Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Ors [2002] NSWCA 12 (11 February 2002)

Last Updated: 11 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Mogo Local Aboriginal Land Council v Eurobodalla Shire Council & Ors [2002] NSWCA 12

FILE NUMBER(S):

40040/01

HEARING DATE(S): 9 November 2001

JUDGMENT DATE: 11/02/2002

PARTIES:

Mogo Local Aboriginal Land Council - Appellant

Eurobodalla Shire Council - First Respondent

Registrar-General - Second Respondent

State of New South Wales - Third Respondent

JUDGMENT OF: Giles JA Hodgson JA Rolfe AJA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 3029/00

LOWER COURT JUDICIAL OFFICER: Windeyer J

COUNSEL:

J Basten QC and M A Ashhurst - Appellant

V B Hughston SC and J A Waters - First Respondent

L Hughes - Second Respondent

M G Sexton SC S-G and J G Renwick - Third Respondent

SOLICITORS:

Wroth Wall, Mullumbimby - Appellant

Kennedy & Cook, Batemans Bay - First Respondent

NSW Registrar-General - Second Respondent

Crown Solicitors Office - Third Respondent

CATCHWORDS:

REAL PROPERTY - council resumed land - land later dedicated as public reserve - consideration of nature and extent of council's fee simple - then declared that land may be dealt with as Crown land - whether thereby council divested and land vested in Crown - whether land vested in Her Majesty within Aboriginal Land Rights Act - Registrar General deleted council as registered proprietor, recorded land as having become Crown land and cancelled Certificate of Title - whether conclusive that council divested and land vested in Crown - whether power to rectify register. D.

LEGISLATION CITED:

DECISION:

Appeal dismissed with costs: first declaration amended by the addition of the words "within the meaning of the definition of claimable Crown lands in the Aboriginal Land Rights Act 1983".

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40040/01

ED 3029/00

GILES JA

HODGSON JA

ROLFE AJA

Monday 11 February 2002

MOGO LOCAL ABORIGINAL LAND COUNCIL

v

EUROBODALLA SHIRE COUNCIL & ORS

JUDGMENT

1 GILES JA: On 8 December 1989 the Mogo Local Aboriginal Land Council ("the land council") lodged a claim pursuant to Pt 6 Div 2 of the Aboriginal Land Rights Act 1983 ("the ALR Act") to an area of land at Broulee on the south coast of New South Wales. The land included a narrow coastal block of 56.68 hectares being lot 8 in Deposited Plan 258299 ("lot 8").

2 On 18 May 1998 the then Minister administering the Crown Lands Act 1989 refused the claim. As to lot 8, he did so on the ground that when the claim was made it was not claimable Crown lands within the meaning of the ALR Act because it was lawfully used and occupied by Eurobodalla Shire Council ("the shire council") and the general public "for purposes of the covering Reserve 86623 for Public recreation and Camping". This took up para (b) in the definition of claimable Crown lands in s 36(1) of the ALR Act, then being-

" ... 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,

(b) are not lawfully used or occupied,

(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,

(c) are not needed, nor likely to be needed, for an essential public purpose, and

(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act or the Native Title (New South Wales) Act 1994, and

(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands)."

3 As permitted by s 36(6) of the ALR Act, on 16 April 1999 the land council appealed to the Land and Environment Court against the refusal of the claim.

4 By a summons filed on 30 June 2000 in the Equity Division of the Supreme Court the shire council claimed relief in relation to the ownership of lot 8. The defendants named in the summons were the Registrar General, the State of New South Wales and the land council. Lot 8 was described in the schedule to the summons. The substantive relief claimed was -

"1. A Declaration that the land described in the schedule was not vested in Her Majesty on 8 December 1989.

2. A Declaration that an estate in fee simple in the land described in the Schedule was, on 8 December 1989, vested in the Plaintiff.

