New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Moonbi)
[2014] NSWLEC 144
•11 September 2014
Land and Environment Court
New South Wales
Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Moonbi) [2014] NSWLEC 144 Hearing dates: 3, 4 September 2013 Decision date: 11 September 2014 Jurisdiction: Class 3 Before: Craig J Decision: Direct that by 5.00pm on Tuesday 30 September 2014, the parties provide to my Associate either agreed or competing short minutes of orders necessary to give effect to the conclusion stated in this judgment.
Catchwords: ABORIGINAL LAND CLAIM - land claims under s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) - whether claimable Crown lands under s 36(1) of the Aboriginal Land Rights Act - whether land "vested in Her Majesty" - land originally acquired by compulsory process under the Public Works Act 1888 (NSW) - land vested in the Minister for Public Works - land later the subject of a declaration under s 25A of the Crown Lands Consolidation Act 1913 (NSW) - subsequent declaration of land as a Public Reserve under the Crown Lands Consolidation Act - title to the land later converted to title under the Real Property Act 1900 (NSW) - new folio in Register recorded "The State of New South Wales" as registered proprietor - whether folio was erroneous - indefeasibility of title - s 42 of the Real Property Act - conclusiveness of Register Legislation Cited: Aboriginal Land Rights Act 1983 (NSW)
Crown Lands Act 1884 (NSW)
Crown Lands Act 1989 (NSW)
Crown Lands Consolidation Act 1913 (NSW)
Land and Environment Court Act 1979 (NSW)
Local Government Act 1919 (NSW)
Government Act 1993 (NSW)
Public Works Act 1888 (NSW)
Public Works Act 1900 (NSW)
Real Property Act 1900 (NSW)
Real Property (Crown Land Titles) Amendment Act 1980 (NSW)
Real Property and Conveyancing Legislation Amendment Act 2009 (NSW)
Tamworth Water Supply Works Act 1896 (NSW)Cases Cited: Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd [2002] NSWSC 193; NSW Conv R 56-038
Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 12; 102 LGERA 33
Black v Garnock [2007] HCA 31; 230 CLR 438
Brantag Pty Ltd v Minister for Mines (No 3) (29 March 1995 BC 9504440)
Breskvar v Wall [1971] HCA 70; 126 CLR 376
Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149
City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424
Ex parte Collins (1914) 14 SR (NSW) 31
Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223
Gibbs v Messer [1891] AC 248
Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138: 166 LGERA 379
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Wagga) [2008] HCA 48; 237 CLR 285
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 (Consolidation) Act and the Western Lands Act (Winbar Claim No 3) (1988) 14 NSWLR 685
Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425
Randwick Municipal Council v Thompson (1943) 15 LGR 85
Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; 5 CLR 879
Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224Category: Principal judgment Parties: New South Wales Aboriginal Land Council (Applicant)
Minister Administering the Crown Lands Act (Respondent)Representation: M Wright (Applicant)
R Graycar (Respondent)
Chalk & Fitzgerald (Applicant)
I V Knight, Crown Solicitor for New South Wales (Respondent)
File Number(s): 31054, 31055, 31056 of 2012
SSSSSSSS
Judgment
In the late 19th century a parcel of land near Moonbi in north western New South Wales was acquired under the provisions of the Public Works Act 1888 (now repealed). Running through the acquired land was a creek known as Moore Creek. The land was acquired so that a dam could be constructed on that creek. The dam reservoir was intended as a source of water supply for the regional centre of Tamworth. Construction of the dam wall was completed in 1898. However, by 1912 the dam reservoir had filled with silt and was subsequently decommissioned as a water supply dam.
The parcel of land then acquired is now the subject of Aboriginal Land Claims 33658, 33659 and 33727 (collectively the Land Claims) made by the New South Wales Aboriginal Land Council (the Land Council) on 13 December 2010. The Land Claims were made pursuant to s 36(2) of the Aboriginal Land Rights Act 1983 (NSW) (the Land Rights Act).
By letter dated 15 June 2012, the Minister notified the Land Council that the claims were refused. In providing his reasons, the Minister stated that when the claims were made the claimed lands were not "claimable Crown lands" within the meaning of the Land Rights Act. The letter further stated that the lands comprised "freehold land vested in the Minister for Public Works by notification in the Government Gazette on 18 May 1897."
Exercising its right under s 36(6) of the Land Rights Act, the Land Council appeals against the Minister's refusal of the Land Claims. An appeal having been lodged in respect of each claim, the appeals have been heard together.
The parties have agreed that there is a single issue to be determined. As articulated in the agreed statement of issues (Exhibit 1), that issue is stated to be whether, at the date of the Land Claims, those lands were vested in Her Majesty for the purpose of s 36(1) of the Land Rights Act.
I record that in hearing these appeals I was assisted by Acting Commissioner McAvoy: s 37(2)(a) of the Land and Environment Court Act 1979 (NSW) (the Court Act). While Acting Commissioner McAvoy held his appointment as such through to the conclusion of the hearing, the term of his appointment has since expired. For reasons later addressed, that circumstance does not impact upon my power to determine these appeals.
The Land Claims
The claimed lands consist of four contiguous lots that together comprise a rectangular parcel of land having an aggregate area of 98.5 hectares. Moore Creek runs across the middle of that rectangular parcel in an east/west direction. The component lots and the Land Claims pertaining to each of them are as follows:
(i) Lot 7001 in DP 94920 and Lot 7008 in DP 94292 are the subject of ALC 33658;
(ii) Lot 7002 in DP 94291 is the subject of ALC 33659; and
(iii) Lot 7015 in DP 94293 is the subject of ALC 33727.
Lot 7001 comprises the northern section of the parcel with its southern boundary appearing to be formed by the northern bank of Moore Creek. Lot 7008 comprises the southern section of the parcel with its northern boundary apparently formed by the southern bank of Moore Creek. Lot 7002 comprises the bed of the Creek from its northern bank to its centreline while Lot 7015 would appear to comprise that part of the bed of the Creek from its centreline to its southern bank.
The decommissioned Moore Creek Dam is located across the line of the Creek. It is located within the boundary of the claimed lands. Shortly prior to the hearing of these appeals, the Land Council discontinued its claim for the area occupied by the dam and the land that immediately surrounds it. The parties have agreed that if the Land Council's appeals are upheld and an order made for the transfer of the claimed lands to the Land Council, an easement for access will be reserved in favour of the Minister so as to afford access to the dam site through the claimed lands.
