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Australian Indigenous Law Reporter |
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7 March, 24 April 1997
Butterworths Unreported Judgments BC 9701440
Aboriginal land Claim - Aboriginal Land Rights Act 1983, s 36(1), Crown Lands Consolidation Act 1913, ss 5, 63A and 25A - whether claimed land is Crown land - whether claimed land can be lawfully sold or leased - 'claimable Crown land' - 'land vested in Her Majesty'.
Facts:
In February and March 1985, Gandangara Local Aboriginal Land Council (GLALC) lodged a number of Aboriginal land claims near Menai in Sydney's South. The land in question had been purchased by the State of NSW from the Commonwealth on 25 June 1984. In June 1994, the Minister refused the claims on the basis that the land was not 'claimable Crown land' within the meaning of s 36(1) of the Aboriginal Land Rights Act 1983 (NSW) (the ALR Act). Section 36(1) provides in part that:
'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 GLALC appealed the Minister's refusal to the Land and Environment Court. Justice Bannon there ordered that a separate question be determined, namely, whether the claimed land was claimable Crown land for the reason that the 'the lands were acquired by the State of New South Wales by purchase from the Commonwealth of Australia and at the date of claim no notification had been published in the Government Gazette pursuant to s 25A of the Crown Lands Consolidation Act 1913.'
For the purposes of determining this question, the parties agreed inter alia that the registered proprietor of the claimed land was 'the State of NSW' and that at the date of the claims there had been no notice published in the Government Gazette pursuant to s 25A of the Crown Lands Consolidation Act 1913 (NSW) (the CLC Act) declaring that the lands may be dealt with as if they were Crown land within the meaning of the CLC Act. It was further agreed that the land had not been reserved or dedicated for any purpose under the CLC Act.
In the Land and Environment Court, Justice Bannon answered the separate question in the negative. The GLALC appealed the decision to the Court of Appeal.
Upon appeal, the Minister also argued that the definition of 'Crown land' in s 5 of the CLC Act referred only to unalienated Crown land and that once alienated, land does not become Crown land upon resumption. Section 5 of the CLC Act provides:
In this Act, unless the context necessarily requires a different meaning, the expression 'Crown lands' means lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Acts.
Held:
Per Cole JA and Beasley JA with whom Studdart AJA agreed:
1. The subject land was Crown land within the meaning of the Crown Lands Consolidation Act because it was vested in Her Majesty in right of the State of NSW, such title being registered as permitted by both the Crown Lands Consolidation Act and the Real Property Act (1900) (NSW) (the RPA) in the name 'the State of New South Wales'. There was nothing in the provisions of the CLC Act or the RPA which requires the definition of Crown Land to be given the limited or special meaning which the Minister contended.
2. Per Beasley JA with whom Studdart AJA agreed:
As there had been no gazettal pursuant to s 25A of the CLC Act, the land, although Crown land, cannot be the subject of sale or lease or dedication or reserve under the CLC Act. It was therefore not 'claimable Crown land' for the purpose of s 36(1) of the ALR Act.
Per Cole JA:
3. The separate question identified by Bannon J was misconceived. Section 25A was irrelevant to the land being 'claimable Crown land'. Critical to land being available for sale or lease was a notification in the Gazette by the Minister authorising the sale or lease; ss 36 and 63A CLC Act. There was no such notification with respect to the claimable land and therefore it was not able to be lawfully sold or leased as required by s 36(1) of the ALR Act.
Cole JA:
The factual circumstances attending this appeal are set forth in the judgment of Beazley JA which I have read in draft.
The appeal concerned a single issue, namely, whether the land the subject of the claim was 'claimable Crown lands' within the meaning of s 36 Aboriginal Land Rights Act 1983. The appellant claimed the subject land was claimable Crown land because it was 'vested in her Majesty ... when [the] claim [was] made ... [which] land is able to be lawfully sold or leased ... under the Crown Lands Consolidation Act 1913 ...'
That question gave rise to sub-issues. First, whether the subject land is 'Crown land' and, second, whether such land is 'able to be lawfully sold or leased'. The appellant contended that each question should be answered in the affirmative resulting in the land being claimable Crown land. Bannon J had determined that it was not.
'Crown Lands' are defined in the Crown Lands Consolidation Act to mean, unless the context necessarily required a different meaning, 'lands vested in his Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Act.' It was plain that the subject land was not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Act, as deemed in s 5 Crown Lands Consolidation Act. The question was thus whether the lands were 'vested in His Majesty', meaning Her Majesty in present circumstances.
The land is real property land. The registered proprietor is shown as 'the State of NSW'. The land had been purchased pursuant to a deed which conveyed the land to 'Her Majesty Queen Elizabeth II in fee simple in the right of the State of NSW as Crown lands within the meaning of the Crown Lands Consolidation Act 1913'. Sections 13H(1) and 13H(2) Real Property Act 1900 provide that where the Registrar General becomes aware that land in a folio on the Register has become Crown land within the meaning of the Crown Lands Act 1989, he shall make such recordings in the register and on the certificate of title as he considers appropriate. In particular he may record 'the State of NSW' as the registered proprietor. Section 6(4) Crown Lands Consolidation Act provides that Crown Lands shall not cease to be Crown land by reason only of the creation in respect of it of a folio of the Register in the name of 'the State of NSW'.