3. A Declaration that an estate in fee simple in the land described in the Schedule remains vested in the Plaintiff.

4. An order that the First Defendant record the interest of the Plaintiff in the land described in the schedule, being the interest of Registered Proprietor of the land, in the register maintained for the purposes of the Real Property Act 1900 pursuant to section 31B of the said Act."

5 Clearly enough the first two declarations were intended to establish that lot 8 was not within the definition of claimable Crown lands in the ALR Act, not because it was land lawfully used and occupied by the shire council and the public within para (b) in the definition but because it was not vested in Her Majesty within the opening words of the definition. As will appear, the shire council had at an earlier time been registered as the proprietor of lot 8 but had ceased to be so registered prior to 8 December 1989, and equally clearly the third declaration and the order were intended to restore the shire council to the position of registered proprietor of lot 8. The summons was no doubt a response to the land council's claim and the proceedings in the Land and Environment Court, and the alternative basis for lot 8 not being claimable Crown lands and the additional relief sought may explain why the ownership of lot 8 was not left for determination in that Court.

6 The summons was heard by Windeyer J on 22 November 2000. On 15 December 2000 his Honour published reasons in which he held that the shire council was entitled to the relief claimed, subject to further consideration of the form of orders. By the orders made on 20 December 2000 -

"THE COURT ORDERS that:

1. The land described in the first schedule was not vested in Her Majesty on 8 December, 1989.

2. An estate in fee simple in the land described in the first schedule was, on 8 December, 1989, vested in the Plaintiff.

3. An estate in fee simple in the land described in the first schedule remains vested in the plaintiff.

4. The first Defendant record the interest of the Plaintiff as registered proprietor in the land described in the first schedule in the register maintained for the purposes of the Real Property Act 1900 (NSW) pursuant to section 31B of the said Act subject to such notation of the declaration described in the second schedule as the first Defendant deems fit."

7 The land described in the first schedule was lot 8. The second schedule referred to a declaration under s 25A of the Crown Lands Consolidation Act 1913 ("the CLC Act") of 10 July 1981, to which I later refer, relevantly to the effect that lot 8 could be dealt with as Crown land.

8 This is an appeal by the land council from the decision of Windeyer J.

The history of lot 8

9 Eurobodalla Shire was constituted on 7 March 1906, with a local government area which encompassed lot 8.

10 On 29 June 1971 the shire council resumed the land which later became lot 8, together with other land, pursuant to s 536 of the Local Government Act 1919 ("the LG Act"). At the time the land was under Old System Title. Reflecting the terms of s 536A(1) of the LG Act, the notice of resumption published in the Gazette stated that upon publication the resumed land -

" ... becomes for the purposes and subject to the provisions of [the Local Government Act 1919] 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."

11 In due course the shire council prepared a plan of subdivision by which lot 8 was created, which plan was registered on 18 December 1979 as Deposited Plan 258299. Lot 8 in the plan was marked as a public reserve. Section 340D(1) of the LG Act provided that on registration of a Deposited Plan land so marked "shall be dedicated as a public reserve and shall without any further assurance vest in the council for an estate in fee-simple by virtue of such registration and of this Act".

12 Following registration of Deposited Plan 258299 there issued for lot 8 Certificate of Title Vol 14114 folio 35 dated 21 April 1980. It recorded the shire council as the registered proprietor of an estate in fee simple in lot 8.

13 On 10 July 1981 there were published in the Gazette two declarations under the CLC Act affecting lot 8.

14 The first declaration, applying to lot 8 and a number of other parcels of land, was in the terms -

"IN pursuance of the provisions of section 25A, Crown Lands Consolidation Act, 1913, I declare that the lands particularized hereunder may be dealt with as if they had been acquired under the Closer Settlement Acts or as Crown land within the meaning of the Crown Lands Consolidation Act, 1913."

15 At the time s 25A of the CLC Act 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; 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 Settlement Act 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.

(2) The area of land described in a notification under subsection (1) may be limited to the surface only of the land, or to the surface thereof and to such depth below the surface as the Minister may specify therein.

