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Crown Solicitor's Office

Making the rules: recent amendments to the Crown Lands Act 1989 which enable leases and licences to be granted for a use of land that is inconsistent with the reserved purpose

Georgina Wright, Barrister, Wentworth Selborne Chambers

An extract of a seminar dated 11 March 2015

Around 42% of all land in New South Wales is Crown land. There are around 35,000 Crown reserves in the State containing much of the State's natural, cultural and open space, for example, local parks, heritage sites, community halls, nature reserves, showgrounds, caravan parks and travelling stock routes. Over the years, thousands of interests have been granted over reserved Crown land for both public and private purposes. These tenures permit activities such as grazing, mining, marinas, telecommunication towers, sporting clubs and tourist parks. In 2012, the legal validity of these interests was called into question by the decision of the New South Wales Court of Appeal in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2012] NSWCA 358 ("Goomallee Claim") (read decision on NSW Caselaw).

The Crown Lands Amendment (Multiple Land Use) Act 2013, was introduced by the NSW Parliament to reverse the effect of the Court of Appeal's decision on "secondary interests". The purpose of this paper is to summarise the Goomallee decision, the provisions of the amending legislation and briefly set out some observations on the legislation and how it may be interpreted.

The decision in Goomallee

The NSW Aboriginal Land Council lodged a land claim under s. 36 of the Aboriginal Land Rights Act 1983 (NSW) ("ALRA") in respect of an area of reserved Crown land within that property. The land had been reserved for the purpose of public recreation under the Crown lands legislation.

The ALRA creates a regime for the lodgement and granting of aboriginal land claims. Claims are required to be granted by the Minister (and, on appeal, by the Court) if the land meets the definition of "claimable Crown lands" in the Act. One of the characteristics which removes land from that definition is that "the land was lawfully used or occupied" on the date on which the claim was lodged             (s. 36(1)(b)).

In Goomallee the Minister had refused the land claim on the basis that on the date the claim was lodged, the land was lawfully used and/or occupied for grazing purposes. The Minister relied on a licence granted to the grazier under s. 34(1)(b) of the Crown Lands Act before the land claim was lodged.

The issue for the Court was whether a licence granted for the purposes of grazing over land reserved for the public purpose of public recreation could give rise to lawful use or occupation for the purpose of s. 36(1)(b) of the ALRA. The issue turned on whether, to be lawful, the use and occupation pursuant to the licence had to be:

(a) for, or incidental to, the purpose of the reservation; or

(b) merely not inconsistent with, or not incompatible with, that purpose.

The Minister argued that the less stringent test in (b) applied — namely that grazing was not incompatible with public recreation and therefore the use or occupation permitted by the licence was lawful.

The Court of Appeal held that the test in (a) applies. Five judges presided on the appeal. Justice Basten (with whom Beazley, McColl and MacFarlan JJA concurred, Sackville AJA not deciding) held that:

  • Where land is reserved for a specific public purpose, the power to lease, licence or vest land in trustees is confined to effectuating the relevant public purpose (at [30]).
  • The scope of the power under the Crown Lands Act to grant a licence depends on the terms of the restraint imposed by the reservation (at [26]).
  • Where the use of land is restricted to a particular purpose, the use for some unrelated purpose is not authorised (at [37]).
  • Grazing was not authorised because it was not a purpose ancillary to or in furtherance of the purpose of public recreation (at [28], [38]).

The Court compared the legal rights or privileges of the public under the reservation with the rights conferred on the licensee in respect of grazing. Public recreation would include camping and picnicking by members of the public at any time. In contrast, while the licence did not confer exclusive possession, the holder was required to enclose the land with a substantial fence and permitted to run stock. The rights purportedly conferred on the licensee were not consistent or compatible with the rights of the public pursuant to the reservation ([27], [29]). The use and occupation of the land for the purpose of grazing without a valid licence did not involve a lawful use and occupation of the land and it was therefore claimable Crown lands under s. 36(1) of the ALRA (at [39]).

Amendments to the Crown Lands Act

The Crown Lands Amendment (Multiple Land Use) Act 2013 commenced on 27 November 2013 ("the 2013 amendments"). It addressed the widespread invalidation of grazing licences after Goomallee. In the Second Reading Speech to the Bill, the Minister indicated that about 8,000 secondary tenures had been issued over Crown reserves and that up to 90 per cent of them may have been subject to challenge following Goomallee because they were granted for purposes that were not "in furtherance of or incidental to" the primary purpose of the reserve.

The starting point for any dealing with Crown land is s. 6 which, as ameliorated by s. 7, prohibits any dealing with Crown lands unless the dealing is authorised by the Crown Lands Act or another act. It is well established that there is no power to create interests in Crown lands except under the Crown lands legislation.

One of the principles of Crown land management is to encourage multiple uses of such land where possible and appropriate (s. 11(d)). The Goomallee decision, while not restricting multiple uses of Crown land, imposed a constraint on the power to grant to third parties interests over reserved Crown land that are not for the purpose of the reserve or incidental to it.

There were already provisions in the Crown Lands Act, introduced in 2005, allowing the Minister to authorise a reserve to be used for additional purposes, other than the declared purpose (as defined in s. 112A). However under those provisions the additional purpose must be compatible with the reserved purpose.

