PARTIES: GRIFFITHS, ALAN and
GULWIN, WILLIAM
On behalf of the Ngaliwurru and Nungali Peoples

v

LANDS AND MINING TRIBUNAL
AND MINISTER FOR LANDS, PLANNING AND ENVIRONMENT

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: No. 74 of 2002 (20207368)

DELIVERED: 31 JULY 2003

HEARING DATES: 24 MARCH, 24 JULY 2003

JUDGMENT OF: ANGEL J

REPRESENTATION:

Counsel:
Plaintiff: J Basten QC & S Glacken
Defendant: T Pauling SG QC & R Webb

Solicitors:
Plaintiff: Northern Land Council
Defendant: Solicitor for the Northern Territory

Judgment category classification: B
Judgment ID Number: Ang200307
Number of pages: 13

ang200307
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Griffiths & Anor v Lands & Mining Tribunal & Anor
[2003] NTSC 86
No. 74 of 2002 (20207368)

IN THE MATTER of a recommendation made under the Lands Acquisition Act and the Lands and Mining Tribunal Act

BETWEEN:

ALAN GRIFFITHS AND
WILLIAM GULWIN
On behalf of the Ngaliwurru and Nungali Peoples
Plaintiffs

AND:

LANDS AND MINING TRIBUNAL
First Defendant

MINISTER FOR LANDS, PLANNING
AND ENVIRONMENT
Second Defendant

CORAM: ANGEL J

REASONS FOR JUDGMENT

(Delivered 31 July 2003)