These provisions make clear to my mind that the subject land is Crown land within the meaning of the Crown Lands Consolidation Act because it is vested in Her Majesty in right of the State of NSW, such title being registered as permitted by both the Crown Lands Consolidation Act and the Real Property Act in the name 'the State of NSW'. The appellant succeeds on the first sub-issue.
There remains, however, the respondent's contention that the land is not 'claimable Crown land' because it is not 'able to be lawfully sold or leased ... under the Crown Lands Consolidation Act 1913'. The respondent contended that was because of the provisions of s 25A Crown Lands Consolidation Act. Section 25A(1) provides:
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 of 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; or
(b) appropriated or resumed and vested in a public authority, or otherwise acquired by or vested in a public authority, by or under the authority of any statute,
by notification published in the Gazette to declare that the land may be dealt with as if it had been acquired under the Closer Settlements 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.
The contention of the respondent was that there had been no such notification in the Gazette and thus the subject land could not be sold or leased under the Crown Lands Consolidation Act. The general provision regarding Crown land is that it is not to be sold without specific legislative authority. That is clear from s 6(2) Crown Lands Consolidation Act which provides:
Crown lands shall not be sold, leased, dedicated or reserved or otherwise dealt with unless the sale, lease, dedication or reservation or other dealing is authorised by this Act.
That provision is subject to subs (1) which requires s 6 to be construed subject to the provisions of ss 2 and 4. Section 4 makes clear that the Crown Lands Consolidation Act is not to be construed so as to affect, subject to contrary intention, the operation of provisions under various acts some of which contain powers of sale. [1] However for the purposes of the Aboriginal Land Rights Act the ability to lawfully sell or lease the subject land, if it is to be claimable, must be found 'under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901'. The latter act does not apply to the subject land.
One looks, therefore, to see if there is a provision in the Crown Lands Consolidation Act which authorises sale or lease of the subject land. Section 6(3) provides:
The Minister or the Commission, on behalf of the Crown, may sell, lease, dedicate, reserve or make any other disposition of Crown land in any case where the sale, lease, reservation or other disposition by the Minister or the Commission, as the case may be, is authorised by this Act, but only for some estate, interest or purpose authorised by this Act and subject in every case to its provisions.
Section 23 permits the Minister by appropriate notification to set apart lands for towns, villages and as suburban land. Section 23A permits the Minister to acquire land by gift inter vivos or device, and such land so acquired may in certain circumstances be transferred or leased. [2] By s 24 the Minister may by notification in the Gazette dedicate Crown lands for specified purposes. Section 25 confers a power to revoke such dedication whereupon such land becomes Crown lands within the meaning of the Act vested in Her Majesty. Section 25A confers a power in respect of land appropriated or resumed for any public purpose and vested in a Minister on behalf of Her Majesty, or appropriated or resumed and vested in a public authority by notification to declare that such land may be dealt with as if it had been acquired as Crown land. In my view the words in subclause (a) 'by or under the authority of any statute or acquired by or on behalf of the Crown by gift or otherwise', and in subclause (b) 'or otherwise acquired by or vested in a public authority, by or under the authority of any statute' describe methods of acquisition of land which has been respectively appropriated or resumed for any particular purpose and vested in a Minister of the Crown on behalf of Her Majesty, and appropriated or resumed and vested in a public authority. Section 28 provides:
(1) The Minister may by notification in the Gazette declare what portions of Crown lands shall be reserved temporarily or otherwise from sale for any public purpose or for commonage and the lands which are the subject of any notifications shall thereupon be reserved from sale accordingly.(2) The Minister may by notification in the Gazette declare that any Crown lands or closer settlement lands shall be added to any lands reserved temporarily or otherwise from sale for any public purpose or for commonage.
Thus Crown lands may be reserved from sale. Section 29 provides:
The Minister may by notification in the Gazette reserve any Crown lands therein described from being sold or let upon lease or licence in such particular manner as may be specified in such notification; and the lands shall thereupon be temporarily reserved from sale or lease or licence accordingly, and, unless the contrary is expressly declared, shall not be reserved from sale or leased generally.
Thus specific or qualified reservations may be declared. Section 30 provides:
The Minister may by notification in the Gazette revoke or modify-(a) any temporary reservation of Crown lands from sale made under the Code of 1861-80; or
(b) any temporary reservation of Crown lands from sale for any purpose, or from sale pending survey or determination of the portion to be set spars for any public purpose or for commonage whether made before or after passing of this Act; or
(c) any temporary reservation of Crown lands from being sold or let upon lease or licence in any particular manner specified in any notification made under s 39 of the Crown Lands Act of 1889 or under s 29; or
(d) any other temporary reservation from sale or lease or licence made under the Crown Lands Act whether before or after the passing of this Act;
(e) any reservation under s 28 which is not a temporary reservation within para (a), para (b), para (c) or para (d).
