Native Title Year in Review 2023-2024

What you need to know

• In Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2023] NSWLEC 134 the Land and Environment Court confirmed that lawful occupation of land does not require that the use is also lawful.
• The Court used the opportunity to consider whether a common law tenancy (involving payment of rent) after an expired special lease amounted to lawful occupation if the statutory precondition had not been met.
• It found that such occupation would not meet the lawfulness standard because the Crown Land Management Act 2016 (NSW) prohibited any dealings with Crown lands other than in accordance with the Act. That is, the common law rights were ousted by the legislation and could not give rise to "lawful occupation".
• The Court found that the land was "claimable Crown land" and the appeal succeeded.

What you need to do

• Note that occupation, which is lawful at common law, but not permitted by the Crown Land Management Act 2016 (NSW) is not sufficient to defeat a land claim. This land will now be transferred in freehold to the claimant land council.
• If you are developing a project in NSW, be aware that accessing land within the scope of the Aboriginal Land Rights Act 1983 (NSW) can be difficult, including because a land council cannot grant interests absent a determination of native title.

Aboriginal Land Rights Act 1983

The Aboriginal Land Rights Act 1983 (NSW) (ALR Act) adds complexity to proposals to access land within its scope. It is more difficult to navigate than the Native Title Act 1993 (Cth).

The ALR Act has generated much litigation around the definitions of land required to be transferred to land councils under the scheme.

The latest judicial consideration is by the Land and Environment Court of NSW, which recently looked at the meaning of "lawfully used or occupied" in the definition of "claimable Crown land".

Court determines meaning of "lawfully used for occupied"

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2023] NSWLEC 134 concerned an appeal from the Minister's refusal of the Darkinjung Local Aboriginal Land Council's 2019 land claim over land in Doyalson.

The Minister refused the claim on the basis that the land was subject to a special lease issued in 1967 which the Minister said remained in force at the date of the claim. The Land Council successfully appealed.

The Court considered the definition of "claimable Crown lands" in section 36 of the ALR Act. It relevantly defines "claimable Crown lands" as follows: "claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division — … are not lawfully used or occupied".

There was no argument made in support of lawful use, because the use of the land was obviously unlawful. The Court found that the land was not, in fact, occupied at the time of the claim (lawfully or unlawfully) and was therefore "claimable Crown land".

The history of the claimed land

In 1967, the claimed land was leased to a Mr Graham under a special lease for the purpose of a poultry farm. The Minister later approved an extension of the special lease for the purpose of "poultry farm and hatchery" to expire in December 1996.

In 1993, Mr Graham applied to purchase the land. It seems that because of this undetermined application, after its term expired in 1996, the lease was "kept current on a month by month basis until a determination is made".

From the mid-1980s, there was evidence that Mr Graham was using the claimed land for purposes other than a poultry farm. In 1985 he was fined for illegal removal of fill (quarrying) in breach of the special lease. Another conviction followed in 2003 relating to use of the site as a landfill to dispose of waste material from Mr Graham's demolition business on the adjacent property and breach of various EPA notices. There was also evidence that Mr Graham sublet the land to third parties for purposes outside of the lease purpose.

The application to purchase the land was not determined before the land claim was made in 2019.

Minister's consent had not been obtained in relation to Mr Graham's continued occupation of the land after the cessation of the special lease in 1996

The Court noted that a statutory precondition to the creation of a new monthly tenure under the Crown Lands (Continued Tenures) Act 1989 (NSW) after the expiry of the special lease was the grant of the Minister’s consent.

There was no evidence that consent had been granted, notwithstanding that the Department proceeded on the assumption that Mr Graham had a monthly tenure (and rent was paid). The Court rejected the Minister's argument that consent was implied from conduct.

The Court held that the Ministerial consent requires active engagement with the question of whether the holder of an expired special lease for a term ought to remain in possession of the land on a monthly tenancy. Further, it must be given prior to the commencement of the periodic tenancy.

This issue became important later in the decision.

Relevant legal principles relating to whether land is "lawfully used or occupied" under the ALR Act

The Court summarised the relevant legal principles as follows:

• Either a lawful use or a lawful occupation of the land will defeat the claim. Whether the land is lawfully used or occupied is a question of fact.
• Occupation will usually be constituted by a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity.
• A continuous physical presence over the entirety of the land is not necessary to establish occupation. The fact that some of the land has been left undeveloped does not in and of itself mean that the whole of the land is unoccupied.
• Occupation includes legal possession, that is, being able to exclude third parties.
• For land to be used or occupied, it must be actually used or occupied in the sense of being used in fact and not in a nominal sense or merely to a notional degree. Total abandonment is not required to find that the land is not lawfully used or occupied.
• The term “lawfully” means the Minister must satisfy the Court not only that the claimed land was in use or occupied as at the date of the claim, but that such use or occupation was legally authorised.

