Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council

IPP JA : This appeal concerns land in the Bathurst district, approximately 40 hectares in extent, known as the Sir Joseph Banks Nature Park (the “Reserve”). It turns on the meaning of “lawfully used or occupied” in s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) (the “ALR Act”). The issues on appeal

The essential issue is whether, at the relevant date, the Reserve was claimable land as provided by s 36(1)(b). On the facts of this case, that issue raises the question whether, on 21 August 2001, the date when the respondent (the Bathurst Local Aboriginal Land Council – the “BLALC”) lodged a claim for the land, the Reserve was so lawfully used or occupied.

The appellant (the Minister administering the Crown Lands Act 1989) refused the BLALC’s claim. The Minister was of the opinion that the Reserve was not claimable Crown land within s 36(1)(b) as, at the date of the claim, it was used and occupied.

The BLALC appealed against the Minister’s decision. Pain J of the Land and Environment Court held that the Reserve was indeed claimable Crown land as, at the date of the claim, it was not lawfully used or occupied. Consequently, her Honour made an order under s 36(7) of the ALR Act that the Reserve be transferred to the BLALC.

The Minister appeals against Pain J’s decision, and again contends that at the date of the claim the Reserve was lawfully used or occupied. The facts

The facts I recount below are those found by Pain J and facts which were not in dispute. All the facts on which my conclusion, set out in these reasons, are based are facts of this kind. It is therefore unnecessary for me to examine any of the authorities that deal with the power of this Court to make factual findings in appeals on questions of law alone.

On 16 February 1968, the Council of the City of Bathurst (“the Council”) was appointed sole trustee of the Reserve pursuant to s 37R of the Crown Lands Consolidation Act 1913. By that Act, the Council was charged with the care, control and management of the Reserve.

That Act was repealed and replaced by the Crown Lands Act 1989. By notification in the Gazette dated 12 May 1995, a reserve trust called Bathurst City Council Crown Reserves Trust was established “for the public purpose of preservation of native flora”. The Trust was charged under the Act with the care, control and management of the Reserve. By s 95(1) of the Act, the Council was appointed to manage the affairs of the Trust.

For some 25 years prior to the date on which the claim was made, the Reserve was used as a fauna reserve. According to undisputed affidavit evidence: “[T]he nature park was completely fenced with a person-proof boundary fence and contained various public works, including a toilet block, picnic shelters containing tables and benches, barbecues, rubbish facilities, extensive pathways, information shelters, a building at the main public entrance containing an office, storerooms, reptile and aquatic animal displays, together with a collection of pamphlets and posters and other items for visitors. The structures were used by the members of the public who visited the nature park. There was also a large workshed in the park which was used by Council staff working for the park.”

The animal enclosures contained many different kinds of animals, birds, reptiles and fish species. Kangaroos, wallabies and emus roamed freely through the Reserve.

A fence around the Reserve, erected and maintained by the Council, controlled public access to the land. This continued to be the case until the date of the claim and thereafter.

The Reserve is heavily vegetated, with various trails through the land. The vegetation consists predominantly of eucalypts with an understorey of native and exotic grasses and shrubs. Importantly, by June 2001, the Reserve land was in a state of serious degeneration and required rejuvenation.

On 20 June 2001, the Council resolved to “close down the park and remove the infrastructure and allow the area to revert to a woodland area open to the public”. On 2 July 2001, the Reserve was closed to the public and has not been reopened (except for some form of motor race in 2003).

On 4 July 2001, a timetable for the implementation of the resolution was proposed. This included moving the animals to other facilities and relocating infrastructure such as the barbeques, picnic tables and shelter sheds. According to the proposal: “The staff of the Nature Park will remain at the facility to carry out daily feeding of the animals, stocktake the assets to be disposed of and generally assist in the transition of the present facility to a woodland area.”

After 2 July 2001, when the Reserve was closed, the proposal began to be implemented and the Council began to remove the animals. Two members of the Council’s staff worked in the Reserve on a daily basis, feeding and tending to the remaining animals and providing “obligatory maintenance”.

On 16 July 2001, the Director of Corporate Services (of the Council) gave instructions for “a planting regime [to] be put in place to accelerate the actions that are currently occurring at this facility”. Her Honour found that these instructions were only implemented some time after the date of the claim.

As Tobias JA (whose reasons I have had the benefit of reading) points out (at [96]), a report prepared for a Council meeting held on 15 August 2001 gives the impression that there had been few, if any, animals relocated as of that date. Nevertheless, it was expected that the animals would be transported before the end of the month. Tobias JA points out that Pain J did not make any specific findings as to the extent, if at all, that the caged animals had in fact been relocated as at the date of the claim. Her Honour merely said that a number of activities had been undertaken that were designed to facilitate the closure.

Pain J (at [99]) accepted that the Council staff time and expenditure at the date of the claim was directed largely to the care of the animals including maintenance of roads to ensure the safety of staff when visiting.

On 20 December 2001 the last of the animals housed in enclosures were relocated and the two Council employees that had been on duty at the Reserve left to work elsewhere. On 15 May 2002, the Council projected that over $10,000 per annum would be spent on the nature park in each of the five ensuing years. This was a reduction from $55,220 per annum that had been projected in July 2001. The reasons of the primary judge

Her Honour did not draw any material distinction between “use” and “occupation”. In my view, in the particular circumstances of this case, that approach was correct. As was the position in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48 (the Wagga (High Court) Case ), it is not necessary in the present case to decide whether “lawfully used or occupied” has a single meaning or is better understood by separate consideration of the words “used” and “occupied”. The present, like the Wagga (High Court) Case is not a case in which “some relevant aspect of the meaning of the word ‘used’ is illuminated by the juxtaposed word ‘occupied’”.

The fundamental basis of Pain J’s decision that the Reserve was not used and occupied was her Honour’s acceptance that two absolute and essential requirements have to be satisfied before land can be regarded as “used or occupied” for the purposes of s 36(1)(b). The first is proof that, at the date of the claim, physical acts of occupation (more than mere fencing of the land) were being carried out on the land. The second is proof that, at that date, the degree of physical activities on the land was more than “slight” and the land was being used in “more than a notional sense”.

Examples of the emphasis Pain J placed on physical acts of occupation and use are as follows. Her Honour said (at [92]) that, for land to be occupied for the purposes of s 36(1)(b), there must be evidence of physical acts which amount to actual occupation. She made the same point (at [106]) in regard to use. Her Honour said at [102] that exclusion of the public by a fence is not sufficient. She repeated (at [93]), “occupation requires some degree of actual physical occupancy over the land or the carrying out of maintenance on the land without which physical occupancy is insufficient”.

Examples of the emphasis her Honour placed on the need for the physical activities to be more than “slight” and for the land to be used “in more than a notional sense” are as follows. Her Honour found (at [104]) that the activities being undertaken at the date of the claim fell “into the category of being ‘so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)’ as described by Stein J [in NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (the ‘ Department of Education case’ )”. Her Honour said (at [106]) “[t]he claimed land must be used in more than a notional sense”. From [107] to [110] her Honour addressed the question whether “use was nominal only” (that being part of the sub-heading to these paragraphs of her Honour’s reasons). At [108] her Honour said “The question now arises whether [the activities on the land at the date of the claim] are more than a notional use of the claimed land”.

It is to be noted that her Honour did not first consider whether there had been use or occupation and then go on to consider whether that use or occupation was lawful. Rather, she conflated the concepts of use and occupation with lawfulness. Thus, she said (at [5]) that the “principal issues to be determined” were: “(1) Whether, at the date of the claim, the land now claimed was ‘lawfully occupied’ within the meaning of s 36(1)(b) of the ALR Act by the Bathurst Regional Council (the Council); (2) Whether, at the date of the claim, the land now claimed was ‘lawfully used’ within the meaning of s 36(1)(b) of the ALR Act by the Council.”

Her Honour appears to have regarded lawful use as being use as “a flora reserve” (see at [100]). More accurately, the question of lawfulness depended on whether the Reserve was being used in accordance with the purpose of the Trust, namely, for the “preservation of native flora”.

This conflation may have contributed to her Honour disregarding the activities on the land that involved closing down the animal aspect of the Reserve so as to convert it into a woodland area. This may be discerned, particularly from her Honour’s remarks at [110] where she said, “[t]o the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area … the evidence of use at or shortly after the date of claim does not establish lawful use for the purpose of s 36(1)(b)”.

I would add that her Honour’s exercise in determining lawful use and lawful occupation is inconsistent with her statement at [112] that, in the light of her decision concerning use and occupation, she was not required “to have regard to whether the nature park was a lawful occupation or use of the claimed land”. Does the phrase “used or occupied” have a technical meaning?

I reiterate that Pain J held that expression “used or occupied” in s 36(1)(b)” included as an absolute and essential requirement, the carrying out of physical activities on the land in question in more than a notional sense. In my view, for the reasons I set out below, her Honour thereby attributed an incorrect (and technical) meaning to the expression (which should be understood in accordance with its common understanding).

In my opinion, her Honour’s approach is in conflict with the remarks of Hayne, Heydon, Crennan and Kiefel JJ (the “plurality”) in the Wagga (High Court) Case at [69] and [70]. In fairness to her Honour, I would note that judgment in the Wagga (High Court) case was delivered after her Honour handed down her reasons.

In the Wagga (High Court) Case the plurality said (at [69]-[70]): “No matter whether the question is framed in the statutory terms (‘not lawfully used or occupied’) or, as here, is framed more narrowly as one about use, attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being ‘not lawfully used or occupied’. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land. But three points should be made. First, nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands. Secondly, as Mason P rightly said, ‘use’ is a protean word. Thirdly, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital (‘the City of Newcastle Case’) shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be ‘used or occupied by the hospital for the purposes thereof’. Hence the importance of directing attention to what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of ‘not lawfully used or occupied’. It is the specification of those acts, facts, matters and circumstances which will provide the greatest help in deciding whether land meets the relevant description.” (My emphasis, citations omitted.)

The statement of the plurality that “recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land” (my emphasis) demonstrates that physical use of the land is not an absolute and essential element of use and occupation. This point is further emphasised by their Honour’s reference to the City of Newcastle case .

The full citation of the City of Newcastle Case is Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493, affirmed on appeal to the Privy Council at (1959) 100 CLR 1. In that case, as observed at above, it was held that land, purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be used or occupied. This point was also made by Gibbs J (with whom the other members of the High Court agreed) in Parramatta City Council v Brickworks Limited [1972] HCA 21; (1972) 128 CLR 1, where his Honour drew attention (at 22) to the fact that the Privy Council, in the City of Newcastle Case , had said that “an owner can use land by keeping it in its virgin state for his own special purposes”.

The plurality pointed out in the Wagga (High Court) Case (at [69]) that “use is a protean word”. The word “occupy” is also a word that, in its ordinary use, is capable of variable meanings. That is why it is important, as the plurality observed at [69], to direct attention to “what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of ‘not lawfully used or occupied’”.

For these reasons, as their Honours explained at [69], “nothing said in the earlier decisions of the Court of Appeal … should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied”. It follows, I would, with respect, infer, that nothing said by this Court in the earlier cases should be seen as laying down absolute requirements that have to be fulfilled for land to be lawfully used or occupied within the meaning of s 36(1)(b). This inference is reinforced by what is said in the following paragraph.

The plurality (at [69]) mentioned factors that would “ usually ” constitute “use” or “occupation” of land. One of those factors was “recurring physical acts on the land”. It follows that recurring physical acts on the land is not an absolute and essential element of use and occupation under s 36(1)(b).

The plurality emphasised (at [69]) that the factors they mentioned were not propositions that “chart the metes and bounds of those ideas”. Their Honours stated that the propositions stated might merely “identify the most common cases where it can be said that there is use or occupation of the land”. Their Honours thereby, in effect, made the point that no factors, in themselves, are absolute or essential elements of the meanings of the terms, “use” and “occupation” of land and that, in exceptional cases the factors they identified may not be of paramount importance. Everything depends on the circumstances of the particular case.

Their Honours identified the City of Newcastle case as a case not to be categorised as “a most common case”. According to the City of Newcastle Case, land is capable of being used despite the absence of recurring physical acts on it. The present case similar to the City of Newcastle Case and is not “a common case”.

There are many instances where the proper use and occupation of land require physical activities on the land to be kept to a minimum or prevented entirely. Land set aside for regeneration of vegetation is an obvious example. Afforested valleys and mountains that are difficult to access but which attract many who wish to enjoy the natural beauty of the land in its pristine and undeveloped state, are others. The difference between “actual” use and occupation and “actual” physical activities

The requirement of actual physical activities on the land that her Honour applied was derived, according to her, from the judgment of Priestley JA in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140. In my view, this involved an incorrect reading of his Honour’s reasons.

In Daruk, Priestley JA (at 161-162) in considering the meaning of “occupation” in par (b) of s 36(1) of the ALR Act, drew a distinction between constructive occupation and actual occupation. His Honour attributed to “constructive occupation” the meaning applied to this term by Denman CJ in R v The Inhabitants of St Nicholas, Rochester (1834) 5 B & Ad 219; 110 ER 773. The statute under consideration in that case provided: “[N]o person shall acquire a settlement in any parish by reason of such yearly hiring of a dwelling house or building, or of land, or of both, as in the said Act expressed, unless such house or building or land, shall be actually occupied [my emphasis] under such yearly hiring by the person hiring the same.”

St Nicholas, Rochester concerned a pauper who had sublet a portion of a parish house leased to him. Denman CJ held that the pauper was only in constructive possession with respect to those parts of the house he had sublet. That is, the subletting did not constitute actual occupation. Denman CJ said (at 776): “A constructive occupation will not satisfy these words. The statute requires in terms an actual occupation. Here it appears that the pauper underlet the two upper floors, and occupied the ground floor himself. It is impossible to say, in the face of the statute, that the pauper, who occupied the ground floor only, actually occupied the whole house.”

The statute considered in St Nicholas, Rochester expressly required the occupation to be actual. Section 36(1)(b) of the ALR Act has no such requirement. Nevertheless, the term “occupation”, as it is used in s 36(1)(b), gives rise to reasonable uncertainty as to whether it comprises both actual and constructive occupation or only actual occupation.

In Daruk Priestley JA (with whom Cripps JA agreed) held that “occupation” in s 36(1)(b) did not mean constructive occupation. His Honour said (at 162): “It seems to me the better reading of ‘occupied’ in its context in par (b) is ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree.”

In according the meaning “actually occupied” to “occupied” in s 36(1)(b), Priestley JA followed the reasoning of Denman CJ. Priestley JA did not hold that “occupation” required actual physical activities; he was of the opinion, rather, that “occupation” required actual and not constructive occupation.

Of course, actual physical activities on the land may well be highly relevant, but that does not mean that without them use or occupation cannot be established. This is manifest from the Wagga (High Court) Case and is also apparent from several other earlier authorities.

In Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Council (1992) 75 LGRA 133 ( “Tweed Byron” ) (at 140) Clarke JA observed that physical acts of occupation were “relevant” (but did not say that they were essential), and expressly noted that land left in its natural state did not mean that it was not an important recreation area (and, by inference, that it was being used or occupied).

In Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31 NSWLR 106 (“ Nowra Brickworks No 1” ) Sheller JA (with whom Priestley JA and Clark JA agreed) pointed out that the judgments of Taylor J in the City of Newcastle Case and Gibbs J in Parramatta City Council v Brickworks Ltd supported the proposition “that in the case of mining activities the lands presently used are not only those being physically mined at any particular point of time but those held as a reserve for mining for some time into the future”. Sheller JA thereby accepted that land held only as a reserve (where no physical activities were performed on it) could be used or occupied within the meaning of s 36(1)(b). Use (or occupation) to more than a notional degree

The requirement that there must be use or occupation to more than a notional degree is derived from remarks by Priestley JA in Daruk [at 162] that have been followed by other decisions of this court.

In light of the observations of the plurality in the Wagga (High Court) Case (at [69]-[70]), the “use to a notional degree” requirement cannot be regarded as an absolute or essential element of use or occupation within the meaning of s 36(1)(b). The question arises: Is it, at least, a relevant factor?

The requirement in question is similar to that expressed by Stein J in the Department of Education case. In that case, his Honour said (at 198): “In my opinion the use of the word ‘occupied’ in contra-distinction to ‘used’ leads to the conclusion – applying a beneficial construction – that some actual physical occupancy of the land is required. This does not need to be an occupation of the whole of the land but, in my opinion, the mere exercise of control over or maintenance of the land without any actual occupation is insufficient.”

Stein J found that the actual occupation “was so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)”. The occupation in question involved “a mere six officers occupying a miniscule portion of the floor space of the building”. His Honour said “having arrived at this conclusion it seems to me that the mere exercise of some control of the building together with maintenance does not constitute the necessary occupation of the land to take it out of the definition of claimable Crown lands.”

Stein J’s reasoning that actual physical occupancy of the land was required and that the occupancy had to be more than “a miniscule portion” of the land was derived from the application of a beneficial construction to the ALR Act. The authorities are clear that the ALR Act has to be beneficially construed. This means nothing more than requiring any uncertainty or ambiguity in the language to be resolved in favour of the intended beneficiaries. Where the words “use” and “occupation” are reasonably capable of bearing different meanings, the meaning more beneficial to a claimant under the Act should be adopted.

I do not think, however, that the requirement to construe the Act beneficially carries with it the notion that any possible construction of the phrase that is more beneficial to a claimant than another is to be applied. Relevant ambiguity or uncertainty that may arise in this context has to be reasonable and not artificially contrived. Were that not so, the exception contained in s 36(1)(b) could be rendered devoid of content.

In my respectful view, requirements that physical occupation must be more than to a notional degree or be more than miniscule do not arise by reason of any ambiguity or uncertainty in the ordinary usage of the terms “use” and “occupation”. These limits imposed on the ordinary meaning of the terms result from judicial gloss, not from any real difficulty in construing the language.

Applying the principles expressed by the plurality in the Wagga (High Court) Case (at [69]-[70]), I nevertheless accept that the facts and circumstances of a particular case may be such that the fact that the degree of physical activities is slight may be relevant in determining whether land is used or occupied. For the reasons that follow, I do not think that this is such a case. Use or occupation of an area closed for regeneration of vegetation

It is common knowledge that vegetation in bushland used as a popular recreational facility, as well as bushland populated by large numbers of browsing animals such as kangaroos, may degenerate over time. It is also common knowledge that, frequently, when that occurs, the public bodies responsible close off public access to the land to protect the vegetation and allow regrowth to occur. This is a familiar, beneficial and important form of use and occupation of land.

In Daruk, Mahoney JA, although dissenting in the result, made several observations that are highly pertinent to the resolution of this appeal. His Honour’s reasons carry increased weight in the light of the remarks of the plurality in the Wagga (High Court) Case (at [69]-[70]). His Honour said (at 143): “If it is necessary to show physical activity in respect of the land to prove the relevant use of it, it is, as I have suggested, necessary to consider what is the kind of physical activity or the like which use of the land for that purpose would be apt to involve … . Use as a native forest might involve little if any physical activity. Use as a wilderness area or as an area for regeneration of native growth might, as I have suggested, preclude physical activity taking place. In such cases, there would, in my opinion, be the ‘use’ of the land for the purposes of s 36(1)(b) merely because the land had been treated in a way appropriate to such a use.”

His Honour proceeded (at 143-144): “There are, I think, some areas, for example, river frontages, whose use consists merely of being available for such a purpose. The shores of Sydney Harbour would, I think, be ‘used’ if reserved as a foreshore park notwithstanding that it or portions of it were seldom, if ever, visited; it would not be necessary to call in aid sophisticated views of the environment or to count the number of bushwalkers and the frequency of their activities. Nor is the matter determined by whether a member of the public can or is likely to be in the area. A valley or a mountain may be used as part of a public recreation reserve notwithstanding that one cannot climb down or up to parts of it. These things are, in my opinion, of relevance in the present case and, in particular, relevant to the portion of the land away from the river and the public road. Its use for public recreation lies, to a significant extent, in the fact that, as a reserve, it is not developed but is available and kept available, in its undeveloped state for such recreational activity as may be desired of it. The recreational use of such land in such a situation may lie in those who desire to enjoy it passing through it, on foot or otherwise, or merely deriving enjoyment from the fact of it in its undeveloped state.”

In his quoted remarks, Mahoney JA demonstrates yet again that it is possible for land to be used within the meaning of s 36(1)(b), although left undeveloped. In my view, his Honour’s reasoning compels the inference that use (and occupation) of land as an area for regeneration of native growth is a use (and occupation) within s 36(1)(b), even though no physical activity takes place on the land itself.

In my respectful view, the plurality in Wagga (High Court) Case was of a similar mind when stating (at [69]) that the City of Newcastle case showed that land “purposely kept in its natural state to provide clean air and quiet undeveloped surroundings” can be said to be “used or occupied by the hospital for the purposes thereof”.

The authorities stress the importance of the purpose of the activities carried out on land when determining whether such land is used or occupied; see, for example, Nowra Brickworks No 1 (at 120) per Sheller JA.

In my opinion, as at the date of the claim, the way in which the Council was treating the Reserve was entirely consistent with its resolved purpose of allowing the Reserve to revert to a woodland area. All the activities (and the like) that the Council, at that date, was carrying out in regard to the Reserve were intended for this purpose. In these circumstances, at the date of the claim, in my opinion, the Council was using and occupying the Reserve.

In coming to this conclusion I am not making any factual findings. The exercise is akin to that described by Spigelman CJ in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [89] “What is involved is the formulation of a judgment on the basis of agreed facts”. The only difference is that this case modifies the formulation of a judgment on the basis of facts found by the primary judge and facts that are not in dispute. The primary judge’s findings that there was no transitional use pending use as a woodland area

In finding that at the date of the claim the Reserve was not used or occupied, Pain J relied on and applied the factors to which I have referred as absolute and essential elements of use and occupation. Because of her Honour’s understanding of the meaning of the terms “used” and “occupied”, she did not consider whether at the date of the claim, absent physical activities on the Reserve, the Reserve was being used or occupied. Her Honour considered that, because no actual physical activities had been undertaken on the land (presumably, such as planting and positive acts of maintenance), the evidence supported only a suggestion “that the woodland area was a future use” (at [101]; see also at [109]). Consistently with that approach, her Honour held (at [99]) that activities (as at the date of the claim) directed to the care of the animals and maintaining the roads to ensure the safety of staff when visiting the animals were not relevant to the question of whether the Reserve was being occupied or used at the date of the claim, and that there were no “activities which justify a finding of occupation on the basis of a transition to a woodland area” (at [102]).

Moreover, her Honour said (at [104]): “The activities being undertaken were of the type identified in [ The Department of Education case] and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises.” And remarked: “In this way, these activities fall into the category of being ‘so slight as to be insufficient to constitute an occupation of the land’ as required by the definition in s 36(1) as described by Stein J.”

Her Honour went so far as to say (at [107]) that, because, by the date of the claim the Council had “moved to close down the nature park”, this showed “an intention to abandon the nature park”.

For the same reason, her Honour (at [110]) found that the physical acts involved in closing the fauna aspects of the park were not sufficient “to establish lawful use of the claimed land for the nature park”. Her Honour repeated this view when saying: “To the extent that activities in the nature park were devoted to the preservation of flora and those activities were related to the transition to a woodland area, also for the reasons already discussed in relation to occupation at par 99 – 100 and in light of the substantially reduced expenditure on the area of the nature park, the evidence of use at or shortly after the date of the claim does not establish lawful use for the purpose of s 36(1)(b).”

Pain J noted (at [111]) that the Minister argued that evidence of the plans for the intended use of the land as a woodland area confirmed that at the date of the claim “the use was transitional, moving from nature park to woodland area”. Her Honour concluded in this regard: “Even if considered on that basis it cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the nature park.”

It is not entirely clear what her Honour meant when she said (at [107]) that the Council had “moved to close down the nature park” and this showed that the Council intended to “abandon the nature park”. If this meant that the Council intended to abandon using the Reserve for fauna, the finding is correct. But there was no intention to abandon the use of the Reserve as a nature park. Although the Council closed the Reserve and did not admit the public, this was only intended to occur while the vegetation regenerated. When regeneration was achieved, the Reserve would be re-opened to the public as a nature area. Her Honour did not consider whether the steps being taken at the date of the claim to achieve this end were capable of constituting use or occupation. An error of law

In Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, Mason J (with whom the other members of the High Court agreed) referred (at 7-8) with approval to the following observation of Kitto J in New South Wales Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation [1956] HCA 80; (1956) 94 CLR 309 at 512, which his Honour described as “illuminating”: “The only outstanding question is whether those operations fill the description ‘mining operations upon a mining property’ within the meaning of s 122. This is a mixed question of law and fact: see the cases cited by Rich J in Federal Commissioner of Taxation v Broken Hill South Limited [1941] HCA 33; (1941) 65 CLR 150 at p 154. First it is necessary to decide as a matter of law whether the Act uses the expression ‘mining operations’ and ‘mining property’ in any other sense than that which they have in ordinary speech. As to this, it is enough in the present case to say that the expressions are not defined in the Act, that they have no technical legal signification … The common understanding of the words is therefore to be determined, and that is a question of fact.”

To paraphrase Kitto J, the question for Pain J was whether the Reserve was used or occupied within the meaning of s 36(1)(b). It was first necessary for her Honour to decide as a matter of law whether the ALR Act uses the expressions “used” and “occupied” in any other sense than that which they have in ordinary speech. As to this, it is enough to say that the expressions are not defined in the Act and have no technical legal signification.

The common understanding of the words first had to be determined. The acts, facts, matters and circumstances which (according to the Minister) deprived the land of the characteristic of being “not lawfully used or occupied” had then to be measured against that common understanding.

Her Honour, however, gave the words a technical meaning, outside their common understanding. Her Honour found that their meaning was such that use and occupation could not be established without proof that, at the relevant date, physical activities were being performed on the land to a greater than notional degree. In my opinion, her Honour thereby made an error of law.

By s 57(1) of The Land and Environment Court Act [1979] NSW (“ The L and E Court Act ), a party to proceedings under s36 of the ALR Act may appeal to this Court against and order or decision “on a question of law”. The question of law involved in this case is whether Pain J gave the words “not lawfully used or occupied” in s 36(1)(b) of the ALR Act the correct meaning under that Act.

By s 57(2) of The L and E Court Act , on the hearing of an appeal under subsection (1) of the Act, this Court is empowered to remit the matter to The Land and Environment Court for determination in accordance with this Court’s decision, or to make such other order in relation to the appeal as seems fit.

As all the relevant facts necessary for the disposal of the matter have been found by Pain J or are not in dispute, there is no reason why this Court should not finally dispose of the matter. Was the Reserve used and occupied?

At the date of the claim, on the facts found by Pain J, the Council had closed the Reserve to the public, was maintaining the surrounding fence, was proceeding to remove the animals, was caring for the animals that remained on the Reserve, and was maintaining the roads to ensure the safety of staff when visiting the animals. All this was being done to fulfil the Council’s resolution to cease using the Reserve as a fauna reserve and to allow the existing vegetation on the Reserve to regenerate with the intention, upon recovery of the vegetation, to open the Reserve to the public for use and enjoyment as a woodland area.

I accept that, at the date of the claim, the Reserve was not being used purely as a woodland area (as there were still animals on the land). But when due regard is had to the purpose with which the activities on the Reserve were being pursued, it is plain on the facts found by her Honour, and those that were common ground or undisputed, that the activities in question and the other measures that the Council was undertaking, were all for the sole purpose of restoring the vegetation on the Reserve to a flourishing state.

In my view, applying the approach adopted by the plurality in the Wagga (High Court) Case , the Council used and occupied the Reserve at the date of the claim. Was the use and occupation lawful?

The basic question is whether, at the date of the claim, the Council was using the Reserve “for the public purpose of preservation of native flora”. If not, the use and occupation was in breach of the Trust and unlawful.

I have expressed the opinion that the sole purpose of all the steps that were being taken by the Council at the date of the claim was the preservation of the native flora on the Reserve. The fact that, before the date of the claim, the Reserve was being used as a fauna reserve is irrelevant. That use, as her Honour found had ceased. The presence of some animals on the Reserve at the date of the claim did not constitute a breach of the purpose of the Trust. At that date, the animals were only temporarily on the reserve. They were being kept there pending their removal. All were removed by 20 December 2001.

Thus, at the date of the claim, the Council was in the process of removing the animals in order to comply with the Trust. At that date, the Council was doing nothing that contravened the terms of the trust. At that date, the steps the Council was taking were designed to preserve the native flora on the reserve. Those steps were in accordance with the Trust.

In the circumstances, I consider that the use and occupation of the Reserve at the date of the claim were in accordance with the terms of the Trust. Conclusion

I would uphold the appeal with costs and set aside the orders made by Pain J. I would order that the respondent’s appeal to the Land and Environment Court be dismissed with costs. I would grant the respondent an order under the Suitors’ Fund Act 1951 if it is otherwise entitled.

TOBIAS JA : On 21 August 2001, the respondent, Bathurst Local Aboriginal Land Council (BLALC), lodged Aboriginal Land Claim 6616 (ALC 6616) pursuant to s 36(3) of the Aboriginal Land Rights Act 1983 (the ALR Act). The claimed land was at Mount Panorama, Bathurst and covered an area of approximately 40 hectares. It included an area known as the Sir Joseph Banks Nature Park (the Nature Park) and adjoining land. On 8 February 2006 the Minister administering the Crown Lands Act 1989 (the Minister) refused, pursuant to s 36(5)(b) of the ALR Act, ALC 6616 on the basis that the claimed land was not claimable Crown lands within the meaning of s 36(1) of that Act.

On 7 April 2006 BLALC lodged a Class 3 Application in the Land and Environment Court under s 36(6) of the ALR Act, appealing against the Minister’s decision to refuse its claim. BLALC subsequently withdrew its appeal insofar as it related to the Crown public roads on the claimed land and the area beyond the fence surrounding the Nature Park. Accordingly, the Land and Environment Court was required to determine whether the Nature Park (excluding the Crown road) was, at the date of the claim, “ claimable Crown lands ” within the meaning of s 36(1) of the ALR Act.