[1] By their amended Originating Motion, the plaintiffs Alan Griffiths and William Gulwin, on behalf of the Ngaliwurru and Nungali peoples, seek, inter alia, an order pursuant to s 45A Lands Acquisition Act (NT) setting aside a decision of the second defendant, Minister for Lands, Planning and Environment, to acquire compulsorily certain land and an order restraining the Minister from acting on that decision, that is, from acquiring the land.
[2] The land in question comprises the following:
(a) that parcel of land within the Town of Timber Creek containing an area of 20.29 hectares, more or less, being proposed Lot 109 as delineated on Survey Plan S99/233 lodged with the Surveyor General Darwin;
(b) that parcel of land comprising Lot 47 Town of Timber Creek, situate on Victoria Highway, as delineated on Survey Plan S86/225 held by the Surveyor General, containing an area of 5.41 hectares or thereabouts;
(c) proposed Lots 97, 98 and 114 Town of Timber Creek, containing areas of 3610, 3610 and 2020 square metres, more or less, respectively, as delineated on Survey Plan S99/230B lodged with the Surveyor General Darwin;
(d) proposed Lots 99 and 100 Town of Timber Creek, containing areas of 2000 and 3490 square metres, more or less, respectively, as delineated on Survey Plan S99/230C, lodged with the Surveyor General Darwin.
[3] The plaintiffs are registered Native Title claimants over the land which is unalienated Crown land unaffected by any interest or tenure derived from the Crown.
[4] The Minister issued three notices of proposal and notices of proposed acquisition under s 32 Lands Acquisition Act (NT) by which the Minister sought to acquire the subject land and "all interests including native title rights and interests (if any)" therein. One pair of notices related to Lot 109, a second pair of notices to Lot 47 and a third pair of notices to Lots 97, 98, 99, 100 and 114.
[5] The power conferred on the Minister to acquire land under the Lands Acquisition Act (NT) is stated in s 43(1) to be "subject to this Act". That provision, relevantly for present purposes, permits an acquisition only if there has been compliance with "the pre-acquisition procedures" in Part IV. See s 43(1)(b). Those procedures require the service of a notice of proposal in accordance with s 32. Such a notice must contain, inter alia, "details of the manner in which it is proposed that the land, if acquired, will be dealt with." See s 33(1)(b).
[6] Each of the present notices, as required by s 33(1)(b) Lands Acquisition Act (NT), sets forth the manner in which it is proposed the land, if acquired, will be dealt with by the Territory. With respect to Lot 109 it is proposed, apart from service easement grants, that a Crown lease (term) be granted under the Crown Lands Act (NT) to Warren Pty Ltd, or its nominee, for the purpose of developing a cattle husbandry facility and that, upon completion of the development, the Crown lease (term) be surrendered in exchange for freehold title. With respect to Lot 47 it is proposed, apart from service easement grants, that a Crown lease (term), under the Crown Lands Act (NT), be granted to Warren Pty Ltd, or its nominee, "for the purpose of goat breeding, hay production, market garden and ancillary." With respect to Lots 97, 98, 99, 100 and 114 it is proposed, apart from service easement grants, that the Lots be offered for sale by public auction and that Crown leases (term) be granted under the Crown Lands Act (NT) "for the purpose of commercial/tourism development", and that "upon completion of the development the Crown leases (term) may be surrendered in exchange for freehold titles."
[7] Pursuant to s 34 Lands Acquisition Act (NT), the plaintiffs lodged with the Minister objections to the three proposed acquisitions, and under s 38 the Minister applied to the Lands and Mining Tribunal to have the plaintiffs' objections heard. In the amended grounds of opposition to the Minister's applications, the plaintiffs in each matter challenged the jurisdiction of the Tribunal to hear the applications. The Tribunal decided that it had jurisdiction to hear the plaintiffs' objections. Although the Tribunal, as an administrative body, could not give a definitive and binding answer to the question of whether it had jurisdiction, it was appropriate for it to form an opinion on whether it had jurisdiction: R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 193, 216 and 269; Mineralogy Pty Ltd v National Native Title Tribunal (1997) 150 ALR 467 at 473, Re Adams and the Tax Agents Board (1976) 12 ALR 239 at 241-242. The Tribunal proceeded to recommend that the Minister compulsorily acquire the land in each matter. In respect of the acquisitions concerning Lot 109 and Lots 97-100 & 114 the Tribunal made recommendations subject to certain conditions.
[8] The plaintiffs submitted that the Lands Acquisition Act (NT) does not confer power on the Minister:
(a) to acquire Crown lands otherwise than in the circumstances of s 76 Crown Lands Act (NT) - Resumption and Reservation of Crown Land by the Administrator; or
(b) to acquire freehold lands otherwise than for public purposes of the Territory; or
(c) to acquire freehold lands for the purposes stated in the notices of acquisition;
and that the Lands Acquisition Act (NT) does not authorise the acquisition of native title rights and interests for the identified purposes.
[9] The plaintiffs also submitted that to the extent the Lands Acquisition Act (NT) purports to permit the acquisition of native title for the identified purposes, it renders native title holders legally disadvantaged compared to holders of ordinary title to the land, and that to the extent that the Lands Acquisition Act (NT) so provides, it is invalid as being inconsistent with s 24MA Native Title Act (Cth). The plaintiffs further submitted the Minister's power to effect an acquisition is conditional upon a consideration by him of a valid recommendation of the Lands and Mining Tribunal and that the recommendation of the Tribunal that the Minister acquire the land being invalid on the grounds of want of jurisdiction or, alternatively, wrongful exercise of jurisdiction, the Minister's decision was also invalid.
[10] The plaintiffs submitted that the principal question is whether the power of acquisition contained in the Lands Acquisition Act (NT) is completely untrammelled as to purpose, or whether it is limited by reference to the objects and scope of the Act and the limits on the Executive power of the Territory to expropriate private interests in land pursuant to the Northern Territory (Self-Government) Act 1978 (Cth) and Regulations made under s 35 of that Act, the Native Title Act (Cth) and the Racial Discrimination Act 1975 (Cth). In circumstances where each of the proposed acquisitions seeks, inter alia, to extinguish the native title rights and interests in the land claimed by the plaintiffs, so as to enable the Territory to grant interests in the land to third parties, that question, it was submitted, may be approached by asking whether the Lands Acquisition Act (NT) authorises use of the power of acquisition for the purpose of depriving one citizen of rights of ownership in land, in order to confer interests on another, when the acquisition serves no relevant purpose "in relation to the Territory". Compare s 76(1)(a)(xiv) Lands Acquisition Act (NT).
[11] The Minister, for his part, relied upon s 43 Lands Acquisition Act (NT) and, in particular, the words "… the Minister may acquire land under this Act for any purpose whatsoever", and submitted that the purpose of the acquisition was an irrelevant consideration and that the power to acquire was untrammelled. The plaintiffs submitted that the Lands Acquisition Act (NT), when read as a whole, required that the power of acquisition be exercised for a purpose "in relation to the Territory".
[12] It seems to me that the first question that arises in the present case is whether the Minister can compulsorily acquire unalienated Crown land.
[13] The notice of proposal and notice of proposed acquisition in relation to proposed Lots 97, 98, 99, 100, 109 and 114 refer to the acquisition of the land and "All interests including native title ..." and state that "the land if it is acquired" will be the subject of a Crown lease under the Crown Lands Act (NT) which in a certain event "may be surrendered in exchange for freehold titles … ." It seems to me the notice of proposal and notice of proposed acquisition demonstrate some confusion as to the nature of Crown lands, of compulsory acquisition, and the interplay between the Lands Acquisition Act and the Crown Lands Act. The notices in relation to the other lands are not relevantly different.
[14] Unalienated Crown land is land in which there is only radical title. This is not to be equated or confused with beneficial ownership of the land: Mabo v Queensland [No.2] (1991-92) 175 CLR 1 at 43 ff., especially at 51. Beneficial ownership of an estate in unalienated Crown land can only be acquired by alienation in compliance with the provisions of the Crown Lands Act (NT), s 4 whereof provides:

4. How Crown Lands May be Alienated
(1) Subject to subsection (2), Crown lands shall not be alienated from the Crown otherwise than in pursuance of this Act.

(2) This section does not affect -

(a) the granting of a lease in pursuance of an agreement or right in existence at the commencement of this Act;

(b) the granting of an estate in fee simple in pursuance of an Act;

(c) the granting of a lease in pursuance of an Act; or

(d) the granting of an estate in fee simple under the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth.

The Lands Acquisition Act (NT) is the means whereby the Minister can compulsorily acquire the beneficial interest in land of another thereby extinguishing that interest and vesting the land in the Territory. See s 46 Lands Acquisition Act (NT) whereby the land described in the notice upon publication in the Gazette vests the land in the Territory freed and discharged from all other interests. To contemplate the Minister compulsorily acquiring unalienated Crown lands makes a nonsense of the compensation provisions of the Lands Acquisition Act (NT) for there are no interests in the land apart from the Crown's radical title. One can not "acquire" that which one already has.
[15] Reference was made in the course of submissions to s 48 Lands Acquisition Act (NT) which provides:
48. Land Acquired is Crown Land
(1) The Minister may, at any time while no person (other than the Crown) has an estate or interest in the land, by notice published in the Gazette, declare that any land acquired under this Act is no longer required for the purpose for which it was acquired.

(2) Land referred to in a notice under subsection (1) may be dealt with as unalienated Crown land under a law in force in the Territory.

That section, in my view, does not support the concept of compulsory acquisition of unalienated Crown land. Following an acquisition, the land vests in the Crown in the right of the Northern Territory. Section 48 Lands Acquisition Act (NT) enables the land to be treated as unalienated Crown land when the Minister is of the view the land is no longer required for the purpose for which it was acquired. The section addresses a situation, inter alia, where the Crown in right of the Northern Territory has an estate in fee simple in the land, that is, a beneficial interest in addition to radical title. The heading to that section, "Land Acquired Is Crown Land", is not speaking of the acquisition of unalienated Crown land, but of land, upon acquisition by the Minister, becoming Crown land.
[16] Section 3 Crown Lands Act (NT) provides:
"Crown lands" means all lands of the Territory, including the bed of the sea within the territorial limits of the Northern Territory, and including an estate in fee simple that is registered in the name of the Territory, but does not include reserved or dedicated lands.
As can be seen, that definition by reference to "all lands of the Territory" encompasses radical title in the Crown, and by reference to "an estate in fee simple registered in the name of the Territory" also encompasses a beneficial interest in the Crown in right of the Territory. Section 4 of the Lands Acquisition Act (NT) provides that:
"land" means land (including the seabed) within the limits of the Territory and includes an interest in land.
[17] The second defendant's notices do not purport to acquire the plaintiffs' interests in the land apart from the land itself. The plain intention of each notice is to acquire the land and all interests in the land (including that of the plaintiffs) and to vest the land in the Territory. The notices contain proposed dealings with the land "if it is acquired". The land already being Crown land the notice can not operate to vest the land in the Territory. As Aickin J (Barwick CJ concurring) said in Commonwealth v Maddalozzo (1980) 29 ALR 161 at 169: "(I)t would be pointless for the Crown to purport to acquire that which is already Crown land." It was argued that decision and Commonwealth v New South Wales (1923) 33 CLR 1 showed that unalienated Crown land could be compulsorily acquired. However those cases involved the Crown in right of the Commonwealth, acquiring unalienated Crown land of a Territory or a State, pursuant to an express power to acquire Crown land in the Lands Acquisition Act (Cth), see, eg. 33 CLR at 31, per Isaacs J.
[18] The present notices purport to acquire interests other than those of the plaintiffs in the subject unalienated Crown land. A notice of proposal to be served pursuant to s 32(1)(b) Lands Acquisition Act (NT) contemplates interests other than those of registered native title claimants. In respect of the present land there are no such interests. There is only the radical title of the Crown. Similarly, the notice of proposed acquisition is to be in a form stipulated by s 33 Lands Acquisition Act (NT) which must include an invitation to the person on whom it is served to negotiate with the Minister the conditions of the acquisition of that person's interests. In the case of unalienated Crown land this is all otiose.
[19] The expression "unalienated Crown land" is not defined in either the Crown Lands Act (NT) or the Lands Acquisition Act (NT). Section 11 Crown Lands Act (NT) provides:
11. Certain Land To Revert
(1) Where the Territory is the owner of land in which no person other than the Crown has a registered interest, the Minister may, by instrument in the appropriate form, direct the Registrar-General to cancel the entry in the land register in respect of the land and the Registrar shall comply with the direction.

