) on 6 November 2008. The claim was made pursuant to s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) (the Land Rights Act).

By letter dated 28 September 2011, the Minister notified the Land Council that ALC 16751 was refused. The Land Council appeals to this Court against that refusal. It does so pursuant to s 36(6) of the Land Rights Act.

In her letter of refusal, the Minister stated that when the Land Claim was made, the land that was the subject of the claim was not claimable Crown land within the meaning of the Land Rights Act. The Minister's letter continued by asserting that the claimed land was "lawfully used and occupied pursuant to a Crown licence for grazing dated 22 February 2008 and therefore not claimable Crown land."

While maintaining that the Land Claim should be refused, the present Minister no longer asserts that the refusal should be founded upon the Crown licence for grazing referred to in the letter refusing the claim. Rather, refusal of the Claim is sought to be justified on two grounds.

(1) The claimed land was not claimable Crown land as it was not "vested in Her Majesty" at the date of claim as required by s 36(1) of the Land Rights Act. At that date, an estate in fee simple in the land was held by the Boggabri Common Trust under the provisions of the Commons Management Act 1989 (NSW).

(2) Alternatively, at the date of claim, the claimed land was lawfully used and occupied under an Interim Licence granted under the provisions of the Commons Management Act on or about 3 September 2008.

The Land Council accepts that the claimed land was, at the date of claim, being used. However, it contends that there was no lawful authority for that use. The grant of the Interim Licence relied upon by the Minister was beyond power and no other statutory foundation for the issue of the Licence has been identified. For his part, not only does the Minister deny the claims of invalidity or lack of power, but contends that it is not open to the Land Council, in these proceedings, to challenge the validity of the Interim Licence upon which he relies.

I will address each of these issues in turn. However, before turning to the submissions of the parties it is necessary to record the evidence upon which those submissions are founded. That evidence is largely uncontroversial, being confined to a statement of agreed facts and bundles of documents tendered by each party without objection.

I record that in hearing these proceedings I was assisted by Acting Commissioner Kildea: s 37(2) Land and Environment Court Act 1979 (NSW).

The claimed land

A substantial tract of land on the outskirts of Boggabri in north-western New South Wales is known as the Boggabri Common. At the time of the Land Claim, the land of the Common comprised three lots, namely Lot 7016 in DP 1056711, Lot 7018 in DP 1028451 and Lot 7027 in DP 1056690. It is the first of those lots, namely Lot 7016 in DP 1056711 (Lot 7016), that is the subject of the Land Claim.

As at 6 November 2008 the registered proprietor of Lot 7016 recorded on the folio of the Register under the Real Property Act 1900 (NSW) was "the State of New South Wales". As will become apparent, the relevance to the Land Claim of the State being recorded as the registered proprietor is the subject of contention between the parties.

By proclamation published in the New South Wales Government Gazette on 31 July 1896, land at Boggabri, including Lot 7016, was "declared to be dedicated for the purpose of a Permanent Common". This dedication was effected under s 105 of the Crown Lands Act 1884 (NSW). Having regard to the definition of "Crown Lands" contained in s 4 of that Act, the land dedicated as a Permanent Common ceased to be Crown land within the meaning of that Act. That definition excluded land "permanently dedicated to any public purpose".

Thereafter, the title, control and use of the Common was the subject of legislation pertaining to commons. The legislation initially included the Commons Regulation Act 1898 (NSW) and latterly the Commons Management Act. The definition of "common" in s 3 of the latter Act includes a parcel of land that:

"... on or before 1 February 1909, had, by any instrument made by the Governor, been set aside as a common for the use of the inhabitants of any specified locality or the cultivators or farmers of any locality in which the parcel of land is situated".

That definition is sufficient to comprehend the proclamation published in the Gazette on 31 July 1896 to which I have already referred. This has the consequence that the Boggabri Common, including Lot 7016 was, at the date of ALC 16751, a common to which the Commons Management Act applied.

Statutory framework for consideration of the Claim

As I have earlier recorded, ALC 16751 was made under s 36(2) of the Land Rights Act. Subsection (5) of s 36 addresses the manner in which such a claim is to be determined. Relevantly, the subsection provides:

"(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:

(a) if the Crown Lands Minister is satisfied that:

(i) the whole of the lands claimed is claimable Crown lands

...

grant the claim by transferring to the claimant Aboriginal Land Council ... the whole ... of the lands claimed ... or

(b) if the Crown Lands Minister is satisfied that:

(i) the whole of the lands claimed is not claimable Crown lands

...

refuse the claim ... ".

The Minister's refusal of the present claim on the grounds presently advanced, also necessitates reference to s 36(1). That subsection provides:

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

claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:

...

(b) are not lawfully used or occupied".

Where, as here, the Land Council has exercised its right of appeal under s 36(6) of the Land Rights Act, subs (7) requires that if the Minister "fails to satisfy the Court that the lands ... are not ... claimable Crown lands", an order for transfer of the lands must be made. Thus, the Minister bears the onus of establishing in the present case that the claimed land is not vested in Her Majesty or, if it is so vested, was on 6 November 2008 lawfully used or occupied in the manner for which he contends (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009)166 LGERA 379 at [202]).

Critical to the contention of the Minister that the claimed land was not, at the date of claim, vested in Her Majesty within the meaning of s 36(1) of the Land Rights Act are the provisions of s 14 of the Commons Management Act. When the Land Claim was made on 6 November 2008 that section provided:

"14 Trust to have a fee simple estate in the common for which it is established

(1) For the purposes of this Act, a trust has, by virtue of this subsection, an estate in fee simple in the common for which it is established, unless it already has such an estate by virtue of some other enactment or instrument.
(2) If the setting aside of a common is revoked or otherwise terminated as to part of the common, the trust ceases to have an estate in fee simple in that part."

By notice published in the Gazette on 29 January 1993, the Minister for Conservation and Land Management assigned a corporate name to the trustee of a number of commons, dedicated as such prior to the enactment of the Commons Management Act. That notice included reference to the Boggabri Common, the trustee for which was designated as "Boggabri Common Trust". The action of the Minister in so doing was founded upon s 4(3) of the Commons Management Act. No issue is taken in the proceedings as to the power of the Minister to have acted in accordance with that subsection. Thus, it was the Boggabri Common Trust, so named, to which s 14 of that Act applied.

Other provisions of the Commons Management Act will need to be noticed but it is appropriate to do so when addressing the first of the issues raised in the proceedings, namely whether the land claimed, at the date of ALC 16751, was vested in Her Majesty. It is to that issue that I now turn.

Issue 1: Land vested in Her Majesty

Understandably, the Land Council relies upon the fact that the "State of New South Wales" was the registered proprietor of Lot 7016 under the provisions of the Real Property Act at the date of the Land Claim. The nomination of the State as the registered proprietor had the consequence that, for the purpose of s 36(1) of the Land Rights Act, the land was vested in Her Majesty.

In Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223, Bannon J was required to determine whether land was vested in Her Majesty for the purpose of the Land Rights Act where the "State of New South Wales" was recorded as the registered proprietor under the Real Property Act. When addressing that issue, his Honour said (at 13):

"Obviously the subject land is not vested in the land mass known as New South Wales or in its legislature. In my opinion, the registered proprietor is the Queen, the head of the government of New South Wales. I do not consider the vesting of the property under the title 'State of New South Wales' has the effect of vesting the property in a Minister or a statutory corporation on behalf of the Crown."

The effect of his Honour's conclusion was not disturbed on appeal (Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 per Cole JA at 461 D and Beazley JA at 472 E-G).

The Minister accepts that if the Register under the Real Property Act correctly records the registered proprietor of Lot 7016 at the date of the Land Claim, then it was vested in Her Majesty for the purpose of s 36(1) of the Land Rights Act. However, he disputes that the Register does correctly record the entity in whom the fee simple of the Lot was vested at that date.

Although acknowledging that "the Torrens System constitutes title by registration" (Breskvar v Wall [1971] HCA 70; 126 CLR 376 at 385), the Minister submits that s 42 of the Real Property Act is, in the present case, "ousted". That occurs, so it is submitted, by operation of s 14(1) of the Commons Management Act.

As further developed, the submission is that the provisions of s 14(1) have the effect that the Boggabri Common Trust held the estate in fee simple in Lot 7016 at the date of the Land Claim. While title was so held, that Lot was not "Crown land" within the meaning of the Crown Lands Act 1989 (NSW). The expression "Crown land" is defined in s 3 of the Crown Lands Act as follows:

"Crown land means land that is vested in the Crown or was acquired under the Closer Settlement Acts as in force before their repeal, not in either case being:

(a) land dedicated for a public purpose, or

(b) ... ".

Dedication of land as a common is dedication within the meaning of paragraph (a) of that definition.

The Minister further submits that the provisions of s 14(2) of the Commons Management Act "dovetail" with the definition of "Crown land" in s 3 of the Crown Lands Act. Title to land dedicated as a common is vested in the common trust until the common is revoked. If dedication of the common is revoked "the estate in fee simple in the land that was subject to the common reverts to the Crown and the land reverts to being Crown land" (Respondent's outline submissions at [19]).

Expressed succinctly, the Minister submits that s 14 "trumps the usual effect of registration because of the ouster of s 42 of the Real Property Act" (submissions at [21]). Initially, further support for the submission was said to be found in subsection (3) of s 14 of the Commons Management Act which provides:

"(3) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900."

However, it was later acknowledged that subsection (3) was added to s 14 by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW). As is obvious, that legislation was enacted after the date of the Land Claim and for that reason is not relevant for present purposes: the amending Act is not expressed to have retrospective effect.

Support for the Minister's contention that s 42 of the Real Property Act was "ousted" is also said to arise because the later enacted Commons Management Act "must be given effect at the expense of the earlier Act" (submissions at [20]). Judgments of the High Court in South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; 62 CLR 603 (Latham CJ at 616 and Dixon J at 625) are cited in support of that submission. Application of the principle of interpretation there invoked turns upon inconsistency between the statutory provisions being considered. As Dixon J observed in that case (at 625):

"But, unless it is found impossible to reconcile the later statute with sec.6 [of the earlier Act], there is no room for the conclusion that the later Act must be regarded as meaning to operate upon land under the earlier Act and to do so inconsistently therewith."

