In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act  HCA 50 (14 December 2016), the majority of the High Court of Australia have dismissed an appeal from the NSW Court of Appeal holding that land in Berrima NSW, which had been the site of a gaol and correctional centre (the claimed land) was not claimable under the Aboriginal Land Rights Act 1983 (NSW) (the Act) because it was "lawfully . . . occupied" as provided by under the Act in section 36(1)(b).
The NSW Aboriginal Land Council (the appellant) in February 2012, lodged a claim pursuant to the Act section 36, which provides for claims to Crown lands and defines what are claimable Crown lands, section 36(1)(b) provides:
The appellant's claim was made with respect to two adjacent parcels of Crown land in Berrima in the Southern Highlands of NSW.
The land in question comprised the decommissioned Berrima gaol and various outbuildings and their surrounds (the land). The respondent (the Minister responsible for Crown lands), on 20 November 2012, rejected the appellant’s claim on the basis that the land was lawfully used and occupied by the Corrective Services Department of NSW (NSW Corrective Services).
The appellant then appealed that decision to the Land and Environment Court (see New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima)  NSWLEC 188 (1 December 2014)) where Justice Pain rejected the appellant’s appeal, making the finding that the land was lawfully occupied by Corrective Services NSW, as a "manifestation of the Crown in NSW".
In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act  NSWCA 349 (16 November 2015) the NSW Court of Appeal, comprised Beazley P, Macfarlan and Leeming JJA, unanimously dismissed the appellant’s subsequent appeal, rejecting the appellant’s submission that Justice Pain had erred in finding that the land was occupied as at the date of the claim.
The NSW Court of Appeal found that Justice Pain’s analysis had amounted to a "qualitative evaluation" of the acts, facts, matters and circumstances pertaining to the whole and each part of the claimed land. The presence of 24 hour 7 days a week security and regular visits by offenders serving Community Service Orders to perform work in the grounds, for example, were sufficient to base a finding of occupation. It was not the case that the land had ceased to be used for the purposes of punishment of offenders, nor had the land been “mothballed” pending a decision as to its future use, as the appellant had sought to argue.
Further, the NSW Court of Appeal noted that Justice Pain’s reasoning ". . . reflected the limited nature of the alternative submissions made at trial" and found that any failure by Justice Pain to address issues not raised at trial (such as the failure to consider buildings individually) did not therefore amount to an error of law. In addition the NSW Court of Appeal found that the NSW Constitution Act 1855 (Imp) Section 2 (now repealed) did not produce the result that statutory authorisation was required in order for any occupation of Crown land to be lawful.
Regarding the nature of NSW Corrective Services occupancy and the question of whether NSW Corrective Services (which is not a legal person) could lawfully occupy the land, the NSW Court of Appeal held that the land was lawfully occupied by the Crown in right of NSW, which included the Government of NSW.
On appeal to the High Court of Australia, the key grounds of appeal were that:
A notice of a Constitutional Matter was filed on 28 June 2016 by the appellant and as a result, the Attorneys-General for Victoria, Western Australia and Tasmania filed Notices of Intervention.
The majority of the High Court has held that the claimed land was occupied at the date of claim by ". . . reference to the activities taking place on it,..." It did not need to be actively used for its dedicated purpose as a gaol to be ". . . lawfully occupied" as that would deny "occupied" a separate sphere of operation from "used" in section 36(1)(b) of the Act.
The High Court majority considered the appellant's argument that the claimed land could not lawfully be occupied without statutory authorisation and held that the NSW Constitution Act 1855 (Imp) section 2 did not abrogate the executive's power to appropriate waste lands to itself by way of dedication, use or occupation. Rather, section 2 made the executive's power over waste lands subject to the control of the legislature of NSW. Further, the majority rejected the argument that Community Services NSW was not empowered to occupy the claimed land, because as the owner of the claimed land, the State of NSW could lawfully occupy the claimed land through the executive government and its agents, including employees of Community Services NSW.
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New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act  HCA 50 (14 December 2016) and case summaries
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act  NSWCA 349 (16 November 2015)
New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (Berrima)  NSWLEC 188 (1 December 2014)
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