(3) A declaration shall not be made under subsection (1) in respect of land vested in or acquired by or on behalf of a public authority without the consent of that public authority.

(4) In this section, "public authority" means -

(a) the Water Resources Commission;

(b) a council as defined in section 4 of the Local Government Act, 1919;

(c) a pastures protection board constituted or continued by or under the Pastures Protection Act, 1934; or

(d) any other public body declared by the Minister, by order published in the Gazette after the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, to be a public authority for the purposes of this section."

16 In the CLC Act "Crown lands" was defined to mean "lands vested in His Majesty and not permanently dedicated to any public purpose or granted or lawfully contracted to be sold under the Crown Lands Acts".

17 There was no evidence that the shire council had consented to the making of the declaration, but the validity of the declaration was not questioned in the proceedings.

18 The second declaration, applying also to lot 8 and other parcels of land, was in the terms -

"IN pursuance of the provisions of section 28, Crown Lands Consolidation Act, 1913, I declare that the Crown lands described hereunder shall be added to the lands within the reserves specified in parentheses hereunder and such lands are added accordingly."

The reserve specified with respect to lot 8 was land adjoining lot 8 which had been established pursuant to s 28 of the CLC Act as a reserve for public recreation and camping by notification published in the Gazette on 9 February 1968.

19 At the time s 28 of the CLC Act provided -

"28(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 such 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.

Upon such notification being published in the Gazette the lands to which such notification relates shall be so added, shall form part of the reserve, shall be subject to the like reservation and trusts as the reserve, any rules and regulations or by-laws applicable to the reserve shall be applicable to such lands any trustees of the reserve shall be deemed to be appointed trustees of the lands so added under the provisions of the Act whereby they were appointed trustees of the reserve."

20 On 29 July 1981 the Registrar General made entries on Certificate of Title Vol 14114 folio 35, by which the name of the shire council as registered proprietor was ruled through and there was written in the schedule provided for entry of the registered proprietor, "By virtue of notification in Government Gazette dated 10 July 1981 Folio 3754 the whole of the land within described has become Crown land within the meaning of the Crown Lands Acts". Presumably after these entries were made, a stamped "cancelled" was placed on the Certificate of Title.

The shire council's initial title

21 It appears that before Windeyer J the shire council's interest in lot 8 until 10 July 1981 was not in question: it held an estate in fee simple, and subject to the LG Act enjoyed the full panoply of rights normally associated with that estate. On appeal the land council submitted that the shire council had only a limited interest, no more than that required for carrying out its statutory functions in relation to a public reserve. The submission did not deny the holding of an estate in fee simple, but attributed to the estate only the limited interest in support of the later submission that the declaration pursuant to s 25A of the CLC Act took away from the shire council all the interest it then had and caused lot 8 to be vested in Her Majesty. The submission was subsidiary, and the part it played was in essence unsophisticated: the less the shire council had, the more readily it could be taken away by force of s 25A.

22 Normally an estate in fee simple is the equivalent of full ownership of the land (Nullagine Investments Pty Ltd v Western Australian Club Inc [1993] HCA 45; (1993) 177 CLR 635 at 656; Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at 126), and confers "the lawful right to exercise over, upon and in respect to, the land, every act of ownership which can enter into the imagination" (The Commonwealth v New South Wales [1923] HCA 34; (1923) 33 CLR 1 at 42; Fejo v Northern Territory of Australia at 126).