For reasons that follow, I am not persuaded that there is inconsistency between the provisions of s 42 of the Real Property Act and s 14 of the Commons Management Act. I do not accept that s 14 operates in the manner for which the Minister contends.

Consideration of s 14(1) of the Commons Management Act must commence with its text. The opening words "[f]or the purposes of this Act" are words of limitation. It cannot be assumed that the words have no work to do. Had it been the legislative intent that the interest vested in a trust of common land be an estate in fee simple for any purpose, the opening words of the subsection would be unnecessary.

The concluding words of the subsection "unless it already has such an estate by virtue of some other enactment or instrument" support the conclusion just expressed. Those words acknowledge that there may be some other basis upon which an estate in fee simple is held by the trust, for example, by conveyance, transfer or grant effected otherwise than by operation of the subsection. However, unless an estate in fee simple has been acquired "independently", the title that is vested "by virtue of [the] subsection" is qualified as being for the purposes of the Act. It is not contended by the Minister that the interest of the trust in Lot 7016 was created otherwise than by virtue of s 14(1).

Provisions similar to, although not identical with, s 14 of the Commons Management Act have been found in Crown lands legislation for many years. Part 3B of the Crown Lands Consolidation Act 1913 (now repealed) was headed "Management of and dealings with dedicated or reserved lands and certain other lands". Section 37X (a section within Pt 3B), relevantly provided:

"Estate of trustees.

37X(1) Except to the extent that the trustees of a reserve have an estate in fee simple in the reserve apart from this section, the trustees shall, for the purposes only of this Part and of any by-law, be deemed to have that estate in the reserve."

Part 5 of the current Crown Lands Act is headed "Dedication and reservation of land". Section 100, found in Pt 5, relevantly provides:

"100 Estate of trust

(1) For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have an estate in fee simple in the reserve has such an estate.

(2) The reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part.

(3) Revocation of the dedication or reservation of the whole or part of a reserve divests the reserve trust of any estate in the land affected by the revocation."

The consequence for an Aboriginal land claim under the Land Rights Act, where the land in question was vested in a trustee pursuant to s 100 of the Crown Lands Act, was addressed by Bannon J in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 337. Having noted that s 100(1) of the Crown Lands Act was in substantially the same terms as s 37X(1) of the Crown Lands Consolidation Act, Bannon J said (at 340-341):

"Both under the Crown Lands Consolidation Act and the Crown Lands Act, the vesting of the land in the trustees is for limited purposes only under those Acts, and I have reached the conclusion that the land claimed was, at the relevant date, vested in Her Majesty for the purposes of s 36(1) of the Act."

The limiting operation of the opening words of s 100(1) of the Crown Lands Act was considered by Pearlman J in Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 96 LGERA 75. Her Honour was there determining a claim for compensation made under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). In seeking to apply the provisions of the that Act, it was necessary for her Honour to determine whether the Reserve Trust held an "interest in land", as that expression was defined in that Act, the first limb of which was the holding of "a legal or equitable estate or interest in the land". In addressing that aspect of the case, her Honour said (at 79):

"Section 100 of the Crown Lands Act provides that, for the purposes only of Pt 5 of that Act, a reserve trust has an estate in fee simple in the reserve of which it is the trustee. In the respondent's contention, which I think is patently correct, the applicant does not have an estate in fee simple in Prince Alfred Park for the purpose of any other Act, and in particular, for the purpose of the Just Terms Act. It follows that it does not have an estate in fee simple for the purpose of limb (a) of the definition of 'interest in land'."

Section 100 of the Crown Lands Act was also considered by Sheahan J in Ashfield Municipal Council v Roads and Traffic Authority of New South Wales [2000] NSWLEC 117, another case requiring the determination of compensation under the Land Acquisition (Just Terms Compensation) Act. Having made reference to the provisions of s 100(1), his Honour said (at [49]):

"49 I accept Mr Ayling's contention that this means that the Crown holds the fee simple of the trust lands, but vests in the Council, for the purposes of the Council's exercise of its functions as trustee or trust manager under the CLA, those incidents of the fee simple which the Council needs in order to achieve those purposes."

In Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224, Barrett J (as his Honour then was) was required to determine a claim of title by adverse possession to an area of land forming part of an adjoining public park. The land in question was part of a larger parcel of land that had been compulsorily acquired by a State instrumentality in 1886. The land was acquired for a public park. Following acquisition, Waverley Council was appointed as trustee of the land. By operation of a number of legislative provisions following its appointment, that Council came to hold the land as a reserve trust under the provisions of s 100 of the Crown Lands Act. In the context of considering the operation of that section, his Honour observed (at [20]):

"The Act of 1989 thus follows the pattern of earlier legislation. It enacts that a reserve trust has an estate in fee simple in the relevant reserve for the purposes of Part 5 of that Act itself and a by-law under that Part. The statute is not the source of an estate in fee simple for any other purpose, with the result that such an estate cannot be said to exist when some different statute or other legal context is under consideration. The statutory fiction, if it may be so described, does not exist for all purposes of the Crown Lands Act 1989 itself."

The Minister submits that the judicial exegesis given to s 100 of the Crown Lands Act should not be applied to s 14(1) of the Commons Management Act. He submits that while the latter subsection is expressed to apply for the purpose of the Act as a whole, the respective provisions of the Crown lands legislation that are addressed in the decided cases are expressly confined in their operation "for the purpose(s) only" of the Part of the Act in which the section is found. Emphasis is placed upon the use of the adverb "only" in s 100(1) of the Crown Lands Act and its absence from s 14(1) of the Commons Management Act.

I do not accept that the distinction drawn by the Minister between the respective statutory provisions reflects a difference of any relevant consequence. The Crown Lands Act addresses a number of disparate topics pertaining to Crown land. It is therefore understandable that in addressing the separate topic of dedication and reservation of areas of Crown land (Part 5) and making provision for reserve trusts in respect of land so dedicated or reserved, the exercise of power by the reserve trust, including that which would otherwise be consequent upon the grant of an estate in fee simple, would be confined to the exercise of the powers conferred by that Part of the Act. Other parts of the Act address different powers to deal with Crown land. For example, by s 76 certain Crown land may be vested in a Local Government Act council "in fee simple", with potentially different consequences for such vesting from those afforded by the vesting of land in a reserve trust under s 100: s 77 of the Crown Lands Act demonstrates that proposition. Thus, the necessity to confine the operation of s 100 to Pt 5, a limitation emphasised by use of the adverb "only" in subsection (1) of that section.

However, the fundamental flaw in the Minister's submission seeking to distinguish the cases directed to s 100 of the Crown Lands Act is that it fails to address or assign any legislative purpose to the opening words of s 14(1) of the Commons Management Act. As I have earlier indicated, had it been the legislative intent to invest title in a common trust for any purpose, transcending the performance of functions under the Commons Management Act, such that the title held good for the purpose of any legislative enactment, the opening words "[f]or the purposes of this Act" would be superfluous.

Beyond the comparison between the terms in which each of s 14 of the Commons Management Act and s 100 of the Crown Lands Act are expressed, there are similarities that are apparent between the two Acts operating at a broader level, indicating a legislative intent that they should operate to similar effect. Both Acts deal with land reserved or dedicated under Crown lands legislation and establish a trust for the management of that land. As the Long title to the Commons Management Act indicates, the purpose of that Act is to provide for the management of commons through the statutory vehicle of a trust.

By s 8(1) of the Commons Management Act, a trust is charged with responsibility for the "care, control and management" of the common. So also, by s 92(5) of the Crown Lands Act, a reserve trust is charged with the "care, control and management" of any reserve of which it is appointed trustee.

Just as s 100(3) of the Crown Lands Act divests a reserve trust of its estate in land if the reservation or dedication of that land is revoked, so also by s 14(2) of the Commons Management Act a common trust "ceases to have" the estate in fee simple vested in it by subsection (1) of the same section if the common is revoked. Those provisions are significant. They are demonstrative of a legislative intent that the land title held by the trust is in aid of its management function rather than reflecting an intent to change the underlying title to the land.

Section 16 of the Commons Management Act constrains the power of a common trust to enter into any "transaction" with respect to the land vested in it. A "transaction" is defined in s 3 to include a transfer, conveyance, lease or grant of any licence in respect of land. The constraints imposed by s 16 are, in substance, to the same effect as ss 102, 103 and 104 of the Crown Lands Act, as those provisions relate to land vested in a reserve trust. As the Land Council submits, the fact that the common trust may, in accordance with s 16, sell land that is the subject of the trust does not manifest an intention to require a change in title in favour of the trust enabling it so to do. By analogy, it could not be suggested that the power of the Minister to sell Crown land pursuant to s 34 of the Crown Lands Act is not able to be exercised unless title to land of which the State of New South Wales is the registered proprietor is first transferred to the Minister.

The close similarities between the provisions of Pt 5 of the Crown Lands Act, addressing the creation and management of reserves under that Part, and the provisions of the Commons Management Act addressing the management of Commons suggests to me that the jurisprudence directed to s 100 of the Crown Lands Act is appropriate to be applied to the operation of s 14(1) of the Commons Management Act. That is, the latter section creates a "statutory fiction" (Townsend) of title that does not impact upon the real or underlying title to common land.

In response to any such conclusion, the Minister relies upon the decision of the Court of Appeal in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12; 54 NSWLR 15. A claim made under s 36(3) of the Land Rights Act had been refused by the Minister on the ground that at the date of claim the land was lawfully used and occupied by Eurobodalla Shire Council for public recreation and camping. While the Land Council appealed to this Court pursuant to s 36(6) of the Land Rights Act, Eurobodalla Council commenced separate proceedings in the Supreme Court seeking a declaration that the land was not vested in Her Majesty and therefore did not fall within the definition of claimable Crown lands in s 36(1) of the Land Rights Act. The Council also sought a declaration that it held the estate in fee simple in the land for which the claim was made. The basis for that claim will be explained shortly. However, it was from orders made in favour of the Council in those proceedings that the Land Council appealed to the Court of Appeal.