Timber or forest reserves shall not be subject to revocation or modification under this section.
Thus any Crown lands which have been reserved from sale may have that reservation removed. Implicitly that makes them then available for sale.
The implicit power of sale contemplated by s 30 is made explicit by ss 63, 63A and 144E. Section 63 provides:
(1) The Minister may by notification published in the Gazette, authorise the sale by auction of any Crown lands specified in the notification.(2) Where any Crown lands are the subject of a notification under subs (1), the lands may be sold by public auction at such places (whether within or outside the land district in which the lands are situated), at such times and subject to such terms and conditions as the Minister determines and specifies in the notification..
Section 63A provides:
(1) The Minister may by notification published in the Gazette, authorise the sale by tender of any Crown lands specified in the notification.(2) Where any Crown lands are the subject of a notification under subs (1), the lands may be sold by tender subject to such terms and conditions as the Minister determines and specifies in the notification.
Section 144E provides that the Commission may sell by public auction or by tender various categories of title, being freehold and leasehold, to irrigable and non-irrigable land as well as town land, both freehold and leasehold, situated within a city, town or village.
Critical to land being available for sale or lease is a notification in the Gazette by the Minister authorising such sale or lease. In respect of the subject land there has been no such notification. It follows, in my view, that at the time when the subject claim was made, there having been no authorisation by the Minister by notification published in the Gazette authorising the sale or lease of the subject lands, such lands were not 'able to be lawfully sold or leased under the Crown Lands Consolidation Act 1913' within the meaning of that expression in s 36 Aboriginal Land Rights Act 1983.
For the reasons expressed, in my view s 25A Crown Lands Consolidation Act 1913 is irrelevant to the determination whether the subject land is 'claimable Crown lands' within the meaning of s 36 Aboriginal Land Rights Act 1983. The separate question posed by Bannon J was misconceived. Accordingly I would decline to grant leave to appeal but would propose that the Court declare:
That the lands claimed under s 36 Aboriginal Land Rights Act 1983 in proceedings numbered 30283 of 1994, 30284 of 1994 and 30288 of 1994 are not 'claimable Crown lands' within the meaning of that section.
The appellant should pay the respondent's costs of the appeal and in the court below.
Beazley JA:
This is an application for leave to appeal from the determination by Bannon J, in the Land and Environment Court of NSW, of a separate question asked in class 3 proceedings brought by the appellant against the respondent's refusal of land claims made by the appellant under the Aboriginal Land Rights Act 1983 (the ALR Act). The application for leave and the appeal were heard together. If leave is granted, the appeal is in respect of a matter of law only: s 57 Law and Environment Court Act 1979. The respondent does not oppose the grant of leave.
The appellant's claim is in respect of a large tract of land at Holsworthy in the southern region of the Sydney metropolitan area. The land is currently used by the Commonwealth as an army base and because of its size and location, is undoubtedly of strategic importance for the NSW and Commonwealth Governments. Although there was no evidence on the point, it has been well publicised in this state that this area of land may be under consideration for the construction of a second airport facility for Sydney. The separate question raises for determination the meaning of 'Crown land' in s 5 of the Crown Lands Consolidation Act (the CLC Act), the construction and operation of s 25A of that Act and the relationship of s 36 of the ALR Act with those provisions There is no authority which directly deals with these matters. Unless leave is granted the appellant's claims will effectively be terminated, as the separate question was answered in the negative. Accordingly, in all the circumstances, leave to appeal should be granted.
The appellant lodged its land claims in respect of the land, which is located in the Burden's Creek region near Menai in the parish of Holsworthy, in February and March 1985. The claims were refused by the Minister by letter dated 29 June 1994 on the ground that the land was not 'claimable Crown land' within the meaning of s 36(1) of the ALR Act.
The appellant commenced class 3 proceedings in the Land and Environment Court against that refusal. Upon the application of the respondent, Bannon J ordered that there be determined the following separate question:
Whether the lands claimed under s 36 Aboriginal Land Rights Act 1983 in proceedings numbered 30283 of 1994, 30284 of 1994 and 30288 of 1994 are 'claimable Crown lands' for the purposes of that provision for the reason that the lands were acquired by the State of NSW by purchase from the Commonwealth of Australia and at the date of claim no notification had been published in the Government Gazette pursuant to s 25A Crown Lands Consolidation Act 1913.
The following facts were agreed by the parties for the purpose of the deternunation of the separate question:
1. The land, the subject of these land claims, were at the date of the claims (22/2/85) included in Certificates of Title under the Real Property Act 1900;2. The registered proprietor in each case was 'the state of NSW';
3. The Crown had become the registered proprietor by virtue of the registration of a transfer for valuable consideration of the lands by the former registered proprietor, the Commonwealth of Australia;
4. At the date the land claims were made (22/2/85) no notice had been published in the NSW Government Gazette pursuant to s 25A of the CLC Act declaring that the lands may be dealt with as if they were Crown land within the meaning of the CLC Act.