23 The land council submitted that the description of an interest in land as an estate in fee simple was not conclusive of the incidents of the estate, and that it depended on the context and purpose of the creation of the interest. It referred to the judgment of Sugerman J in Sydney City Council v The Valuer-General (1956) LGR 229, in which his Honour said (at 233) -

"An estate given to a man and his heirs simply without restriction is an estate in fee simple. It is commonly said to carry with it a freedom of enjoyment and of alienation which make it equivalent, in practical effect, to the absolute ownership of a chattel, although this freedom is limited not only by the common law but also by statute and may vary in degree from place to place and from time to time. The estate remains, in a general sense, an estate in fee simple notwithstanding that to these restrictions imposed by the general law, of which the County of Cumberland Planning Scheme Ordinance provides an illustration, there may be added further restrictions of the class which is now in question. But these general considerations provided no answer to the question of what falls within the description `fee simple of the land' as it may be used in a particular context and for a particular purpose. There is no ideal standard of a `fee simple' to which that question may be referred in all the varying circumstances which may occur; the answer is dependent in each case upon the context and the purpose, and it is of no assistance that in themselves the words `fee simple' serve only to denote the quantity of the estate in point of duration."

24 The land council submitted that, at least following the dedication of lot 8 as a public reserve, the shire council's function was that of care, control and management of the land, and that its position was akin to that of the municipal authorities in which land was vested for roadway or drainage purposes in cases such as Municipal Council of Sydney v Young (1898) AC 457 and Perth Corporation v Halle [1911] HCA 57; (1911) 13 CLR 393. In those cases it was said (at 459 and 393) that no property was vested in the municipal authority beyond the surface of the road and such portion as was absolutely necessary incidental to its repairing and proper management. More generally the land council cited, from the advice of the Privy Council in Attorney-General for Quebec v Attorney-General for Canada (1921) 1 AC 401 in which land was vested in a body for the use of Indian tribes, a passage (at 409) taken up in City of Perth v Crystal Park Ltd [1940] HCA 35; (1940) 64 CLR 153 at 168 and Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 at 391-2 -

"It is not unimportant, to notice that the term `vest' is of elastic import; and a declaration that lands are `vested' in a public body for public purposes may pass only such powers of control and management and such proprietary interest as may be necessary to enable that body to discharge its public functions effectively."

25 For reasons which will appear, I do not think that investigation of the shire council's interest in lot 8 until 10 July 1981 is critical to the effect of the declaration pursuant to s 25A of the CLC Act. But I do not agree that the shire council's interest was limited in the manner suggested.

26 Upon resumption an estate in fee simple in lot 8 was vested in the shire council, as provided in s 536A of the LG Act "for the purposes and subject to the provisions of this Act". But so far as the evidence showed, at the time of resumption there was no specification of use as a public reserve. The copy of the notice of resumption in evidence is not easy to read, but appears to refer to resumption of the land in the schedule "for the purpose of providing a sanitary depot, undertaking the improvement and embellishment of the area, rearranging existing public roads, replanning existing parcels of land, and providing a public road". What became lot 8 was part only of the land in the schedule, which does not distribute the land according to purpose.

27 When Deposited Plan 258299 was registered lot 8 was dedicated as public reserve. The dedication was accompanied by a purported vesting in the shire council of an estate in fee simple, but the shire council already held that estate. The estate was held without limitation of the shire council's interest to that required for carrying out its statutory functions in relation to a public reserve.

28 Thus the foundation of the land council's submissions is flawed. The shire council obtained on resumption an estate in fee simple not confined by statutory functions in relation to a public reserve. The dedication of lot 8 as a public reserve affected how the shire council could deal with lot 8. But it was not a vesting in the shire council of some confined interest - the shire council already held an interest not confined by statutory functions in relation to a public reserve.

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

30 Unlike the cases on which the land council relied, what was vested in the shire council was unequivocally an estate in fee simple. It was not a collection of rights to be found only in, and limited by, a purpose or function. The shire council had the full ownership of lot 8, and could exercise every act of ownership available to it. The acts of ownership available to it were no doubt less than those available to a private individual, because the shire council was a local government body and after 1979 because lot 8 was dedicated as a public reserve. Nonetheless, albeit to some extent circumscribed in the acts of ownership it could exercise, the shire council had an express estate in fee simple and as the holder of that estate had more than such interest as was required for the carrying out of its statutory functions in relation to a public reserve.