The decision on appeal affirmed the decision at first instance to the effect that the land in question (lot 8) was not vested in Her Majesty and that the estate in fee simple was vested in the Council. The leading judgment was delivered by Giles JA (Hodgson JA and Rolfe AJA agreeing). At [29] his Honour said:

"Even if lot 8 had initially been vested in the shire council as a public reserve, in my opinion it was not thereby in a position akin to that of the municipal authorities earlier mentioned. The right to exercise every imaginable act of ownership may be circumscribed, by common law and by statute, while leaving the landowner's interest an estate in fee simple. But I see no reason to conclude that the vesting in the shire council of an estate in fee simple in lot 8, upon resumption and purportedly again upon the registration of deposited plan 258299, passed only powers of control and management and such proprietary interest as was necessary for the shire council's functions."

Giles JA continued at [30]:

"Unlike the cases on which the land council relied, what was vested in the shire council was unequivocally an estate in fee simple. It was not a collection of rights to be found only in, and limited by, a purpose or function ...".

Despite their apparent attraction, the observations there made by his Honour do not, in the circumstances of this case, aid the Minister. Lot 8 was part of a larger area of land resumed by the Council pursuant to s 536 of the Local Government Act 1919 (now repealed). By dint of s 536A of that Act, upon publication of the resumption notice in the Gazette the resumed land was "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." The land so acquired was subsequently subdivided by the Council. It was by that subdivision that lot 8 was created as a separate lot and recorded on the deposited plan as being "dedicated as a public reserve". Upon registration of the deposited plan a certificate of title issued recording the Council as the registered proprietor. It is by reference to the title so recorded that Giles JA referred to the right of the holder of an estate in fee simple as a right "to exercise every imaginable act of ownership",applying the observations of the plurality in Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96 at [43], a decision relied upon by the Minister in the present case.

After the deposited plan had been registered and the Council recorded as the proprietor of lot 8, a declaration was made by the Minister under s 25A of the Crown Lands Consolidation Act declaring lot 8, together with other lands, to be dealt with "as if they had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act, 1913." Wrongly, as the Court determined, the Registrar-General had then amended the Register by deleting the Council as registered proprietor and recording that the land had "become Crown land within the meaning of the Crown Lands Acts".

The circumstances in which lot 8 came to be vested in the Council is significant. There can be no question that in acquiring the land by compulsory process under the Local Government Act, without any overlay of Crown lands legislation, the Council was vested with an "unequivocal" estate in fee simple in lot 8. It was not an estate that was limited "by purpose or function". Moreover, as Giles JA determined at [34], the effect of the declaration under s 25A of the Crown Lands Consolidation Act did not purport to alter the ownership of the land but determined only the manner in which the Council could deal with the land (see also at [28]).

The position that there pertained is in marked contrast to the ownership of Lot 7016. That Lot was never acquired by the Boggabri Common Trust. It held an estate in fee simple in that Lot only by virtue of s 14(1) of the Commons Management Act. The Common was declared as such under Crown lands legislation. Unlike the vesting of the estate in fee simple in Mogo, or the right conferred by the Crown grant in Fejo, the collection of rights vested in the Boggabri Common Trust are "found only in, and limited by, a purpose or function" provided for in the Commons Management Act. While s 14(1) acknowledges the possibility of an estate being vested in a common trust by "some other enactment or instrument", thereby contemplating a circumstance of the kind that occurred in Mogo, no other "enactment or instrument" is identified in the present case in order to sustain the title of the Common Trust.

The provisions of s 14(1) of the Commons Management Act, read in the context of the decisions to which I have earlier referred, are consistent with a principle that while a statute may vest land in fee simple in a public body, that vesting may only be sufficient to facilitate the performance of those statutory functions imposed by the statute under which the vesting of that estate occurs. That limited operation of a statutory provision of the kind found in s 14(1) was the subject of observations by Williams J in City of Perth v Crystal Park Ltd [1940] HCA 35; 64 CLR 153 where his Honour said (at 168):

"The word 'vest' is a word of elastic import, and a declaration that lands are vested in a public body for public purposes may 'pass only such powers of control and management and such proprietary interests as may be necessary to enable that body to discharge its public functions effectively' ...".

That part of the passage in his Honour's observations that appear by way of quotation are taken from the advice of the Privy Council in Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 at 409 (cited with approval by Gummow J in Yanner v Eaton [1999] HCA 53; 201 CLR 351 at [94]). In the present context, I see no reason to differentiate between the "vesting" of an estate in fee simple and the holding of such an estate, as s 14(1) provides.

For these reasons, I conclude that the statutory vesting or holding of an estate in fee simple in the Boggabri Common Trust pursuant to s 14(1) of the Commons Management Act does not impinge upon the underlying title to Lot 7016 nor do those statutory provisions result in a change in title to the land to which they relate. That title remains with Her Majesty. So understood, s 14(1) does not operate in a way that is inconsistent with or contradictory of the provisions of s 42 of the Real Property Act.

For the purpose of s 36(1) of the Land Rights Act, Lot 7016 was, at the date of ALC 16751, vested in Her Majesty. Section 14(1) of the Commons Management Act does not operate to defeat that title.

Issue 2: Lawful use and occupation

As I have earlier recorded, the Minister contends that Lot 7016 was, on 6 November 2008, lawfully used and occupied under an Interim Licence granted to Paul Tailby on 3 September 2008. In order to address the issue raised by this contention, it is necessary to recite further facts.

For several years prior to 2005, it would seem that the Boggabri Common had not been operating as a common. It had not been used and financial reports relating to the operation of the Common had not been supplied to the Department of Lands since 2001.

As a consequence, in May 2005 the Regional Manager of the Department determined that the revocation of the Common would be appropriate and that the Boggabri Common Trust should be dissolved. All members of the Common are said to have been advised of its proposed revocation and of the proposed dissolution of the Trust. No objections are recorded as having been received in response to that notice. However, the records of the Department of Lands reveal that no action was then taken to implement the Regional Manager's determination.

Three events of present relevance occurred in 2006. First, on 21 April 2006 the Minister for Lands exercised the power available to him under s 58 of the Commons Management Act to delegate a number of his functions under the Act to designated office holders within his Department. Relevantly, he delegated his function under s 48(1) to appoint an administrator to manage the affairs of a trust to either the Director-General of the Department or to the "General Manager, Crown Lands Division".

On 1 September 2006 Mr Paul Tailby wrote to the office of the Department of Lands at Tamworth, indicating that he was interested in leasing the Boggabri Common. No doubt prompted by that letter, on 13 November 2006 the Regional Manager of the Department at Tamworth approved a recommendation from one of his officers that revocation of the Boggabri Common be effected by the Minister; that the Trust be dissolved and that following revocation the land be dealt with as if it were Crown land by licensing its use "to adjoining land owners and reservation for future public requirements." However, as will become apparent, that approval by the Regional Manager was not acted upon for some time.

In the meantime, the Department prepared tender documents inviting tenders for grazing rights on the Boggabri Common including, but not limited to, Lot 7016. The tender documents indicated that the successful tenderers will be invited "to make application for a licence under the Crown Lands Act, 1989". Tenders closed on 16 February 2007.

By letter dated 17 January 2007, Mr Tailby was invited to submit a tender by the due date. He did so under cover of a letter of 6 February 2007, proposing that about 20 cows and calves be grazed on the Common "subject to seasonal conditions."

On 2 April 2007 Mr Tailby made application for the grant of the licence over Crown land in the form provided by the Department's office at Tamworth. That application was later supplemented by a Management Plan prepared by Mr Tailby and relating to his proposed use of the Common for grazing.

The application for the issue of the Licence was approved by Ms B Kelly on 7 December 2007 in her capacity as "Acting Team Leader." The Licence was proposed to commence on 7 December 2007, to be reviewed on 7 December 2010 with a recommended rental of "$4,000 + CPI + GST". As a consequence of the approval, a formal offer was made to Mr Tailby to sign the Licence. He did so on 8 February 2008.

The Licence signed by Mr Tailby on that day was entered into by him with the Minister as grantor. It was expressed to be a licence pursuant to the provisions of s 34 of the Crown Lands Act. The licence was assigned the number LI396938 (the Crown Land Licence).

The land the subject of the Licence was described as being "Crown land known as Lot 7016 DP 1056711; Lot 7018 DP 1028451 and Lot 7027 DP 1056690 (being Former Boggabri Common)". As the offer made to Mr Tailby had indicated, the initial rent reserved by Schedule 1 of the Licence was $4,000 with a rent review in three years. The purpose for which the Licence was granted was expressed in the same Schedule as being:

"Grazing (cattle/calves) - limited cultivation for direct drill for pasture establishment or noxious weed control as indicated in Plan of Management".

By condition 25 of the Licence, the term of the Licence was to commence on 7 December 2007 and "continue in force" until revoked in accordance with the provisions of the condition. Paragraph (b) of condition 25 entitled the Minister so to do, "in his absolute discretion", by serving a notice on Mr Tailby revoking the Licence.

The Licence was signed on behalf of the Minister by his delegate on 22 February 2008. However, at that time the land was not Crown land within the meaning of s 3 of the Crown Lands Act by reason of its dedication as a common in circumstances that I have earlier described.

In a Memo to and approved on 15 July 2008 by Graham Harding, General Manager of the Crown Lands Division of the Department, a recommendation was made that Belinda Kelly be appointed as interim administrator of the Boggabri Common Trust under the provisions of s 48(1) of the Commons Management Act. The term of her appointment as recommended in the Memo was to be for a period not exceeding six months from the date of gazettal of that appointment "or until revocation of the Common has been gazetted, whichever the shorter [sic]". The Memo was dated 2 July; it was prepared by Belinda Kelly.

The Memo states that lawful occupation of the Common "is required to enable continuity into licensing under the provisions of the Crown Lands Act 1989 whilst revocation action is undertaken." The Memo also records the successful tender by Mr Tailby to graze the Common and a stated intention "to grant a Temporary Licence to Mr and Mrs Tailby by the Administrator of the Common Trust for a period not exceeding 6 months or whenever revocation of the Common is effected whichever is the sooner".