5. The land had not been reserved or dedicated for any purpose under the CLC Act.
The subject land had been acquired by the Commonwealth on 5 March 1913 under the Lands Acquisition Act 1906 (Cth) for defence purposes and has been used as an army base known as the Holsworthy Army Base. Both parties accepted that as at the date of acquisition by the Commonwealth, the land was 'Crown land'. On 25 June 1984, the Commonwealth, the Minister for Natural Resources for the State of NSW and Her Majesty Queen Elizabeth II entered into a deed whereby, in consideration of the sum of $1,000,000, the Commonwealth:
convey[ed], surrend[ered], and confirm[ed] unto Her Majesty Queen Elizabeth II [the land] in fee simple in the right of the State of NSW as Crown lands within the meaning of the Crown Lands Consolidation Act 1913.
On the same date, the parties executed a Real Property Act 1900 memorandum of transfer in respect of the land, in which the transferee was recorded as being 'HER MAJESTY QUEEN ELIZABETH II as Crown land within the meaning of the Crown Lands Consolidation Act 1913, as amended'. The transfer also bore a note that: 'it is requested that a Notification that the said land has become Crown land within the meaning of the Crown Lands Act be recorded on the Register and the Certificate of Title.' The transfer was registered on 19 September 1984. 'The State of NSW' was entered on the Register as the registered proprietor.
The issue raised by the separate question was whether the land was 'claimable Crown land'. The appellant's contention was that the land was Crown land within the meaning of s 5 of the CLC Act in that it was vested in Her Majesty. It was not dedicated or reserved for any purpose under the Act. However, it was submitted that being Crown land, it could lawfully be sold or leased pursuant to the provisions of that Act, and thus was claimable Crown land within the provisions of s 36(1) of the ALR Act. The respondent submitted that the land was not claimable Crown land because first, it did not fall within the definition of s 5 of the CLC Act and secondly, even if it fell within that definition, the land was governed by the provisions of s 25A of that Act.
It is convenient at this point to refer to the legislative provisions immediately relevant to the determination of the separate question before dealing, to the extent relevant, with the broader operation of the CLC Act and its interaction with the Real Property Act 1900 (the RPA).
Section 36 ALR Act provides, relevantly:
... (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 ...
The separate question involves the construction and operation of ss 5 and 25A of the CLC Act. Sections 4 and 6 are also relevant to the issues raised in the case. Section 5 provided:
In this Act, unless the context necessarily requires a different meaning, the expression - 'Crown lands' means lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Acts.
Pursuant to s 13 of the Interpretation Act 1987, a reference to the Sovereign, whether the words 'His' or 'Her Majesty' are used, is a reference to the Sovereign for the time being.
Section 6 of the CLC Act provided, relevantly:
(2) Crown lands shall not be sold, leased, dedicated or reserved or otherwise dealt with unless the sale, lease, dedication or reservation or other dealing is authorised by this Act.(3) The Minister or the Commission, on behalf of the Crown, may sell, lease, dedicate, reserve or make any other disposition of Crown land in any case where the sale, lease, dedication, reservation or other disposition by the Minister or the Commission, as the case may be, is authorised by this Act and subject in every case to its provisions.
(4) Crown land shall not cease to be Crown land by reason only of the creation in respect of it of a folio of the Register in the name of 'the State of New South Wales'.
Notwithstanding the terms of s 6(2), s 4 provided that the CLC Act was not to be construed so as to effect the operation of any provision contained in the Acts mentioned in the section and 'any Act not ... mentioned, whereby special provision is made in respect of any particular kinds of Crown lands or authorising Crown lands to be disposed of or dealt with in any manner inconsistent with the Crown Lands Acts'. 'Crown Lands Acts' were defined to mean the earlier Crown Land legislation and the CLC Act.
Section 25A, upon which the respondent relies, provided, as at the date of the claims:
(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 publication of the notification in the Gazette the land may be so dealt with. [emphasis added]
Until the true nature of the Crown's title to land was expounded in Mabo v The State of Queensland [1992] HCA 23; (1992) 175 CLR 1, the received learning was that, upon colonisation, all land of the colony vested in the Crown: see Attorney-General v Brown (1847) SCR (NSW) 72; Woolley v Attorney-General of Victoria (1877) 2 App Cas 163; Commonwealth v NSW [1923] HCA 34; (1923) 33 CLR 1. However, as Brennan J stated in Mabo at 53:
[w]hat the Crown acquired was a radical title to land and a sovereign political power over land, the sum of which is not tantamount to absolute ownership of land.
His Honour had earlier explained, at 48, the Crown's radical title to land over which it had acquired sovereignty as:
a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels should be kept as the Sovereign's beneficial demesne.
