New South Wales Aboriginal Land Council v The Minister Administering The Crown Lands Act

[1994] HCATrans 213

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•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll2 of 1993

B e t w e e n -

NEW SOUTH WALES ABORIGINAL LAND

COUNCIL

Applicant

and

THE MINISTER ADMINISTERING THE

CROWN LANDS ACT

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

GAUDRON J

Copyright in the High Court of Australia 11/2/94

TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 11 FEBRUARY 1994, AT 9.56 AM

MR A. ROBERTSON:  May it please the Court, I appear for the

applicant. (instructed by Horowitz & Bilinsky)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P. LARKIN, for

the respondent. (instructed by H.K. Roberts, Crown

Solicitor for the State of New South Wales)

MR ROBERTSON:  Your Honours, have the written arguments in

this matter and I propose to make some six

supplementary points in support of the application

for special leave. First, Your Honours, from a
comparison of the applicant's summary of argument
and the respondent Minister's summary of argument,
it does not appear that the Minister takes issues
with the importance of the question of statutory

construction which the applicant says arises. That

is not, of course, conclusive so far as the Court
is concerned but there is nothing in the Minister's

submissions that denies, as it were, either the

factual basis or perhaps the contention that it is

a question of importance. That is the first point.

The second point is this, Your Honours, and

that is we would remind the Court of the approach

to the construction of the New South Wales Act,

Aboriginal Land Rights Act, which was first

propounded by the New South Wales Court of Appeal

in 1987 and is referred to in the application book at page 68 at about lines 7 to 9, and that is that

the Act be given "the most beneficial operation

compatible with its language". That seems to be an

accepted approach to the construction of the Act.

In Mr Justice Sheller's judgment at page 68 it is

set out and no issue is taken with that although,

of course, the applicant would submit that the

result arrived at, in terms of the proper approach

to the construction of the Act, in the judgment

under appeal is not consistent with that beneficial

approach to the construction of the Act. That is

the second point I seek to make.

The third point, Your Honours, arises from a

contention in the Minister's outline of argument at

paragraph 12 on page 4 of the outline where it is

there contended that one of the reasons that

special leave should not be granted was that "the

case turns on its own facts". The applicant would

submit that if by that it is intended to mean that

the case turns on factual minutia, we would
disagree with it. We would also submit that the
matter could not have turned on its own facts in
the usual sense of that expression in so far as the
appeal to the Court of Appeal was limited to a

question of law by virtue of section 57 of the New

South Wales Land and Environment Court Act.

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Your Honours, the fourth point we would seek

to make while on the subject of facts is that there

is really no more to the facts as found by the

primary judge and as set out in

Mr Justice Sheller's judgment in the Court of argument in part II, that is, those paragraphs

immediately under the heading "The Facts". That

refers to the term of the mining lease, the lack of

mining activity conducted on the land, the fact

that the land retained its densely vegetated and

undisturbed form and appearance.

BRENNAN J: But it is part of an enterprise or undertaking

which includes the brick making, is it not?

MR ROBERTSON: Certainly there was activity; mining

activity, brick-making activity on the adjoining

lease. That is certainly so. But having said

that, as to this particular mining lease referred to as Mining Lease 2 or 6322, there was certainly

no activity on that land.

BRENNAN J:  No, not on that, but it is not simply a case of

expioiting the land for the purpose of winning
minerals from it. It is winning the minerals which
are used in the entirety of the undertaking which
includes the making of bricks and thus, in a sense,

the land which contains the shale or the clay is

rather in the nature of a stockpile of material

awainting to be processed.

MR ROBERTSON: Possibly, Your Honour. We would submit, in

answer to that, that the Act proceeds by reference

not to, as it were, enterprises but land and

whether or not - - -

BRENNAN J:  Of course. The question is whether or not that

amounts to a use.

MR ROBERTSON:  Yes. We would submit that it does not. I

will come in a moment if I may, Your Honour, to the

competing tests that were used to answer that

question, both at first instance and in the

judgment on appeal.

But there is no, as it were, issue as to the

facts. The quality of the facts or their meaning,

their significance, in terms of the statutory test

is the issue between the parties. So what I am

aiming to make out is that it is not a case that

turns on factual disputes as to primary facts.

GAUDRON J: But you do go so far as to say, do you not, that

the use is something that can be answered without

regard to the purposes for which the land is being

held?