On 28 February 2008, Pain J determined that the Nature Park was claimable Crown lands. Her Honour ordered the relevant land to be transferred to BLALC in accordance with s 36(7) of the ALR Act: Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82. The Minister appeals against this decision. Such an appeal is confined to questions of law: Land and Environment Court Act 1979, s 57(1) (the Court Act). The facts relevant to the Nature Park as found by the primary judge

On 23 June 1967 by notification of the Gazette pursuant to s 28(1) of the Crown Lands Consolidation Act 1913 (the 1913 Act), the then Minister for Lands reserved from sale land described as Reserve No. 86,313 (the Reserve) for the specified public purpose being for “ preservation of native flora ”. The Nature Park forms part of the area of the Reserve. On 16 February 1968, the Council of the City of Bathurst (the Council) was appointed as sole trustee of the Reserve pursuant to s 37R of the 1913 Act. As such the Council was charged with the care, control and management of the Reserve: 1913 Act , s 37R.

The 1913 Act was repealed and replaced by the Crown Lands Act 1989 (the CL Act). Pursuant to s 92(1) of that Act, by notification in the Gazette dated 12 May 1995, a reserve trust called Bathurst City Council Crown Reserves Trust (the Trust) was established and was appointed trustee of the Reserve “ for the public purpose of preservation of native flora ”. Pursuant to s 92(5) of that Act the Trust was charged with the care, control and management of the Reserve and pursuant to s 95(1) the Council was appointed to manage the affairs of the Trust.

In 1968 the Council proposed the establishment of a flora and fauna reserve on the claimed land. At or about that time a fence was erected around the perimeter of so much of the Reserve that was to become the Nature Park. In September 1971 the Nature Park was opened to the public. It contained various animal enclosures and had trails constructed within it. The name “ Sir Joseph Banks Nature Park ” was gazetted on 11 April 1986.

From December 1997 members of the public were charged an admission fee for entry to the Nature Park and Council staff were in daily attendance. The Nature Park contained infrastructure including a toilet block, picnic shelters, rubbish facilities, pathways and an entrance building. It also contained animal enclosures that housed koalas, dingos, wallabies, wombats, quolls and native birds, reptiles and fish species. The Council held licenses under the Exhibited Animals Protection Act 1986 authorising the use of the Park as animal display premises. There were also kangaroos, emus and other wallabies that roamed freely within the Nature Park. It was fenced so that the free ranging animals would be kept off the Mount Panorama racetrack and also because entrance to the Nature Park was not free.

In 1999 the Council engaged Goldney & Associates to prepare a report on the future of the Nature Park. After considering the various options proposed by their report, on 20 June 2001 the Council resolved to close down the Nature Park, remove infrastructure and allow the area to revert to natural woodland and to be open to the public. On 2 July 2001 the Nature Park was closed to the public. From 20 June 2001 onwards, the Council progressively relocated the animals and some of the infrastructure from the Nature Park. On 20 December 2001 the last of the animals were relocated.

As I have noted, ALC 6616 was lodged on 21 August 2001. As at that date, the Nature Park remained completely fenced and still contained a number of improvements and structures such as picnic shelter sheds, picnic tables, seats and barbeques as well as the animal enclosures. Two Council employees continued to work at the Nature Park on a daily basis to feed the remaining captive animals and undertake obligatory “ maintenance ” until the last of the animals had been relocated in December 2001. According to the evidence of Mr Navin (who was the relevant Council officer with responsibility for the management of the Park), those maintenance activities related to weed control and fence repair.

On 19 September 2001 the Council established a working party to consider the future of the Nature Park and the creation of a woodland area open to the public. There was a substantial decrease in expenditure on the Nature Park in the financial year after its closure. On 15 May 2002 the Council projected expenditure for the five ensuing years of approximately $10,000 per annum whereas the expenditure in the two years before the Nature Park was closed was around $117,000 per annum. However, as at July 2001, according to the evidence of the City Treasurer, the council had projected operating expenses of $55,220 with respect to the Nature Park for the 2001/2002 financial year.

Although the removal of the animals from their enclosures was said by Mr Navin to be a “ gradual process beginning in June 2001 ”, a report prepared by him for a Council meeting held on 15 August 2001 gives the impression that there had been few, if any, animals relocated as at that date although they were “ expected to be transported before the end of the month [August] ”.

The primary judge, although referring to Mr Navin’s evidence (at [41]) and his 15 August 2001 report (at [98]), did not make any specific finding as to the extent, if at all, that the caged animals had in fact been relocated as at the date of the claim. Her Honour went no further than stating (at [98]) that as at that date: “[a] number of activities had also been undertaken that were designed to facilitate the closure including the relocation of all caged animals and the relocation of improvements such as barbeques and picnic tables to other places in Bathurst.” (emphasis added)

I do not regard her Honour’s statement as a finding that as at the date of the claim all or any of the caged animals had been actually relocated although Mr Navin’s evidence, which she appeared to accept and to whose report she refers, does establish that arrangements to relocate the animals and the tourist-related infrastructure had been or were in the course of being finalised but were not yet implemented. Thus at [99] she agreed with the submission of BLALC “that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintenance of roads to ensure the safety of staff when visiting”.

It will be necessary to refer further to her Honour’s findings (or lack of them) with respect to the issue of the use or occupation of the Nature Park for fauna purposes later in these reasons. The relevant provisions of the ALR Act

The purpose of the ALR Act as stated in s 3 is, relevantly, “ to provide land rights for Aboriginal persons in New South Wales ” and “ to vest land in … [representative Aboriginal Land] Councils ”. Section 36 establishes the regime by which land can be claimed. It is convenient to set out the relevant provisions of this section: “36 Claims to Crown lands (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 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, 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). (2) … (3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area. (4) … (5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall: (a) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is claimable Crown lands, or (ii) part only of the lands claimed is claimable Crown lands, grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or (b) if the Crown Lands Minister is satisfied that: (i) the whole of the lands claimed is not claimable Crown lands, or (ii) part of the lands claimed is not claimable Crown lands, refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require. (5A) … (6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5) (b) of a claim made by it (7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.” The reasoning of the primary judge on whether the Nature Park was “lawfully used or occupied”

During the course of the hearing the parties reached agreement over originally pleaded issues based upon s 36(1)(c) of the ALR Act relating to whether the claimed land was likely to be needed for an essential public purpose including electricity supply, water mains or access to public roads. Therefore her Honour’s determination was confined to whether at the date of the claim, the Nature Park was neither “ occupied ” nor “ used ” within the meaning of s 36(1)(b) of the Act. She held that as at 21 August 2001, the Nature Park was not “ occupied ” by the Council as it was not occupied to more than a notional degree. The primary judge also held that the Nature Park was not “ used ” by the Council at that date in the sense of having been used in more than a notional sense. In these circumstances her Honour considered that it was unnecessary to determine whether, had she found that the claimed land was “ occupied ” or “ used ”, that occupation or use was lawful.

Her Honour set out the principles relevant to determining whether land is subject to “ lawful occupation ” in the following terms: “[54] For the land to be ‘occupied‘ for the purposes of s 36(1)(b), there must be some physical occupancy over at least part of the land, as opposed to constructive occupation, that is, it must be ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree; Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 ( Daruk ) at 162 per Priestley JA (Cripps JA concurring, Mahoney JA dissenting) in the NSW Court of Appeal. [55] Mere proprietorship is insufficient to establish that claimed lands are occupied within the meaning of s 36(1)(b). Clarke JA (Samuels and Meagher JJA concurring) in Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGRA 133 ( Tweed Byron ) at 140: [M]ere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether the Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in other[s] the use to which the land is put might be determinative… [C]ontinuous physical presence on every part of the land does not have to be shown to establish occupation. For instance, the fact that a public authority charged with the care, control and maintenance of land reserved for public recreation improves only part of the land for public use and leaves the rest in a natural state does not lead inevitably to the conclusion that the part it has not improved is not occupied by it. The fact that land is left in its natural state does not mean it is not an important recreation area. [56] The mere exercise of control over or maintenance of the land without any occupation is insufficient: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (“The Department of Education Claim”) (1992) 76 LGRA 192 at 198 per Stein J; Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2006] NSWLEC 180 at [39].”

Her Honour then set out the principles relevant to “ lawful use ”: “[57] ‘Use’ for the purposes of s 36(1)(b) must be to more than a notional degree: Daruk ; Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (1993) 31 NSWLR 106 (“Nowra Brickworks (No 1)”) at 121 per Sheller JA (Clarke and Priestley JJA concurring). Nor is the fact that land is reserved for a particular purpose sufficient to establish that it is lawfully used within s 36(1)(b); the Wagga Wagga case at [55] per Mason P (Giles and Tobias JJA concurring) [ New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2007] NSWCA 281]. Something more is needed to establish whether the use of the land is lawful. [58] In determining whether lands are being lawfully used, it is necessary to consider the purpose for which they are being used. The purpose will then dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense; Nowra Brickworks (No 1) at 120. [59] The Minister has to establish that there was actual use at the date of the claim, that is, it cannot be just a contemplated or intended use; Wagga Wagga at [32].”

Her Honour then summarised in some detail the submissions of the parties on each of these issues. She noted that the Minister bore the onus of establishing that at the date of the claim the Nature Park was lawfully occupied and/or used.

At [96] the primary judge relevantly stated that “[t]he dominant activity in terms of the Council’s activities in the few years before the date of the claim appears to have been the care and display of native fauna in enclosures and in a natural bushland setting”.

Her Honour then referred (at [97]) to the evidence relating to the Council’s expenditure on the Nature Park and stated that it was difficult to determine on the evidence how much of this was directed to the care and upkeep of the animals rather than the preservation of flora. At [99] she found that although there was affidavit evidence that the staff at the Nature Park undertook activities including weeding, planting and maintaining vegetation, that evidence did not establish the extent to which instructions to the staff focused on the Nature Park as a flora reserve.

The primary judge then considered the Minister’s submission that the activities of the Council’s staff on the land had been directed toward supporting a flora reserve. She rejected this submission relevantly in the following terms: “[99] …I agree with [BLALC’s] submissions that the staff time and expenditure at the date of the claim appears to have been directed largely to the care of the animals including maintaining the roads to ensure the safety of staff when visiting … That is confirmed by the two dedicated staff being moved in December 2001 elsewhere after all the animals were removed. Regardless of whether the nature park was fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards. … [100] As to the aspects of the nature park which focussed on flora reserve … there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve … While there is a Council staff minute of 16 July 2001 stating that a planting regime should be put in place to accelerate the actions currently occurring there is no evidence of this being physically implemented at the date of the claim. [101] After the date of the claim the Council established a working party in September 2001 to advise it after twelve months on future directions for the park which included its reversion to a woodland area open to the public. That suggests that the woodland area was a future use rather than a current use at the date of the claim and not therefore the subject of activity which could support a finding of occupation on that basis. [102] While the Minister’s submissions focused on the activities giving rise to occupation being in a transitional phase while the nature park closed and it changed to use for a woodland area, in accordance with the Council’s resolution of June 2001, the evidence supports only a finding that the nature park was closed and at the date of the claim the only activity by Council staff was directed to achieving that outcome. This process was finalised shortly after the date of the claim in December 2001 when the last animals were relocated and the two dedicated staff then moved elsewhere. That activity after the date of claim confirms the finality of the decision to close the nature park but does not suggest there were any activities which justify a finding of occupation on the basis of a transition to a woodland area.”

Her Honour accepted BLALC’s submission that the occupation which she found to have occurred was analogous to the situation in New South Wales Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1992) 76 LGRA 192 (the Department of Education case).

In that case, at the time of the claim, the Department of Education had decided to sell its building and relocate its premises. Most of the furniture and equipment in the building had been removed and a small area of it remained occupied by six staff members. The Department had retained and paid for the services to the building such as telephones, electricity, water and gas, cleaning was provided on a regular basis and a caretaker had been appointed. Stein J (as he then was) found that as a matter of fact, the occupation was “ so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1) ”.

Her Honour therefore held (at [104]) that “it was clear that the activities being undertaken were of the type identified in that case and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises. In this way, these activities fall into the category of being ‘ so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1) ’ as described by Stein J. The exercise of control by the Council demonstrated by the fence around the perimeter does not in the circumstances of this case give rise to the physical act of occupation by the Council.”

The primary judge thus concluded (at [105]) that the Minister had not discharged his onus under s 36(7) of the ALR Act of establishing that the Nature Park was lawfully occupied under s 36(1)(b) of that Act.

The primary judge then considered whether the claimed land was lawfully used as at 21 August 2001. She referred at [109] to the Council’s establishment of a working party in September 2001 to advise it on future directions for the Nature Park including its reversion to a woodland area open to the public. She also found that this evidence suggested that the woodland area was an intended future use rather than a use which was occurring at the date of the claim. For the reasons discussed in relation to occupation at [99]–[100] of her judgment and in light of the Council’s substantially reduced expenditure on the Nature Park, her Honour found that the evidence did not establish lawful use for the purposes of s 36(1)(b). Further, she held that the actions of the Council after the date of the claim reflecting an intention to use the land as a woodland area “cannot overcome the actual physical use of the land at the date of the claim for any use other than the winding up of the Nature Park”. The issues on the appeal

In his Notice of Appeal filed on 28 May 2008, the Minister raised the following seven grounds of appeal: 1. The primary judge erred in finding that the land within the Sir Joseph Banks Nature Park was not, as at the date of the claim, actually occupied to a more than notional degree and therefore not lawfully occupied within the meaning of s 36(1)(b) of the ALR Act; 2. The primary judge erred in finding that the Nature Park was not, as at the date of the claim, actually used to a more than notional degree and therefore not lawfully used within the meaning of s 36(1)(b); 3. The primary judge erred by failing to consider the purpose or purposes for which the Nature Park was being occupied and used in the context of determining the degree of immediate physical occupation and use which was required to constitute occupation and/or use to a more than notional degree; 4. The primary judge erred in having regard to events after the date of the claim in making findings as to the use and occupation of the Nature Park at the date of the claim; 5. The primary judge erred in assessing the occupation and use of the Nature Park at the date of the claim by disregarding contemporaneous acts of occupation and use that were associated with fauna operations at the Nature Park; 6. The primary judge erred in finding, at [99] that activities of occupation and use which were associated with the fauna operations at the Nature Park and which continued until December 2001 had effectively ceased for the purposes of determining actual occupation and use at the date of the claim. 7. The primary judge erred by finding, at [103]–[104], that Council’s actions in respect of the Nature Park were equivalent to vacating the premises and that the situation was analogous to that considered in the Department of Education case.

In its Notice of Contention filed on 20 June 2008, BLALC contended that the decision of the Land and Environment Court should be affirmed on grounds other than those relied upon by her Honour, namely: 1. The land within Reserve 86313 for preservation of native flora was not “ lawfully used ” within the meaning of s 36(1)(b) of the ALR Act because, to the extent that the land was used, any such use was not lawful. 2. The land within the Reserve was not “ lawfully occupied ” within the meaning of s 36(1)(b) of the ALR Act because, to the extent that the land was occupied, any such occupation was not lawful.