31 In ex parte the Registrar General; re the Council of the Municipality of Randwick (1951) 51 SR 220 land provided for a drainage reserve was by statute "vested in the council in fee simple for drainage purposes". One question was whether the council's rights in the land extended only to a depth below and a height above the surface which was necessary for drainage purposes. Speaking for the Full Court, Street CJ said (at 225-6) -

"I think s 398 is clear in its terms and vests the fee simple in the council absolutely, it holding the land, however, as owner in fee simple for the purposes only of drainage. The matter is made more clear by the terms of s 398A, which enables the council to sell and vest the land in the purchaser `for an estate of inheritance in fee simple in possession free from encumbrances,' I think the council had full rights of ownership subject to the obligation to use the land only for the specified purpose of drainage and, if it sold the land to a purchaser, then such purchaser would acquire the same without any limitation on his rights of ownership, use and disposition."

32 At least prior to 1979 the shire council could sell lot 8, see s 518 of the LG Act. The Court's opinion did not depend upon s 398A, but in keeping with the reference to s 398A it must be remembered that upon resumption the shire council acquired the estate in fee simple of the previous owner: it did not acquire part only of the previous owner's interest in the land. In my view in the present case the shire council also had full rights of ownership, subject to the obligations as to use of the land flowing from its position as a local government body and after 1979 from the dedication as a public reserve.

The effect of the section 25A declaration

33 The essential contest was whether the first declaration of 10 July 1981 had the effect that lot 8 became Crown land, or whether it had the effect that lot 8 could be dealt with as Crown land although not Crown land. In contending for the former view the land council then argued that, being Crown land, lot 8 became vested in Her Majesty in accordance with the definition of Crown land in the CLC Act and consequently the shire council was divested of its (limited) interest as holder of an estate in fee simple.

34 In my opinion, s 25A of the CLC Act as it stood in 1981 was quite clear. It applied to land which had not been acquired under the Closer Settlement Act and was not Crown land within the meaning of the CLC Act. As was said by Beazley JA, with whose reasons Studdert AJA agreed, in Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 at 473, 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. The way the land could be dealt with was as if it had been acquired under the Closer Settlement Act or as Crown land within the meaning of the CLC Act. The absence of a straightforward declaration that, relevantly, the land should become Crown land is stark, and is emphasised by the language of the immediately preceding s 25 of the CLC Act by which on the revocation of the dedication of Crown land for failure of the dedicated purpose the land "shall forthwith be vested in His Majesty ... and shall become Crown lands within the meaning of this Act".

35 More than that, when the effect of the declaration was that the land could be dealt with either as if it had been acquired under the Closer Settlement Act or as Crown land within the meaning of the CLC Act, it could not be concluded that it became Crown land. That would pay no account to the Closer Settlement Act, and the clear hypothetical, not actual, status of land dealt with as if acquired under that Act.

36 The land council's submissions to the contrary had two limbs.

37 The first limb, linked with the extent of the shire council's interest earlier considered, began by saying that land was commonly vested in bodies such as the shire council for public purposes, the bodies having interests limited to those required for the particular purpose; that this was commonly done by declaration (as indeed the resumption pursuant to s 536 of the LG Act had operated); and that where there had been a vesting in the body by declaration there could also be divesting by declaration. So, it was said, s 25A of the CLC Act should be seen as a mechanism for divesting the Minister, the Crown or the public authority of that body's title to the land, perhaps not expressly but because leaving any estate or interest vested in a third party would be inconsistent with the proposition that the land could be dealt with as Crown land. As earlier indicated, it was argued that divesting in this manner could more readily be found because the shire council had only a limited interest in lot 8.