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MR ROBERTSON:  Yes, Your Honour, we would submit that if one

asks the questions - and perhaps I can go to this

now - one asks the questions that are set out in
the judgment under appeal two things really are

suggested as providing the answer: one is set out

at page 75 at about line 9, and that is one test

that, with respect, we would wish to take issue

with, that is where Their Honours say:

The quetion is whether the lands or the

relevant part of the lands, taken as a whole,

have been devoted to mining purposes rather

than whether they are being immdiately

physically used for those purposes.

And that read with the statement on the previous

page, page 74 line 13, where Their Honours say: In the case of mining activities the lands presently used are not only those being

physically mined at any particular point of

time but those held as a reserve for mining

for some time into the future.

Now, it is taking those two matters together - that

is the notion of devotion and the notion of some

time into the future - open-ended as those

statements are, that we would take issue with, and

to revert to Your Honour's question, we would

submit that the idea of purpose, a difficult

concept as it is with its own ambiguities, the

notion of purpose is not a helpful one for
resolving the statutory question as to whether or
not the land is lawfully used because although - to

put it this way, the applicant would suggest that

the question of use is to be approached by

reference to what it is that is suggested that the

land has been used for, rather than something more

remote that may be involved in mere purpose. So we

certainly take issue with bringing that concept in,

partly because it is not found in the words of the

statute.

GAUDRON J:  Do you say that also in relation to "occupied"?

It seems to have been lost somewhere along the

track.

MR ROBERTSON:  It was not lost, Your Honour; it was conceded by the respondent Minister. The Minister, I think,

in the course of argument in the Court of Appeal -

I will give Your Honours the page references to

it - but it was conceded at that stage - it is at

page 58 of the application book, about line 9:

The appellant -

which at that stage was the Minister -

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concedes that the lands were not lawfully

occupied within the meaning of para (b) when

the claim was made.

Do Your Honours see that?

DEANE J: That concession would seem to, at least at that

stage, be based on perhaps a misapprehension about

the reasoning in Duruk, may it not? I mean, one

can follow the reasons that led the majority in

Duruk to treat "occupied" as not referring to

occupation by the Crown before Crown lands were

granted or leased, but that reasoning and the

juxtaposition of the two clauses just does not

apply where occupation by someone other than the

Crown, pursuant to the grant of a mining lease, is involved.

MR ROBERTSON:  I do not know why the concession was made.

It was not the present applicant's concession.

DEANE J:  The problem here is, is it not, that if one has

the impression that the facts of this case come
within the phrase "lawfully occupied or used", one
way or the other, it would be very difficult to

deal with the appeal on the basis of a concession

about "occupied".

MR ROBERTSON:  In a sense is Your Honour putting to me that

it is, to some extent, a composite phrase and

Your Honours will be being asked to look at part of

it?

DEANE J: That each word takes, to some extent, its meaning

from its contextual relationship with the other.

MR ROBERTSON:  Yes, well I would certainly accept that as a

matter of the meaning of the expression, but

perhaps Your Honours would not be prevented from

construing the words presently in question because

there has been a concession, as it were, in

relation to the facts of this particular case. It

may perhaps involve some mental gymnastics.

DEANE J:  And, of course, query the effect of such a

concession as against a respondent trying to uphold

the decision of the court below.

MR ROBERTSON:  Yes, but that is another question. Certainly

that is the reason - I understood Your Honour

Justice Gaudron was perhaps asking why the present

applicant was not taking issue with the occupied

part of it and that is the reason, that that fell

away as a result of that concession.

Your Honours, I was going to touch briefly on

the matters in my learned friend's written

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submissions in relation to paragraph 5 on page 2

and to make some short remarks about those points.

Paragraph S(a), it is true to say, as it is there

set out that:

the miner's predecessor had ..... carried out

tests on and inspected the land:

But, as is made clear from page 67 of the

application book in the judgment of the Court of

Appeal, page 67 line 7:

It was not suggested -

I might say either before the primary judge or in

the Court of Appeal that that exploratory testing -

constituted use for mining purposes.

Secondly, as to S(b) on page 2, there was no direct

evidence at the trial of the intentions of the

present lessee of the land. All that was said, as

Mr Justice Sheller makes clear at page 66, line 22,

was that:

at the time of the hearing in the Land and

Environment Court -

which Your Honours will recognise was some, I

think, five years after the relevant date, there

had been no activity on the land in question and

Mr Leather, who gave evidence as an officer of the

lessee, said that even at that time in 1992 no

activity was contemplated for some 18 months or two

years. So that leaves the period of the lease

granted in 1972, the relevant date being 1987, and

then no mining being proposed even at that time

until, say, 1993, 1994.