The 2013 amendments provide that the Minister may grant an interest over Crown Reserve provided that the Minister is of the opinion that it would be in the public interest to do so and that it would not be likely to materially harm its use or occupation for the reserve purpose.

Subsections 34AA(1) and (2) provide:

"34AA Secondary interests in Crown reserves

(1) The power of the Minister under this Part to grant a lease, licence or permit in respect of, or an easement or right-of-way over, Crown land is not limited by the land being a Crown reserve or by the reserved purpose, except as provided by this section.

(2) A lease, licence, permit, easement or right-of-way (a secondary interest) cannot be granted unless the Minister is of the opinion that the use or occupation of the Crown reserve pursuant to the secondary interest would be in the public interest and would not be likely to materially harm its use or occupation for the reserved purpose.

..."

The 2013 amendments introduced savings and transitional provisions. Existing secondary interests (granted before commencement of the amendments) that would have been validly granted had s. 34AA been in force are subject to a retrospective validation (Sch. 8, Pt 8, cl. 59).

The amendments make provision for the Minister to validate the grant of a secondary interest which has not been validly granted because of s. 34AA, by making such changes to the purpose for which the secondary interest was granted, or to the terms and conditions on which it was granted, as may be necessary to ensure validity (see s. 34AA(5)). The Minister's validation pursuant to s. 34AA(5), has retrospective effect to the date of the original grant and covers the use and occupation of the land pursuant to the secondary interest prior to its validation (s. 34AA(6)). The Minister's power to validate extends to existing secondary interests (Crown Lands Act, Sch. 8, Pt 8, cl. 59(4)).

Pursuant to a new s. 35A, the validity of any secondary interest cannot be questioned in legal proceedings unless a party gives the Minister three months' notice of the alleged invalidity, or such shorter period of notice as may be prescribed in the regulations. The Minister has the discretion to waive the requirement for notice, or reduce the requisite notice period (s. 35A(5)). A court before which proceedings are pending may adjourn the proceedings to enable notice of the alleged invalidity to be given as required by s. 35A(1) (see s. 35A(4)). The prescribed period of notice for an existing secondary interest is six months (not three), despite s. 35A(2) (cl. 61).

Some observations about the amendments

The amendments do not affect any aboriginal land claims that were lodged prior to the Goomalee decision which was the 9 November 2012.

The power to grant the interest is conditioned on the Minister forming an opinion. It is therefore the opinion rather than the underlying circumstances that is the criterion conditioning the exercise of the Minister's power. On a third party challenge to an interest, it is not for the Court to be satisfied that the use or occupation of the Crown reserve would be in the public interest, and would not be likely to materially harm a reserve purpose but only to consider whether or not a Crown lands minister held the relevant opinion when the secondary interest was granted. Such an opinion will not be unreviewable by the courts, although the grounds of review will be more limited than the range of considerations which would be considered if the court were formulating its own opinion on the matter. The question for the Court is not whether it would have formed the opinion in question but whether the repository of the power could have formed the opinion reasonably.

Section 34AA(2) introduces a "likely to materially harm" test. "Likely to materially harm" is not defined. The word "likely" in the context of the ALRA means "real or not remote chance" or "real chance or [real] possibility", not "more probable than not".  The relevant factors to be taken into account are set out in s. 34AA(3).  Those factors suggest that:

(a) the greater the area of the Crown reserve that is affected, the more likely the use or occupation will materially harm the reserve purpose,

(b) low frequency and short duration activities are less likely to materially harm the land's use or occupation for the reserved purpose,

(c) temporary or reversible harm is less likely to materially harm the land's use or occupation for the reserved purpose. Permanent or irreversible is more likely to breach the material harm test, and

(d) the current condition of the Crown reserve and its geographical, environmental and social context will be taken into account.

The section refers to material harm to the Crown reserve's "use or occupation for the reserved purpose". The section appears to be referring to whether there is likely to be disruption or prevention of the land's use or occupation for the reserved purpose.

The phrase "public interest" is widely used in legislation, including in the Crown Lands Act.  See a discussion of its meaning in McKinnon v Department of Treasury (2005) 145 FCR 70 at [8]-[12] per Tamberlin J. It has been described as a nebulous concept, requiring a consideration of the subject matter, scope and purpose of the statutory enactment in which it is contained: O'Sullivan v Farrer (1989) 168 CLR 210.

The protection of the environment is clearly a matter of public interest. The 2013 amendments expressly provide that the purpose of the secondary interest need not be a public purpose.

The new power in s. 34AA is to be read in the context of the objects of the Act in s. 10 and the Minister's responsibility to "achiev[e] the objects of the Act" in s. 12(1). Those objects are to ensure that Crown land is managed for the benefit of the people of New South Wales and in particular, according to a land assessment process.

Subject to certain exceptions, the Minister is required not to exercise the power under s. 34AA unless satisfied that the land has been assessed under Pt 3, s. 35. The Minister is not expressly required to deal with Crown land in accordance with the assessment, however, as Basten JA noted in the Nelson Bay claim, the land assessment process, which may include public participation, and is a primary object of the Act, is critical to the manner in which the Minister exercises functions under the Crown Lands Act. Importantly, the process of assessment is likely to reveal the land's capabilities and policies relating to it and also the views of other department's as to the proper use or preferred use of any Crown land.  Accordingly, that process will likely operate as a limit on the use of the power in s. 34AA.

 

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