Apart, perhaps, from Ground 4, the other six grounds of appeal overlap. However, in his written and oral submissions, the Minister refined his grounds of appeal by identifying three errors in the primary judge’s reasoning. First, it was submitted that her Honour had failed to determine the issues of “ occupation ” and “ use ” by reference to the factual scenario as at the date of the claim. Rather, she had analysed the facts in the context of the Council’s decision to close the Nature Park.

Second, it was submitted that her Honour erred by drawing an erroneous distinction between the activities of the Council within the Nature Park associated with fauna and those associated with flora.

Third, it was submitted that her Honour erred in failing to consider the nature of the Council’s occupation or use of the Nature Park as at the date of the claim which led to her failure to apply the correct test as to whether the land was actually “ occupied ” or “ used ” as at that date. It seems to me that this ground of challenge overlapped with the first and it is therefore appropriate to consider them together. The second issue: whether the primary judge erred in drawing a distinction between the Council’s flora and fauna activities

It is convenient to first consider the second ground of challenge referred to at [115] above. At [99] et seq, the primary judge considered the Minister’s contention that the Nature Park was occupied or used as a flora reserve at the date of the claim. Her Honour assessed the evidence which was directed to this purpose and found (at [100]) that “ there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve ”. At [109], she came to a similar conclusion on the question of use, finding that the “ evidence suggests that the woodland area was an intended future use rather than a current use at the date of the claim ”. In light of these findings, it was not necessary for her Honour to have regard to the degree of physical activity directed to the purpose of a flora reserve which was necessary to establish occupation or use to a more than notional degree.

Given the principles relevantly applicable to the determination of this issue to which I refer below, in my view it was open to the primary judge to conclude as she did. Although the complaint of the Minister is that her Honour erred in drawing a distinction between the Council’s fauna activities on the one hand and its flora activities on the other, I do not accept that she erred in law in drawing that distinction given the facts she found and the manner in which the Minister conducted his case at trial. In my view it was open to her Honour to consider those activities together or separately and to then determine whether the Minister had discharged the onus placed upon him by s 36(7) of satisfying the Court that the Nature Park was at the date of the claim not claimable as it was then lawfully used or occupied within the meaning of s 36(1)(b). The first and third issues: whether the primary judge erred in her determination of the question of use or occupation

I therefore turn to the first and third grounds of challenge. Before doing so, it is instructive to summarise the relevant principles established by the authorities and which, the Minister conceded, had been correctly identified by the primary judge: (a) As s 36(7) of the ALR Act casts the onus upon the Minister to satisfy the Court that the Nature Park was not, as at 21 August 2001, claimable Crown lands, he was required to establish on the balance of probabilities that the Nature Park was lawfully occupied or used as at that date; (b) This required the Minister to satisfy her Honour that there was actual occupation of the Nature Park in respect of which evidence of the actual exercise of control, physical acts of occupation and the performing of maintenance responsibilities was relevant: Tweed Byron at 140; Daruk at 162; (c) Given the size and nature of the Nature Park, the fact that it was fenced, although a relevant factor, was not decisive; (d) In a case such as the present, it would not be a disqualifying factor that the Council had improved only part of the land for public use and left the balance in its natural state (as was the case): Tweed Byron at 140–141; (e) The actual occupation required must be occupation in fact and to more than a notional degree: Daruk at 162; (f) The same considerations as govern the meaning of “ occupied ” in s 36(1)(b) also govern the meaning of “ used ” in that provision: there must be actual use or use in fact and to more than a notional degree: Daruk at 164; Wagga Wagga at [33]; (g) Accordingly, as the occupation or use must be more than notional, it must be a present occupation or use rather than one which is merely contemplated or intended: Nowra Brickworks (No 1) at 121; Wagga Wagga at [32]; (h) In order to determine whether lands are being lawfully used within the meaning of s 36(1)(b), it is necessary to take into account the purpose for which it is claimed they are being used as that purpose will dictate the degree of immediate physical use required to decide whether they are actually used in more than a notional sense: Nowra Brickworks (No 1 ) at 121; (i) The same considerations apply to the determination of “ occupied ” as to the determination of “ used ” though this may not necessarily be so: see Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1997) 42 NSWLR 641 at 653–654 ( Nowra Brickworks (No 2) ) per Sheller JA. o Did the primary judge err in her application of the test of whether lands are used or occupied to a more than notional degree?

Problems arise with the concept that the land is required to be actually occupied or used to a more than notional degree. What, precisely, does that mean? Uninstructed by authority, it may relate either to the quality of the actual occupation or its extent or degree.

In Wagga Wagga in the High Court ( Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2008] HCA 48; (2008) 82 ALJR 1505) at 1513 [30], Kirby J considered that the requirement for “ actual use ” and use beyond a “ merely notional degree ” involved an approach which addressed the physical use of the land rather than “ a purely notional potential, contingent or future ” use or a use “ which has not yet been translated into any actual physical use ”. Thus his Honour seems to equate use in “ in a nominal sense ” or to a “ notional degree ” with a contemplated or intended use in contrast to an “ actual use ” or a use “ in fact ”.

In their joint judgment in Wagga Wagga , Hayne, Heydon, Crennan and Kiefel JJ did not comment on the issue of “ notional ” or “ nominal ” occupation or use. After noting (at [68]) that it was important to recall that the question presented by s 36(1)(b) was whether the lands in question “ are not lawfully used or occupied ”, their Honours said: “69. No matter whether the question is framed in the statutory terms (not lawfully used or occupied) or, as here, is framed more narrowly as one about use, attention must be given to identify the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being ‘not lawfully used or occupied’. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land. But three points should be made. First, nothing that was said in the earlier decisions of the Court of Appeal, and nothing that is said in these reasons, should be understood as attempting some exhaustive definition of when land is not lawfully used or occupied or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands. Second, as Mason P rightly said ‘use’ is a protean word. Third, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital ... shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be ‘used or occupied by the hospital for the purposes thereof’. 70. Hence the importance of directing attention to what are the acts, facts, matters and circumstances which are said to show that land does not meet the description of ‘not lawfully used or occupied’. It is the specification of those acts, facts, matters and circumstances which will provide the greatest help in deciding whether land meets the relevant description. And in the present case, the appellant contended that it was the steps taken toward sale of the land that prevented characterisation of the land as ‘not lawfully used’.”

In the present case the “ acts, facts, matters and circumstances ” which are relied upon by the Minister as establishing that the Nature Park was at the date of the claim being used or occupied as a fauna reserve or park were essentially the following: (a) the tourist infrastructure such as the picnic shelter sheds, picnic tables, toilet block and barbeques remained in situ as at the date of the claim; (b) the native animal enclosures were in place and still contained the native fauna which had been exhibited therein immediately before the Nature Park was closed to the public nearly seven weeks previously (on 2 July 2001); (c) two members of the Council’s staff were involved on a daily basis in feeding and caring for the caged animals and were also involved in ongoing maintenance such as weed control and road repairs.

Given the foregoing facts and activities, the Minister submitted that it was not open to her Honour to find otherwise than that the Council was in actual physical occupation of the Nature Park and that that occupation was more than notional and in fact was substantial. As Basten JA suggested during the course of argument, the native animals in question were, at the date of the claim, being warehoused and kept alive. On this basis the Nature Park was, so it was submitted, being occupied or used for that purpose.

BLALC relied upon the primary judge’s characterisation of the activities and facts referred to above. It submitted that contrary to the Minister’s contention, her Honour had regard to those matters but held that, in the circumstances, they did not amount either to the use or occupation of the Nature Park as at the date of the claim. This was because she found that not only had the Council’s proposed transition of the Nature Park to a woodland area not been physically implemented as at that date but also that the activities and other facts and matters relating to what may be described as the Council’s fauna activities were being undertaken for the purpose of facilitating the closure of the Nature Park with respect to the retention and exhibition of native fauna.

Thus at [99] the primary judge found that “[r]egardless of whether the nature park was [a] fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards.”

Again, at [102] she found that the evidence supported only a finding that the Nature Park was closed and “at the date of the claim the only activity by Council staff was directed to achieving that outcome.”

Finally, at [104] the primary judge said that “it was clear that the activities being undertaken were of the type identified in that case [the Department of Education case] and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises. In this way, these activities fall into the category of being ‘ so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1) ’ as described by Stein J.” Accordingly, the Minister had not discharged the onus under s 36(7) of establishing that the claimed land was lawfully occupied under s 36(1)(b). Her Honour made the same finding as to “ use ”.

Notwithstanding the Minister’s submission to the contrary, in my opinion the primary judge did have regard to the matters to which I have referred at [123] above. However, in so doing, she applied the wrong test insofar as she rejected the clear physical acts of occupation by the Council as at the date of the claim upon the basis that those acts were undertaken in the context of the Nature Park having been closed to the public and of the decision of the Council to cease its use as a fauna park with the consequent progressive relocation of the caged animals and other infrastructure therefrom. o Did the primary judge err in her consideration of the evidence of any contemplated or intended cessation of use or occupation?

As I have noted above, the authorities make it clear that contemplated or intended use or occupation is of itself irrelevant. In the context of the present case it is the physical acts, facts, matters and circumstances which count towards a finding of actual occupation or use. It follows as a matter of logic as well as principle that a contemplated or intended cessation of physical acts of occupation or use existing as at the date of the claim is generally irrelevant except to the extent that that cessation has been implemented as at that date. In other words, if the evidence establishes physical acts of occupation, the exercise of control and other indicia which would inevitably lead to a finding as at the date of the claim of actual use or occupation to more than a notional degree, then the fact that as at that date a decision has been taken but not implemented by the relevant authority to cease that use or occupation cannot, in my view, negative or permit the discounting of those physical acts and other indicia so as to support a finding that the claimed land is neither used nor occupied in the relevant sense.

That is not to say that in some cases such a decision may not be relevant. Thus, where claimed land is reserved as a wilderness so that the absence of physical acts of occupation or use as at the date of a claim does not of itself necessarily prevent a finding of lawful use or occupation within the meaning of s 36(1)(b), a decision as at that date to abandon the reserved purpose may have the effect of tipping the scales against any such finding.

The Department of Education case and Wagga Wagga were cases where the relevant use had been abandoned or it was intended that it would cease. But, as I point out below, each of those cases was decided on the basis of the trial judge’s assessment of the nature and quality of the acts of physical occupation such as they were or, more accurately, on the absence of them.

So, in the present case, if actual occupation or use had in fact substantially ceased as at the date of the claim in that the fauna earmarked for relocation had to all intents and purposes been removed from the Nature Park, then the test of actual occupation or use may not have been satisfied. But that was not the case on the primary judge’s findings.

Nevertheless, at [104] her Honour observed, and I repeat, that “it was clear that the activities being undertaken were of the type identified in [the Department of Education case] and were, in the context of closing the park, analogous to what would occur if the Council were vacating the premises.”

As I see it, the difficulty with this approach is that it failed to focus on the physical facts and matters which were present at the date of the claim and instead focussed on the present and future intention of the Council which, as at that date, had not been implemented or proven to have been implemented except for the fact that the Nature Park had been closed to the public. Thus the present case may be contrasted with Wagga Wagga where Mason P, with my agreement, held (at [24]) that the relevant Crown lands were claimable if they “[have] been vacant for years, [have] fallen into a state of disrepair, [have] been identified as surplus to departmental needs and for which there is no known reason for [their] retention.”

The Department of Education case involved a large city building which, so it was held, had been physically vacated except for two small areas occupied by six staff of the Department. In those circumstances, Stein J held that the extent of the Department’s occupation of the building was “ so slight ” as to, in effect, be occupation only in a nominal or notional sense.

However, in my opinion such a finding was not legally open to the primary judge in the present case. As I have observed, she was only able to ignore the actual occupation of the Nature Park by the continued housing of the animals and the activities of the two Council employees in feeding and caring for the animals on a daily basis as well as their (albeit limited) but nevertheless real maintenance activities, by characterising them as activities directed to achieving the Council’s contemplated outcome of closing the Nature Park as a fauna reserve. There was no legal warrant for such an approach.

In the absence of a finding open to be made on the evidence that that outcome had been at least substantially implemented and achieved as at the date of the claim, in my opinion the primary judge erred in finding that the Nature Park was not being used or occupied as at that date. It involved the application of an erroneous test to her findings of primary fact.

I should note that I have not overlooked her Honour’s apparent finding at [99] that “[r]egardless of whether the nature park was [a] fauna only or fauna and flora reserve, that activity had effectively ceased as at the date of the claim or shortly afterwards.”

It is not precisely clear as to what “ activity ” her Honour was referring to. If, as I think to be the case, she was referring to the occupation and use of the Nature Park in the manner referred to at [123] above, essentially as a fauna park or reserve, then her finding is inconsistent with that at [98] that “[t]he intention to close down the nature park in relation to native fauna was realised by 25 December 2001 when all animals were removed and the two dedicated staff moved elsewhere.”

Further, the only evidence referred to by her Honour (and in argument on the appeal) being Mr Navin’s reports of 4 July 2001 and 15 August 2001 and his affidavit evidence did not permit or provide support for the finding to which I have referred at [139] above. In fact, that evidence is to the contrary and supports her Honour’s finding referred to in the preceding paragraph.

The onus lay upon the Minister to satisfy the Court that, relevantly, the animals listed by Mr Navin in his 15 August report had not been totally or, at the very least, substantially relocated by the date of the claim. True it is that Mr Navin referred to the listed animals as having “ already been re-located, or organised to be re-located ”. But at Blue 2/718C he referred to the same animals “ to be re-located ”. Again, at Blue 2/718H-I Mr Navin referred to his expectation that the animals for which new homes had been arranged would be “ transported before the end of the month ”.

However, that expectation was not realised, it not being until the following December, as her Honour found, that the last of the animals was relocated. Be that as it may, the primary judge was required in a case such as the present to determine the question as to whether the claimed land was used or occupied as at the date of the claim as a fauna reserve based, relevantly, on the physical acts of use or occupation as at that date. It was, as I have observed at [129] and [137] above, legally impermissible for her to reject the fauna activities which she had found to have then existed on the basis of an intention, not yet implemented, to cease those activities. To have adopted the approach she did was to misunderstand the question posed by s 36(1)(b) which she was required to ask herself.

In my view, her Honour’s finding at [99] should be understood as having been arrived at on the basis of the legal error which I have identified. o Did the primary judge err in her consideration of the nature of the use or occupation of the Nature Park with respect to flora activities?

Although in his submissions the Minister tended to concentrate on the fauna activities of the Council, he maintained that the primary judge had erred in failing, when considering whether the claimed land was being used or occupied as at the date of the claim, to recognise that there were necessarily degrees of occupation and that that applicable to the Council’s flora activities involved a lower level of “ occupation ” than its fauna activities. This was because of the very nature of a nature park reserved for the public purpose of preservation of native flora. It is to be noted, however, that in his written submissions in reply the Minister eschewed reliance upon the decision of the Council to close the Nature Park and to allow it to revert to woodland.

It was therefore submitted that the Court should be satisfied that the claimed land was nevertheless being used for the specific purpose for which it was reserved, being the preservation of native flora. Its use for that purpose, it was submitted, required comparatively little activity and was, by its nature, “ peculiarly passive ”.