The appointment of Ms Kelly as Administrator of the Common Trust was notified in the Gazette on 25 July 2008. The term of her office was notified as being a term commencing on 25 July 2008 and expiring on 25 January 2009. Having regard to the provisions of s 48(1), publication of the notice in the Gazette was the means by which the appointment was effected.

Mr Tailby was advised by letter dated 8 August 2008 of the discovery by the Department that the Permanent Common declared for the land that was the subject of the Crown Land Licence had not been revoked. He was informed that until revocation of the Common, an agreement between the Boggabri Common Trust and himself was required. The letter continues:

"Please Note: This interim Licence is necessary, whilst the area remains Common land and has been granted for a term not exceeding (6) months from 25th July 2008 or until such time as the Boggabri Common has been revoked.

Also Note: The Trust acknowledges that rent for the Licence is paid under Crown Land Licence 396938 and therefore additional rent will not be required under this interim Licence.

Upon revocation of Common [sic], Licence 396938 will automatically take effect. Rental for Licence 396938 should be paid when rent falls due."

Attached to the letter of 8 August 2008 from the Department of Lands were two copies of the Interim Licence which the letter stated "must be signed". Signed copies of the document were required to be returned by 5 September 2008.

The Interim Licence was duly signed by Mr Tailby. The exact date upon which he signed the document is not known. While the Interim Licence is dated 25 July 2008, that cannot be the date of its execution by Mr Tailby, given that the document was not forwarded to him for signature until 8 August 2008. What is apparent from correspondence tendered in evidence is that the document had been signed both by Mr Tailby and by Ms Kelly, as Administrator of the Boggabri Common Trust, by early September. This conclusion follows from the fact that by letter dated 3 September from the Department of Lands, a copy of the Interim Licence, executed by Ms Kelly, was forwarded to Mr Tailby.

The provisions of the Interim Licence replicated almost all of the provisions of Crown Land Licence. The land to which the Interim Licence related was identical to that nominated in the Crown Land Licence and the stated purpose for which the land could be used was expressed in identical terms in each document. Schedule 1 to the Interim Licence identified the commencement date as being 25 July 2008 and the expiry date as being "6 months or until Common is revoked".

By Notice published in the Gazette on 19 September 2008, the Minister for Lands gave notice of his intention to revoke the dedication of the Crown land comprising the Boggabri Common with a view to dealing with the land as land intended to be "re-reserved for the public purpose of Future Public Requirements." The Notice was expressed to be a replacement for a Notice published in the Gazette on 12 September 2008 proposing revocation in similar, but not identical, terms.

Yet a further Notice of the Minister's intention to revoke the dedication of the Boggabri Common was published in the Gazette on 31 October 2008. This Notice was expressed to be published in lieu of the Notice published in the Gazette on 19 September 2008. The 31 October Notice made no reference to an intention to re-reserve the land for a public purpose. The Notices of intention to revoke the Common were published in the Gazette in order to meet the requirements of s 84(2)(a) of the Crown Lands Act.

Conformably with s 84(1) of the Crown Lands Act, revocation of the dedication of "Crown Land specified in Column 1 of the Schedule hereunder" was notified in the Gazette on 19 December 2008. The Crown land so specified was the three lots that comprised the Boggabri Common. By operation of s 84(4), that publication in the Gazette vested the land in the Crown and the land became Crown land within the meaning of the Act.

Revocation of the Common did not take place until after the present Land Claim was made. It will be remembered that the Land Claim was made on 6 November 2008.

It is accepted by the Minister that prior to the grant of the Interim Licence to Mr Tailby:

(i) the Boggabri Common Trust, by itself or through its Administrator, did not make application to the Minister under s 16(4)(a) of the Commons Management Act for consent to grant that Licence;

(ii) the Minister did not consider any application pursuant to s 16(4)(a) from the Trust or its Administrator for consent to grant the Interim Licence;

(iii) the Minister did not consent pursuant to s 16(8)(a) of the Commons Management Act to any application by the Trust or its Administrator for consent to the grant of the Interim Licence;

(iv) the Minister did not grant to the Trust or its Administrator a general authority in writing pursuant to s 16(10)(a) of the Commons Management Act authorising the Trust or its Administrator to grant any class of licence in respect of the land comprising the Boggabri Common, including Lot 7016; and

(v) the Minister did not approve pursuant to s 16(13) of that Act the consideration or any consideration for the grant of the Interim Licence.

For its part, the Land Council accepts that between 25 May 2008 and 3 March 2011, Mr Tailby occupied Lot 7016. During his occupation his use of the Lot involved:

(i) continuously grazing cattle on the land;

(ii) undertaking weed control by regularly spraying and slashing weeds on the land;

(iii) sowing winter and summer grasses on the land; and

(iv) planting over 340 trees on the land.

As at 6 November 2008 the manner in which Mr Tailby used the land as described in the preceding paragraph involved a use "to more than a notional degree". The use of the land in the manner described accorded with the terms of the Interim Licence.

Arising from this summary of the evidence and recording of the concessions made by each party, it is accepted that in order to address the Minister's reliance upon the lawful use or occupation of Lot 7016 at the date of the Land Claim, two issues need to be addressed. They are:

(i) whether the Interim Licence executed by Belinda Kelly as Administrator of the Boggabri Common Trust on or about 3 September 2008 was, at the date of claim, valid and operative; or

(ii) whether Belinda Kelly, as Administrator of the Boggabri Common Trust, had knowledge of and consented to the use of the claimed land by Mr Tailby for grazing cattle and that the use and occupation of the land by Mr Tailby was, at the date of claim, otherwise lawful having regard to that knowledge and consent.

As the Minister accepts, relevant to each of these further two issues are the provisions of s 155 of the Crown Lands Act. That section relevantly provides:

"155 Offences on public land

(1) A person shall not, without lawful authority:

...

(c) graze stock on public land,

...

(e) clear, dig up or cultivate public land ...".

A penalty is imposed for breach of that section.

In his written submissions, the Minister had contended that s 155 was not applicable. That submission was withdrawn in oral argument and the applicability of the section conceded, having regard to the definition of "public land" in s 153 of that Act which is in the following terms:

"public land means Crown land or land within a reserve as defined in Part 5 or any other land granted, dedicated or reserved for a public purpose."

The Minister accepted that the Boggabri Common was "other land" dedicated for a public purpose.

Returning then to the provisions of s 155 of the Crown Lands Act, it is necessary to determine that Mr Tailby's grazing of livestock on the Common and cultivation for pasture were activities that were lawfully authorised. Given the provisions of s 36(7) of the Land Rights Act, the Minister bears the onus of establishing the requisite "lawful authority".

It is convenient to address the two issues directed to the lawful use or occupation of Lot 7016 in the order in which they are identified in the Agreed Statement of Issues filed by the parties.

Validity of the Interim Licence

The Minister relies upon the Interim Licence dated 25 July 2008 as one of the two bases upon which he submits that the use and occupation of Lot 7016 by Mr Tailby was lawful. The source of power to grant that Interim Licence is said to be s 22 of the Commons Management Act.

Before proceeding to address the steps in the Minister's argument, it is relevant to record that the Minister does not place reliance upon the Crown Land Licence entered into with Mr Tailby on 22 February 2008. As I have earlier recorded, that Licence was purportedly granted under s 34 of the Crown Lands Act. As Lot 7016 was not, at the time, Crown land within the meaning of s 34, the Minister accepted that the Licence was invalid (Respondent's Outline of Submissions at [30]).

Section 22 of the Commons Management Act provides:

"22 Trust to be empowered to grant temporary licences for grazing etc

(1) For the purpose of this section, a temporary licence is a licence that is granted for a period not longer than that prescribed.

(2) A trust may, in respect of the land or any part of the land vested in it, grant temporary licences for grazing or for any other prescribed purpose.

(3) Such licences:

(a) may be granted subject to conditions or restrictions determined by the trust concerned, and

(b) if conditions or restrictions are prescribed for the purposes of this subsection, shall be taken to include those conditions or restrictions."

I have earlier referred to the provisions of s 16 of the Commons Management Act which circumscribes the manner in which or conditions upon which a common trust may enter into "transactions" with respect to the land vested in it. Generally, "transactions" which include the grant of a licence, cannot be undertaken except with the consent of the Minister. It is unnecessary for present purposes to set out the terms of the section in full but subsections (1) and (2) should be noted. Those subsections provide:

"(1) A trust may not enter into any transaction with respect to the land vested in it, except as provided by this Division.

(2) Subject to section 19(4), if a trust purports to enter into a land transaction that it is not empowered to enter into, the transaction is void."

Subsection (15) of s 16 is also of present relevance. It provides:

"(15) A reference in this section to a licence, or a reference in this section (subsections (1) and (2) excepted) to a transaction, does not include a reference to a temporary licence." (Emphasis added.)

The expression "temporary licence" is defined in s 3 to mean a licence granted under s 22.

Clause 29 of the Commons Management Regulation 2006 (NSW) (the Regulation) prescribes matters for the purpose of s 22 of the Commons Management Act. The clause provides:

"29 Temporary licences

(1) For the purposes of s 22(1) of the Act, 3 months is the longest prescribed period for which a temporary licence may be granted.

(2) For the purposes of s 22(2) of the Act, any purpose that is consistent with the management plan for the common is a prescribed purpose."

The provisions of the Interim Licence as they relate to its term need to be noticed. Condition 23 provides for the Licence to commence on the date specified in Schedule 1 and continue in force until the date also specified in that Schedule. That Schedule identifies the commencement date as 25 July 2008 and the expiry date as being "6 months or until Common is revoked" (sic). Paragraph (b) of condition 23 gives to the Trust the right, in its discretion, to revoke the licence "at any time either before or after" the expiry date nominated in Schedule 1 upon giving notice of revocation to Mr Tailby.