Lawfulness of "use" and "occupation"

While the matter was decided reasonably simply on the facts, the Court examined several conflicting authorities on the concept of "lawfulness".

The High Court held in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 (Berrima Gaol) that for use of land to be lawful, it had to conform to the purpose for which dedicated. However, lawful occupation does not require this. To do so would deny distinction between use and occupation. That is, land does not need to be actively used for dedicated purposes to be lawfully occupied.

The Court in this case noted this example, "a tenant may be in lawful occupation of land subject to a lease, even though the tenant carries out unlawful activities on the land".

Was Mr Graham "occupying" the land at the time of the claim?

There was ample evidence of Mr Graham occupying the land until mid-2018, but no evidence was led about the period from mid-2018 until the date of the claim in 2019. The Court drew an adverse inference from the fact that the Minister did not lead evidence from Mr Graham as to his occupation at the relevant date.

The Court said that:

While a continuous physical presence over the entirety of the land is not necessary to demonstrate occupation, and total abandonment is not required to find that the land is not occupied, there remains a six-month evidential gap where the Minister has failed to establish actual occupation of almost all the land as at the date of the claim.

The Minister relied upon the continual payment of rent to show occupation of the land. The Court said that the payment of rent is no more than evidence of legal possession and not actual possession and not sufficient for section 36(1)(b) of the ALR Act.

The Court concluded that the Minister had not discharged the statutory onus of proof of demonstrating that there was actual occupation of the claimed land by Graham as at the claim date.

Was the occupation "lawful"?

Notwithstanding this, the Court went on to consider whether, if occupation had been established, it was lawful considering the illegal activities being carried out upon it.

The evidence in this case disclosed that Mr Graham was not using or occupying the land for purpose of the lease. In fact, the evidence strongly supported a finding of unlawful use insofar as the land was being used as a waste disposal site, was subject to contaminants, had been sublet to third parties and had been subjected to unlawful clearing and construction.

The Court rejected the Land Council's argument that lawful occupation is constricted to the narrow purpose of the subject-matter of special lease, namely, as a poultry farm and hatchery. As the High Court stated in Berrima Gaol, to constrict the composite term “lawfully…occupied” in this way is to effectively conflate the concepts of lawful use and lawful occupation in a manner that was not intended by their distinct and separate identification in section 36(1)(b) of the ALR Act.

So, the unlawful use did not render the occupation unlawful, but what was the nature of that occupation?

The Court held that:

A new periodic monthly lease arose by reason of Mr Graham’s continued occupation of the claimed land, his continued payment of rent … and the continued knowledge by the Crown Lands Office and various State departments of his occupation and use of the land … after [the special lease] expired.

Where a tenant remains in occupation after the expiry of a lease for a term, which does not contain provision for the holding over, a new agreement is implied. The terms and conditions of the original lease, so far as relevant, are imported into this new agreement.

Therefore, at common law, Mr Graham held a lawful right to occupy the claimed land. This was so, irrespective of the fact that as at the claim date the land was no longer being used for the purpose for which it was leased, in breach of that lease.

But "lawful use or occupation" must be under the Crown Land Management Act, not just at common law

However, none of this assisted the Minister to defeat the claim. The Court referred to the "almost sacrosanct nature of the prohibition on the dealing with Crown lands other than in accordance with the Crown lands statutory regime". It concluded that because the month-by-month tenancy arrangement did not conform with the requirements of the Crown Land Management Act 2016 (NSW), Mr Graham's occupation was unlawful for the purposes of the ALR Act.

The land was therefore claimable Crown land and should be granted to the Land Council under the ALR Act.

Want to know more?

• Essential public purpose: NSW courts raise the bar for the Minister to refuse claims under the Aboriginal Land Rights Act (3 August 2023) - Summarises recent cases considering the meaning of "essential public purpose" in the definition of "Claimable Crown lands" under the Aboriginal Land Rights Act 1983 (NSW).

Authors: Joel Moss, Counsel; Leonie Flynn, Expertise Counsel and Benjamin Cranley, Lawyer.