I have referred to the primary judge’s findings on this issue at [105] and [106] above. In essence, she found that at the date of the claim there was no evidence that there was any relevant activity directed to supporting a flora reserve.

To be claimable, the subject Crown lands must, relevantly, be reserved for a purpose under the Crown Lands legislation: s 36(1)(a). The Nature Park was so reserved, namely, for the public purpose of preservation of native flora. But that reservation of itself could not constitute a use or occupation of the land for that purpose. In accordance with authority and, in particular, the statements of Priestley JA, with whom Cripps JA agreed, in Daruk at 162D–164E something more was required.

Thus at 163B–E Priestley JA observed: ”The definition of claimable Crown lands stipulates initially those Crown lands which are claimable and then excludes lands which enjoy particular characteristics from those potentially claimable lands. The lands which are excluded are those lawfully used or occupied, those which, in the opinion of the relevant Crown Lands Minister, are needed or likely to be needed for residential purposes, and those needed or likely to be needed for essential public purposes. In this context I would agree that mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in others the use to which the land is put might be determinative. Where the land in question is reserved for public recreation it may be singularly inappropriate to inquire whether the land is fenced or whether the party claiming to be the occupier has reserved to itself the power to exclude persons therefrom. What is, in my view, more to the point is whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land.”

Mahoney JA, who dissented in Daruk , seems initially to have taken a more benign view of what was required to constitute use or occupation of Crown lands reserved for a public purpose when he made the following observation of relevance to the present case (at 143A–C): “It is at least arguable that the setting aside of the land as a reserve for public recreation constitutes in itself a relevant user of it. I do not mean by that that land must be being used in this sense merely because it has been proclaimed as a reserve for some public purpose. There may be a distinction between land which has been merely reserved from sale or lease under the Crown Lands legislation where the purpose of the reserve and what is done in respect of it involves nothing in the nature of “use” of it and land where the very nature of the purpose for which it was reserved involves that, in the care control and management of it, there will be a relevant use of it. …” As I understand the distinction to which his Honour was referring, it is one between a reservation of Crown lands for an essentially passive public purpose which does not contemplate its “ use ” in any active sense, and a reservation for a purpose the very nature of which contemplates such a use. The reservation in the present case would fall within the first category identified by his Honour – the preservation of native flora – whereas that in Daruk – reservation for public recreation – would fall within the second category.

Nevertheless, his Honour, contrary to what he considered to be the “ true position ”, assumed that in both categories, and whatever the particular purpose for which the lands were reserved, it was necessary to show “ some physical use or activity constituting the actual use for that purpose ”. In other words, it was necessary to consider the kind of physical activity or the like which use of the land for the particular purpose would be apt to involve. Relevantly to the present case he observed (at 143D): “Use as a native forest might involve little if any physical activity. Use as a wilderness area or as an area for regeneration of native growth might, as I have suggested, preclude physical activity taking place. In such cases, there would, in my opinion, be the “use” of the land for the purposes of s 36(1)(b) merely because the land had been treated in a way appropriate to such a use.”

There is, with respect, some inconsistency between this observation and his Honour’s assumption that to show use of land reserved for a particular purpose under s 36(1)(b), it is “necessary to show some physical act or activity constituting the actual use for that purpose”.

Such an approach, although apparently contrary to his Honour’s identification of the possibility of land being “ used ” notwithstanding that what is done in respect of it “ involves nothing in the nature of ‘use’ of it ”, is consistent with that of the majority in Daruk and with the observations in the joint judgment of the High Court in Wagga Wagga at [69] which I have recorded at [122] above. However, their Honours, like Priestley JA in Daruk at 163D, were concerned to emphasise that neither they nor this Court in its decisions on s 36(1)(b) were intending to state some exhaustive definition of when land is lawfully used or occupied or of what is relevant use or occupation that will attract the exception in question.

But in my opinion there is nothing in the reasons of the High Court in Wagga Wagga which would support the preferred approach of Mahoney JA in Daruk that land may be used even where this “ involves nothing in the nature of use of it ”. In the case of a reservation such as that with which the Court is presently concerned, it may be accepted that to constitute its use or occupation the extent of any physical activities will be limited. But there must, in my view, be some activities which are consistent with the relevant purpose for which the land is reserved, namely, the preservation of its native flora.

In other words, there must be evidence, if the Minister is to discharge his onus, of some activities on the part of the Council which are directed to implementing the purpose of preserving native flora; for example, the construction of fire breaks or trails; the eradication of noxious weeds; or the provision of barriers to exclude the public from areas of endangered native flora, if any. I have no doubt that these examples could be multiplied by an appropriate botanical or environmental expert. But a “ do nothing ” approach is not, in my view, sufficient simply because the land comprises “ natural bushland ”. Nor do I regard the mere fact that the whole of the claimed land was fenced as advancing the issue. As Priestley JA observed in Daruk at 163E, “what is, in my view, more to the point is whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land”.

The determination of the primary judge as to whether the Minister had satisfied her that the claimed land or any part of it was being used or occupied for its reserved purpose involved a consideration by her of the evidence, if any, of the Council’s activities directed towards the implementation of that purpose. Her Honour’s finding (at [100]) was that there was no evidence of any activity at the date of the claim which was directed to supporting a flora reserve. In my view, this was a finding which was open to her and involves no relevant error on a question of law.

It follows that with respect to this issue, the Minister has not established that there was any error in her Honour’s decision on a question of law. o An additional note on the test of use or occupation to more than a notional or nominal degree

Before leaving this part of the appeal I would refer again to the judicial gloss placed upon the words of s 36(1)(b) to the effect that the occupation of the claimed land must be an actual occupation which, as a matter of degree, is more than nominal or notional. As I have sought to point out at [120] above, there is a difficulty in identifying what is an occupation which, although an actual physical occupation, is only nominal or notional.

On the basis of what fell from Kirby J in Wagga Wagga , nominal or notional use or occupation is one which is only intended in the future or is a potential use or occupation which has not yet been translated into an actual use or occupation. If this be correct, then a notional or nominal use or occupation is, in effect, a constructive, as distinct from an actual, use or occupation being a form of occupation rejected as satisfying s 36(1)(b) by Priestley JA in Daruk at 162. Kirby J seems, therefore, to have conflated the two concepts which would not appear to accord with Priestley JA’s approach in Daruk .

There is no express majority decision as to the meaning of the limitation which Priestley JA sought to impose in Daruk . The joint judgment of the High Court in Wagga Wagga did not, at least expressly, mention the matter although their Honours’ third point as articulated at [69] of their judgment (see [122] above) would seem to indicate that it was not considered to be a relevant consideration although it might be regarded as subsumed in their Honours’ description of their third point. I would, if permitted, prefer the approach of Kirby J to the effect that a notional or nominal use or occupation is one which is not an actual use or occupation but only one which is constructive. This accords more with the statutory text which ascribes to language its ordinary meaning rather than using words as terms of art.

However, given that this Court on a number of occasions has stated that the use or occupation must be a present actual use or occupation that is more than nominal, it seems to me that what is required is an actual use or occupation which is more than de minimus. Or, to put the matter another way, the relevant use or occupation must in the circumstances of the particular case, and in terms of its nature, quality and extent, be of some substance rather than so miniscule, insignificant or token as to be disregarded: cf what I said in Wagga Wagga at [83]–[84] with respect to Stein J’s finding in the Department of Education case that although there was no occupation of the building by the Department, it was still being used by it.

Therefore, I accept the Minister’s submission that the Nature Park was occupied or used as a fauna reserve or park to a more than notional degree at the date of the claim and that the primary judge erred in law in failing to so find. Notice of Contention Grounds 1 and 2: Was the occupation or use of the claimed land (to the extent that this is established) lawful?

In view of the primary judge’s findings on the issue of use or occupation, it was unnecessary for her to determine whether any use or occupation of the claimed land was lawful although she recited the competing arguments at [112]–[113] of her reasons. As I have determined that her Honour relevantly erred in failing to find that the claimed land was used or occupied as a fauna reserve, the issue raised by BLALC’s Notice of Contention arises for consideration. o A preliminary issue: Is this Court empowered to determine the question of lawfulness?

A threshold question which was addressed in submissions is whether in light of s 57(2)(b) of the Court Act, it is open to this Court to determine the issue raised by the Notice of Contention. Section 57(2) provides as follows: ”(2) On the hearing of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as seems fit.”

The power of this Court conferred by s 57(2)(b) was discussed in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; (2007) 156 LGERA 150. It was held by a bench of five judges that the subsection empowered this Court to re-exercise the Land and Environment Court’s discretion with respect to the costs of the proceedings at first instance provided it could do so on the facts as found and no new or further findings of fact were required.

The leading judgment in Thaina Town was that of Spigelman CJ with whom Mason P and Ipp JA agreed unconditionally and Beazley and Giles JJA agreed conditionally, but not in a manner which touches the present issue. Although the Chief Justice was directly concerned with the issue of whether, having first found that the Court had displayed an error of law, s 57(2)(b) extended to empowering this Court to re-exercise the discretion of the Land and Environment Court with respect to costs (see B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [76] per Allsop P), his Honour did state his reasons for his finding of power on a broader basis. He said: ”103 This Court must be concerned that the course of administration of justice in this State does not impose unnecessary cost burdens on parties by adopting a narrow interpretation of statutory powers conferred upon the Court to ensure the just and efficient administration of justice. Where no new findings of primary fact are required to be made, this Court should exercise a power conferred upon it in wide terms so as to ensure that the costs of legal disputation is minimised and thereby apply the guiding principle in s56 of the Civil Procedure Act 2005 to the exercise of powers conferred by an Act other than that Act or by Rules of Court, so as to facilitate the just, quick and cheap resolution of the issues in dispute in civil proceedings. 104 Nothing in the text of s57 of the L&E Court Act or s75A of the Supreme Court Act requires this Court to refuse to make an order that should have been made where no new findings of fact are required. … … 108 The nature of the issue before the Court, once it is properly seized of jurisdiction on a question of law, must determine the extent to which this Court will exercise a general power conferred upon it. This is not a Court which should, save in exceptional circumstances, exercise a discretion to grant a consent to a development application or to a licence or some other such matter calling for the formulation of an evaluative judgment or the exercise of a discretion. It has, however, done so by consent. (Bell v Shellharbour Municipal Council (1993) 78 LGERA 429 at 433.) 109 The position with respect to orders as to costs is quite different. This is a matter upon which this Court is usually in as good a position as a first instance judge, even in a specialist tribunal, to make the relevant judgment, where there is no gap in the factual findings. It is also an area in which, in the experience of this Court, a disproportionate amount of time, effort, energy and, therefore, costs, is often expended. It will often be desirable, in the interests of the administration of justice, for this Court to exercise the costs discretion and avoid the parties incurring further costs. …”

Although Thaina Town was concerned only with this Court’s power under s 57(2)(b) to exercise a discretion as to costs, in my view the approach of the Chief Justice justifies a finding that this Court, if it finds error on the part of the Land and Environment Court on a question of law, has the power to determine any question consequential upon that finding which does not require the finding of any new or further facts or the making of inferences from the facts as found.

In the present case I have found that the primary judge relevantly erred in finding that the Minister had not discharged his onus of showing that the Nature Park was used or occupied as a fauna reserve as at the date of the claim. The question therefore arises as to whether that use or occupation was lawful. In my view, this Court can decide that question as it does not, as I hope to demonstrate, require a finding of any new facts or the drawing of inferences from the facts as found. On the contrary, it poses only a question of law and this Court is in as a good a position to determine that question as the Land and Environment Court notwithstanding that the latter is a specialist tribunal. I therefore turn to that question. o Lawfulness of use or occupation of land reserved “ for the preservation of native flora ”

At the date of the claim the Nature Park was Crown land reserved for the purpose of the “ preservation of native flora ”. As already noted, the Trust had been appointed as trustee of the land and the Council had been appointed to manage the reserve trust pursuant to s 95(1) of the CL Act. Section 6 of that Act relevantly provided that Crown land which is reserved for a purpose shall not be used or occupied unless the occupation or use is authorised by the CL Act . It was not suggested by the Minister that the use or occupation of the Nature Park for the purpose of a fauna reserve had been authorised by that Act.

BLALC submitted, inter alia, that the following principles were presently relevant to an examination of the term “ lawfully ” in s 36(1)(b) of the ALR Act: (a) In the phrase “ lawfully used or occupied ”, the term “ lawfully ” qualified both “ used ” and “ occupied ”: Nowra Brickworks (No 2) at 653 per Sheller JA; (b) For any occupation or use to be lawful for the purposes of s 36(1)(b), there must be at least some form of valid legal authority to occupy or use the claimed land: Tweed Byron at 142 per Clarke JA .

The Minister accepted BLALC’s submission that the nature of a reserve trust, whereby land is reserved for a particular purpose, carries with it legal restrictions on the use to which the land may be put. Thus a use of land by a trustee which is not consistent with, ancillary to, or related to the purpose of the reservation may be unlawful in the sense of being beyond the lawful powers of the trustee: Attorney-General v Cooma Municipal Council (1962) 8 LGRA 111 at 121; Waverley Municipal Council v Attorney-General (1979) 40 LGRA 419 at 428.

In this regard BLALC submitted that the activities conducted by the Council for the purpose of a fauna park did not render any use or occupation arising from such activities lawful because, first, there was no use of the land that could be considered ancillary to a program of preservation of native flora; second, the activities referable to fauna were separate and discrete from the preservation of flora and constituted the dominant purpose for which the Nature Park was being used; and third, these activities were detrimental to the preservation of flora and hence inconsistent with the reserved purpose.

In response the Minister submitted first, that to the extent that the Nature Park was used for purposes relating to native fauna, such use was not unlawful because it was not inconsistent with the purpose for which the land was reserved being the “ preservation of native flora ”; and, second, that even if the use of the Nature Park for the purpose of a fauna reserve was unlawful, the land was nevertheless also being used for the lawful reserved purpose of preservation of native flora. In this regard the Minister further submitted that BLALC’s argument based upon dominant “ use ” should be rejected. That is, the Minister contended that a correct reading of s 36(1)(b) does not require a lawful use of land to be its dominant use. Therefore, if land is being actually used for a lawful purpose then it will not be claimable land, even if the dominant use to which the land is put is unlawful.

I would reject the Minister’s submission with respect to the lawful use of the Nature Park for the following reasons. First, the primary judge expressly found that the Nature Park was not being used at the date of the claim as a flora reserve, a finding that did not involve error on a question of law. Second, there was no evidence referred to which could support a finding, assuming that this Court could make one, which in my view it could not, that the use of the Nature Park for a fauna reserve was consistent with its use for the preservation of native flora. As far as one can tell, the issue was never addressed.

Third, and following from the second, although the Minister submitted that the issue should be remitted to the Land and Environment Court so that it could be further addressed and relevant findings of fact made, I see no reason to afford the Minister such an opportunity when all evidentiary matters should have been and were elicited at the trial before the primary judge and all necessary findings of fact were made. In the foregoing circumstances, it is unnecessary to finally determine the position where there are multiple uses and only one or some of them are lawful. My tentative view is that provided the lawful use, whether or not the dominant use, passes the necessary test of actual use or use in fact and is not merely a token use, then that is sufficient.