Condition 56 of the Interim Licence deems conditions annexed in Schedule 2 to be conditions of the Licence. Condition 71, which is found in that Schedule, provides:

"71. Interim Licence

This interim Licence is necessary, whilst the area remains Common Land and has been granted for a term not exceeding six (6) months from 25th July 2008 or until such time as the Boggabri Common has been revoked.

The Trust acknowledges that rent for the Licence is paid under Crown Land Licence 396938 and therefore additional rent will not be required under this interim Licence.

Upon revocation of Common, the Crown Land Licence will automatically take effect.

Rental on Crown Land Licence 396938 should be paid when rent falls due."

These provisions of the Interim Licence make tolerably clear that the term for which the Licence was granted was for a period up to six months. The Minister accepts that a "temporary licence" for that term would offend the limitation imposed by s 22(1) of the Commons Management Act, as the term is for a period longer than the prescribed three months. Nonetheless, he submits that the validity of the Interim Licence is sustained by application of s 32 of the Interpretation Act 1987 (NSW). That section provides:

"32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made."

It has been accepted for the purpose of the submission that the Interim Licence is an "instrument" within the meaning of this section.

In advancing his submission, the Minister spoke of the need to "sever" the provisions of the Interim Licence directed to the term of six months. That submission will need to be further addressed. However, it is immediately apparent that if the term is taken to be three months and the date of commencement of that term remains as stated in the Interim Licence, namely 25 July 2008, the deemed foreshortening of the term will not aid the Minister's argument. This is because the "lawful authority" in the form of the Interim Licence will have ceased to operate as any form of authority prior to 6 November 2008, being the date upon which the Land Claim was made.

Acknowledging that this would be the logical consequence of notionally reducing the term to a period of three months, the Minister also contends that s 32 should be applied so as to "amend" the commencement date of the term either to 8 August 2008 or 3 September 2008. If a three month term operates from either of those dates, it is submitted that the Interim Licence will have been an operative authority for Mr Tailby's use and occupation of Lot 7016 at the date of the Land Claim. The selection of those dates by the Minister requires further elucidation.

I have earlier referred to the Memo prepared by Ms Kelly on 2 July 2008. The Memo commences by recording that the Trust management of the Boggabri Common "has collapsed", thereby requiring the appointment of an administrator to manage the affairs of the Common "for a minimum of 6 months or until revocation of the Common is completed." It was that Memo that proposed the grant of a "temporary licence" by the administrator of the Common Trust for the period earlier identified in the Memo. The grant of such a licence was proposed as it was earlier observed that "lawful occupation of the Common" was required to enable "continuity into licensing" under the Crown Lands Act pending completion of steps necessary to revoke the Common. The first signature appearing on the Memo is that of Ms Kelly.

As I have also earlier recorded, the appointment of Ms Kelly, as Administrator of the Boggabri Common Trust was published in the Gazette on 25 July 2008. That is the stated date of commencement of the Interim Licence granted to Mr Tailby.

I have referred earlier to the letter of 8 August 2008 by which Mr Tailby was notified that despite executing the Crown Land Licence in February of that year, the Boggabri Common had not been revoked. The letter from the Department of Lands on that date continues:

"Until the Common Land has been revoked, an agreement between Boggabri Common Trust and yourself is required. This agreement will not replace the current Licence."

There follows the paragraphs from that letter which I have quoted at [70]. The first of the quoted paragraphs states that the Interim Licence "has been granted for a term not exceeding six (6) months from 25th July 2008" or until revocation of the Common (emphasis added). Following the passages earlier quoted, the author of the letter refers to the attached copies of the "Interim Licence documents which must be signed" and returned. Finally, the letter requests that upon receipt of the letter and its attached documents Mr Tailby urgently contact Ms Kelly. Whether such contact was made and, if so, its content, is not disclosed in the evidence.

The Interim Licence, signed by Mr Tailby, was received by the Department on or shortly prior to 3 September 2008. It was on that date that a copy of the Interim Licence, signed by Ms Kelly as administrator of the Common Trust, was forwarded to Mr Tailby.

Precisely when the Interim Licence was signed by Ms Kelly is not known. The Agreed Statement of Facts (Exhibit 3) records that the Licence was signed by Ms Kelly "at some time on or before 3 September 2008." While the Minister asks that I find, as a fact, that Ms Kelly's signature was not affixed until 3 September 2008, the evidence does not enable me to make a finding in those terms. On the evidence available to me I can accept, on the balance of probabilities, that the Interim Licence was signed not before 8 August 2008 and not later than 3 September 2008. However, for reasons that will become apparent, the selection of either date or some date in between is not critical to the Minister's submissions. If, as the Minister submits, s 32 of the Interpretation Act is to be applied to the commencement date, with the consequence that the Interim Licence should be read as if the commencement date is the date upon which the document was signed by Ms Kelly, and the term of the Licence is also truncated to three months, the earlier of the dates that I have identified is still sufficient to maintain the currency of the Interim Licence at the date of the Land Claim.

The Minister submits that severing the "bad part of the Licence", expressed as being the three months in excess of power, would not be in conflict with the principle that s 32(2) of the Interpretation Act applies to any provision of an instrument construed as being in excess of power. He accepts that the section would not apply where there is a lack of power to make the whole instrument (El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 at [38]). The Minister also contends that the reading-down or severance that he posits would not result in the instrument being so radically or substantially different, such that it would not have been made in those terms (Olsen v City of Camberwell [1926] VLR 58 (at [68]), approved by the High Court in Harrington v Lowe [1996] HCA 8; 190 CLR 311).

On the assumption that these submissions are accepted, the next step in the Minister's argument is that the Administrator of the Common Trust lacked power to issue the Interim Licence retrospectively. Section 32 was required to be applied in order to cure the excess of power by assuming validity for a period of three months from either 8 August or 3 September 2008.

In support of the submission that Ms Kelly could not exercise her power to grant a temporary Licence retrospectively, reliance was placed upon authorities that had addressed the retrospective operation of statutory provisions. It was submitted that just as a statute should not be construed so as to have retrospective operation, unless the clearly expressed language of the statute so required, that same principle should be applied to the exercise of statutory power in circumstances such as those presently under consideration. By way of example, reference is made to the observation of Wilcox J in Frost v Collector of Customs (Qld) (1985) 9 FCR 174 at 184 to the effect that the provisions of the Customs Act 1901 (Cth) did not empower the grant of retrospective import licences.

In aid of its submission as to severability by reference to s 32(2) of the Interpretation Act, the Minister points to the provisions of condition 8 of the Interim Licence which provides:

"Any provision of this Licence which is prohibited or unenforceable in any jurisdiction shall as to such jurisdiction be ineffective to the extent of such prohibition or inability to enforce without invalidating the remaining provisions of such provision in any other jurisdiction."

The clause is said to support the severance or reading down of the period of the term and its commencement date without affecting the operation of the Licence.

Consideration

The Minister's submissions must be considered in the context of the statutory scheme formulated to control the management and use of "public land" in the form of a common. Relevantly, that context includes the prohibition imposed by s 16(1) of the Commons Management Act upon any transaction in respect of common land unless that transaction be one that accords with the provisions of Div 4 of Pt 2 of the Act, together with the invalidity imposed by s 16(2) of the Act upon any transaction entered into in breach of that prohibition. Both provisions apply to the purported grant of a temporary licence under s 22: s 16(15).

That limitation upon power is reinforced by the provisions of s 4(7) of the Commons Management Act which has the effect of limiting the power of a common trust, as a statutory corporation (s 4(2)), from dealing with common property otherwise than in accordance with the provisions of Div 4 of Pt 2 of the Act.

Considered in the context of these statutory provisions, I do not accept the Minister's submission that the grant of the Interim Licence involved a transaction that accorded with s 22 or any other provision of Div 4 of Pt 2 of the Commons Management Act. That conclusion requires elaboration.

The Interim Licence was not expressed to be a "temporary licence". That would not be fatal to the Minister's argument if the Licence granted otherwise met or was intended to meet the requirements of s 22 for the grant of a temporary Licence. Clearly, the term for which the Interim Licence was granted is not consistent with an intention to grant a temporary licence under s 22.

In the absence of any evidence from Ms Kelly (assuming it to have been relevant), it is necessary to consider the documentary evidence to which I have referred in order to determine whether the Interim Licence was intended to be a "temporary licence" granted under s 22. Certainly, none of the documents tendered, evidencing the realisation by staff of the Department of Lands that the Crown Land Licence had been granted without the Common having been revoked and proposing the grant of a temporary or interim licence to Mr Tailby, make reference to s 22 as the source of power for such a Licence. Ms Kelly's Memo of 2 July 2008 makes no reference to the section. No source of statutory power is identified in any of the documents.

Moreover, the Interim Licence itself does not identify the source of power pursuant to which it was granted. While the absence of any reference to s 22 in the Interim Licence or in the background documents to which I have referred does not exclude the section as a source of power, the absence of any such reference is, in the circumstances, relevant to be noticed. It will be remembered that the Crown Land Licence was expressed to have been granted pursuant to s 34 of the Crown Lands Act.

The background documents make tolerably clear that upon realising that Crown Land Licence was invalid, the Department wished to act expeditiously to achieve two related objectives. First, was the revocation of the Boggabri Common. Pending completion of the statutory processes necessary to achieve that objective, the second objective was to render lawful Mr Tailby's occupation of the land by having him sign a new licence on the same general terms and for the same purposes as the Crown Land Licence had been granted.

So much is reflected in Ms Kelly's Memo to Mr Harding of 2 July 2008. Moreover, as that Memo makes clear, the time necessary to complete the process of revocation of the Common was uncertain, although the expectation was that the process could be completed within six months. Importantly, neither that Memo nor any other document in evidence reflects any consideration of a maximum term of three months for a temporary or interim licence to be granted to Mr Tailby.

The clear intent of the Interim Licence and the documents that inform its preparation was that there be a continuity of use and occupation of the Common by Mr Tailby. That occupation had commenced under the invalid Crown Land Licence; it was to be continued under the Interim Licence for so long as the process of revocation took and, upon revocation of the Common, would be the subject of a further Crown Land Licence. So much is made clear not only by Ms Kelly's Memo of 2 July but also by condition 71 of the Interim Licence, the provisions of which I have earlier quoted (at [93]).