Then the last point on S(c), this question of

amalgamation, that is a statutory creature. It

operates under regulation 43 of the mining

regulations and, as the applicant would submit, it

merely relieves the lessee from a liability under

the lease. In other words, under the lease the

lessee was required to employ four people on mining
lease 6322 and the effect of the aggregation was

that those four people need not be employed on that

lease but could be employed on the other lease, the

one that is not the subject of the claim. So we

would submit that that really does not take the

matter very far.

Your Honours, I do not wish to rehearse the

applicant's contentions as to the statutory context

and matters of that sort. They are set out at the

foot of page 3 and the top of page 4 in the

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applicant's summary of argument. I would only

wish to put this matter in conclusion and that is

in relation to the test that is propounded in the

Court of Appeal, and particularly the passage I

took Your Honours to earlier where it said:

The question is whether the lands ..... have

been devoted to mining purposes -

we would submit, Your Honours, that that question

or that test of devotion to mining purposes comes

from the judgment of Mr Justice Taylor in the Royal

Necastle Hospital case, in particular the passage set out at the foot of page 73 of the application

book. When we say it comes from there, our

respectful submission would be that it has been

taken out of context because if Your Honours were
to look at the application book, page 73, there is

a discussion in that extract from the Royal

Newcastle Hospital case, there is a discussion of

use generally, then His Honour Mr Justice Taylor

says, at line 30 on page 73, this is a rating case,

of course:

But where an exemption is prescribed by

reference to use for a purpse or purposes it

is sufficient, in my opinion, if it be shown

that the land in question has been wholly

devoted to that purpose -

So we would wish to submit that the two matters

there which are distinguishable, one is one of

dealing with an exemption in a rating case, and

secondly, as the primary judge approached the

matter, there is not a reference to use for a

purpose. So we would submit that the idea of

devotion being sufficient, as suggested in the

passage at page 75, is not the correct statutory

question.

Those are the submissions for the applicant.

BRENNAN J: Thank you, Mr Robertson. Yes, Mr Solicitor.

MR MASON: 

Your Honours, the concession about whether the

land was lawfully occupied was, of course, made
against a particular perception of the finding in
Duruk's case but, in any event, it does not
foreclose the legal argument which succeeded in the
Court of Appeal with reference to the meaning of
"lawfully use".

The case does turn on its own facts in the

sense that the - - -

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DEANE J: Except it would be very difficult to deal with

that argument without deciding what "occupied"

meant - - -

MR MASON:  I accept that. It is not a concession that, as

it were, moulded the factual context; it was an

argumentative position taken in the Court of Appeal

where the Minister chose to take a stance on one

paragraph alone. That does not mean that my

learned friend, as it were, starts with some fixed

meaning of half of the phrase which he can then

build an argument upon in this Court.

BRENNAN J:	It does mean that the Court of Appeal and the question that was posed for their consideration is
somewhat skewed.

MR MASON:  Not necessarily. They simply addressed only a

narrow argument which, as it turned out, was

sufficient to get the Minister home, as it were.

DEANE J: But what if one thinks - and I am not suggesting I

do, I am just asking you - that in the context of

the correct meaning of "occupied", and that the

correct meaning is not that given by the Court of

Appeal, the word "used" has a different meaning to

that given by the Court of Appeal.

MR MASON:  Certainly the possibility of distinguishing Duruk

in the way that Your Honour had mentioned earlier

is a relevant issue, but if one is considering

whether special leave should be given in this case,

the fact that a concession, perhaps, as to the
extent of the Duruk decision was made in the course
of argument does not mean that the approach the

court took is either necessarily wrong or that this

is an appropriate vehicle in which to rectify any

perceived error.

Our submission is that, in essence, the

holding of land must, when one looks at whether it

is lawfully used or occupied, take the Court to

examining the purpose for which the particular

portion of the land is being devoted, and obviously being devoted at a fixed point of time, the time of

the claim. But it just does not follow that that

purpose is confined to the actual present physical use of the land and the Brickworks case, albeit in

a different context, really states a truism, in our

submission, that one can devote land or anything

else to a purpose, even though that purpose is

passive.