Tenure history
Prior to 18 May 1897, part of the claimed lands are referred to as comprising part of a conditional lease granted to R.A.O. Gill. The remainder of that land is described as then being "in the possession of the Crown".
By "Notification of Resumption" published in the New South Wales Government Gazette on 18 May 1897, the claimed lands were appropriated and resumed, as the case may be, for the purpose of providing water supply works for Tamworth. The notification was given under the Public Works Act 1888 (NSW). Having declared that the claimed lands, being lands identified in the schedule to the notification, were appropriated and resumed, that notification relevantly continued:
" ... to the intent that upon publication of this notification in the Gazette, the said lands ... shall forthwith be vested in the said Constructing Authority as a corporation sole on behalf of Her Majesty, for the purposes of the said 'Public Works Act of 1888' for an estate in fee simple in possession ... to the further intent that the legal estate therein, together with all powers incident thereto or conferred by the last-mentioned Act, shall be vested in such Constructing Authority as a Trustee ... "
The Minister for Public Works was identified in that notification as the "Constructing Authority". The water supply works to which the notification related were those authorised by the Tamworth Water Supply Works Act 1896 (NSW) (now repealed).
In the early 1980's, the then Tamworth City Council (the Council) was approached by a company seeking to extract sand from the claimed lands on a commercial basis. The focus for extraction was apparently on the silted area upstream of the dam wall. Believing that, as part of its old water supply system, the Council was responsible for the dam, the company proposed to obtain a lease from the Council and pay it royalties for sand extracted once approval was obtained.
This enquiry caused the Council to investigate and seek advice upon the ownership of the claimed lands. That advice, conveyed by the Council to the Department of Lands, was to the effect that the land was held by the Constructing Authority as a trustee, with the result that the land appeared to be vested in the Crown.
Uncertainty as to the entity in whom the claimed lands were vested was then raised by the Department of Lands with the Department of Public Works. In a letter dated 17 March 1987 from the Lands Office at Tamworth to the Department of Public Works, reference is made to the advice provided to the Council as to ownership of those lands. The letter also recorded that the Moore Creek Dam was no longer in use and that permission was being sought by a private company to remove sand and loam from the site. The letter continues:
"In view of the doubt that exists over the 'ownership' of the area this Office suggested to Council that the land be declared to be Crown Land under Section 25A of the Crown Lands Consolidation Act, 1913. This would enable this Department to control removals of sand and loam and collect royalty revenue for Consolidated Revenue. Also this Department is anxious to obtain the land as it adjoins Moore Creek Recreation Reserve which is extensively used by the general public. The proposal would be to redevelop the area for use in conjunction with the Reserve."
The letter concludes by requesting that the Department of Public Works investigate "the status of the site" and, if there is agreement with the advice provided to the Council, whether Public Works would concur "in the land being declared Crown Land" under s 25A of the Crown Lands Consolidation Act 1913 (NSW) (the CLC Act).
As a result of considering that letter, an internal memorandum prepared on behalf of the Principal Surveyor and Property Officer within the Department of Public Works, stated that the Department's records indicate "the status of the land" to be as indicated in the letter from the Lands Office, namely that the land was "Crown Land with the Minister for Public Works, as Constructing Authority, as Trustees [sic] only." The memorandum also stated that because the dam had not been used for many years, "the Department seems to have no further interest in the site." As a result, the Principal Surveyor and Property Officer wrote to the Lands Office on 23 June 1987 stating that the Department of Public Works agreed with the status of the claimed land as stated in the advice from the Council. The letter also indicated agreement with a proposal "to have the land declared Crown land" under s 25A of the CLC Act.
On 30 October 1987, a declaration was published in the New South Wales Government Gazette under s 25A of the CLC Act. By that declaration, the Minister declared that "the land particularised hereunder may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act 1913." The land described in that declaration was the claimed lands.
In that same Gazette and immediately following the declaration just described was a further declaration made by the Minister under s 28 of the CLC Act. By that declaration, "[t]he Crown lands described hereunder" were reserved from sale for the public purposes specified in the notice, being "For Future Public Requirements". Reserve number R200012 was assigned to that reserve. The existing Reserve to which earlier correspondence from the Lands Office had referred adjoined Reserve 200012 to the west.
Following publication of those declarations in the Gazette, by letter dated 23 March 1988 the Lands Office advised the Council that the land was "now Crown Land and administration of the area now rests with this Department." The letter also indicated that removal of sand and loam from the site was being investigated with a view to the ultimate development of the area as a recreation reserve.
In October 2007, title to the claimed land was brought under the provisions of the Real Property Act 1900. This was done as part of a project known as the "Crown Lands Conversion Project". It will be necessary to consider evidence in relation to this project in due course. However, as a result of that action, separate folios in the Register under that Act were created for each of the four Lots that comprised the claimed lands. The "State of New South Wales" was recorded as the registered proprietor of each Lot. That is the position that pertained as at 13 December 2010, being the date upon which the Land Claims were made.
Additional evidence
The matters that I have so far recorded as to the Land Claims, their refusal by the Minister and the tenure history of the claimed lands are uncontroversial. They are extracted from an Agreed Statement of Facts (Exhibit 2), together with documents tendered by the Land Council (Exhibits A and B) and from those documents to which no objection was taken and included in a bundle of documents tendered by the Minister (Exhibit 3).
However, included in the Minister's tender bundle (Exhibit 3) were a number of documents directed to earlier land claims that had been lodged by the Land Council and refused by the Minister. The Land Council objected to the tender of those documents on the basis that they were irrelevant to the present claim. I allowed the documents to be tendered, subject to their relevance being established in final submissions. They were relied upon by the Minister as an element of the submissions made by him, seeking to establish that the claimed lands were not vested in Her Majesty. In order to address that component of the Minister's submissions, it is necessary to describe briefly what those documents demonstrate. Their relevance will be addressed later.
On 6 April 1992, Land Claim No. 4106 was registered by the Aboriginal Land Rights Registrar as having been made by the Land Council on behalf of the Tamworth Local Aboriginal Land Council. The land that was the subject of that claim is the presently claimed lands.
By letter dated 20 May 2004 the then Minister notified the Land Council that Claim 4106 was refused. The basis for that refusal was expressed in that letter as follows:
"Following investigation I am satisfied that when the claim was made the land was not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983. In this regard the land was not land vested in Her Majesty as it comprised freehold land held by the Minister for Public Works."
On 12 December 2005 a number of land claims were made by the Land Council, one of which was a new claim for the presently claimed lands. That claim was identified as Claim No. 8497.