38 In my opinion, this is strained far beyond breaking point. Section 25A of the CLC Act could apply to land acquired otherwise than by declaration, including by gift or straightforward purchase. It could apply to land held with the fullest rights of ownership. It could not have a different effect in those cases than in the case of a limited interest in the land. In The Watson's Bay and South Shore Ferry Company Limited v Whitfeld (1919) 27 CLR 267, to which the land council referred as an illustration of divesting by declaration, the relevant provision was s 25 of the CLC Act which, as earlier noted, specifically provided that the land should be vested in His Majesty and become Crown land. It is fanciful to suggest, as the submissions sought to do, that s 25A exemplified an established means of making land Crown land and thereby vesting them in Her Majesty and divesting the former owner. The words are simply inadequate for that purpose.

39 The second limb went to the legislative history of s 25A of the CLC Act.

40 The first s 25A was added to the CLC Act by the Crown Lands Amendment Act 1917. It provided -

"25A. It shall be lawful to reserve from sale or lease generally any land appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of His Majesty under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise, and upon revocation of any such reservation, the land may be dealt with as Crown Land within the meaning of this Act."

41 By the Crown Lands Amendment (Disposal) Act 1923 a reference to acquisition under the Closer Settlement Acts was included, so that s 25A read -

"25A It shall be lawful to reserve from sale or lease generally any land appropriated or resumed for any public purpose and vested in a Minister of the Crown on behalf of His Majesty under the authority of any Statute or acquired by or on behalf of the Crown by gift or otherwise, and upon revocation of any such reservation, 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."

42 Section 25A was replaced by the Crown Lands (Amendment) Act 1957, the new section reading -

"25A Notwithstanding the provisions of any other Act it shall be lawful to reserve from sale or lease generally any land which before or after the commencement of the Crown Lands (Amendment) Act 1957 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; or

(b) appropriated or resumed and vested in the Water Conservation and Irrigation Commission or otherwise acquired by or vested in the said Commission, by or under the authority of any Statute

and upon revocation of any such reservation, 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."

43 Section 25A was extensively amended by the Crown Lands and Other Acts (Reserves) Amendment Act 1974, reaching something close to its form in 1981 earlier set out. It is convenient to set out the amended section with the deleted portions ruled through and the added portions underlined -

"25A Notwithstanding the provisions of any other Act it shall be lawful to reserve from sale or lease generally any land which before or after the commencement of the Crown Lands (Amendment) Act 1957 for the Minister in respect of any land that before or after the commencement of the Crown Land 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; or

(b) appropriated or resumed and vested in the Water Conservation and Irrigation Commission a public authority or otherwise acquired by or vested in the said Commission a public authority, by or under the authority of any Statute

and upon revocation of any such reservation, 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 publication of the notification the land may be so dealt with.

(2) The area of land described in a notification under subsection (1) may be limited to the surface only of the land or to the surface thereof and to such depth below the surface as the Minister may specify therein.

(3) A declaration shall not be made under sub-section (1) in respect of land vested in or acquired by or on behalf of a public authority without the consent of that public authority.

(4) In this section `public authority' means the Water Conservation and Irrigation Commission or any public body declared by the Minister by order published in the Gazette to be a public authority for the purposes of this section."

44 By further amendments made by the Crown Lands (Amendment) Act 1977 s 25A reached its form in 1981.

45 Section 25A should be seen together with ss 28 and 29 of the CLC Act. I have already set out s 28. Section 29 provided -

"29 The Minister may by notification in the Gazette reserve any Crown lands therein described from being sold or let upon lease or license in such particular manner as may be specified in such notification; and the lands shall thereupon be temporarily reserved from sale or lease or license accordingly, and, unless the contrary is expressly declared, shall not be reserved from sale or lease generally."

46 The land council submitted that the early forms of s 25A were drawn in broad terms in order to supplement the powers otherwise available in ss 28 and 29; that by the broad terms it was intended to ensure that the land was Crown land for all purposes of dealing under the CLC Act; that from the beginning s 25A provided that the land could be dealt with "as Crown land within the meaning of this Act"; and that neither the injection of the reference to the Closer Settlement Act nor the 1974 amendments removing the context of reservation from sale or lease were intended to change this scheme. So it was said, properly to give effect to the persistent purpose of s 25A land the subject of a declaration should be held to have become Crown land, with the vesting and divesting consequences earlier mentioned.