I should note that in oral argument the Minister accepted that there were difficulties in supporting the use of the Nature Park for the purpose of a fauna reserve as lawful given the limited purpose for which the land was reserved and the fact that no other use was authorised by the CL Act.

The issue of lawful occupation is said to raise different considerations. It was not suggested that this Court could not resolve the issue on the facts as found by the primary judge once it had concluded, as I would, that the Nature Park was at the date of the claim occupied by the Trust through its management by the Council as a fauna reserve. Whilst BLALC submitted that in determining lawful occupation, regard should be had to the purpose of the occupation, the Minister, relying on a passage from the judgment of Sheller JA, with whom Priestley and Handley JJA generally agreed, in Nowra Brickworks (No 2) , submitted that the purpose of occupation was irrelevant, it being sufficient that the Trust and/or the Council were legally authorised to occupy the Nature Park.

The relevant passage from the judgment of Sheller JA so relied upon was as follows (at 635–654) (omitting citations): “In the composite phrase in s 36(1)(b) of the Aboriginal Land Rights Act , ‘lawfully’ must qualify both ‘used’ and ‘occupied’. The legislature could scarcely have intended that a claim be defeated by unlawful occupation. The disjunctive ‘or’ contemplates that land may be used, though not occupied, and occupied, though not used. I can see no reason why claimable Crown lands should not embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied. Thus the expression would embrace land occupied by trespassers. ‘Lawfully’ may include either or both of two different meanings. It may mean used for lawful purposes or occupied for lawful purposes. It may, in addition or alternatively, mean used by a person who has the right to use the land or occupied by a person who has the right to occupy the land ... To speak of land being lawfully occupied is to speak of a situation in which a person is in lawful occupation ... A tenant may be in lawful occupation of the land, the subject of a lease, even though the tenant carries out unlawful activities on the land such as the cultivation of a prohibited plant in contravention of s 23 of the Drug Misuse and Trafficking Act 1985. The expression speaks of the status of the person who has the right for the time being to occupy. If a Crown grant which allows occupancy of land also allows the grantee to use the land in a particular way as, for example, to mine for brick clay, such use is a lawful use, unless, in the circumstances, it is made unlawful by some other law such as the Environmental Planning and Assessment Act. The Mining Act 1906 provided the means by which the holder of ML2 obtained the right lawfully to occupy or use Crown land for specified mining purposes (s 23). That right of occupation or use was for the purpose of mining for brick clay and purposes connected with such mining, being mining purposes within the Mining Act , and for no other purpose. Undoubtedly had the lessee used the ML2 land for some other purpose, that use would have been unlawful but it did not so use the land. …” (Emphasis added)

The critical parts of the cited passage from the judgment of Sheller JA relied upon by the Minister are those parts which I have emphasised. As I understand it, his Honour was saying that where a Crown grant authorises the grantee not only to occupy land but also to use it for a particular purpose and no other, if he occupies and uses it for some unauthorised purpose, his occupation (and use) becomes unlawful.

In the present case the Nature Park was reserved for a purpose which did not include its occupation or use as a fauna reserve. As I have noted, s 6 of the CL Act in effect prohibited its occupation or use for any purpose not authorised by that Act. As its occupation as a fauna reserve was not so authorised, it must follow that the effect of s 6 is to render unlawful not only the use but also the occupation of the Nature Park as a fauna reserve.

Although, as Sheller JA observed in Nowra Brickworks (No 2) at 653, claimable Crown lands may embrace both land that is unoccupied but used, though not lawfully used, and land that is occupied, but not lawfully occupied, there is a further permutation being land that is both occupied and used but not lawfully. The present is such a case. The Nature Park was both occupied and used for an unauthorised and, therefore, unlawful purpose.

Although in the joint judgment of the High Court in Wagga Wagga at [73] their Honours found it unnecessary to decide whether “ lawfully used or occupied ” was a compound expression having a single meaning or was better understood by separate consideration of the words “ used ” and “ occupied ”, they nevertheless considered that it was an expression that encompassed utilisation, exploitation and employment of land. It would be difficult to imagine a case where land was utilised, exploited and employed other than for a purpose. Where that purpose is unauthorised and, therefore, unlawful as in the present case, it is not to the point for the Minister to argue that lawful occupation is achieved merely by virtue of the status of the Trust and/or the Council.

Furthermore, the ALR Act deals with Crown lands most of which comprise large tracts of natural bushland. Such lands are claimable if, inter alia, they are reserved or dedicated for any purpose under the 1913 Act: s 36(1)(a). If it is to be asserted that such lands are “ lawfully occupied ” within the meaning of s 36(1)(b), it is difficult to envisage how that could be unless any acts of physical occupation relied upon are for the purpose for which the lands are dedicated or reserved. The same observation can be made with respect to urban Crown lands including, in particular, those with buildings erected thereon. How, one asks rhetorically, can it be said that a building is physically or actually occupied other than for its reserved or dedicated purpose?

In any event, as BLALC points out, the Minister’s argument in para 24 of his written submissions on the appeal was that the “level of activity required to constitute actual occupation must in turn be considered in the context of the particular type or purpose of occupation.”

I would therefore accept BLALC’s argument at para 6.36 of its written submissions on the appeal that if “occupation must be lawful, and also must be considered by reference to its purpose to establish that it is actually rather than merely constructively occupied, then the test of ‘lawful occupation’ per s 36(1)(b) must include that the acts establishing actual occupation are for a purpose authorised by the statute conferring the right to occupy.”

Given the nature of the ALR Act as beneficial legislation and the requirement to narrowly construe the expression “ lawfully used or occupied ” as being an exception to the right to claimable Crown lands ( Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) [2001] NSWCA 28; (2001) 50 NSWLR 665 at 674 [53]–[54] per Spigelman CJ with whom Powell and Heydon JJA agreed; Wagga Wagga at [21] and [25] per Mason P with whom I agreed), in my view the submission of the Minister that the mere grant of authority to occupy reserved Crown land in itself causes that land to be “ lawfully occupied ” should be rejected.

To hold otherwise would, as BLALC submitted, result in all Crown land in respect of which a reserve trust is established pursuant to the reservation of that land for a public purpose being removed from the category of claimable Crown lands pursuant to s 36(1)(b) solely because of its formal status as reserved Crown land and the right of the reserve trust or the appointed manager of the trust to legally enter and occupy the land irrespective of their or its purpose in doing so. Conclusion

It follows from the foregoing that, albeit for different reasons, the primary judge was correct to find that the Minister had not discharged the onus placed upon him by s 36(7) of the ALR Act to satisfy the Court that the Nature Park was lawfully used or occupied at the date of the lodgement of ALC 6616.

I would therefore propose that the Minister’s appeal be dismissed with costs.

BASTEN JA : The respondent in these proceedings is a Local Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983 (NSW) (“the Land Rights Act ”). On 21 August 2001 the respondent lodged a claim under s 36(3) and (4) of the Land Rights Act with respect to land near Bathurst.

On 8 February 2006, the Minister wrote to the secretary of the respondent advising that, amongst other matters, an area of approximately 40 hectares of the land under claim was rejected because it was “not claimable Crown land within the meaning of the Aboriginal Land Rights Act 1983 ”. In particular, the Minister gave as the reason for rejection that the area “was occupied for the purposes of the covering Reserve 86313 for Preservation of Native Flora”.

The Minister’s decision constituted a refusal of part of the claim for the purposes of s 36(5)(b) of the Land Rights Act . The respondent was entitled to “appeal to the Court against a refusal under subsection (5)(b) of a claim made by it”: s 36(6). The Court, for the purposes of that provision, was the Land and Environment Court (“the L&E Court”).

On 7 April 2006 the respondent lodged an appeal with the L&E Court. On 28 February 2008 Pain J, sitting with Acting Commissioner Behrendt AC, upheld the appeal and determined that the land in dispute was claimable Crown lands: see Bathurst Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC 82. Nature of appeal to this Court

The jurisdiction of this Court depends on the classification of the proceedings in the L&E Court. An appeal brought under s 36(6) of the Land Rights Act engages the class 3 jurisdiction of the L&E Court. On such an appeal, the L&E Court is empowered to order that the lands be transferred to the claimant Land Council “if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands”: s 36(7). Having failed to satisfy the L&E Court that the lands were not “claimable Crown lands” the Minister invoked his right of appeal under s 57 of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”). That section provided at the relevant time: “ 57 Class 1, 2 and 3 proceedings—appeals (1) A party to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law. (2) On the hearing of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as seems fit.”

It is a matter of some significance in the present case that the Minister’s right, and the jurisdiction of this Court, require the identification of an order or decision of the L&E Court on a question of law. As has been explained in respect of both this provision and others in similar form: (1) identification of a decision on a question of law in the Court below is not merely a precondition to the right of appeal, but identifies the subject matter of the appeal; (2) to obtain the intervention of this Court, the question of law must have been decided erroneously; (3) the power of this Court is limited to the correction of the legal error and this Court will not be able to make final orders disposing of the proceedings unless, on the findings made by the L&E Court and unaffected by legal error, only one conclusion is open, and (4) this Court may exercise a discretionary power with respect to costs, based on the primary findings of fact made in the L&E Court. These principles may be derived from judgments of this Court in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 156 LGERA 150; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 and Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [57]-[70], and cases referred to therein.

The L&E Court should be treated for present purposes as a special kind of tribunal, as it is required to be constituted by a judge and a commissioner having “suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving Aborigines”: LEC Act, ss 12(2)(g), 30(2A) and (2B), and 37(2). Although the issues to be determined in the land rights claim may not necessarily be seen to involve any particular area of expertise, one statutory purpose is to involve Aboriginal people or people with knowledge, qualifications and experience in relation to land rights and the resolution of disputes amongst Aboriginal people, in the determination of such claims. Their involvement in assisting and advising the Court may be seen to enhance the legitimacy of decisions made by the Court. In that sense, the Court, when dealing with land claims, is a specialist tribunal and the comments of Keane JA (Holmes and Fraser JJA agreeing) in Regional Land Development Corporation No 1 Pty Ltd v Banana Shire Council [2009] QCA 140 at [12] are apposite, dealing with an appeal on the ground of “error or mistake in law”: “[The provisions] manifest an intention on the part of the legislature that this Court should not interfere with the expert resolution of planning issues by the specialist [Planning & Environment] Court save to the extent necessary to ensure that that court acts within its jurisdiction and in conformity with the law. It is the evident intention of the legislature that decisions of the P & E Court as the specialist tribunal for planning matters should not be subject to general review on the merits.”

It is clear that neither erroneous findings of primary fact, nor the drawing of illogical or inappropriate inferences, will thereby constitute an error of law. As explained by Menzies J in Regina v The District Court; Ex parte White [1966] HCA 69; 116 CLR 644 at 654: “To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.”

To similar effect, Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156G stated: “Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation.”

His Honour’s reference to what “has been said” appears to be to the judgment of Jordan CJ in McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8 at 9 to the following effect: “The question whether there is any evidence of a particular fact is also a question of law …. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law …. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision … is conclusive. In that case the party upon whom the burden of proving the fact lies must fail.”

Glass JA also stated in Azzopardi at 156C-D: “A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact …. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made….”

That the drawing of inferences falls outside the question of law category and within the category of fact-finding is also demonstrated by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356: “Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”

In this context, inferences are also matters as to which a burden of proof may arise. Accordingly, in the present case, the Minister, bearing the burden of satisfying the trial judge of the ultimate fact, namely that the lands were not claimable Crown lands, also bore the burden of establishing such primary facts and inferences as must be drawn therefrom in order for his decision to be upheld. Although it may be possible in an appropriate case for an aggrieved party to challenge a finding on the ground that there was no material which logically tended to support it, the Minister must demonstrate that the findings which were made supported no other conclusion other than that for which he contended. Absent such a demonstration the Minister will only succeed if he is able to demonstrate that the trial judge incorrectly identified the legal principle to be applied.

Review for error of law in respect of administrative decision-making was often circumscribed (and in some jurisdictions still is) by the absence of reasons for a particular decision. Without reasons it is often difficult and may be practically impossible to determine that the decision-maker has applied a wrong principle. On the other hand, in extreme cases such an inference may be drawn from the fact of the decision and the identified material upon which it was based: see, eg, The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; 88 CLR 100 at 119-120; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 at 360. In the latter case, Dixon J noted that the conclusion reached may “on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception [of law]”. Where there are reasons, which correctly identify the relevant legal principles and reach a determination on the basis of available material, no legal error will be demonstrated.

In this case it will be necessary to consider whether the challenges to aspects of her Honour’s reasoning involved any decision on a question of law. Because the statutory phrase “not lawfully used or occupied” gains meaning from its statutory context, the proper construction of that phrase involves a question of law, despite the fact that each word, taken individually, may be treated as an ordinary English word and not as a term of art: see, eg, Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 8 and 10 (Mason J); Industry Research and Development Board v Bridgestone Australia Ltd [2001] FCA 954; 109 FCR 564 at [49]-[62] (Lindgren J). Nevertheless, to describe the word “use”, and by inference the phrase as a whole, as “protean” or adaptable to changing circumstances, is to concede the existence of a broad evaluative judgment to be made according to the facts of the particular case. The formation of such a judgment can involve an error of law, but the circumstances in which it will do so are limited. Such an error may arise where the facts as found are reasonably open to only one conclusion in application of the statutory language; see Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 at 138 (Jordan CJ), or where relevant facts as found have been disregarded or accorded legally inappropriate weight: see The Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40-41 (Mason J); Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653 at [56]-[63] and [120]-[128] (Spigelman CJ, Mason P and Priestley JA agreeing); B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187 at [133] referring to Mason JA (in this Court) in Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547. Care must be taken not to allow disagreement with an outcome in the Court below to be transformed into an inference that, despite accurately and correctly expressing the legal test, and identifying the facts, the primary judge failed to apply the test as identified. Such an exercise may involve the use of an outcome which was reasonably open on the facts, to contradict an earlier statement as to the principles applied. It would be an unusual case in which this form of reverse engineering of the judgment below would be legitimate.

There being no challenge to the statements of legal principle identified by her Honour, the question for determination is whether her Honour’s conclusions were ones which no reasonable court could come to on the basis of the findings of primary fact. Whether such a challenge is available on a statutory appeal of the kind identified above is not beyond argument. It requires the appellant to identify a question, at least implicitly asked by the trial judge of herself, as to whether it was reasonably open to her not to be satisfied that the lands were lawfully used or occupied. This is a somewhat artificial construct which, if properly available, would go far to removing the distinction established by current authority between an appeal for error of law, and an appeal requiring error in the decision of the L&E Court on a question of law. Nevertheless, the point may be put to one side as the Minister presented such an argument without objection.

More significantly, the challenge mounted depended, to a significant extent, on the nature of the ultimate finding required under s 36(1). Thus, if the statutory test is satisfied by a relatively straightforward finding of fact, it may be easy to say whether or not the finding made by the trial court was reasonably open. On the other hand, where the finding is one which involves an evaluative judgment, it may be quite difficult to say that the conclusion reached was not reasonably open. Further, it may be easier to conclude that a positive finding was not reasonably open than that a failure to be satisfied was not reasonably open.