As his Honour further pointed out, and as was the point at issue in Mabo, the Crown's radical title to all land within a territory over which the Crown had assumed sovereignty did not deny native title to land. Native title, and its relationship over land which vested in the Crown is not, however, in issue in this case. The issue here is the relationship between s 36 of the ALR Act and ss 5 and 25A of the CLC Act.
The management and control of Crown lands was, by various Imperial statutes, conferred on the legislative organs of the states. In 1913, the NSW Legislature enacted the CLC Act to consolidate the Crown Lands Acts and certain other Acts or parts thereof dealing with the alienation, occupation and management of Crown lands. The CLC Act was repealed in 1989 and replaced by the Crown Lands Act 1989. As the subject claims were made in 1985, the CLC Act is the legislation relevant to the separate question. As its long name implies, the CLC Act provided a detailed scheme for, amongst other things, the reservation and dedication, sale and lease of Crown land, the revocation of a dedication or reservation, and the forfeiture of land subject to lease, licence or a contract for sale under the Act. Provision was also made for the classification of Crown land, for the sale of Crown land to the Commonwealth, and for the exchange and purchase of Crown land for other lands held in fee simple. As a fundamental proposition advanced by the respondent in this case is that land, once alienated, cannot thereafter revest in Her Majesty so as to become Crown land, I shall return to the provisions relating to exchange and purchase by the Crown later in these reasons. It is appropriate, however, to deal in a little more detail with the manner in which land could be sold or leased under the Act.
Historically, conditional purchase and conditional lease were the most common forms of tenure under the Crown lands legislation. Prior to 1960, conditional purchases could be applied for under both Pt IV and Pt V of the CLC Act. Part IV dealt with holdings which were not within a classified area or an irrigation area and preserved the principle of selection of Crown land, whereby intending purchasers staked out a claim to Crown land and then made application under the Crown lands legislation for a conditional purchase. However, amendments to the Act in 1960 made fundamental changes to the CLC Act so that, thereafter, the principle of selection no longer operated and conditional purchases could only be applied for under ss 59 and 60 (contained in Pt IV), relating to Crown land in the Eastern, Central or Western Division, which the Minister, by notification, had set apart as special areas or under Pt V. The same applied in respect of conditional leases. Under Pt V, application for conditional tenures could only be made after land was classified. Under s 85, the Minister could, after inquiry and report, declare that any specified Crown lands be set aside for suburban holdings for the purpose of erecting dwelling houses, or for Crown leases. Initially, application could be made for a conditional purchase or lease of classified land. However, following the 1980 amendments to the CLC Act, application could only be made for additional purchase or lease in respect of land classified under s 85. There were detailed provisions dealing with the qualification of applicants for conditional purchase or lease, the form of and conditions relating to such applications and the terms of such purchases and lease.
Crown Land could be purchased or leased in other ways under the CLC Act, including improvement purchases, auction purchases and tender purchases: see ss 62, 63 and 63A respectively. In respect of the last two, sale was only authorised after the Minister had given appropriate notification in the Gazette. Provision was also made for after-auction and after-tender purchases: s 64; and for special purchases, for example, of small areas of Crown land, Crown land situated between granted land, or Crown land which was encroached upon by buildings erected on granted land or to which no practicable road had been provided: s 66. Such land could, after approval of the Minister, be sold to the proprietors of adjacent land. The Minister had power to sell or lease Crown land to the Commonwealth: s 69A. Other leases could be granted in a number of circumstances. For example, the Minister could lease Crown lands for an extensive range of miscellaneous purposes such as dams, tanks, irrigation works, saw mills, slaughterhouses, ferries, quarries, fisheries, business purposes or for any purpose for the time being declared by the Minister by notification in the gazette: s 75. Pursuant to s 75B, the Minister could lease Crown lands in perpetuity for business purposes or for any purpose declared by the Minister by notification in the Gazette. Provision was made for the sale of irrigation farms: s 142, and for town land purchases: s 142B.
The above is not an exhaustive list of the circumstances in which land could be sold or leased under the Act. However, it serves to indicate that not only were there a variety of ways in which this could be done, the circumstances in which it could be done also varied. Sometimes, the sale or lease was effected solely by operation of the Act. In other circumstances, the approval of the Minister was required and in yet others, a notification in the Gazette was required, either for the transaction itself, or in respect of a step precedent to the sale or lease.