47 I do not think that the early forms of s 25A of the CLC Act themselves operated to make land not Crown land into Crown land. The land reserved from sale or lease pursuant to s 28 or s 29 was Crown land, and the early forms of s 25A did no more than affirm its status upon revocation of the reservation: it did not alter the status. Be that as it may, s 25A as amended in 1974 went beyond the context of reservation from sale or lease. It must be construed according to its terms, and not constrained by the language of its predecessors. In its form in 1981 s 25A of the CLC Act gave a general power to deal with the land which had not been acquired under the Closer Settlement Act and was not Crown land as if it had been so acquired or as Crown land within the meaning of the Act. Revocation of an earlier reservation from sale or lease was of no significance. I do not think that the land council gains any assistance from regard to the earlier provisions.

The certificate of title

48 To this point, therefore, the shire council had an estate in fee simple in lot 8 prior to the first declaration of 10 July 1981, it still had the estate in fee simple as at 8 December 1989, and the entries made by the Registrar General on 29 July 1981 and accompanying cancellation of Certificate of Title Volume 1414 folio 35 should not have been made and done. The land council submitted that even if the first declaration of 10 July 1981 did not have the effect that lot 8 became Crown land, the Certificate of Title so stated and by force of s 40 of the Real Property Act 1900 ("the RP Act") was conclusive of that position. It said that the entries on the Certificate of Title must have been made prior to its cancellation, and that whatever the effect of the cancellation was it could do no more than preclude any later entries affecting the position as recorded prior to cancellation. The Certificate of Title in its state immediately prior to cancellation attracted the operation of the RP Act, and that operation persisted as at 1989 notwithstanding the cancellation.

49 Whether the cancellation was efficacious, and its effect, were in some doubt, but I do not think it necessary to decide either matter. For the present assuming in favour of the land council that the cancellation left the RP Act operating with respect to the Certificate of Title in its state immediately prior to cancellation, there is a short answer to the submission. Section 40 of the RP Act refers to conclusive evidence "that any person recorded in the folio as the registered proprietor of an estate or interest in the land comprised in the folio is the registered proprietor of that estate or interest ...". The entry that lot 8 "has become Crown land within the meaning of the Crown Lands Act" is not a record of a person as a registered proprietor and has no statutory force. Presumably the entry was made as it was because the Registrar General considered that Crown land could not be the subject of Torrens Title (a correct view at the time, see Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act at 469), and the cancellation was because the Registrar General considered that, there being no registered proprietor of the land, the Certificate of Title had in some manner to be nullified.

50 On one view, at the present time the Certificate of Title is of no significance at all because cancelled and in any event lot 8 is without a registered proprietor; hence the shire council sought an order that the Registrar General record it as registered proprietor. The land council submitted that there was no power for the Registrar General now to reverse the cancellation of the Certificate of Title and record the shire council as registered proprietor. This assumed that the cancellation of the Certificate of Title was efficacious, and I am content to adopt the assumption: I do not think it matters in the result.

51 The submissions for the Registrar General included that the entries and cancellation were based on a belief that the effect of a declaration pursuant to s 25A of the CLC Act was that the relevant land became Crown land within the meaning of the CLC Act. There was no evidence to this effect, but I understand the other parties to accept that this must have been so; in any event, there can be no other explanation. It may be observed that the second declaration of 10 July 1981 referred to lot 8 as Crown lands: the declaration was within power, because lot 8 could be treated as Crown land, but appears to have been based on the same belief.

