Case: NSW Aboriginal Land Council v Minister Administering The Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685
Outcome: considered
NSW Aboriginal Land Council v Minister Administering The Crown Lands (Consolidation) Act and the Western Lands Act (1988) 14 NSWLR 685, the New South Wales Court of Appeal considered the terms of Aboriginal land rights legislation. Such legislation had provided that any transfer of land to an Aboriginal Land Council should be in fee simple. In May 1986 the Act was amended to provide that in certain circumstances, such land should be granted by way of lease in perpetuity. On 26 April 1984, the Land Council had applied to the Minister for the transfer of certain land. The Minister refused the claim. The Council appealed to the Land and Environment Court. On 3 September 1987 the Minister decided to approve the application to the extent of granting a lease in perpetuity under the amended legislation. In the Land and Environment Court, the Land Council sought a declaration that it was entitled to a transfer in fee simple. The Court of Appeal held that a statutory right would be preserved, notwithstanding the repeal or amendment of the statute, even if the right could only be implemented by a non-discretionary decision of an official or a court, provided that the statutory machinery for obtaining that decision had been set in force before the repeal or amendment. At 693-4, Hope JA, with whom the other members of the Court agreed, said: In my opinion ... the power which s 36(7) confers upon the Land and Environment Court is not a discretionary power but a power which it is bound to exercise in favour of the claimant in the circumstances specified in the subsection. What then is the nature of the right which the Land Council had after it had made its claim, when it claim was being investigated by the Minister, and when it lodged its appeal to the Land and Environment Court. It is easier first to say what it was not. It was not a mere right existing in the members of the relevant class of the community "to take an advantage of an enactment, without any act done by an individual towards availing himself of that right"..., nor was it a right to set in train an application for a grant which the Minister or on appeal, the court might, as a matter of discretion, grant or refuse. ... The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber . It is true that in the Land Council case, Hope JA added the additional requirement that any statutory mechanism have been commenced in order that the entitlement should survive repeal of the relevant statutory provision. In the present case, there is no requirement that the owner take any step for the purposes of s 361A. It was assumed in argument that the owner of improvements was to undertake the task of satisfying the Minister for Lands and the Council of his or her ownership. However the section does not say that, nor does it provide for any particular mechanism to be initiated by the owner. It is possible that Parliament contemplated that the Council or the Minister for Lands would investigate the ownership of improvements with a view to regularizing the position as to ownership and occupancy. The likelihood of such a statutory intention is increased when one considers that the legislation was, as I have said, designed to remedy some of the disadvantage suffered by a severely disadvantaged group in our society. The reference in s 361A(3) to an "application" for the Minister's approval of a lease is to an application by the Council. See s 343. I should also point out that use of the present tense "stands" in s 361A(2)(a) suggests that the entitlement arises at the date of the deed of grant. In my view, the effect of s 361A is to confer a right upon the owner of improvements, subject only to satisfactory investigation of the question of his or her ownership. The right which an owner held pursuant to s 361A, prior to the repeal of the Land Act 1962, was a right to a lease in accordance with that Act. Such right would be within either the first or second category identified above. If the entitlement were to one lease for whatever period the Council decided upon, then that right would survive pursuant to s 20 of the State Interpretation Act. However I consider that s 361A should not be construed as authorizing the grant of only one lease. Section 361A confers an entitlement upon a person who owns improvements on relevant land at a particular point in time. The section does not limit the period during which such a person holds that entitlement. If so entitled as at the date of the deed of grant, an owner will be so entitled for the rest of his or her life. This case provides an example of such an entitlement being addressed many years after the date of the deed of grant. It seems to have been assumed in argument that an owner is entitled to only one lease. Such an approach might not fulfil the apparent objective of allowing the owner of improvements to continue to enjoy the benefits of his or her improvements. The shorter the term of any lease, the less would be the capacity to enjoy such benefit. Section 32C(a) of the State Interpretation Act provides that words in the singular include the plural. It would be more in accordance with the intention of the section if it were read as authorizing the grant of a lease at any time during the life of a relevant person, and regardless of whether any lease had previously been granted pursuant to the section. In the event that such a lease expires during the owner's lifetime, another may be granted. The right to receive a lease is vested in the owner of improvements as at the date of the deed of grant. It cannot be transferred or pass by will or on intestacy. However, where a lease for a fixed term has been granted, and the lessee dies during the term, the right to the balance of the term will be an asset of the estate. Given that the entitlement is to receive a lease from time to time, the better view is that such lease is to be pursuant to the law as it stands at the time at which each lease is granted, and that s 361A should now be read, pursuant to s 511 of the Land Act 1994 , as referring to the relevant provisions of that Act. Counsel for the State submits that s 361A requires that the improvements be situated on the land both at the date of the deed of grant and at the date on which any lease is granted. In my view s 361A should be construed as creating an entitlement to a lease as at the date of the deed of grant, and that subsequent removal of the improvements is irrelevant. The huts were still on the Bukki block as at date of the deed of grant. The foundation slab was, and remains, on the block, having been extended and incorporated into the larger hut. It is probable that there were also gardens, fences and a lavatory on the land at the date of the deed of grant. At least some of the fencing and gardens presently on the block probably pre-date the deed of grant. There is no doubt that there were improvements on the land on 27 October 1986, and that the slabs and, probably, some remnants of earlier fencing and gardens remain at the present time. Section 361A(2) provides that the lease be of the land on which the improvements stand and, where the improvements involve a building or structure used as a residence, a reasonable area of land, being the immediate environs of the improvement. As to the purpose for which the land was used, the relevant time is again the date of the deed of grant. At the time that the Pollards moved on to their land at Bukki in late 1986 or early 1987, Mr Ludwick's niece was living in a small shed on the Bukki block. She resided there for about a year. It is more probable than not that either Mr Ludwick was living there as at 27 October 1986, or that his niece was so residing, or about to commence doing so. Both Mr Ludwick and Ms Yeatman said that their relationship commenced in about 1987. It is reasonable to infer that as at 27 October 1986 the land was being used as a residence. It is possible that it was vacant for a relatively short time, but more probable that it was occupied on that date. In any event a period of temporary vacancy would not detract from the fact that the improvements were being used as a residence. This is particularly so, given that when he left, Mr Ludwick apparently intended to return to the Bukki block after his sojourn at Bilma. His plans changed when he met Ms Yeatman in 1987, but it seems that he (and perhaps they) always intended to move to the Bukki block eventually.