Until 1980, there was no facility for Crown land to be brought under the Torrens system. If land administered under the RPA reverted to Crown land, it ceased to be subject to the RPA, with the result that a large number of landholdings in NSW remained outside the scheme of the RPA. In 1980, a new Pt 3 was introduced into the RPA by the Real Property (Crown Land Titles) Amendment Act 1980. The provisions of Pt 3 enabled Crown land to be brought under the RPA at any time. The mechanism for so doing was the creation of a folio of the Register for the land: s 13D. This was done without the issue of a Crown grant, as was formally required under the CLC Act. The CLC Act was correspondingly amended: see s 6 of the CLC Act. Section 13H of the RPA provided that upon the Registrar-General becoming aware that land comprised in a folio of the register had become Crown land, the Registrar-General was to make such recording as was considered appropriate upon any relevant certificate of title. Section 13H applied to land whether or not it was land to which Pt 3 applied. Pt 3 was amended again in 1989 to take account of the repeal of the CLC Act and the introduction of the Crown Lands Act 1989. Those amendments do not affect the matter in issue here. Sections 13, 13D and 13H, in the form in which they existed in 1985 provided:
13 (l) For the purposes only of this Part, perpetual lease from the Crown
includes a homestead selection under the Crown Lands
Consolidation Act
1913.
(2) This Part applies to land -
(a) sold, leased, dedicated, reserved or otherwise disposed of or dealt with;
(b) in the course of being sold, leased, dedicated, or reserved or otherwise disposed of or dealt with; or
(c) capable of being sold, leased, dedicated, reserved or otherwise disposed or deal' with, by or on behalf of the Crown under the Crown Lands Acts (as defined in the Crown Lands Consolidation Act 1913) or under any of the Acts specified in Schedule 2, being land in respect of which a grant has not issued and which, unless the context otherwise indicates or requires, is not under the provisions of this Act.
13D
(l) The Registrar-General may bring under the provisions of this Act any land
to which this Part applies (not being land referred
to in ss 13A(1) or
13B(l)) by creating a folio of the Register recording 'The State of New South
Wales' as the proprietor of
the land.
13H
(l) Where the Registrar-General becomes aware that land (whether it is land to
which this Part applies or not) comprised in a
folio of the Register has
become Crown land within the meaning of the Crown Lands Consolidation Act
1913, he shall make
such recordings in the Register as he considers
appropriate and may cancel, or make such recordings as he considers
appropriate upon, any relevant certificate of title or duplicate registered
dealing when it becomes available to him.
(2) Without limiting the generality of subs (1), the Registrar General may
record 'The State of New South Wales' as the
registered proprietor of land
referred to in that subsection if it is not already so recorded.
The appellant submitted that upon the conveyance of the land pursuant to the deed of conveyance, the land vested in Her Majesty and was registered in the name of the State of NSW pursuant to s 13H of the RPA. Section 6(4) of the CLC Act recognised the registration of the State as the registered proprietor, but declared that such registration did not affect the nature of the land as Crown land. The respondent submitted however that the definition of 'Crown land' in s 5 of the CLC Act referred only to unalienated Crown land and that once alienated Crown land did not, upon reacquisition by the Crown, become Crown land. However, s 25A provided a mechanism whereby the Minister could permit reacquired land to be dealt with as if it had been acquired as Crown land. Counsel for the respondent submitted that this construction of the definition of 'Crown land' was supported by the statement of Brennan J in Mabo v Queensland [No 2] at 66 where his Honour said, in relation to the Queensland Crown lands legislation:
The term 'Crown land' was defined in these Acts in the belief ... that the absolute ownership of any land in Queensland is vested in the Crown until it is alienated by Crown grant.
In making this statement, however, Brennan J was not directing his attention to the question which arises in this case, that is, whether land acquired by Her Majesty in the right of the State of NSW falls within the definition of 'Crown lands' in the CLC Act. The Court was not directed to any authority on point, nor have I been able to locate any from my own researches. As a matter of statutory construction, where the language of a provision is expressed in the present tense, it is intended to operate upon the circumstances as they exist from time to time. Therefore, unless the word 'vested' in the phrase 'vested in [Her] Majesty' bears some special meaning, it means lands which are so vested from time to time. In this case, the relevant time was as at the date the land claims were made. What are the factors then, which call for a different construction? Counsel for the respondent submitted that the CLC Act as a whole, as well as other statutes which deal with Crown land and the new Crown Lands Act 1989, were all drafted upon the basis that 'Crown land' bore the limited meaning for which the respondent contended. Counsel did not elaborate upon this submission. With respect to him, I do not consider that the scheme of the CLC Act, other legislation which regulates or governs Crown land, or the RPA supports his proposition.