It all depends on the facts of the case. And

at pages 74 and 75, the very bottom of page 74, the

Court of Appeal made it very plain that they saw

the resolution of the particular case as dependent

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upon particular facts and, in a sense, that is why

the matter was remitted back to the Land and

Environment Court by the Court of Appeal. Clearly,

Their Honours rejected Justice Bignold's legal test of an actual present physical use but, in doing that, they pointed to the fact that in this present

situation there was more than that and there was a

need to examine more than that, and there were

sufficient facts to show that however one

characterized the test, whatever words one used,

the use in the present case could not be dismissed

as being, as it were, non-existent or so passive as

to be ignored.

So ultimately what this case really presents

itself is as a situation where the Court of Appeal

rejected the approach of the trial judge, debated

amongst themselves as to the verbal formulation of

the legal test for use, but really in that very

debate demonstrated that use is ultimately a

factual issue and that it is possible to say that

some tribunals of fact in approaching that factual

issue make such a wrong decision that they have

made an error of law, and that is what Justice

Bignold was held to do. But there nevertheless

remains a very broad spectrum where the decision is

a factual one and this clearly was within that

spectrum and clearly, in our submission, was

correctly found to be a sufficient - I will not use

the word "use", but enough was taking place on the

land in question to enable the court to say that

you could not say it was not being used.

The fact that there are other cases which

obviously will involve the construction of this

does not necessarily mean that this case is the

appropriate vehicle in which to do it. The

decision in the court below on the particular

situation was clearly correct and the fact that the

court may have been blinkered by the concession

about occupation to expressing themselves perhaps

more narrowly than they might have does not

mean

DEANE J: But there is something a bit unfair about all

this in that - and again I am just indicating a

tentative reaction - but what if one feels that the
applicant has wrongly lost on the question

litigated before the Court of Appeal, but should

have lost on a point which was expressly conceded

by your client - - -

MR MASON:  By myself.

DEANE J:  By yourself, yes. Where does that lead all this?

As I say, it leaves one with a feeling that there

is a bit of injustice around somewhere. The other

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side, of course, is if one has that view it is a

very strong reason against granting leave because

one simply could not deal with the meaning of this

phrase without re-examining the meaning of the word

"occupied".

MR MASON: All the more so because, in this particular case, the concluding order is one of rernitter in that, in a sense, one is back to tors, certainly with the

judge constrained by the meaning of this judgment,

but what the judgment really says, in essence, is

that the particular test applied originally was too

narrow and that at least in examining "use" one

takes an approach that picks up some of the ideas

from the planning cases.

I would submit that that sense of unease

Your Honour put to me does not emerge in the

judgment, that it does not provide a vehicle for

this case to be an appropriate vehicle for looking

at what in the end will, in my submission, turn out

to really be a question of fact. Ultimately one

cannot torture a finding about use into an error of

law unless an extreme position is taken, such as

was taken by Justice Bignold in this situation.

BRENNAN J: Yes, Mr Robertson.

MR ROBERTSON:  Two short points, Your Honours. One is, in

relation to the matter raised by Your Honour
Justice Deane, I am instructed that the applicant,

except perhaps subject to some

if leave were granted, would not contend that the occupation,

complaint about costs on our part.

The second matter, Your Honours, is that my

learned friend the Solicitor-General raised the question of remitter in terms of the order. We

would submit only that if the test which I took

Your Honours to at page 74 were applied by the

judge to whom the matter was remitted, that is the

lands presently used are also those held as a

reserve for mining some time into the future, there

would not be perhaps much room to move in terms of

the ultimate outcome of the present litigation

between the parties.

Those are the only two matters in reply,

Your Honours.

BRENNAN J: This case turns on the construction of the

composite phrase "not lawfully used or occupied" in

s.36(l)(b) of the Aboriginal Land Rights Act 1983

(N.S.W.). That was not the approach taken in the

Court of Appeal. Although we are unable to affirm

the judgments in the Court below as propounding the

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test applicable to all land subject to a mining

lease, the facts of the present case do not reveal

that the applicant has sufficient prospects of

ultimate success to justify the grant of special

leave. Accordingly, special leave is refused.

MR MASON:	I seek an order for costs.
BRENNAN J:	Have you anything to say about that,

Mr Robertson?

MR ROBERTSON:  No, Your Honour.

BRENNAN J: Perhaps you should be given an opportunity to be

heard, Mr Solicitor, but, after all, you made the

concession.

MR MASON:  I made the concession in the court below. I

succeeded in this Court. In my submission, the

costs of this application, they would follow the

event.

BRENNAN J: The application is refused. There will be no

order as to costs.

AT 10.29 AM THE MATTER WAS ADJOURNED SINE DIE

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