That intended continuity of occupation so as to give practical effect to the agreement reached with Mr Tailby, as reflected in the Crown Land Licence, and resulting in occupation that commenced not later than December 2007, (see Exhibit 1, pp 33-34), is inconsistent with the grant of a "temporary" licence sanctioned by s 22. The apparent purpose of a licence contemplated by that section is one to serve a transient need for grazing or other prescribed purpose for a "prescribed period". The use of the term "temporary" to qualify the licence contemplated by the section implies that the "prescribed period" would permit occupation for a finite period of relatively short duration.

The limited nature of such a licence is supported by the context of the Commons Management Act itself. First, the power to grant the temporary licence is to be contrasted with the constraints that otherwise attend the grant of a licence ("a transaction") under s 16. Further, the land is public land, being land set aside "for the use of the inhabitants of any specified locality or the cultivators or farmers of any locality in which the parcel of land is situated" (see the definition of "common" in s 3). Given the potential for the grant of a licence to affect the entitlement of commoners to use a common, the grant of a licence to an individual is understandably constrained either by requiring observance of the provisions of s 16 prior to grant or allowing only "temporary" occupation under licence.

The Land Council submits that there is a further and separate basis upon which the Interim Licence is invalid. It submits that one of the purposes for which it was granted was not authorised by s 22 of the Commons Management Act.

Condition 18 of the Interim Licence confers a right of occupation for the purpose specified in Sch 1. That purpose is specified in the following terms:

"Grazing (cattle/calves) - limited cultivation for direct drills for pasture establishment or noxious weed control as indicated in Plan of Management".

Section 22(2) of the Act authorises the grant of a temporary licence for grazing "or for any other prescribed purpose". Clause 29 of the Commons Management Regulation prescribes that purpose as being "any purpose that is consistent with the management plan for the Common". There being no definition of "management plan" in the Regulation, the definition of that expression in the Commons Management Act must be applied: s 11 Interpretation Act. That expression is defined in s 3 of the Act as meaning a "draft management plan adopted in accordance with section 27". It is the Minister who adopts such a plan in accordance with that section.

Although both the Crown Land Licence and Interim Licence refer to a management plan, the only management plan in evidence is one prepared by Mr Tailby prior to the grant of the Crown Land Licence. There is no evidence that the management plan was adopted by the Minister under s 27 of the Act. It is that circumstance which founds the Land Council's submission that the grant of the Interim Licence for the purpose of limited cultivation speaks against the valid exercise of power under s 22.

While the provision of the Interim Licence allowing cultivation of the Common is relevant for present purposes, I do not accept that reference to it in Schedule 1 to the Licence identifies a separate purpose of use for which that Licence was granted. Although the specification of purpose in Sch 1 is cryptic, I would interpret the reference to cultivation as identifying an activity that was ancillary to or an incident of the purpose of grazing cattle. The authority to graze cattle on the land self-evidently recognised the use of such pasture or edible fodder as was then growing on the land. A provision that allows "limited cultivation" for pasture establishment and noxious weed control seems to me to allow no more than maintenance or even improvement of pasture intended to be used for grazing by the licensee. Had the purpose extended to any harvesting of cultivated pasture, such as the cutting of lucerne, my conclusion may have been different. But no such extension of purpose was specified.

However, in the context of the Interim Licence, the description of the grazing purpose as extending to pasture cultivation, in the same terms as expressed in the Crown Land Licence, confirms the view earlier expressed that it was the intention of the Department and ultimately Ms Kelly to provide for the continuing occupation of the land by Mr Tailby. It is inconsistent with a "temporary" occupation of the land. The existence of the provision is a factor weighing against an intention to grant a "temporary licence" within the meaning of s 22.

In summary, my consideration of the terms of the Interim Licence, the circumstances that informed its preparation and the proper application of the legislative provisions to the documents leads me to conclude that the Interim Licence was not a "temporary licence", the grant of which was authorised by s 22 of the Commons Management Act. It is accepted by the Minister that the grant of the Interim Licence did not comply with the provisions of s 16. On this reasoning it would be a transaction into which Ms Kelly, as Administrator of the Trust, was not empowered to enter, with the consequence that the transaction is, and was at the date of the land claim, void: s 16(2) Commons Management Act.

As I have earlier indicated, this consequence is sought to be addressed on behalf of the Minister by a submission that s 32 of the Interpretation Act should be applied to the Interim Licence so that its nominated term is read as if it was three months and its commencement date amended to a date on or after 8 August 2008. I do not accept that the section can be applied to preserve the operation of the Interim Licence in the manner submitted on behalf of the Minister.

Section 32 of the Interpretation Act has aptly been described as providing a rule of construction (Pidoto v Victoria [1943] HCA 37; 68 CLR 87). The provisions of subsections (1) and (2) say as much. As Latham CJ observed in Pidoto at 110, a provision in those terms "does not authorise a court to adopt such a method of promulgating a law under the guise of ascertaining it." By parity of reasoning, the section would not authorise the rewriting of an instrument under the guise of ascertaining its terms.

In Pidoto the High Court considered the provisions of s 46(b) of the Acts Interpretation Act 1901 (Cth), a provision comparable in terms to s 32 of the Interpretation Act. When addressing that section, Starke J observed (at 118):

"The section provides a rule of construction 'but not an inexorable command'. Notwithstanding the presumption in favour of divisibility which arises from the legislative declaration the Court cannot rewrite a regulation and give it an effect altogether different from that sought by the regulation viewed as a whole."

The Commonwealth provision was the subject of further consideration by Williams J in the same case where his Honour said (at 130-131):

"The sub-section requires, therefore, that if on the true construction of an instrument it has an operation which is in excess of power, then the Court is to read down the instrument by a process of construction so that it will have an operation which is not in excess of power. The previous decisions of this Court ... appear to me to establish that, in order to be capable of being subjected to such a process, the instrument must either contain independent provisions within power which are severable and will continue to operate in the same manner as they would have done if the instrument, as a whole, had been valid, or it must appear from the provisions of the instrument, read in the light of the power which it purports to exercise, that it is intended to operate in a distributive manner with respect to each and every part of the subject matter to which it relates, and therefore to operate with respect to those parts of the subject matter which are within power although it has failed to be effective with respect to the whole subject matter."

The constraints upon the application of s 32 expressed in this passage of his Honour's judgment are relevant to and speak against the application of s 32(2) to the Interim Licence.

In terms of principle, s 32(2) of the Interpretation Act cannot be applied to an "instrument" so as to save its operation if the instrument was not made within power (Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186 at [19] approved by the Court of Appeal in El Cheikh v Hurstville City Council at (3) and (38)). As a corollary of that principle, the subsection cannot be taken to assume the exercise of a power that was not, in fact, exercised.

As I have sought to illustrate, the documentary evidence comprising both the Interim Licence itself and the background documents to its grant do not manifest any intention on the part of Ms Kelly to grant a temporary licence within the meaning of s 22 of the Commons Management Act.

Construing the term of the Interim Licence as if it was limited to three months and as if it commenced on or after 8 August 2008 has implications for other provisions of the Licence, indicating that such a construction would involve an impermissible rewriting of the instrument. By condition 25, the obligation of Mr Tailby to pay rent, was expressed to be a continuing one "during the term of this Licence", being the term defined in condition 1 as the period between the commencement date and termination date stated in Sch 1. Condition 26 required Mr Tailby to pay all or a proportionate part of rates, taxes and charges "which are at any time during the currency of this Licence" imposed or levied in respect of the land that is the subject of the Licence. By condition 27 Mr Tailby was required to pay "all other fees, charges and impositions which are at any time during the Term" payable in respect of the land or on account of "the use and occupation" of the land by him. He was also required by condition 28 to pay for utility services supplied to the land. The evidence reveals (Exhibit 1, p 33) that "town water" was supplied to the yards on the land. Finally, special condition 65 required Mr Tailby to provide a plan of management "to the satisfaction of the Trust" within three months of the execution of the Licence.

Assuming the Minister's submission of principle has merit, its application in the present case would be impractical and moot. The licence sought to be impugned no longer has legal effect; the entity granting the Interim Licence has ceased to exist and there is no evidence of any interest by Mr Tailby in supporting the validity of the Licence. Moreover, the Minister's reliance upon the Interim Licence as a basis for opposing the Land Claim was only identified in April 2013. These circumstances militate against the appropriateness of any separate proceeding in the present case.

Notwithstanding these matters, it is appropriate to address the Minister's submission. Without intending any disservice to the detailed argument in both written and oral submissions, it is appropriate to summarise the steps in the Minister's argument.

First, it is submitted that generally speaking, an administrative act is to be treated as valid until set aside. A statement to that effect by Gummow J in Ousley v R at (130 - 131) is cited in support of that proposition. So also is the judgment of the plurality in State of New South Wales v Kable [2013] HCA 26 at [22] as well as the judgment of Gageler J in that same case at [52]. As a consequence so it is submitted, the Minister is entitled to rely upon the Interim Licence as having been validly granted under the Commons Management Act, there being no decision of a court of competent jurisdiction determining that the Licence is invalid.

The Minister accepts that the jurisprudence determining when and the extent to which a collateral challenge will be allowed is inconclusive. So much is apparent from the different judgments in Ousley v R. That difference, so it is submitted, is illustrated in the more recent decision of the Victorian Court of Appeal in Director of Housing v Sudi [2011] VSCA 266; 33 VR 559. As Warren CJ at [28] and Maxwell P at [66]-[69] there observed, the extent to which collateral challenge may be allowed will depend upon the statutory provisions governing the proceedings in which the collateral challenge is sought to be made.

