Posted on December 21, 2013 by Lindsay Taylor

State Government legislates to protect ‘secondary use tenures’ of reserve Crown land

Interests such as leases, licences and permits granted over reserve Crown land, referred to as ‘secondary use tenures’, have received legislative reinforcement following the commencement of the Crown Lands Amendment (Multiple Land Use) Act 2013 on 27 November 2013. 

The Act, which amends the Crown Lands Act 1989, was introduced to reverse the impact of the Court of Appeal’s decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (Goomallee Claim) [2012] NSWCA 358 decided in November 2012.

The Goomallee Claim case

In Goomallee case, the NSW Aboriginal Land Council had made a claim under the Aboriginal Land Rights Act 1983 (ALR Act) for certain Crown land reserved from sale for the purpose of public recreation. The Minister had refused the claim, determining that the land was not ‘claimable Crown land’ under s36(1) of the ALR Act because the land was being lawfully used or occupied pursuant to a grazing licence granted by the Minister.

The Minister’s decision was overturned by Biscoe J in the Land and Environment Court, who found that the grazing licence did not give rise to lawful use or occupation of the land having regard to the reservation of the land for the purpose of public recreation. Biscoe J held that the land was claimable Crown land and made orders for the land to be transferred to the Land Council.

The Minister’s appeal to the Court of Appeal was dismissed with costs. Basten JA wrote the leading judgement, finding that the reservation of the land as a Crown reserve for public recreation purposes precluded the Minister from granting a private grazing licence which could not be characterised as being ‘for, or incidental to, the purpose of the reservation.

In arriving at this conclusion, the majority (Sackville AJA not deciding the issue) rejected the Minister’s submission that the correct test for validity under the Crown Lands Act was whether the use and occupation under the grazing licence was not incompatible or inconsistent with the permitted, or actual use of the land (at paragraph [26]).

Consequences of the Goomallee Claim case

In the Second Reading speech to the Bill, the Minister claims up to 90 per cent of the more than 8,000 ‘secondary use tenures’ in NSW could be challenged because they are for purposes that are not in furtherance of, or incidental to the primary purposes of the reserve, as well as many thousands of secondary tenancies issued by reserve trust managers such as councils, collectively worth millions of dollars in rent and licence fees.

The recent litigation surrounding the use of harbourside McKell Park as a wedding venue serves as a relatively high profile example of residents challenging a secondary use tenure granted over Crown reserve land.

What is the effect of the amendments?

Introduction of the Material Harm Test

The amendments put beyond doubt the power of the Minister to grant a lease, licence or permit in respect of, or an easement or right-of-way over, Crown land (collectively secondary interests) under Part 4 of the Crown Lands Act, despite the land being a Crown reserve, subject to the provisions of the new s34AA.

Section 34AA(2) introduces the material harm test, providing that the Minister cannot grant a secondary interest in a Crown reserve ‘unless the Minister is of the opinion that the use or occupation of the Crown reserve pursuant to the secondary interest would be in the public interest and would not be likely to materially harm its use or occupation for the reserved purpose.’

An inclusive list of considerations relevant to the issue of material harm is provided at s34AA(3), and includes:

  • the proportion of the area of the Crown reserve that may be affected by the secondary interest,
  • if the activities to be conducted pursuant to the secondary interest will be intermittent, the frequency and duration of the impacts of those activities,
  • the degree of permanence of likely harm and in particular whether that harm is irreversible,
  • the current condition of the Crown reserve,
  • the geographical, environmental and social context of the Crown reserve,
  • such other considerations as may be prescribed by the regulations.

Dispensing with the Goomallee Claim test

The amendments abolish the requirement that a secondary interest be for or incidental or ancillary to the reserve purpose in order to be valid, undoing the effect of the Goomallee Claim decision (see s34AA(4)(a)).

Minister’s power to validate secondary interests

The amendments also make provision for the Minister to validate the grant of a secondary interest which would otherwise fail the material harm test, by making such changes to the purpose for which the secondary interest was granted, or to the terms and conditions on which it was granted, as may be necessary to ensure validity (see s34AA(5).

The Minister’s validation pursuant to s34AA(5), has retrospective effect back to the date of the original grant and covers use and occupation pursuant to the secondary interest prior to its validation (per s34AA(6)).

Minister to be given notice of alleged invalidity

Pursuant to new section 35A, the validity of any secondary interest cannot be questioned in legal proceedings unless a party gives the Minister 3 months notice of the alleged invalidity, or such shorter period of notice as may be prescribed in the regulations. The Minister has the discretion to waive the requirement for notice, or reduce the requisite notice period.

A court before which proceedings are pending may adjourn the proceedings to enable notice of alleged invalidity to be given as required by s35A(1) (see s35A(4)).

It would appear that one of the purposes served by the mandatory notice period is to give the Minister sufficient time to consider exercising his or her power to validate an existing secondary interest, i.e. a secondary interest granted before the commencement of s34AA (see Schedule 8, Part 7, cl58(4)). This conclusion is supported by the fact that the prescribed period of notice for an existing secondary interest is 6 months (not 3), despite s35A(2) (see Schedule 8, Part 7, cl60).

Conclusive presumption for existing secondary interests

It is conclusively presumed that when an existing secondary interest was granted the Minister was of the opinion that use or occupation of the Crown reserve pursuant to the secondary interest would be in the public interest and would not be likely to materially harm its use or occupation for the reserved purpose (see Schedule 8, Part 7, cl58(2)).

Application to Reserve Trusts

Section 102B makes it clear that sections 34AA and 35A apply to and in respect of secondary interests granted in respect of a reserve by a reserve trust as if a reference in those sections to the Minister were a reference to the reserve trust.

Impact on Aboriginal land claims

Land claims (within the meaning of the ALR Act) made before 9 November 2012, being the date of the decision in the Goomallee Claim case, will continue to be decided pursuant to the authority in that case, whilst claims made after that date will be decided under the Crown Lands Act as amended (see Schedule 8, Part 7, cl58(7)).