To the extent that there is a level of ambiguity in the reasoning of the primary judge and an available understanding of the reasons, taken as a whole, fails to demonstrate error on a question of law, the appeal should be dismissed.

If the Court identifies a material error of law, it will be necessary for the matter to be remitted to the L&E Court for further hearing. It is not open to this Court to draw necessary inferences, any more than it is open to the Court to make primary findings of fact. That well-established principle is not contradicted by Thaina Town , a case in respect of which the Court held that it was able to exercise a discretionary power with respect to costs on the basis of facts fully found.

As discussed in B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 at [132], principles of judicial review would permit the Court to remit the matter with a direction that the Tribunal exercise its power in a particular way where all relevant factual preconditions have been satisfied: see, eg, Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [39]-[42]. Whether it is open to this Court to determine, on an appeal limited to a question of law, matters not determined in the Court below is a question which need not be answered on the view I have taken below. It raises a question, not decided in B & L Linings , as to the extent to which the approach adopted by this Court in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council [2007] NSWCA 300; 156 LGERA 150, can properly be taken beyond the exercise of a discretion as to costs. Issues

As noted above, the initial decision-maker under the Land Rights Act was the Minister: s 36(5). The Minister was required to satisfy himself that the relevant lands were or were not “claimable Crown lands”. He was satisfied that they were not because they were “occupied” for the purposes of a reserve. That decision was referable to an exclusion in s 36(1), which defines “claimable Crown lands”, so as to require that the lands be “not lawfully used or occupied”: s 36(1)(b), set out at [99] above.

In the L&E Court, it was assumed that the Minister could properly rely upon lawful “use” as well as lawful occupation: in other words, he was not limited to the reason given in the letter communicating his decision to the respondent. That conclusion is said to flow from the fact that the appeal has been characterised as an appeal “de novo”: see Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 251 (Meagher JA). More precisely, the proceeding in the L&E Court is not an appeal in the strict sense of the term, but rather the first consideration by a court exercising judicial power of an administrative determination. Nevertheless, the use of the term “appeal” is well-understood in this context and, not being limited to a question of law, the whole of the decision of the Minister was open to review by the Land and Environment Court. Further, the Minister bore the burden of satisfying the L&E Court that the relevant land was not claimable Crown land, in order for the decision to be upheld: s 36(7).

Consistently with the approach taken below, it was not contended in this Court that the Minister was limited to supporting his decision on the basis of the reason given in the letter to the respondent. In particular it was not suggested that he was not entitled to rely upon lawful use as well as lawful occupation.

As explained by Tobias JA, until 20 June 2001, the area in question had been used by the Bathurst Regional Council (or its predecessor) as a “nature park”. At the date of the claim, the relevant use or occupation depended upon the continued presence on the land of a number of native birds, marsupials and reptiles, for which the Council was seeking alternative accommodation (rather than release), which required the attendance of Council officers at various times to feed the animals. There was also a circumference fence and certain other improvements on the land which had been erected during its time as a nature park.

At the heart of the appellant’s case was the assertion that the primary judge had ignored or given insufficient weight to certain aspects of the evidence concerning the continued use or occupation of the land and had treated other matters as not having sufficient qualities to constitute use or occupation for the purposes of s 36(1)(b). Despite the Minister’s acknowledgment that her Honour had correctly stated the legal tests to be applied, he contended that the primary judge had either failed to apply those tests or had reached a conclusion which was not reasonably open on her Honour’s findings of primary fact. This challenge requires an assessment of the principles applied by her Honour and the manner of their application. Once those questions have been determined, it will be necessary to consider whether the grounds in substance relate to a decision on a question of law.

In the event that the Minister was successful in his arguments on the appeal, the respondent sought to contend that the primary judgment could be upheld on the alternative basis that such use or occupation as had been established was related to the continued existence of a “nature park” and particularly the display of native fauna, a purpose which did not conform to the purpose for which the reserve was established. Accordingly, it was contended, such use or occupation was not lawful use or occupation for the purposes of the section. Her Honour had noted this argument, but said that she was not required to decide the question because she had not been satisfied that the relevant level of use or occupation had been established by the Minister: at [114]. In fact, her Honour appears to have placed some weight on the nature and purpose of the activities relied upon as establishing use or occupation and discounted those which did not conform to the relevant public purpose. To the extent that the question had been answered, at least in part, in the course of the judgment, the notice of contention was unnecessary. Otherwise, that issue would require remittal for determination in the L&E Court. Lawful use or occupation

In the key passage of the judgment dealing with occupation, her Honour described the degree of occupation as “so slight as to be insufficient to constitute an occupation of the land as required by the definition in s 36(1)”, adopting the language of Stein J in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (The Department of Education Claim) (1992) 76 LGRA 192 at 198. This, however, was the statement of a conclusion rather than the identification of relevant criteria or the specification of a relevant standard. Of greater assistance is the consideration given to the language of s 36(1)(b) by Priestley JA (Cripps JA agreeing) in Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140 at 159F-162E (“ Daruk (1993)”), to which her Honour also referred.

It has long been acknowledged that the Land Rights Act is remedial or “beneficial” legislation, requiring any uncertainty or ambiguity in the language to be resolved in favour of the intended beneficiaries: see Minister for Natural Resources v New South Wales Aboriginal Land Council (The Tredega Claim) (1987) 9 NSWLR 154 at 157 (Kirby P) and other authorities referred to by Stein J in The Department of Education Claim at 195. That approach is consistent with that adopted by the High Court in relation to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“the Northern Territory Land Rights Act ”) in The Queen v Kearney; Ex parte Jurlama [1984] HCA 14; 158 CLR 426 at 433 (Gibbs CJ, Brennan, Deane and Dawson JJ agreeing). On one view, this is merely an application of the purposive construction principle mandated by the Interpretation Act 1987 (NSW), s 33. It does, however, constitute a particular application of the purposive approach, the obverse of which is reflected in the preference to construe penal statutes restrictively.

In very broad terms, the Land Rights Act , the Northern Territory Land Rights Act and the Native Title Act 1993 (Cth) share a common purpose, which is to recognise, return or make available land to or for the descendants of the Indigenous inhabitants at the time of colonisation. However, each statute addresses in a different way the countervailing need to avoid disturbance of interests in land used by the Crown. Each statute approaches differently the question of land which has not been alienated by the Crown but has been reserved from sale or alienation for specified purposes. Thus, the Northern Territory Land Rights Act identifies “Crown land” available for claim as land vested in the Crown but not including “land set apart for, or dedicated to, a public purpose under an Act”: s 3(1), Crown land .

With respect to common law native title, reservation raised a question of extinguishment. In Mabo v Queensland [No 2] [1992] HCA 23; 175 CLR 1 at 68, Brennan J stated: “Where the Crown grants land in trust or reserves and dedicates land for a public purpose, the question whether the Crown has revealed a clear and plain intention to extinguish native title will sometimes be a question of fact, sometimes a question of law and sometimes a mixed question of fact and law. Thus, if a reservation is made for a public purpose other than for the benefit of the indigenous inhabitants, a right to continued enjoyment of native title may be consistent with the specified purpose - at least for a time - and native title will not be extinguished. But if the land is used and occupied for the public purpose and the manner of occupation is inconsistent with the continued enjoyment of native title, native title will be extinguished. A reservation of land for future use as a school, a courthouse or a public office will not by itself extinguish native title: construction of the building, however, would be inconsistent with the continued enjoyment of native title which would thereby be extinguished.”

This legal analysis was followed in the Native Title Act , although the manner in which it deals with such reservation or dedication depends on whether it was valid at the time that it was undertaken or was validated by the Native Title Act as part of the past act regime: see, generally, Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [222]-[223].

The Land Rights Act is not concerned with the continuation of traditional ownership of lands; further, the judgment in Mabo [No 2] was delivered almost a decade after the drafting of the Land Rights Act . Nor is the Land Rights Act directly concerned with the effect of a reservation of Crown lands on an existing native title; rather, it expressly makes available for claim by Land Councils lands vested in the Crown which: “(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 ….”

Eligibility for claim is nevertheless limited by subsequent paragraphs including provision the lands: “(b) are not lawfully used or occupied, … (c) are not needed, nor likely to be needed, for an essential public purpose ….”

These countervailing factors need, in the specific context of this legislation, to be read together with the permissive factor in par (a). A proper reconciliation of these paragraphs requires that reservation or dedication for a specified purpose does not, of itself, mean that the lands are lawfully used or occupied for that purpose. If the purpose of the reservation is an essential public purpose, but the reservation has been outstanding for some lengthy period, it may be found that the lands are not, or are no longer, needed for that purpose.

In relation to native title, it is necessary to look backwards to see if native title rights and interests in particular land have been extinguished by past actions of government. By contrast, under the Land Rights Act such questions of extinguishment are irrelevant. The question posed is not backward-looking but focuses on the present. To whatever use the land may have been put in the past, and whether or not is has been alienated in the past, so long as it is now vested in the Crown and otherwise satisfies par (a) of s 36(1), a claim must be granted unless one of the exceptions is shown to be satisfied.

It is for this reason that the legal status of the Crown as the holder of the land (whether by way of radical title, fee simple or other interest), being a precondition to land being claimable, must be treated as insufficient to constitute lawful use or occupation, even though it may carry with it a right of control and, possibly, statutory obligations attaching to land ownership. Thus in Daruk (1993), in relation to the concept of occupation, Priestley JA stated at 162: “Particularly in view of the light thrown on par (b) by par (a) and taking into account also the recitals to the Aboriginal Land Rights Act earlier set out, in trying to ascertain from the words of the Act itself what its purpose is in regard to Pt 6, Div 2, it seems to me the better reading of ‘occupied’ in its context in par (b) is ‘actually occupied’ in the sense of being occupied in fact and to more than a notional degree.” (The reference to “Pt 6, Div 2” is a reference to Pt VI, Div 2, in which s 36 appeared, as originally enacted; s 36 now appears in Part 2, Div 2.)

Priestley JA continued at 163: “In this context I would agree that mere proprietorship is not sufficient to establish that the lands are occupied. Something more is needed. Physical acts of occupation, the exercise of control, maintaining of lands are all factors which are relevant. However, the diversity of the circumstances in which the question whether Crown lands are occupied can arise cautions me against attempting to articulate a comprehensive test for resolving that question. In some instances the fact that the lands are fenced may be significant, in others the use to which the land is put might be determinative. Where the land in question is reserved for public recreation it may be singularly inappropriate to inquire whether the land is fenced or whether the party claiming to be the occupier has reserved to itself the power to exclude persons therefrom. What is, in my view, more to the point is whether there is a person or body exercising control over, and undertaking maintenance responsibilities on, the land.”

Priestley JA also commented on the meaning of “used” in s 36(1)(b) in the following terms at 164: “The meaning of ‘used’ is as much a creature of its context, and equally fertile in varying and overlapping connotations, as ‘occupied’. The discussion of the word by the High Court in Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 fully demonstrates the possibilities relevant to the present case. In its context in the Aboriginal Land Rights Act its meaning seems to me to be governed by the same considerations as applied to ‘occupied’. Those considerations in my opinion lead to the conclusion that ‘used’ in par (b) means ‘actually used’ in the sense of being used in fact and to more than a merely notional degree.”

None of these principles was challenged in the present case by the Minister. They have been applied in a number of subsequent cases. In particular, they were recently applied by this Court in New South Wales Aboriginal Land Council v Minister Administering Crown Lands Act [2007] NSWCA 281; 157 LGERA 18 (“the Wagga Wagga Claim ”). As explained by Mason P at [1], the land in question was urban land: “It is a rectangular parcel of approx 815 sq metres located on the corner of Beckwith and Gurwood Streets. A two storey building, once a motor registry, stands on part of the land. The site has a bitumen surfaced car park and it is fenced.”

His Honour continued: “[24] In short, Crown land that has been vacant for years, has fallen into a state of disrepair, has been identified as surplus to departmental needs and for which there is no known reason for retention is precisely the type of land which the ALRA envisages ought to be available for claim absent any suggestion that other exclusions apply. It is not being used in any relevant sense. … [27] The respondent points out that ordinary activities preceding a sale (including inspection, valuation, appointment of an agent, survey, requesting council certificates) had taken place in the weeks before lodgement of the claim. There was also continuing (albeit minor) occupation of the premises for the purpose of storage of office furniture. This low level of occupation was not relied upon to demonstrate that the land was ‘occupied’ at the relevant time, but it was said to add colour to the ‘use’ that was occurring.”

In the Wagga Wagga Claim , both Giles JA and Tobias JA concurred in the conclusion reached by the President, Giles JA adopting a different approach in one respect not presently relevant. The matter went to the High Court, which granted special leave but dismissed the appeal: see Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48; 82 ALJR 1505. As was noted in the High Court, the question was framed more narrowly than the statutory exclusion, by reference only to lawful use. The joint judgment (of Hayne, Heydon, Crennan and Kiefel JJ) noted that earlier decisions of this Court had not attempted any exhaustive definition of lawful use or occupation “or of what is relevant use or occupation that will take lands outside the definition of claimable Crown lands”. Their Honours also adopted the comment by Mason P that “use” is a protean word. Their Honours continued in the following terms at [69]: “Third, recurring physical acts on the land, by which the land is made to serve some purpose, will usually constitute a use of the land. And a combination of legal possession, conduct amounting to actual possession, and some degree of permanence or continuity will usually constitute occupation of the land. But while these propositions may sufficiently identify the most common cases where it can be said that there is use or occupation of the land, they are not propositions that chart the metes and bounds of those ideas. As the decision in Council of the City of Newcastle v Royal Newcastle Hospital (‘the City of Newcastle Case ’) shows, land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings, can be said to be ‘used or occupied by the hospital for the purposes thereof’.”

Their Honours’ reference in relation to occupation to “some degree of permanence or continuity” was derived from the judgment of Kitto J in the City of Newcastle Case (referred to below as Royal Newcastle Hospital ) [1957] HCA 15; 96 CLR 493 at 507.

Of direct relevance for present purposes is the opening comment of the joint judgment in the passage referred to above, to the following effect: “No matter whether the question is framed in the statutory terms (not lawfully used or occupied) or, as here, is framed more narrowly as one about use, attention must be given to identifying the acts, facts, matters and circumstances which are said to deprive the land of the characteristic of being ‘not lawfully used or occupied’. Of course, it is necessary to measure those acts, facts, matters and circumstances against an understanding of what would constitute use or occupation of the land.”

Implicit in the joint judgment of the High Court in the Wagga Wagga Claim is the need for care in adopting language used in considering the circumstances of one claim in relation to the circumstances of another. The definition of “claimable Crown lands” identifies as available for claim all lands vested in the Crown which are able to be lawfully sold or leased, or are reserved from sale, whether temporarily or for public purposes, or are dedicated for any purpose. From the broad ambit of such lands, various categories are then withdrawn. Thus, land subject to a native title claim or an approved determination of native title (but presumably not vested in native title holders or their prescribed body corporate) are excluded: pars (d) and (e). Also excluded are lands needed or likely to be needed either for an essential public purpose or as residential lands: pars (c) and (b1) respectively. The final (but first listed) exclusion is the one presently relevant, namely lands which are lawfully used or occupied. The variety of the interlocking concepts inevitably requires a discrete assessment to be made in cases falling within different categories.