The submission continues, the legislative regime under which this Court is given jurisdiction to hear and determine appeals of the present kind weigh against the power of the Court to allow a collateral challenge of the kind made in the present case. The reasons advanced by the Minister in support of that submission are:

(a) there can only be two parties to the appeal under s 36(6) of the Land Rights Act;

(b) by s 39(5) of the Land and Environment Court Act 1979 (the Court Act), applicable because the appeal is assigned to Class 3 of the Court's jurisdiction, the decision on appeal is deemed to be the final decision of the body whose decision is subject to appeal and as the Minister when determining the Land Claim would have no power to "quash" the Interim Licence, so also the Court would lack power so to do;

(c) allowing a collateral challenge would by-pass "the protective mechanisms associated with judicial review proceedings as to standing, delay and other discretionary considerations";

(d) the process of the Court for determining an appeal under s 36(6) of the Land Rights Act is not conducive to the ventilation of issues raised in a collateral challenge to an administrative act, as there are no pleadings involved and the Minister bears an onus.

The Minister accepts that there have been a number of cases involving an appeal under s 36(6) of the Land Rights Act in which the validity of licences or other form of authority granted by the Minister have been the subject of collateral attack in order to establish that the land, the subject of claim, is claimable Crown land within the meaning of s 36(1). The most recent examples of land claims that have turned upon the challenge to a licence or other right of occupation given by the Minister are Goomallee; New South Wales Aboriginal Land Council V Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council(Limbri) [2014] NSWCA 69. In none of the cases in which a challenge of that kind has been made has the availability of collateral challenge been raised, either at first instance or in the case of Goomalle and Limbri, on appeal to the Court of Appeal. Thus, there is no appellate decision determining that a collateral challenge can be made in the course of an appeal under s 36(6) of the Land Rights Act.

However, there are cases in which separate proceedings have been commenced in which a third party has sought to establish that land the subject of a land claim is not claimable Crown land within the meaning of s 36(1). The cases cited in support of that proposition are Mogo Local Aboriginal Land Council v Eurobodalla Shire Council and Tweed Shire Council v Minister Administering the Crown Lands Act (1996).

The submissions of the Minister are, to my mind, answered by the provisions of s 36 of the Land Rights Act, coupled with the exercise of jurisdiction by the Court under the provisions of the Court Act. The obligation imposed upon the Court when determining an appeal under s 36(6) is expressed in s 36(7). That obligation is to order transfer of the land claimed to the claimant Land Council if the Minister fails to satisfy the Court that the land is not claimable Crown land (NSW Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act (Windbar Claim [No 3]) (1988) 14 NSWLR 685 at 691 - 692). Necessarily, it is only by reference to the provisions of s 36(1) that the requisite satisfaction may be established.

In the context of the present case, satisfaction that the land is not claimable Crown land requires acceptance of the Minister's contention that use or occupation of the claimed land was legally authorised (Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1991) 75 LGRA 133 per Clarke JA at 142). Where, as here, the Minister relies upon user under a lease, licence or other right said to be granted under a statute authorising the use of land vested in Her Majesty, that reliance will inevitably give rise to the question as to whether the grant of the right was, in fact, authorised by the relevant statute. If the right of user upon which reliance is placed is not one for which the statute provides then occupation in accordance with that claimed right is not legally authorised. Importantly, once the Minister relies upon such a right in seeking to discharge the onus imposed by s 36(7), the Land Council may legitimately take issue with that reliance.

As the Minister acknowledges, there are a number of cases both in this Court and in the Court of Appeal in which the validity of a lease, licence or permissive occupancy under Crown lands legislation has been considered in order to determine whether land is claimable Crown land within the meaning of s 36(1)(b) of the Land Rights Act when determining an appeal under s 36(6). While the entitlement of a Land Council to challenge the validity of any such lease, licence or permissive occupancy in the context of an appeal under s 36(6) has not been the subject of determination in the Court of Appeal, it has certainly been accepted in this Court.

In Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Armidale) [2001] NSWLEC 268; 118 LGERA 356, an appeal under s 36(6), the Minister contended that the reservation of the land in question under the Crown Lands Act was unlawful. The Land Council submitted that the Court lacked jurisdiction to determine that question. Bignold J rejected the Land Council's submission. He said at [35] - [37]:

"35 The submission must be firmly rejected as clearly this Court has the jurisdiction to determine the question as a disputed issue requiring adjudication in the course of the exercise of this Court's statutory jurisdiction to determine the applicant's appeal pursuant to the ALR Act, s 36(6): see National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 and Minister for Minerals and Energy v Vaughan-Taylor (1991) 73 LGRA 115.

36 In Stables Perisher, Gleeson CJ said (at 582):

'The Land and Environment Court, of course, in resolving a claim that is properly brought within its jurisdiction, has the power and the duty to decide all questions of fact or law that need to be decided in order to deal with that claim.'

37 Similarly, in Vaughan-Taylor, Meagher JA (at 123) said:

'It [the Land and Environment Court] had, as was conceded, no jurisdiction to determine a direct challenge to the mining lease as such, but it did have jurisdiction to determine that question in an indirect or collateral fashion.'

In addition to those observations, reference should also be made to s 16(1A) of the Court Act. Subsection (1A) provides:

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act."

The validity of the Interim Licence is ancillary, if not essential, to a decision as to whether Mr Tailby's occupation of Lot 7016 was legally authorised. As such, it is an issue that may be decided by the Court in the course of determining the present appeal (Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196 at [66] - [67]; [82] - [86]).

These observations render it unnecessary to address the question as to whether the exercise of power in granting the Interim Licence should be regarded as valid until determined otherwise by order of a court of competent jurisdiction. However, I do not accept that a principle relevant to the circumstances of the present appeal, is determined by the decision of the High Court in Kable. The observations of the Court in that case were directed to a circumstance involving orders made by the Supreme Court which that Court had no jurisdiction to make. Those observations were directed to the effect of orders made by a superior court that were beyond power and not the consequence of an administrative decision made beyond power.

The more relevant consideration is whether a collateral challenge is permissible. As the Minister acknowledges, there is no concisely expressed principle establishing the circumstance in which such a challenge may be entertained. In Ousley v R, McHugh J referred (at 100) to "the prevailing theory" that an administrative act or order made outside jurisdiction was void, with the consequence that "a litigant, affected by the act or order, may challenge it collaterally." His Honour continued:

"Indeed, a litigant affected by an administrative act may challenge it collaterally even though the person most directly affected by it is not a party to the litigation."

In Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83 the plurality (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) held (at [36]) that:

" ... in the absence of legislative prescription to the contrary, [a decision of an administrative nature] would be open to collateral review by a court in the course of dealing with an issue properly arising as an element in a justiciable controversy of which the court was seized."

The significance of statutory provisions that confer jurisdiction to determine a particular controversy are emphasised by that decision and, as the Minister recognised, embraced by the Victorian Court of Appeal in Director of Housing v Sudi. As I have sought to demonstrate, the provisions of s 36 of the Land Rights Act pertaining to land claims and appeals to the Court make apparent that collateral challenge is available in the course of determining an appeal under the section. In the context of the observations in Breckler, there is certainly no legislative prescription to the contrary.

The provisions of s 36 of the Land Rights Act are also relevant in addressing the Minister's submission directed to the absence of parties who may be thought to have an interest in the land that is the subject of claim. It must be remembered that the fundamental attribute of land that may be claimed is that it be land "vested in Her Majesty" at the time of claim. It is the Minister who exercises primary control of land so vested and as a consequence has the capacity to provide evidence of any matter relevant to the provisions of s 36(1) of the Land Rights Act in order to establish that the land sought is not claimable Crown land. The capacity of the Minister so to do extends to the identification of any third party interest together with the terms on which and circumstances in which that interest was created.

In this context, I have earlier referred to the observations of Meagher JA in Tweed Shire Council v Minister Administering the Crown Lands Act as to the statutory scheme created under s 36. One of the decisions that was the subject of the appeal there being determined was the decision of Bignold J in Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 3] [The Fingal Claim] (1995) 89 LGERA 220. In the latter case, Bignold J said (at 224):

"The legislative scheme in respect of land claims is, as I have noted, quite clear. Its justification for confining statutory functions to the claimant Aboriginal land council and to the Minister is likewise clear, and is no doubt substantially based upon the fact that principal, if not exclusive responsibility for Crown lands is vested in the Minister currently under the Crown Lands Act 1989 (NSW) .... Accordingly, the legislature is to be taken as deliberately leaving to the Minister's determination following his own investigation and enquiry (and subject to the statutory right of appeal) the question of whether the claimed lands are relevantly 'claimable Crown lands'. Neither the Minister's original function, nor the Court's appellate function in respect of this all important question has been treated by the legislature as requiring the participation of other persons, eg other persons claiming a relevant interest in, or status for, the lands which, if established, may disqualify the lands from being 'claimable Crown lands'." (Original emphasis.)

I respectfully embrace his Honour's observations.

The Minister's reference to s 39(5) of the Court Act as a basis for contending that the collateral challenge to the Interim Licence cannot or should not be entertained fails to have due regard to the provisions of s 36(7) of the Land Rights Act and of the Court Act itself. While it can be accepted that when exercising the function under s 36(5) of the Land Rights Act to make the initial determination of the present claim, the Minister did not have power to "quash" the decision to grant the Interim Licence or declare the Interim Licence to be invalid, the Court, on appeal under s 36(6), does not make any order or orders in those terms. Its function is to determine the appeal and, if upheld, to order the transfer of the claimed land. A determination that the Interim Licence was beyond the power of Ms Kelly to grant when exercising her function under the Commons Management Act was a decision to be made only in the course of determining the appeal. The reasons for so concluding have earlier been addressed.

Moreover, s 36(7) of the Land Rights Act requires that the Minister satisfy the Court that the land claimed is not claimable Crown land. In making a land claim, there is no provision within s 36 that imposes an onus on a claimant Land Council to satisfy the Minister that the land claimed is claimable Crown land. The exercise of the Minister's function under s 36(5) appears to involve investigation by or on behalf of the Minister in order to be satisfied that the land is (s 36(5)(a)), or is not (s 36(5)(b)) claimable Crown land. What may satisfy the Minister that land is not claimable when exercising that function does not bind the Court. On the contrary, the Minister bears the onus that I have identified. Whether the Minister succeeds in so doing will not be determined on the evidence available to the Minister at the time of making the decision to refuse the claim but rather on the evidence that is adduced on the hearing of the appeal. That evidence may include, as it did here, evidence directed to the validity of the Interim Licence. The appeal is by way of rehearing and fresh or additional evidence directed to the issues may be received: s 39(3) of the Court Act.