The then Minister's refusal of that Claim was notified to the Land Council by letter dated 27 August 2009. The basis upon which that Claim was refused was expressed in identical terms to that upon which the previous Claim had been refused.
A further claim was lodged by the Land Council on 16 December 2009 and assigned Claim No. 23763. It was also made in respect of the lands that are presently claimed.
The Minister notified refusal of Claim 23763 by letter dated 4 September 2010. The basis for refusing that Claim was expressed in terms identical to those in which refusal of the earlier Claims had been notified.
It will be noticed that Claims numbered 4106 and 8497 were made prior to the creation of folios in the Register of the Real Property Act for each of the lots that comprise the Land Claims. As I have earlier recorded, those folios were created in October 2007. However, Claim 23763 was lodged some two years after those folios were created.
The Minister also sought to rely upon the evidence by way of affidavit of Stephen Medaris affirmed 1 March 2013. Mr Medaris had been in the employ of Land and Property Information (LPI) for the past 40 years and held the position of Manager Titling Conversion Projects. The purpose of his evidence was to explain what was described as the "Crown Lands Conversion Project". His starting point was an "inspection" of the Register under the Real Property Act for each of the four lots that are the subject of the present Land Claims. That inspection on 25 February 2013 showed that each of the four lots was held by "the State of New South Wales". An "historical search" document annexed to the printout of each folio showed against the date of 27 October 2007 (for Lots 7001 and 7015) and 29 October 2007 (for Lots 7002 and 7008) that a folio was created but "CT not issued". Against the heading "Type of Instrument" for each of the October 2007 dates, the words "conversion action" appear.
Mr Medaris deposes to the fact that the process of converting Crown land to Torrens Title was undertaken by the Registrar-General following commencement of the Real Property (Crown Land Titles) Amendment Act 1980 (NSW) on 1 October 1981. His evidence is that the program was accelerated in 2006 under instructions from the Registrar-General, with specific instructions to LPI officers to convert Crown reserves to Torrens Title. Action taken as a result of that instruction included, according to the evidence, conversion to Torrens Title of land that was the subject of a declaration under s 25A of the CLC Act.
Mr Medaris then made reference to the decision of the Court of Appeal in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council [2002] NSWCA 12; 54 NSWLR 15 (a case to which further reference will be made later in these reasons). He identified a changed practice within LPI following that decision once land that had been the subject of a declaration under s 25A of the CLC Act was identified.
The steps taken by an LPI Officer investigating the status of land proposed to be converted to Torrens Title under the Crown Land Conversion Project were described. It is unnecessary to recite that description. Having identified the process, Mr Medaris sought to speculate as to the assumptions that may have been made by an LPI Investigation officer when undertaking the process of converting the claimed lands to Torrens Title by issuing folios in the Register in October 2007, recording the State as the registered proprietor of each lot. Understandably, the Land Council objected to that evidence. Although in determining the present proceedings the Court is not bound by the rules of evidence (s 38(2) of the Court Act), I do not rely upon the speculation found in paragraph 19 of the affidavit of Mr Medaris, affirmed on 1 March 2013.
The evidence of Mr Medaris together with the facts agreed between the parties make clear that at all times between October 2007 and the hearing of these proceedings, the registered proprietor of the claimed lands as recorded in the Register under the Real Property Act was the "State of New South Wales."
As I understand the position of the Minister, if, contrary to his submission, the Register correctly records the proprietor of a fee simple estate in the claimed lands, he accepts that the land is vested in the State. Further, I do not understand the Minister to contest the position that land vested in the State is, for the purpose of s 36(1) of the Land Rights Act, "vested in Her Majesty" (Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act [1996] NSWLEC 223 at [13]).
Nature of proceedings
The right of appeal having been exercised by the Land Council pursuant to s 36(6) of the Land Rights Act, the Land Claims must be determined by the Court, not by way of review of the actions of the Minister, but rather by way of an independent exercise of the Minister's power under s 36(5) (Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379). As Basten JA there said (at [202]):
"... the Minister, bearing the burden of satisfying the trial judge of the ultimate fact, namely that the lands were not claimable Crown lands, also bore the burden of establishing such primary facts and inferences as must be drawn therefrom in order for his decision to be upheld."
If the Minister fails to discharge that statutory onus, the Court is bound to transfer the land to the Land Council.
The date relevant to be considered for the purpose of determining whether land is claimable within the meaning of s 36(1) of the Land Rights Act is the date on which the land claim is made, relevantly being 13 December 2010. Focus on that date is necessary because it is the date upon which both relevant facts and applicable law must be considered for the purpose of determining the claim. So much was explained by Hope JA (Samuels and Clarke JJA agreeing) in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (Winbar Claim No 3) (1988) 14 NSWLR 685 where at 691 his Honour said:
"The first matter to be noticed is that the definition of "claimable Crown lands" in s 36(1) fixes the time as at which the conditions which it specifies must be satisfied as the time when the claim for the land is made. It does not require the conditions to be satisfied at some later time, as, for example, when the Minister investigates the matter or when the court, on appeal, investigates it. What the Minister was then required to do under s 36(5) was to investigate whether the land the subject of the claim satisfied the conditions of the definition at the time the claim was made, and if so satisfied he was required, under the Act in its original form, to transfer the land to the claimant Land Council in fee simple. He had no discretion in the matter; he was simply required to look at a state of facts existing at the date of the claim."
Likewise, on appeal to this Court, it has no discretion. If the Minister fails to discharge the onus imposed by s 36(7), the Court is bound to order the transfer of the claimed lands.
Relevant statutory provisions
The foundation of the issue in these proceedings is the definition of "claimable Crown lands". That definition is found is s 36(1) of the Land Rights Act which relevantly 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:
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
...".
The remaining paragraphs of subsection (1) which have an exclusionary effect are not presently relevant.
In recounting the tenure history of the claimed lands, I have referred to the declaration published in the Gazette on 30 October 1987 pursuant to s 25A of the CLC Act. At the time of publishing that declaration, subsection (1) of that section relevantly provided:
"25A (1) Notwithstanding the provisions of any other Act it shall be lawful for the Minister in respect of any land that before or after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, was or is -
(a) appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of Her Majesty by or under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise;
(b) ...
by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlement Acts or as Crown land within the meaning of this Act, and upon the publication of the notification in the Gazette the land may be so dealt with."