52 If my opinion as to the effect of s 25A of the CLC Act be correct, the Registrar General's belief was erroneous. It would be remarkable if there was no power to rectify the steps erroneously taken by the Registrar General, apparently of his own motion. In my view there is power for the Registrar General now to record the shire council in a folio of the Register as registered proprietor of lot 8. If for no other reason, that is because by s 138(3) of the RP Act a court may order the Registrar General, amongst other things, to create a new folio of the Register and to make a recording in a folio of the Register, and that carries with it power to give effect to the order. There is no reason why such an order should not have been made.

Vesting in Her Majesty and the ALR Act

53 Before Windeyer J it seems to have been common ground that, if the shire council had its estate in fee simple in lot 8 as at 8 December 1989 and s 40 of the RP Act did not operate against it, the declarations to the effect that lot 8 was not vested in Her Majesty on 8 December 1989 but was vested in the shire council should be made. In the circumstances, it must also have been common ground that the declarations resolved against the land council whether lot 8 was vested in Her Majesty within the opening words of the definition of claimable Crown lands in the ALR Act.

54 On appeal, the land council took a difference stance. It submitted that even if the shire council held an estate in fee simple in lot 8, indeed even if it was recorded as registered proprietor of lot 8, it did not follow that lot 8 was not land vested in Her Majesty within the definition. It even suggested in its submissions in reply that whether or not lot 8 was vested in Her Majesty within the meaning of the definition was not within the proceedings in the Equity Division, a proposition which I am unable to accept: the declaration that lot 8 was not vested in Her Majesty on 8 December 1989 can have had no other significance than to establish the position for the purposes of the ALR Act, and the land council's written submissions on appeal clearly proceeded on that basis.

55 The Court indicated that it regarded the two declarations as establishing whether lot 8 was vested in Her Majesty within the opening words of the definition of claimable Crown lands in the ALR Act. Perhaps over-generously to the land council, leave was given to file further written submissions on what amounted to a challenge to the making of the two declarations notwithstanding the common ground below.

56 The land council recalled its earlier submissions as to the elastic import of the term "vest". It said that the first declaration of 10 July 1981 gave the Crown effective control and power of disposition over lot 8, because it meant that lot 8 could be dealt with as if it had been acquired under the Closer Settlement Act or as Crown land; that although the Crown had less than complete ownership this control could be sufficient for a vesting of lot 8 in the Crown (referring in particular to the importance of control and ability to alienate amongst the rights making up ownership, see Yanner v Eaton at 365-6, 373); and that for the definition of claimable Crown lands in the ALR Act it was sufficient for the conclusion that lot 8 was vested in Her Majesty within the definition.

57 I do not think the submission should be accepted. By s 36(9) of the ALR Act, a transfer of land to an Aboriginal Land Council on the grant of a claim must be a transfer of the fee simple. The definition of claimable Crown lands carefully delineates the land which may be transferred, with the evident intention that third parties are not to be deprived of their interests and rights (including of user) when the fee simple is transferred. 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. Notwithstanding the ability of the Crown to deal with lot 8 as if it had been acquired under the Closer Settlement Act or as Crown land, the shire council has an interest in lot 8. It has a fee simple, the Crown may never deal with the land, and there are restrictions on how the Crown can deal with it. That the ability of the Crown to deal with land is sufficient for a vesting of the land in Her Majesty is not in accord with the purpose of the requirement that land be vested in Her Majesty. Nor is it consistent with the presence of para (a) in the definition.

58 It would be strange if lot 8 were to be regarded as vested in both the shire council and Her Majesty. In my opinion, the first declaration of 10 July 1981 did not result in lot 8, until then on any view vested in the shire council, becoming vested in the Crown; nor on the enactment of the ALR Act did it within the definition become vested in Her Majesty in place of or as well as being vested in the shire council.

The result

59 In my opinion the appeal should be dismissed with costs. To remove any doubt as to the first declaration made, however, it should be amended by the addition of the words "within the meaning of the definition of claimable Crown lands in the Aboriginal Land Rights Act 1983".

60 HODGSON JA: I agree with Giles JA.

61 ROLFE AJA: I agree with Giles JA.

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LAST UPDATED: 11/02/2002