The Minister also points to the procedures of the Court for determining appeals in Class 3 of its jurisdiction as an indication that the Court cannot or should not determine the validity of an interest claimed to have been granted under legislation in respect of land owned by the Crown. However, as the Land Council submits, the procedures of the Court must and do yield to the provisions of s 36 of the Land Rights Act as they bear upon the determination of the appeal. The provisions of that section coupled with the provisions of the Court Act render appropriate the procedures for determination of all issues properly agitated in an appeal under s 36(6). The Court Act contains special provisions addressing the appointment of Commissioners able to exercise any function under the Court Act in proceedings arising under the Land Rights Act (s 30(2A) and requires that an appeal arising under the latter Act be heard by a Judge of the court, sitting with a Commissioner or Commissioners appointed for the purpose of exercising a function under that Act: s 37(2) of the Court Act. Those provisions, introduced to the Court Act upon the enactment of the Land Rights Act, speak against an interpretation of the Land Rights Act that would require questions essential to the determination of a land claim to be determined by a different court.

Reliance by the Minister upon the procedures adopted in Mogo Aboriginal Land Council v Eurobodalla Shire Council (Mogo) and Tweed Shire Council v Minister Administering the Crown Lands Act (Tweed) as illustrative of the course that is advocated by the Minister for determination of the validity of a lease or licence said to sustain lawful user appears to me to be misplaced. In Mogo, although a number of orders were sought by Eurobodalla Shire Council in the proceedings commenced by it, as my earlier discussion of the case indicated, principal among them was an order seeking to have rectified an alteration made by the Registrar-General to the Register under the Real Property Act, removing the name of the Council as registered proprietor of the land and incorrectly recording the land as being Crown land. The Supreme Court was the only court with jurisdiction to require rectification of the Register. It was not a proceeding commenced by the Land Council seeking to have a right determined as a process associated with its land claim.

The Minister's contention that in Tweed an appeal under s 36(6) was stayed to allow the Tweed Shire Council to commence separate proceedings for declaratory relief in relation to the claimed land is not supported by any recitation of background facts in the report of the case. The Council appealed to the Court of Appeal from the summary dismissal of Class 4 proceedings commenced by it in this Court in which it sought a declaration that the land in question was not claimable Crown land. At the same time it unsuccessfully sought joinder as a party in an appeal instituted under s 36(6) of the Land Rights Act (The Fingal Claim). The Minister's appeal in the Land Claim proceedings and the Council's appeal in its proceeding were heard together and are the subject of the decision of the Court of Appeal, the leading judgment in which was delivered by Meagher JA.

The decision at first instance was given by Bignold J (Tweed Shire Council v The Minister Administering the Crown Lands Act (1995) 89 LGERA 187). He determined (at 189 - 190) that the declarations sought by the Council were beyond the jurisdiction of the Court -

" ... for the reason that the legislature, by providing in s 36 of the Act the exclusive scheme for (i) the making and (ii) determination of land claims, must be taken to have impliedly ousted this Court's jurisdiction to make declarations in respect of the very same matters that are fundamental to the working out of the legislative scheme created by s 36 of the Act." (Original emphasis)

The decision of the Court of Appeal to which I have earlier referred and articulated in the judgment of Meagher JA is to the same effect. The decision both at first instance and on appeal supports the Land Council's contention that all issues pertaining to the determination that land is claimable Crown land are appropriately determined in the context of an appeal under s 36(6).

In summary, for the purpose of determining this appeal pursuant to s 36(7) of the Land Rights Act, I find no basis upon which the Court cannot or should not determine whether the Interim Licence dated 25 July 2008 was a Licence granted in conformity with the Commons Management Act. For reasons earlier stated, it was not.

Conclusion and orders

The Minister has not discharged the onus of satisfying the Court that Lot 7016 was not, at the date of the Land Claim, vested in Her Majesty, nor has he satisfied the Court that the land was lawfully used or occupied at that date within the meaning of s 36(1)(b). By operation of s 36(7) of the Land Rights Act the Applicant is entitled to an order that the land be transferred to the Local Aboriginal Land Council nominated by it, namely the Red Chief Local Aboriginal Land Council.

I therefore make the following orders, as sought by the Applicant:

1. Appeal allowed.

2. The Respondent must transfer the land claimed in Aboriginal Land Claim 16751, being the land known as Lot 7016 in DP 1056711, in fee simple to Red Chief Local Aboriginal Land Council.

3. The Minister must do all things necessary to enable the transfer of the land in accordance with Order 2, including surveying the land if required, within 12 months from the date of these orders.

4. Exhibits may be returned.

**********

Decision last updated: 26 May 2014

Medium Neutral Citation:	New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Boggabri) [2014] NSWLEC 58
Hearing dates:	13, 14 August 2013
Decision date:	26 May 2014
Jurisdiction:	Class 3
Before:	Craig J
Decision:	1. Appeal allowed. 2. The Respondent must transfer the land claimed in Aboriginal Land Claim 16751, being the land known as Lot 7016 in DP 1056711, in fee simple to Red Chief Local Aboriginal Land Council. 3. The Minister must do all things necessary to enable the transfer of the land in accordance with Order 2, including surveying the land if required, within 12 months from the date of these orders. 4. Exhibits may be returned.
Catchwords:	ABORIGINAL LAND CLAIM - land claim under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) - land dedicated for a permanent common under Crown lands legislation - whether claimable Crown land - control and use of land governed by the Commons Management Act 1989 (NSW) - registered proprietor of claimed land under the Real Property Act 1900 (NSW) recorded as the State of New South Wales - whether the land was vested in the common trust appointed under the Commons Management Act and not in the State ('Her Majesty') - whether in the circumstances s 14 of the Commons Management Act overrode the operation of s 42 of the Real Property Act - whether land was lawfully used or occupied - interim licence for grazing in respect of the claimed land - whether interim licence validly granted under Commons Management Act - whether knowledge and consent of reserve trust administrator sufficient to render use or occupation lawful - whether determination of invalidity of interim licence open to collateral challenge in appeal under s 36(6) of Aboriginal Land Rights Act
Legislation Cited:	Aboriginal Land Rights Act 1983 (NSW) Acts Interpretation Act 1901 (Cth) Commons Management Act 1989 (NSW) Commons Management Regulation 2006 (NSW) Commons Regulation Act 1898 (NSW) Crown Lands Act 1884 (NSW) Crown Lands Act 1989 (NSW) Crown Lands Consolidation Act 1913 (NSW) Customs Act 1901 (Cth) Interpretation Act 1987 (NSW) Land Acquisition (Just Terms Compensation) Act 1991 (NSW) Land and Environment Court Act 1979 (NSW) Local Government Act 1919 (NSW) Real Property Act 1900 (NSW) Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) Western Lands Act 1901 (NSW)
Cases Cited:	Armidale Local Aboriginal Land Council v Minister Administering the Crown Lands Act (Armidale) [2001] NSWLEC 268; 118 LGERA 356 Arnold v Minister Administering the Water Management Act 2000 [2008] NSWCA 338; 73 NSWLR 196 Ashfield Municipal Council v Roads and Traffic Authority of New South Wales [2000] NSWLEC 117 Attorney-General (Cth) v Breckler [1999] HCA 28; 197 CLR 83 Attorney-General for Quebec v Attorney-General for Canada [1921] 1 AC 401 Breskvar v Wall [1971] HCA 70; 126 CLR 376 City of Perth v Crystal Park Limited [1940] HCA 35; 64 CLR 153 Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186 Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 337 Director of Housing v Sudi [2011] VSCA 266; 33 VR 559 El Cheikh v Hurstville City Council [2002] NSWCA 173; 121 LGERA 293 Fejo v Northern Territory of Australia [1998] HCA 58; 195 CLR 96 Frost v Collector of Customs (Qld) (1985) 9 FCR 174 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223 Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 Harrington v Lowe [1996] HCA 8; 190 CLR 311 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Wagga) [2008] HCA 48; 237 CLR 285 Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Limbri) [2014] NSWCA 69 Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; (2009)166 LGERA 379 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Gooomallee) [2012] NSWCA 358; 194 LGERA 1 Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (Tweed Byron) (1991) 75 LGRA 133 Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12; 54 NSWLR 15 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Goomallee) [2012] NSWLEC 1; 186 LGERA 323 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Limbri) [2013] NSWLEC 67 New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and Western Lands Act [Windbar Claim No 3] (1988) 14 NSWLR 685 Olsen v City of Camberwell [1926] VLR 58 Ousley v R [1997] HCA 49; 192 CLR 69 Pidoto v Victoria [1943] HCA 37; 68 CLR 87 Prince Alfred Park (D500038) Reserve Trust v State Rail Authority of New South Wales (1997) 19 LGERA 75 South-Eastern Drainage Board (SA) v Savings Bank of South Australia [1939] HCA 40; 62 CLR 603 St Alder v Waverley Local Council [2010] NSWCA 22; 172 LGERA 147 State of New South Wales v Kable [2013] HCA 26 Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224 Tweed Shire Council v The Minister Administering the Crown Lands Act (1995) 89 LGERA 187 Tweed Shire Council v Minister Administering the Crown Lands Act (1996) 92 LGERA 80 Tweed Byron Local Aboriginal Land Council v Minister Administering the Crown Lands Act [No 3] [the Fingal Claim] (1995) 89 LGERA 220 Yanner v Eaton [1999] HCA 53; 201 CLR 351
Category:	Principal judgment
Parties:	New South Wales Aboriginal Land Council (Applicant) Minister Administering the Crown Lands Act (Respondent)
Representation:	S E Pritchard SC (Applicant) A M Stewart (Respondent) Chalk & Fitzgerald (Applicant) I V Knight, Crown Solicitor (Respondent)
File Number(s):	30039 of 2012