Of particular significance for the resolution of the issue in the case are the provisions of ss 40 and 42 of the Real Property Act. Section 40(1A) of that Act relevantly provided at the date of the Land Claims:
"40(1A) Where a computer folio certificate is issued in respect of a folio of the Register:
(a) the certificate is evidence of the particulars recorded in that folio, and
(b) it shall be conclusively presumed that:
(i) the certificate contains all the information that was recorded in that folio at the time specified in the certificate,
(ii) the land to which the certificate relates was, at that time, under the provisions of this Act, and
(iii) a person recorded in the certificate as the registered proprietor of an estate or interest in the land to which the certificate relates was, at that time, the registered proprietor of that estate or interest."
It will be remembered that the State of New South Wales was recorded as the registered proprietor of the claimed land at the date of the Land Claims and has continued to be so recorded.
Section 40(2) must also be noticed. It provides:
"40(2) No folio of the Register shall be impeached or defeasible on the ground of want of notice or of insufficient notice of the application to bring the land therein described under the provisions of this Act, or on account of any error, omission, or informality in such application, or in the proceedings pursuant thereto, by the Registrar-General."
Section 42 relevantly provided at the date of the Land Claims:
"42 Estate of registered proprietor paramount
(1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in a case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded except:
(a) the estate or interest recorded in a prior folio of the Register by reason of which another proprietor claims the same land,
...
(3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section."
By reference to s 42(1)(a), there is no "prior folio of the Register" to be considered, the folios issued in October 2007 being the first issued for the claimed lands.
Given that the State is recorded as the proprietor of the claimed lands at the time of the Land Claims, it is also necessary to notice the provisions of s 13J of the Real Property Act. That section provided:
"13J Estate in land where the State is recorded as proprietor
Where "The State of New South Wales" is recorded as the registered proprietor of land in accordance with this Act, the estate to which that recording relates is an estate in fee simple."
Land vested in Her Majesty
The competing submissions
The Land Council points to the fact that the State was recorded as the registered proprietor of the claimed lands at the date of its claim. Relying upon the provisions of the Real Property Act to which I have referred, it submits that recording of the State as registered proprietor in the folios of the Register under that Act is sufficient to satisfy the definition of "claimable Crown lands" in s 36(1) of the Land Rights Act. At the date of the Land Claims, that title of the State was an indefeasible title for an estate in fee simple in the land, with the result that the claimed lands were vested in Her Majesty.
The essence of the Minister's submissions is that the recording of the State as proprietor of the land is "erroneous". He submitted that at the date of the Land Claims, the land was vested in the Minister for Public Works by the combined operation of the Public Works Act 1888 and the notification published in the Gazette in 1897 under the provisions of that Act.
Further, it is submitted by the Minister that the declaration made under s 25A of the CLC Act provided no legal foundation for recording the State as proprietor of the claimed lands on folios in the Register under the Real Property Act. Yet, that was the basis that appears to have been assumed by the LPI when issuing those folios in the Register.
In deference to the Minister, his submissions require some elaboration. The first step in the argument was to cite a number of authorities in support of the proposition that "claimable Crown lands" under s 36(1) of the Land Rights Act is limited to "Crown land". The expression should not be taken to extend to land "the property of the Crown" or "land of the Crown" or land vested in a Minister as a Constructing Authority, albeit on behalf of Her Majesty.
In Sydney Harbour Trust Commissioners v Wailes [1908] HCA 19; 5 CLR 879, the High Court was required to consider the correct entity in whom land was vested. The land in question had been resumed under the Public Works Act 1900 (NSW) and vested in the Minister for Works as trustee for the Crown. By proclamation, that land was subsequently vested in the Sydney Harbour Trust Commissioners for the purpose of administering the Act for which they were responsible. It was accepted that the land was the property of the Crown but the question being considered was whether the land had, in law, been vested in the Commissioners. The Court decided that it was so vested. In giving their respective decisions, each member of the Court rejected a construction of the relevant legislation as indicating that land that is the property of the Crown was equivalent to Crown land.
In Ex parte Collins (1914) 14 SR (NSW) 31 the question arose as to whether a parcel of land was Crown land within the meaning of the Crown Lands Act 1884 (NSW) after that land had been resumed under the Public Works Act 1900. "Crown land" was defined in the 1884 Act by reference to "lands vested in Her Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be granted in fee simple." As the lands in question were vested in the Minister as Constructing Authority on behalf of the Crown, it was held that although they were the property of Her Majesty, they were not Crown lands within the meaning of the 1884 Act.
The Minister also relied upon the decision of Barrett J (as his Honour then was) in Townsend v Waverley Council [2001] NSWSC 384; 120 LGERA 224. His Honour was there considering a claim of title by adverse possession to an area of land said to form part of a public park. A question that arose was whether the claim could be sustained in the face of s 170 of the Crown Lands Act 1989 which provides that title to certain "land of the Crown" and title to "any other Crown land" may not be "asserted or established" by adverse possession.
The land that was the subject of those proceedings was part of a larger area of land resumed in 1886 and vested in the Minister for Public Works "on behalf of Her Majesty". Subsequently, the land was declared to be a public park, ultimately vested in Waverley Council as a reserve trust under the CLC Act.
Applying the decision of the Supreme Court in Ex parte Collins and Randwick Municipal Council v Thompson (1943) 15 LGR 85, Barrett J held at [22] that land vested in an authority on behalf of Her Majesty "is not properly regarded as vested in the Crown and is therefore outside the definition of 'Crown land'". In so deciding, his Honour referred to the definition of "Crown land" found in s 3 of the Crown Lands Act 1989 (NSW). He went on to determine that the land in question was nonetheless "land of the Crown" within the meaning of s 170 and so the claim for title by adverse possession could not be advanced.
Relying upon the provisions of the Public Works Act 1888, relevantly reflected in the Gazette notification published on 8 May 1897, together with the authorities to which I have just referred, the Minister submits:
(i) the Minister for Public Works, as the Constructing Authority, is vested with the legal ownership of the claimed lands;
(ii) aside from the declaration under s 25A of the CLC Act, there has been no transaction in respect of the claimed land that alters its vesting in the Minister for Public Works;
(iii) the legal estate is not vested in the Crown but in the Minister as a corporation sole;
(iv) as a consequence, the claimed land was not "Crown land", the Minister having absolute power to deal with the land; and
(v) as s 36(1) of the Land Rights Act uses the expression "claimable Crown lands", the authorities to which reference was made support the proposition that to be claimable land that land must be "Crown land" as distinct from land that is either "land of the Crown" or "property of the Crown".