The CLC Act made provision in a variety of circumstances for land which had been Crown land but which had been dealt with by the Crown, to 'revert to', to 'vest in', to 'revest in', or 'to become' Crown land. Thus, under s 23A, the Minister could acquire land by gift inter vivos or devise. Such land was required to be dedicated or reserved under ss 24 or 28 respectively. Pursuant to subs 23A(4) such land was relevantly 'deemed' to be Crown land. Upon revocation of a dedication, land was 'forthwith vested in [Her Majesty, her] heirs and successors, and shall become Crown lands within the meaning of [the CLC Act]': s 25. It appears that s 25 applies to land which was always Crown land as well as land acquired under s 23A. Section 195 provided that it shall be lawful for the Minister, with the consent of the owner, to exchange Crown lands for other lands held in fee simple and, to accept such surrenders of land as may be necessary for effectuating an exchange. Under subs 195(5), a surrender of lands to the Crown was evidenced by an instrument in an approved form and which 'without enrolment in the Supreme Court, revest[ed] the surrendered lands in Her Majesty'. Under s 197, the Governor was empowered to acquire any land for specified public purposes, such as obtaining access to any natural water, for a road, or for a travelling stock route, and to transfer land in exchange for such land. Any land acquired under the section thereupon became 'vested in Her Majesty and may be dealt with in accordance with [the CLC Act] or as if it had been acquired under the Closer Settlements Act'. In addition, s 4 provided that nothing in the CLC Act should affect the prerogative of the Crown in respect to any lands reverting by escheat or forfeiture to Her Majesty otherwise than under the provisions of the Crown Lands Acts. There can be no doubt that such lands became Crown land. Section 4 merely exempted them from the operation of the CLC Act.
I do not propose to refer to all the legislation which deals with Crown land. The proposition advanced by counsel for the respondent can be tested by reference to, for example, the National Parks and Wildlife Act 1974. In that Act, 'Crown land' is defined to mean 'Crown land within the meaning of the [CLC Act]'. There is a separate definition for 'Lands of the Crown' meaning 'Land vested in a Minister of the Crown or in a public authority'. This definition recognises that such lands are not Crown land: see Sydney Harbour Trust Commissioner v Wailes [1908] HCA 19; (1905) 5 CLR 879. It is to be noted that lands of the Crown so defined would fall within s 25A of the CLC Act. However, the definition of 'Lands of the Crown' does not specify that land only falls within the definition if there has been a notification in respect of it under s 25A. In my opinion, it refers to land whether or not it has been subject of a notification, as a s 25A notification is only relevant for the purposes of the CLC Act. Under s 47B of the National Parks and Wildlife Act 1974, the Minister may, by notification published in the Gazette, reserve prescribed land for the purpose of public recreation and enjoyment. 'Prescribed land' is defined to include Crown land and lands of the Crown. There is nothing in s 47B which compels a construction of Crown lands as limited to unalienated Crown land. The section operates successfully regardless of whether such land is unalienated or alienated but reacquired Crown land. Likewise, it operates successfully, whether or not the Minister has given a notification under s 25A in respect of land which falls within that section.
As a general proposition, therefore, counsel's submission that Crown land once alienated cannot again become Crown land is not correct. It could be argued that the general proposition does however remain good as the lands to which I have just referred became Crown land again by operation of the CLC Act. However, that response does not account for the exception from the CLC Act of land which reverts to Her Majesty by escheat or forfeiture otherwise than under the provisions of the CLC Act: see s 4. Under the provisions of Pt 3 of the RPA, land which had been alienated by the Crown came under the provisions of the Act pursuant to the provisions of s 13D. Land which fell into the categories to which I have referred above, that is which vested in, revested in or reverted to the Crown in one or more of the ways mentioned, remained registered under the Act, the Crown's title thereto being notified on the register by such notification as the Registrar-General considered appropriate: s 13H. Significantly, s 13H was not limited to the land referred to in s 13. There is nothing in the provisions of s 13, Pt 3 or the RPA as a whole which requires s 13H to be limited to land within s 13 and land acquired by the Crown by forfeiture or escheat outside the CLC Act. In this case, the lands are registered in the name of the State of NSW pursuant to the combined operation of s 13H of the RPA and s 6(4) of the CLC Act. It follows that there is nothing in the provisions of the CLC Act or the RPA which requires s 5 to be given the limited or special meaning for which the respondent contended and in my opinion, the land subject of the land claims is Crown land within the meaning of the CLC Act.
Counsel for the appellant accepted that if the land subject of the claim did not fall within the definition of 'Crown land' in s 5 of the CLC Act, it fell to be governed by the provisions of s 25A. However, as I have found that the land was Crown land within the meaning of s 5, it is necessary to consider the contention of counsel for the respondent that even if the land did fall within the meaning of s 5, it is still subject to the provisions of s 25A. This contention involves the broad issue of what land falls within s 25A, given that not all land owned by or on behalf of the State is Crown land. Its resolution involves the application of a number of basic rules of statutory construction. First, a definition section is not an enabling or empowering provision. It merely defines the terms used in the statute, subject to the context indicating that the term bears a different meaning to the defined meaning. Secondly, a statute must be read as a whole. Thirdly, the words of a statute are not assumed to be mere surplusage. With these rules in mind, the operation of s 25A becomes apparent.
The definition of 'Crown land' in s 5 of the CLC Act is no more than that - a definition of land which, by virtue of it falling within the definition, is subject to the various provisions of the CLC Act. However, by s 25A, the CLC Act also deals with certain land which does not fall within the definition of 'Crown land', namely, 'land ... appropriated or resumed for any public purpose and vested in a Minister of the Crown ... by or under the authority of any Statute', and provides a mechanism whereby such land may be dealt with as Crown land under the CLC Act.