The language of reservation and dedication (used in par (a)) has a long history in Australia, and particularly in New South Wales, as described by Windeyer J (Dixon CJ agreeing) in Council of the Municipality of Randwick v Rutledge [1959] HCA 63; 102 CLR 54 at 69-76. His Honour explained at 70: “The term ‘public reserve’ – and the word ‘reserve’ alone, when not controlled by a definition or a context indicative of a different sense – have come to be used in common parlance in Australia in an imprecise way to describe an unoccupied area of land preserved as an open space or park for public enjoyment, to which the public ordinarily have access as of right.”

After noting that at common law, the reservation of a road in a Crown grant amounted to a dedication, his Honour continued at 74: “But it seems more probable that ‘dedicate’ came to be used in New South Wales without any concern for its limited common law sense. It seems to have been thought to indicate something more formal than mere reservation from sale, something binding the Crown and creating some right in members of the public or of a section of the public. Land reserved from sale did not pass from the control of the Crown. But lands granted for public charitable purposes were removed from the control of the Crown and were properly described as dedicated; and so also were lands granted as commons.”

Where land is reserved for a public purpose (or for any other purpose) quite specific issues will arise as to what constitutes lawful use or occupation. For example, there may well be a question as to whose use or occupation is relevant and, in particular, what may be sufficient where the lands are retained in a natural state but are subject to access by the public and where land is set aside by the Government without public access. Nor does it necessarily follow that results obtained in rating cases such as Rutledge or Royal Newcastle Hospital , will necessarily dictate a similar result under the Land Rights Act . As was noted by Kitto J in Royal Newcastle Hospital at 508: “One other point should be mentioned concerning the word ‘occupied’. The English authorities as to rateable occupation belong to a specialised field of law, and great care is needed in using them out of context. … I do not think it is correct to take from the English rating cases the principle that title in fee simple in possession is prima facie evidence of occupation and to conclude that, since any occupation which the Royal Newcastle Hospital has must be for its hospital purposes, its title to the subject land is prima facie evidence of occupation for those purposes.”

To similar effect, Taylor J, in discussing the word “used” in the relevant statutory provision noted at 515: “The uses to which property of any description may be put are manifold and what will constitute ‘use’ will depend to a great extent upon the purpose for which it has been acquired or created. Land, it may be said, is no exception and s 132 itself shows plainly enough that the ‘use’ of land will vary with the purpose for which it has been acquired and to which it has been devoted. … Each of the forms of user referred to in the section relate to use by the owner and some of them, no doubt, contemplate a use which is synonymous with actual physical occupation and enjoyment. Others contemplate a use in a less direct form.”

One reason why the rating cases may provide a less than complete analogy is that they impose a liability either on the occupier or the owner. Further, in relation to Crown land, they may depend upon an implication that the land is generally not rateable or is rateable unless expressly exempted: see Rutledge at 79. Windeyer J continued: “Most of the exemptions, however, relate to land used for public purposes, and depend upon the manner in which the land is in fact used and occupied.”

Further, there is merit in construing the words of paragraph (b), “are not lawfully used or occupied”, as a whole, especially in circumstances where the lands have been reserved. The Crown Lands Consolidation Act 1913 (NSW) provided that lands could be reserved by the Minister “by notification in the Gazette” declaring the portions of Crown lands reserved and the public purpose for which they were reserved, whereupon “the lands which are the subject of any such notifications shall thereupon be reserved from sale accordingly”: s 28(1). The Crown Lands Act 1989 (NSW) makes similar provision for reserving by notification in the Gazette and states that the reservation “takes effect” on publication of the notification: s 87. As was accepted in New South Wales v The Commonwealth [1926] HCA 23; 38 CLR 74 (the Garden Island Case ) a dedication or reservation of land for the purposes of a naval depot “restricted the use of the land” at 84 (Knox CJ, Gavan Duffy, Rich and Starke JJ). Isaacs J, who dissented as to the outcome, but not in relation to this principle, after referring to the predecessor to s 28 of the Crown Lands Consolidation Act referred to above, stated at 91: “That impressed upon dedicated lands a statutory status limiting their use and benefit, and consequently their possession, in conformity to the purpose to which they were dedicated.”

Because s 36(1) of the Land Rights Act does not envisage use or occupation at large, but only lawful use or occupation, at least in relation to reserved or dedicated lands, the inquiry to be undertaken by the Minister (and the L&E Court) is restricted to such lawful use or occupation. Because the factual inquiry depends, as explained above, on the purpose for which lands are used or occupied, it is important to identify those lawful purposes in addressing the statutory test. Often that will occur by default because the Minister who bears the statutory onus in the L&E Court will not present a case based on use and occupation falling outside that which is lawful in accordance with the terms of the reservation or dedication. Reasoning of primary judge

The reasoning of the primary judge must be understood in the context of the case presented to her Honour. The first issue to identify in that regard is that, unlike civil litigation generally, the case did not commence with a pleading filed by the party bearing the burden of proof. Rather, it commenced with an application filed by the Land Council seeking to appeal against the Minister’s refusal of the land claim. The proceedings are thus more in the nature of a merit review of an administrative decision, but one in which the decision-maker is required to demonstrate that the claimant should fail. Nevertheless, the Minister was not required to plead his case prior to the commencement of the hearing. (A “statement of issues” filed by the Minister did no more than identify the paragraph of s 36(1) relied upon and the identity of the user or occupier of the identified land.)

The primary judge identified the issues remaining to be determined (other issues having been disposed of by agreement) as whether the area of land in question was “lawfully occupied” or “lawfully used” at the date of the claim: at [5]. This formulation omitted reference to the onus of proof on the Minister to disprove that the land was “not lawfully used or occupied” at the date of claim, but that is of no consequence because her Honour recognised where the onus lay elsewhere in the judgment, including in stating her conclusions at [105] and [110].

Secondly, as her Honour expressly identified, the Minister relied upon occupation and use of the land by the Bathurst Regional Council: at [5] and [7].

The key passages in her Honour’s judgment have been set out by Tobias JA above at [100]–[111]. In relation to occupation, they appear at [103] and [104] in her Honour’s reasons and in relation to use at [110].

In summary, a fair reading of her Honour’s judgment was that, while not determining whether use as a nature park was lawful under the terms of the reservation or not, she treated it as having ceased prior to the lodgement of the claim. It appears to have been common ground, and her Honour’s finding, that on “2 July 2001 the nature park was closed to the public”: at [35]. That finding of primary fact was not challenged, nor could it have been. There was evidence to support it. As to the activities subsequent to the closure of the nature park, her Honour was satisfied that they did not relate to the purpose of the reservation, namely the preservation of native flora. They clearly did not; all that they involved was the maintenance of the remaining fauna which had not been disposed of prior to 21 August. Presumably there were reasons why the Council did not simply release the birds, animals and snakes which were no longer required in the park, but sought a new controlled environment for them: no finding was made (or required to be made) in that regard.

In respect of some, the Council was successful almost immediately following the closure of the park. Others were not disposed of until 21 December 2001. Between 30 June and 21 December the Council expended some $8,153 attributable to the work of two officers responsible for feeding the animals. It was open to her Honour to find that the use of the park for the purpose of holding the fauna until disposed of was transitory, was not part of any on-going purpose of the Council with respect to the land and was undertaken on the land because there were existing cages available to continue to hold the fauna. Keeping the fauna alive for the purposes of transfer to another site was treated by her Honour as analogous to minor acts of maintenance of land preparatory to sale, including storage of items no longer required, pending disposal. That required an assessment of the factual circumstances against the statutory test. It was held insufficient to constitute occupation or use for the statutory purposes.

Her Honour treated the exclusion of the public by the fence as insufficient to indicate a different outcome. The reasoning was that once the nature park had closed, exclusion of the public was not a particular purpose of the Council. At least in part, the fence was sought to be justified by a Council officer as required to keep kangaroo off the motor racing circuit on the other side of Mount Panorama from the fauna reserve. The fence, together with the other improvements on the land which had also lost their purpose as a result of the closure of the park, it was open to them as analogous to the improvements on the land in the Wagga Wagga Claim or the Department of Education Claim and insufficient to demonstrate lawful use or occupation.

There are three other aspects of the judgment which need to be noted. First, her Honour addressed questions of occupation separately from those of use. However, once it had been accepted, in her Honour’s language, that there must be “more than constructive occupation of land and evidence of physical acts which amount to actual occupation” (at [92]), the distinction lacks substance. That fact was demonstrated by the relatively brief consideration of lawful use. Adoption of that course did not constitute a material error with respect to a question of law.

That is not to say that there are not circumstances in which occupation will properly be considered separately from use. At least in the context of a rating statute, the owner of land may confer a right of occupation on a licensee or lessee, with the result that the owner is no longer in occupation, but may still be using the land for its purposes: see Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304; affirmed in Ryde Municipal Council v Macquarie University [1978] HCA 58; 139 CLR 633; 53 ALJR 179. Whether that which was described by Gibbs ACJ in the High Court (at 181 col 2B) as an “indirect use” would be a sufficient use for the purposes of the Land Rights Act need not be considered.

It has also been held, for the purposes of a rating statute, that despite legal possession, a Council which owned a park which it held for the use of the public did not occupy it: see The Church Wardens and Overseers of Lambeth Parish v The London County Council [1897] AC 625.

Secondly, her Honour discussed the use that could be made of activities of the Council immediately after the claim date. Such material was apparently relied upon by the Minster to show that the Council intended to use the land as a “woodland area”. Her Honour rejected, as she was entitled to, the suggestion that the park was as at the date of the claim so used. That being so, intended future use was irrelevant to the determination of the dispute.

What appears not to have been in issue was that the Minister could rely upon evidence of continued use of the land to keep the animals up until their disposal. As at the date of the claim, the period during which the animals would remain may have been a matter for speculation, with the possibility that they would be removed within days. The use then being made of the land could properly have been described as impermanent or transitory. However, there appears to have been no objection to the Minister calling evidence to demonstrate that some of the animals remained for a further four months.

The relevance of evidence of subsequent events must depend upon the precise question being addressed by the Court. It has been held that subsequent events can be taken into account to determine the proper weight to be attached to circumstances existing at the material date, in the case of valuation of shares upon death: see McCathie v Federal Commissioner of Taxation [1944] HCA 9; 69 CLR 1 at 16 (Williams J). His Honour continued at 16-17: “These were matters existing and to be taken into account at the date of death, and the court should not be forced to speculate as to their future when the facts are known and can speak for themselves.”

On this approach, subsequent events were available to be taken into account for the purpose of evaluating the actual use being made of the land at the material date, namely the date of the claim.

The third issue to be noted is of more direct relevance, namely that, having found that there were activities undertaken by the Council on the land as at the date of claim, the Court proceeded to evaluate those activities according to their purpose and likely permanency.

Satisfaction that the relevant use or occupation is “actual”, involving physical activity on the land having a degree of permanence or continuity, appears to follow from the need to identify the nature of any use or occupation as at the date of the claim. If it ceased seven days later, it might be characterised as nominal or lacking sufficient permanency as at the date of the claim, but it is assumed that the lodgement of a claim cannot be contingent upon the use terminating. Thus, if there were actual use on the date of the claim, which terminated shortly thereafter, the assumption underlying the Court’s reasoning was that the Land Council would need to lodge a further claim, to be assessed according to the later date of claim to take advantage of the cessation of actual use or occupation.

The assumption is based on the accepted view that the rights of claimants crystallize as at the time of the claim, a conclusion affirmed in relation to the Northern Territory Land Rights Act in The Queen v Kearney; Ex parte Japanangka [1984] HCA 13; 158 CLR 395 and, in relation to the Land Rights Act , in New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685 at 696 (Hope JA, Samuels and Clarke JJA agreeing) (the “ Winbar Claim ”). However, those cases were concerned with subsequent events which might remove the entitlement of the claimants; whether, under the Land Rights Act , the reasoning applies where subsequent events have rendered lands claimable has not been addressed. It was not raised in this case. Conclusions

Given that her Honour was entitled and required to make an evaluative judgment as to the existence of lawful occupation or use as identified by the Minister, at the date of claim, the Minister’s challenge in this case can only succeed if: (a) her Honour’s conclusion was not reasonably open on the facts found; (b) in reaching that conclusion she ignored facts which she was legally required to take into account; (c) in reaching that conclusion she gave little weight to facts which were by law required to be given significant weight, or (d) she applied wrong legal principles in formulating the factual questions to be resolved.

The only complaint which has substance is that her Honour treated as insignificant the activities of maintaining the animals prior to disposal. That, it was contended, was an actual physical use of the land which, whether or not it constituted occupation, satisfied the requirements of s 36(1)(b). The asserted error occurred because her Honour sought to evaluate the activity according to the identified purposes. In relation to the operation of a nature park, her Honour held that the relevant purpose had been abandoned prior to the claim; in relation to the use of the land for a flora reserve, her Honour held that “there is no evidence that any activity at the date of the claim or shortly after was directed to supporting a flora reserve”: at [100].

The reason why her Honour adopted that approach appears to be found in the way in which the Minister presented his case. That was summarised by her Honour in the following terms: “94 The physical occupation of the land asserted in this case by the Minister is by the Council’s conduct of the nature park. It was submitted that the purpose of the nature park was as a reserve for native flora and fauna. 95 The Minister has the onus of establishing that at the date of the claim there were activities occurring which supported his submissions that the occupation was for the purposes of, firstly, the nature park and, secondly, the flora reserve aspects of the nature park.”

On the appeal, the Minister did not challenge the correctness of that categorisation of his case. Rather, he attacked her Honour’s factual findings with respect to the characterisation of the activities.

In my view, that challenge is not, given the manner in which the case was run, adequate to demonstrate any error of law on the part of the primary judge. This was not a case in which the occupier or user of the land was exercising full rights of ownership, but limited by the legal constraints of obtaining necessary development approvals: cf Minister Administering the Crown Lands (Consolidation) Act v Tweed Byron Local Aboriginal Land Council (1992) 75 LGERA 133 at 142-143 (Clarke AJA); see also Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1997) 42 NSWLR 641. Rather, it was a case in which the only lawful use and occupation relied upon was undertaken pursuant to the reservation for the preservation of native flora. Given that the Minister needed to establish “lawful” use or occupation, it was understandable that he presented his case on a basis limited by specified purposes.

Next to the claimed land was an area used for disposal of waste. If that use had extended to the claimed land, it would clearly not have been a lawful use upon which the Minister would have sought to rely. Similarly, if the land had been used for storage of road-making equipment and material, that would not have been a lawful use. Similar questions might have arisen if the purpose of keeping the animals on the land was no longer related to the nature park or to the preservation of native flora. That her Honour addressed herself to the case as presented by the Minister did not involve any question of law which was erroneously answered. On that case, the evaluative judgments reached were reasonably open.

It follows that the Minister has failed to demonstrate an error on a question law and the appeal should be dismissed with costs.