Consideration
As an exercise in statutory interpretation, I do not accept that submission. It seeks to identify land that is "claimable" by reference to the expression being defined rather than by reference to the definition that the subsection provides. In the context of the present case, what must be determined for the purpose of satisfying the provisions of s 36(1) are:
(i) that the land is vested in Her Majesty at the date of claim, and
(ii) the land is able to be lawfully sold or leased or is reserved or dedicated for any purpose under the CLC Act or the Western Lands Act. (Emphasis added.)
Setting aside the first of those two elements for the present, the definition in s 36(1) of the Land Rights Act is not expressed by reference to the definition of "Crown land" in the CLC Act. Land will qualify by reference to the second element of the definition s 36(1) if it is "reserved" for any purpose under the CLC Act. The claimed land was so reserved as Reservation No. 200012 under s 28 of the CLC Act.
The Minister did not seek to impugn the lawfulness of that declaration. It follows, as a matter of fact, that the claimed lands were reserved under the provisions of the CLC Act, regardless of whether those lands fell within the definition of "Crown land" contained in that Act. If it otherwise be relevant, the second element of the definition of "claimable Crown lands" was satisfied, without the need to refer to the definition of "Crown land".
Accepting, as he must, that the registered proprietor of the claimed lands is and was at the date of the Land Claims, the "State of New South Wales", the Minister submits that the land nonetheless remains vested in the Minister for Public Works. He submits that recording the State as the registered proprietor is erroneous and occurred because the legal effect of the s 25A declaration made in respect of the land on 30 October 1987 was wrongfully understood by LPI when implementing the Crown Lands Conversion Project.
It must be remembered that I rejected evidence from Mr Medaris who sought to attribute the issue of the relevant folios in the Register to a possible misunderstanding by the responsible LPI officer of the effect of the s 25A declaration or of the declaration of the land as a public reserve. As Mr Medaris was not the responsible officer, his speculation could not be accepted. Likewise, speculation that this was the cause does not gain any purchase because it was made in the course of submissions.
Reliance is placed by the Minister on the decision of the Court of Appeal in Mogo Local Aboriginal Land Council v Eurobodalla Shire Council as to the legal effect of the declaration made under s 25A(1) of the CLC Act. The leading judgment in that case was delivered by Giles JA (Hodgson JA and Rolfe AJA concurring). At [34] his Honour said:
"In my opinion, s 25A of the Crown Lands Consolidation Act as it stood in 1981 was quite clear. It applied to land which had not been acquired under the Closer Settlement Act 1904 and was not Crown land within the meaning of the Crown Lands Consolidation Act ... it provided a mechanism by which land not falling within the definition of Crown land could be dealt with as Crown land. The declaration which it empowered did not purport to alter the ownership of the land or the body in which it was vested. Indeed, the declaration did not purport to deal with the land at all - it only declared that the land could be dealt with and authorised the dealing."
After considering further submissions to the contrary, his Honour repeated the conclusion expressed at [34] by stating (at [47]) that s 25A(1) gave a general power to deal with land which was not Crown land but as if it was Crown land within the meaning of the CLC Act.
That position must be accepted. The language of s 25A(1), as it was at the time of the declaration presently relevant, namely that made on 30 October 1987, is not materially different to the terms of the subsection considered by the Court in Mogo.
However, the Court in Mogo was addressing a different factual circumstance from that being considered in the present case. There, the land in question had been resumed by a local council under the provisions of the Local Government Act 1919 (NSW) (now repealed). Upon notice of that resumption being published in the Gazette, the land in question 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." That land was subsequently subdivided and upon subdivision the land in question was dedicated as a public reserve. A separate certificate of title under the Real Property Act issued for that land showing the council to be the registered proprietor for an estate in fee simple.
Sometime later, a declaration under s 25A of the CLC Act was made in respect of the council owned land. Following that declaration, the Registrar-General unilaterally altered the Register by ruling through the name of the council as the registered proprietor, recording the declaration in the Gazette by stating that the land had become Crown land and "cancelling" the certificate of title.
Following these events, Mogo Local Aboriginal Land Council lodged a land claim under s 36 of the Land Rights Act. The council commenced its own proceedings claiming that the land was not vested in Her Majesty within the meaning of s 36(1) of the Land Rights Act but was vested for an estate in fee simple in the council. The council succeeded both at first instance and in the Court of Appeal. Essentially, it did so because a declaration under s 25A of the CLC Act did not operate to affect the council's title in the land.
Importantly, the decision in that case did not engage a consideration of the provisions of ss 40 and 42 of the Real Property Act in the manner required in the present case. As Giles JA observed at [49], s 40 could not be relied upon in that case because the entry on the folio, immediately before being cancelled, to the effect that the land had become Crown land, was not a recording of a person as the registered proprietor of the land.
In summary, while the decision in Mogo bears upon the effect of a declaration under s 25A of the CLC Act, it does not address the supervening event in the present case, namely the issue of folios in the Register for the claimed lands. That supervening event occurred in 2007 when those folios were created, long after the s 25A declaration had been notified.
The Land Council submits that the provisions of ss 40 and 42 of the Real Property Act provide a complete answer to the Minister's submissions. As the State was recorded on each of the relevant folios of the Register as the registered proprietor of the claimed lands at the date upon which the Land Claims were made and no other interest in the land is recorded on those folios, that circumstance establishes that the land is vested in Her Majesty (ss 40(1A) and 42(1)). So to determine gives effect to the Torrens system of title as explained by Barwick CJ in Breskvar v Wall [1971] HCA 70; 126 CLR 376 where his Honour said at 385-386:
"The Torrens system of registered title of which the Act is a form is not a system of registration of title but a system of title by registration. That which the certificate of title describes is not the title which the registered proprietor formerly had, or which but for registration, would have had. The title it certifies is not historical or derivative. It is the title which registration itself has vested in the proprietor. Consequently, a registration which results from a void instrument is effective according to the terms of the registration. It matters not what the cause or reason for which the instrument is void." (Emphasis added).
That statement by the Chief Justice was adopted more recently by the High Court in Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [2013] HCA 11; 247 CLR 149 where at [20] the plurality described the principle to be of "fundamental importance" to the recognition of the Torrens system of registered title, of which the Real Property Act is a form. In a separate judgment, Gageler J at [53] referred to "indefeasibility of title" as "a conception 'central in the system' of registration, in accordance with which 'registration once effected must attract the consequences which the [RPA] attaches to registration whether that was regular or otherwise'".