Section 25A is not, however, confined to such land. It also governs land 'acquired by or on behalf of the Crown by gift or otherwise'. The expression 'or otherwise' is of the widest import and is wide enough to include land acquired by a deed of conveyance as was the case here. The question in issue thereby narrows to whether land acquired by her Majesty in right of the State of NSW is land acquired by 'the Crown' within the meaning of that phrase in s 25A.
Subject to a different indication or requirement found in the context or subject matter of a statute, and none appears here, the expression 'the Crown', when used in legislation means the Crown in the right of NSW: s 13(b) Interpretation Act 1987. In my opinion, land acquired by Her Majesty in the right of the State is land acquired by 'the Crown in the right of the State of NSW'. Although under s 6(3) of the CLC Act the Minister '... may sell, lease, dedicate, reserve or make any other disposition of Crown land' in any case where such a disposition is authorised by the CLC Act, that power is 'subject in every case to [the] provisions' of the Act as a whole. As a matter of statutory construction, courts, as a general rule will strive 'to adopt that [construction] which would give some effect to the words rather than that which would give none': see Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J. Thus unless, as a matter of construction, the words 'acquired by or on behalf of the Crown' in s 25A cannot be given any operation at all, so as to require that they be ignored, they are not to be treated as surplusage. On their ordinary meaning they apply to this land. The concluding words of the section 'and upon publication of the notification ... the land may be so dealt with', do not detract from this construction. Those words have to be read in the context of the earlier part of the paragraph which provides that it shall be lawful for the Minister, by 'notification ... to declare that the land may be dealt with as if it had been acquired ... as Crown land within the meaning of this Act ... ', in which case the land may be so dealt with. I have already referred, in outline, to the provisions of the CLC Act whereby land vests, revests or reverts to Her Majesty. The relevant part of s 25A involved here applies to different land, namely land acquired by or on behalf of the Crown by gift or otherwise. In respect of that land, the Minister may by notification declare that it may dealt with as Crown land under the CLC Act. Until that time, the land, although Crown land, cannot be subject of sale or lease or dedication or reserve under the CLC Act. Once subject of a notification and thus available for sale or lease, further conditions may attach, such as the Minister's approval or further notification in the Gazette, before land can be sold or leased: see for example, ss 63 and 63A.
This construction of s 25A does not result in the section having an absurd, or irrational, capricious or obscure operation: see Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 35 ALR 151 at 169-170. Rather, having regard to the entire legislative scheme dealing with Crown land, the position is as follows. Crown land includes land which has been alienated, but which has been reacquired, in some fashion, so as to vest in the Crown. Crown land is subject to an array of statutory regimes, the CLC Act being, at the time of these land claims, the overarching statutory regime. Under the CLC Act, a notification under s 25A was required in respect of reacquired Crown land before the provisions of the CLC Act relating to sale or lease or permanent reservation or dedication could apply to such land. The consequence is that Crown land which falls within s 25A was required to be dealt with in accordance with that section before it could be subject to the other provisions of the Act. It follows therefore that the land subject of the appellant's claim under s 36 of the ALR Act is not claimable Crown land.
In my opinion, the orders which should be made are:
1. Grant leave to the appellant to appeal from the determination of Bannon J on the separate question:
Whether the lands claimed under s 36 Aboriginal Land Rights Act 1983 in proceedings numbered 30283 of 1994, 30284 of 1994 and 30288 of 1994 are 'claimable Crown lands' for the purposes of that provision for the reason that the lands were acquired by the State of NSW by purchase from the Commonwealth of Australia and at the date of claim no notification had been published in the Government Gazette pursuant to s 25A Crown Lands Consolidation Act 1913.
2. Answer the separate question 'No'.
3. Order that the appellant pay the respondent's costs of the application for leave to appeal, the appeal and in the court below.
Studdert AJA:
I have read the judgment of Beazley JA in draft form. I agree with the conclusion reached in that judgment and with the reasons expressed for the conclusion.
I therefore agree with the orders proposed by Beazley JA.
1. Grant leave to the appellant to appeal from the determination of Bannon J on the separate question:
Whether the lands claimed under s 36 Aboriginal Land Rights Act 1983 in proceedings numbered 30283 of 1994, 30284 of 1994 and 30288 of 1994 are 'claimable Crown lands' for the purposes of that provision for the reason that the lands were acquired by the State of NSW by purchase from the Commonwealth of Australia and at the date of claim no notification had been published in the Government Gazette pursuant to s 25A Crown Lands Consolidation Act 1913.
2. Answer the separate question 'No'.
3. Order that the appellant pay the respondent's costs of the application for leave to appeal the appeal and in the court below.
Counsel for the Appellant:
Solicitors for the Appellant:
Counsel for the Respondent:
Solicitors
for the Respondent:
Endnotes
1 See for instance s. 17 Public Roads Act 1902; s 15 Forestry Act 1916.
2 Section 23A (7).
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