Australia: "Lawfully Used And Occupied"

On 2 October 2008 the High Court of Australia handed down its decision in the case of Minister administering the Crown Lands Act v New South Wales Aboriginal Land Council1.

The case should be of interest to those in the mining and infrastructure space and also where existing use rights are relevant in the proposed sale of land.

The case turned on the question of whether a disused former motor vehicle registry on crown land in Wagga Wagga could be regarded as "claimable crown lands" under Section 36 of the New South Wales Aboriginal Land Rights Act 1983 (ALR Act), and in particular whether the relevant land could be described as 'not lawfully used or occupied'2.


Briefly the facts were as follows:

  • In 1985 the use of a 815 square metre block of crown land in Wagga Wagga as a motor registry ceased.
  • From 1985 until 1999 the land was used for storage by the New South Wales Government Supply Department and its successor organisation.
  • In 1999, as the land was surplus to its requirements, the Department of Lands decided that action be taken to dispose of the land, but shortly afterwards the Department reviewed this position and decided to use the building as a laboratory.
  • To that end in March 2000 the Department commenced refurbishing the building on the site, but the refurbishment ceased on 31 May 2000 after the lodgement of an Aboriginal Land Claim by Wagga Wagga Local Aboriginal Land Council under the ALR Act. In 2003 the Minister refused the claim on the grounds the land was at the date of the claim used by the Department for storage and refurbishment.
  • In 2004 the Department again decided to sell the site. Steps were taken to proceed on that basis including appointing a real estate agent, obtaining an identification survey of the land, having a certificate of title issued in respect of the crown land and an auction date was fixed for 8 August 2005.
  • On 23 May 2005 New South Wales Aboriginal Land Council (ALC) lodged a claim under the ALR Act. The Minister for Lands refused the claim concluding that the land is not claimable crown land because it was "lawfully used and occupied" under Section 36 of the Act.

Appeal to Land and Environment Court

An appeal was lodged in the New South Wales Land & Environment Court by the ALC against the refusal of the Minister to the claim3.

At first instance the appeal was dismissed on the basis that the trial judge formed the view that the decision to sell the land and the steps taken in respect of that intention were an actual use of the land despite the fact they were passive in the sense that the land had not physically been used (apart from storage of some furniture).

The ALC appealed to the Court of Appeal and the appeal was allowed on the basis that the land was not being used when the claim was made. An order was made for the Minister to transfer the land to Wagga Land Council.

The Minister for Lands then appealed to the High Court.

High Court Decision

The High Court unanimously dismissed the appeal and relevantly held that:

  • On the facts there was no physical use of the land when the claim had been made. Nothing had been done on the land for a considerable time from before the claim was made. Transitory visits by surveyors and a real estate agent could not be said to amount to a use of the land.
  • It did not accept a submission from the Minister that the ordinary English meaning of the words "lawfully used or occupied" would include the utilisation, exploitation and employment of the land for the benefit of the State and this included identifying the land as appropriate for sale.
  • Whilst the sale of the land would amount to the "exploitation of the land" as an asset of the owner and a use of the land, it did not follow that exploitation by sale (the appointment of the agent and undertaking survey and preparing for sale) amounted to a "lawful use of the land", let alone its lawful "occupation".
  • The steps that are inevitably required in order to effect a sale "concerned" the land in the sense they were directed towards its sale. They were steps directed to deriving the advantage of disposing of the asset and receiving the proceeds of sale. They did not however amount to a use of the land and the land was therefore not being lawfully used when the ALC claimed it.

Accordingly the land was not being lawfully used when the ALC claimed it and the appeal was dismissed.

Whilst the majority judgment focussed on the literal interpretation of the legislation, Justice Kirby in a separate judgement also stated that the principal of "beneficial construction" was relevant in this instance. In other words, that whilst the starting point in interpretation of legislation must still always be the text, it is now appreciated that the "context and purpose" are vitally important, particularly where there is a beneficial or remedial purpose to the legislation as there was in this instance.

Justice Kirby made the point that to treat the language of the ALR Act as if it were purely machinery or technical law devoid of any significant historical and social objectives would betray a serious legal error.


This recent High Court decision demonstrates and is a useful reminder of a number of matters including:

  • the danger of relying on a literal interpretation of legislative instruments when considering issues;
  • the need to take abundant caution when acquiring crown lands for infrastructure or mining purposes;
  • the danger in making assumptions about the usage of land particularly when existing use rights are relevant; and
  • after 30 years on the bench Justice Kirby's dissenting opinions will be missed when he retires from the High Court in early 2009!


1 [2008] HCA 48

2 (Section 36(1)(b))

3 [2007] NSWLEC 158

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