There is ample authority to support the proposition that the Register is conclusive of title even if registration has occurred in error or without authority (Breskvar v Wall at 386; Palais Parking Station Pty Ltd v Shea (1980) 24 SASR 425 at 429 - 430; Black v Garnock [2007] HCA 31; 230 CLR 438 per Gummow and Hayne JJ at [10]).
In City of Canada Bay Council v F & D Bonaccorso Pty Ltd [2007] NSWCA 351; 71 NSWLR 424 the Court of Appeal was required to consider whether the transferee of land from the appellant council, obtained, upon registration of that transfer, an indefeasible title, notwithstanding that the land transferred was classified as "community land" under the Local Government Act 1993 (NSW). By s 45 of that Act, the Council had "no power to sell, exchange or otherwise dispose of" community land. The Court (Mason P, Tobias JA and Young CJ in Eq) determined, in a joint judgment, that although s 45 had the effect of invalidating the transaction, once the transfer was registered "the indefeasibility provisions of the Real Property Act were engaged and prevented that occurring" (at [82]-[83]). At [83] their Honours restated that the transferee's title "is wholly derived from the act of registration by the Registrar-General and not upon the transfer or the antecedent transaction which gave rise to the transfer."
The conclusive effect of the Register under the Real Property Act has been held to apply even where registration is the result of error on the part of the Registrar-General. That was the effect of the decision of Young J (as his Honour then was) in Brantag Pty Ltd v Minister for Mines (No 3) (29 March 1995 BC 9504440). His Honour there said:
"Whatever be the situation of the rights of the plaintiff as against the Registrar General, it seems to me that as soon as the entry was made on the title, the title becomes conclusive evidence of the land which it contains. The whole purpose of the Real Property Act is that one need only look at the folio on the Register and see who owns what land for what interest. Whether the Registrar General makes an authorized or unauthorized entry, once the entry has been made the interests are modified accordingly and the right of anyone deprived of land is simply against the Registrar General."
His Honour repeated the substance of that determination as it relates to a mistaken entry in the Register by the Registrar-General in Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd [2002] NSWSC 193; NSW Conv R 56-038 at [17].
Circumstances bearing a similarity to those in the present case were considered by Bignold J in Birrigan Gargle Aboriginal Land Council v Minister Administering the Crown Lands Act [1999] NSWLEC 12; 102 LGERA 33. In an appeal under s 36(6) of the Land Rights Act, the Minister contended that the claimed land was not claimable Crown land within the meaning of s 36(1). One of the two bases for that contention was that the land was not vested in Her Majesty.
The land in question had been resumed by the State Planning Authority. Title to the land was held under the provisions of the Real Property Act. Following publication of the resumption notice, the Authority was recorded as the registered proprietor. Shortly thereafter a declaration was made in respect of the land under s 25A of the CLC Act and that declaration notified in the Gazette. Subsequently, the Registrar-General altered the Register to record the State of New South Wales as the registered proprietor.
The Minister contended that recording the State as registered proprietor involved an "administrative error" which did not reflect the true legal vesting of the land. After referring to the provisions of s 40 of the Real Property Act and citing the judgment of Barwick CJ in Breskvar v Wall, his Honour rejected the Minister's submissions. In so doing, his Honour said:
"23 In my judgment the 'conclusiveness of the register' provisions of the Real Property Act 1900 are determinative of the issue in dispute and operate so as to require the conclusion in these proceedings that the lands were relevantly 'vested in Her Majesty' as at the date of the land claim.
24 In so concluding the Court has not been invited by the Applicant to determine the legal effect of the notification made pursuant to s 25A of the Crown Lands Consolidation Act. The Respondent has submitted that that effect was not to render the lands 'Crown land'. Since the Applicant's competing submissions do not involve any challenge or rebuttal of this submission, it is not necessary for the court to adjudicate upon it. Rather my conclusion that the issue is determined by the 'conclusiveness of the Register' provisions of the Real Property Act means that the Respondent's submissions on the legal effect of the Notification given pursuant to s 25A of the Crown Lands Consolidation Act may (for present purposes) be assumed to be correct."
His Honour's decision in that case was cited with approval by Young J in Bankstown Airport Ltd v Noor al Houda Islamic College Pty Ltd at [17].
The Minister seeks to distinguish the decision in Birrigan Gargle on five bases. The first is that the vesting issue was only raised a short time before the commencement of the hearing and the second is that the Minister's reason for refusing the claim was that the lands were needed for an essential public purpose (s 36(1)(c) of the Land Rights Act). I do not accept either of these bases as reasons to distinguish that case. First, as his Honour acknowledged, the vesting issue was raised with adequate notice to the applicant Land Council and second, it was essential to his decision to determine whether the claimed land was vested in Her Majesty. If it was not so vested, consideration of the issue raised by s 36(1)(c) was unnecessary
The third basis upon which the Minister sought to distinguish Birrigan Gargle is that it was a judgment delivered ex tempore. That fact provided no foundation to distinguish the decision, particularly by reference to the principle upon which that issue was decided.
The fourth basis upon which it is contended that the case should not be followed is that his Honour decided the issue, relying upon the provisions of s 13H of the Real Property Act which, it is submitted, was misplaced. I do not accept that submission. The reason why his Honour rejected the Minister's argument directed to vesting of the land are those that I have quoted from [23] and [24] of the judgment. He commenced the following paragraph of his reasons by stating that he would "deal with some related submissions advanced by each of the parties" because they had a bearing upon the conclusion that he had expressed. The following reference to s 13H of the Real Property Act is directed to his Honour's consideration of the power of the Registrar-General to have altered the Register, rather than his primary basis for determination, namely the "conclusiveness of the Register", as it existed at the date of claim. It is that aspect of his Honour's decision that provides support for the submission of the Land Council in the present appeals.
The fifth basis upon which Birrigan Gargle is sought to be distinguished is that in the authorised report of Mogo, Birrigan Gargle is identified as having been cited in argument, but is not referred to in the judgments of the Court of Appeal. That circumstance, so it seems to me, founds no basis upon which Birrigan Gargle should not be followed. It remains a decision that has not been overruled and, despite the Minister's submissions to the contrary, I do not regard it as necessarily being inconsistent with the determination made by the Court of Appeal in Mogo.
Ultimately, the Minister submitted that Birrigan Gargle was wrongly decided. For the reasons that I have given, I do not accept that submission as correct, particularly so far as it is directed to the operation of ss 40 and 42 of the Real Property Act.
However, even if the alteration to the Register made by the Registrar-General in Birrigan Gargle is inconsistent with the determination in Mogo, that circumstance has no bearing upon the present case. No alteration of the Register is presently involved. The cases earlier cited, directed to the operation and effect of ss 40 and 42 of the Real Property Act, remain critically relevant to the determination of the present case.
Indeed, the insertion of subsection (3) into s 42 by the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW) reinforces the concept of indefeasibility intended by subsection (1), save where there is express provision made in other legislation that overrides the operation of the section. While Sch 2 to that amending Act did make consequential amendments to a number of statutes, inserting a provision that overrode the operation of s 42, no legislation that is presently relevant had been so amended at the date the Land Claims were made.
The Minister seeks to respond to the Land Council's reliance upon the indefeasibility provisions of the Real Property Act on two bases. First, he points to the provisions of the Real Property Act that allow amendments to be made to the Register. Those provisions, so it is submitted, speak against the "conclusiveness" of the Register.
Second, it is submitted that the cases to which reference has been made in support of the indefeasibility principle can be distinguished. They can be so distinguished, so it is submitted, on the basis that each of them involved a transaction that had been registered and led to a dispute between parties asserting title.
It can be accepted that there are some rights in land that may arise outside the Real Property Act and that those rights may supplant rights otherwise arising under that Act. So much was recognised by the Court of Appeal in City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [46]-[52]. However, as was there observed (at [52]), cases supporting the exception to indefeasibility "are few". Indeed, with the insertion of subsection (3) into s 42 by the amending Act of 2009, coupled with the corresponding amendment to other legislation effected by that same Act, it may be accepted that there are only a limited and finite number of circumstances in which the indefeasibility provision of the Real Property Act will be trumped and then expressly so. The facts and legislation considered in the present case do not identify any such circumstance.
Reliance is placed by the Minister upon the provisions of s 12(1)(d) of the Real Property Act as a demonstration of the contention that the Register is not "conclusive". That provision enables the Registrar-General, "subject to this section and upon such evidence as appears ... sufficient", to correct errors and omissions in the Register. However, subsection (3) should be noticed as it is directed, in terms, to the exercise of the Registrar-General's power under subsection (1)(d). In particular, paragraph (b) of subsection (3) is of present importance as it provides:
"(b) to the extent that, but for this paragraph, the correction would prejudice or affect a right accrued from a recording made in the Register before the correction, the correction shall be deemed to have no force or effect, ... ".
Contrary to the submission of the Minister, I would have thought that where a correction is made under s 12(1)(d), the provisions of subsection (3)(b) are intended to maintain consistency with the indefeasibility provisions of the Act. The latter provision ensures that until such time as the correction is made and recorded on the Register, rights accrued by reason of the information contained in the Register immediately prior to correction are preserved.
Reference is also made by the Minister to s 136 of the Real Property Act. That section enables the Registrar-General, by notice, to call in for cancellation or correction any certificate of title or duplicate certificate of title that has been issued, where the Registrar-General is satisfied, among other matters, that a recording in the Register has been made in error or that a certificate of title or recording in the Register has been "fraudulently or wrongfully obtained". Further the section enables the Registrar-General to approach the Court for an order requiring the person holding a certificate of title to produce it to the Registrar-General for correction or cancellation action. To my mind, nothing in that section detracts from the conclusive effect of the Register prior to the taking of action to correct the error identified by the Registrar-General or to cancel the certificate of title.
Section 138 enables a court, in proceedings for the recovery of "any land, estate or interest" from the registered proprietor to make a number of specified "ancillary" orders against the Registrar-General, including an order that a folio of the Register be amended (s 138(3)(a)). As I understood the Minister's submission by reference to this section, the Register should not be taken to be conclusive as to the owner of the land at the date of the Land Claims because the Register was capable of correction pursuant to a court order so as to reflect the true legal position, namely that the Minister for Public Works should be recorded as the registered proprietor. That, so it is submitted, is the consequence of the 1897 declaration made under the Public Works Act 1888, as the later declaration under s25A of the CLC Act did not affect the title of the Minister for Public Works to the claimed lands (Mogo). However, neither the decision in Mogo nor any other decision identified by the Minister determined that an order made for alteration of the Register under s 138 had retrospective effect so that it impinged upon or denied the title of the registered proprietor as recorded in the Register prior to the order being made.
The power to make an order under s 138 is discussed in City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [93]-[97]. The context in which the section is there discussed offers no support for a submission that the availability of an ancillary order under that section would operate to override the provisions of s 42 as they relate to the title of the registered proprietor prior to the making of any such order.
The second broad basis upon which the Minister seeks to challenge the Land Council's reliance upon the paramount effect of the Register is directed to the absence of any "transaction" or dealing in respect of the claimed land. He submits that subsequent to the "erroneous" entry of the State as the registered proprietor, there has been no dealing with a bona fide purchaser without notice of the defect. This, so it is submitted, is not a case of the State "claiming title in any way". Further, it is submitted that at the time of making the present land claims, the Land Council was aware that the Minister for Public Works was asserted by the Lands Minister to be the owner of the land. That was the basis upon which the earlier land claims had been refused by the Lands Minister.
In support of the submission directed to the need for a "transaction" to trigger the operation of the indefeasibility provisions of the Real Property Act, the Minister relies upon the decision of the Privy Council in Gibbs v Messer [1891] AC 248. The judgment of the Board in that case was delivered by Lord Watson who at 254 said:
"The object [of the Act] is to save persons dealing with registered proprietors from the trouble and expense of going behind the register, in order to investigate the history of their author's title, and to satisfy themselves of its validity. That end is accomplished by providing that every one who purchases, in bona fide and for value, from a registered proprietor, and enters his deed of transfer or mortgage on the register, shall thereby acquire an indefeasible right, notwithstanding the infirmity of his author's title."
The legislation there being addressed was the Transfer of Land Statute applicable to the then Colony of Victoria.
The observations made in the quoted passage would appear to be directed to a legislative provision that now finds expression in s 43 of the Real Property Act. In terms, it provides protection to a person dealing with or taking a transfer from the registered proprietor of land.
However, the provisions of s 42 are not expressed to operate by reference to any transaction by or dealing with the registered proprietor of land. Rather, the section expresses, in unequivocal terms, the paramount title of the registered proprietor as recorded in a folio of the Register, "absolutely free from all other estates and interests that are not so recorded", subject to exceptions that are not presently relevant. The statement of Lord Watson in Gibbs v Messer has no bearing upon the operation of s 42.
This conclusion renders irrelevant the submission of the Minister directed to the notice that the Land Council had of the asserted ownership on the part of the Minister for Public Works. It also renders irrelevant the evidence to which I have earlier referred (at [22]), being the evidence upon which that submission was founded. Moreover, none of the amendments to the Real Property Act that were introduced by the Real Property (Crown Land Titles) Amendment Act 1980 have the effect of qualifying the application of ss 40 or 42 of the Real Property Act where Crown land has been brought under the provisions of the Act.
There is a further matter that should be noticed in relation to the Minister's submissions. The Land Rights Act has been identified in many cases as intended for beneficial and remedial purposes (see for example Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Wagga) [2008] HCA 48; 237 CLR 285 at [44]). As such, it should be interpreted in a manner that gives effect to those purposes. To construe the term "lands vested in Her Majesty" as used in s 36(1) of the Land Rights Act in a manner that denied its operation where the Register records the State as the registered proprietor at the date of claim would not be consistent with an interpretation informed by that principle. So to conclude is not inconsistent with the observations of Giles JA in Mogo where his Honour said at [57]:
"The requirement that land is vested in Her Majesty is to ensure that, in granting a claim, the Minister does not deprive persons other than the Crown of their interests in the land." (Emphasis added.)
As I have earlier observed, his Honour was not there addressing a circumstance where a folio in the Register had been created recording the State as the registered proprietor.
In summary, I am persuaded that the claimed lands were, at the date of each claim, vested in Her Majesty within the meaning of s 36(1) of the Land Rights Act. Each folio in the Register for those lands recorded the State as the registered proprietor. By operation of s 42 of the Real Property Act, the fact that the State was so recorded had the effect that each lot was free of any other interest or estate claimed to exist in that lot that was not recorded in the Register.
For those reasons, reliance upon the 1897 declaration that the land was vested in the Minister for Public Works was misplaced. The creation in 2007 of folios in the Register for the claimed lands was tantamount to "a new title certified as if the land had been a new Crown grant" (City of Canada Bay Council v F & D Bonaccorso Pty Ltd at [45]). At the date of the Land Claims, the asserted interest of the Minister for Public Works in the claimed lands is not recorded in the folio of the Register.
This conclusion renders it unnecessary to address the Land Council's submission directed to the operation of the declaration made under s 25A of the CLC Act as authorising the Registrar-General to record the State as proprietor pursuant to s 13H of the Real Property Act or its earlier manifestation to the same effect in s 49. Reliance upon those provisions may require reconsideration of the decision in Mogo, a decision by which I am bound.
The role of Acting Commissioner McAvoy
As I have earlier recorded, at the time of delivering this judgment, Acting Commissioner McAvoy no longer holds appointment under the Court Act. That circumstance does not present any impediment to the delivery of this judgment. My reasons for so concluding can be briefly stated.
The requirement that a Judge, hearing an appeal under s 36(6) of the Land Rights Act, sit with a Commissioner is imposed by s 37(2) of the Court Act. The subsection relevantly provides:
"(2) ... where proceedings are pending in Class 3 of the Court's jurisdiction, being proceedings:
(a) arising under the Aboriginal Land Rights Act 1983, and
(b) ...
the Court shall, in hearing the proceedings or any part of the proceedings, be assisted by 2 Commissioners or, if the Chief Judge so directs, by one Commissioner."
The language of the subsection makes tolerably clear that it is "in hearing the proceedings" that the Judge is required to be assisted by a Commissioner. Reference to assistance at the hearing is deliberate. It is a reference to the time at which the matter is listed before the Court, evidence given and submissions made to the point where the hearing of the proceedings has concluded. Reference to the role of the Commissioner in hearing the proceedings is to be distinguished from the adjudicative role to be undertaken once the hearing has concluded.
That interpretation of s 37(2) is supported by the provisions of s 37(3) which provides:
"(3) A Commissioner assisting the Court as referred to in subsection ... (2) may assist and advise the Court, but shall not adjudicate on any matter before the Court."
Reading that subsection with subsection (2) supports the view that the role of a Commissioner or Acting Commissioner, assisting the Court in hearing proceedings, comes to an end once the hearing has concluded. There is nothing further upon which the Commissioner or Acting Commissioner can adjudicate. Acting Commissioner McAvoy fulfilled this role as his appointment was current throughout the hearing and until its conclusion.
If, contrary to the conclusion just expressed, "hearing the proceedings" within the meaning of s 37(2) extends beyond the actual hearing and continues until the time the judgment is delivered, the provisions of s 37(4) would support the delivery of judgment, notwithstanding the fact that the Acting Commissioner no longer holds his appointment. Subsection (4) relevantly provides:
"(4) A Judge before whom proceedings referred to in subsection ... (2) are pending may commence or continue the hearing of the proceedings, or any part of the proceedings:
(a) without the assistance of a Commissioner who is not available or has ceased to be available to assist in the hearing of the proceedings or part of the proceedings ... ".
Acting Commissioner McAvoy has ceased to be available at the time of delivery of this judgment by reason of the fact that he no longer holds his former appointment. Assuming that "the hearing" extends to the present date, subsection (4) of s 37 sanctions delivery of this judgment.
For either of the reasons that I have identified, I am satisfied that I have power to deliver this judgment, exercising my role to "adjudicate on" the present appeals.
Conclusion and Order
For the reasons that I have earlier stated, the Minister has not discharged the onus imposed by s 36(7) of the Land Rights Act of satisfying the Court that the lands that are presently the subject of the Land Claims are not claimable Crown lands within the meaning of s 36(1). By operation of the same subsection, the Land Council is therefore entitled to an order that those lands be transferred to the Local Aboriginal Land Council nominated by it, namely the Tamworth Local Aboriginal Land Council.
While the appeal will be allowed, I am not presently able to make orders disposing of the appeal. As I recorded at [9], shortly prior to commencement of the hearing, the Land Council discontinued its claim so far as it related to the area occupied by the Moore Creek Dam and an area of land immediately surrounding that dam. While I am told of an agreement between the parties that an easement for access would be reserved in favour of the Minister so as to afford access to the dam site through the claimed lands, the terms of that easement and precise delineation of the area are details that have not been provided to me. Accordingly, the parties will be required to bring in short minutes reflecting the fact that the appeal will be allowed and formulating the terms on which the transfer of the claimed lands is to be effected, including the provision of the easement for access.
In that circumstance, the order that I presently make is as follows:
Direct that by 5.00pm on Tuesday 30 September 2014, the parties provide to my Associate either agreed or competing short minutes of orders necessary to give effect to the conclusion stated in this judgment.
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Decision last updated: 12 September 2014
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