(2) Where an entry in the land register is cancelled in accordance with subsection (1), the land to which it relates is, on that cancellation, unalienated Crown land.

That section may be invoked by the Minister to convert alienated Crown land registered in the name of the Territory to unalienated Crown land. This may be contrasted with s 48 Lands Acquisition Act (NT) set out above.
[20] Section 9 Crown Lands Act (NT) provides:
9. Power to Alienate Land
(1) Subject to this Act, the Minister may, in the name of the Territory by instrument in the appropriate form under the Land Title Act, grant an estate in fee simple in or a lease of Crown land.

(2) A power to grant under subsection (1) an estate in fee simple includes a power to grant an estate in fee simple to the Territory and, subject to section 11, an estate in fee simple so granted or otherwise obtained by the Territory shall not merge with the radical title to the land.

(3) A reference in this Act to the grant of an estate in fee simple in land shall include, where the Territory is the registered proprietor of an estate in fee simple in land, a reference to the transferring of the estate in fee simple in that land under the Land Title Act.

Pursuant to that section, the Minister, in the name of the Territory, may grant an estate in fee simple to the Territory of Crown land and that estate in fee simple does not merge with the radical title to the land.
[21] Unalienated Crown lands may only be alienated in the manner stipulated by the Crown Lands Act (NT). See in particular ss 4, 9 and 12. Given the Minister's powers to grant estates in fee simple to the Territory and others in unalienated Crown lands, there is simply no occasion for the Lands Acquisition Act (NT) to be used in the manner contemplated. The plaintiffs' claimed interests do not constitute an alienation of the subject land.
[22] In my opinion, the Lands Acquisition Act (NT) in the absence of an express statutory power to acquire Crown land, can not be used or employed by the Minister in the manner attempted here, and that the present notices are invalid. None of this is to say that the Minister can not (subject to the outcome of the matters raised by the plaintiffs in paras 8 to 11 above which I do not determine) compulsorily acquire the plaintiffs' interests, "land" by definition including an interest in land: see Commonwealth v Maddalozzo (supra) at 166, per Mason J (Barwick CJ concurring).
[23] The position, generally, it seems to me, may be summarised as follows. In the absence of express power to do so, land in which the Crown has radical title or in which the Territory has a registered fee simple and no other party has any beneficial interest derived from the Crown can not be compulsorily acquired. Where parties other than the Crown hold registered estates or interests the land can be acquired. Where, as here, the land is Crown land (land in which there is only radical title or which is registered in the Territory) and there is or may be a third party unregistered interest underived from the Crown, the land can not, but the unregistered third party interest may, be compulsorily acquired.
[24] The plaintiffs are entitled to judgment and I shall hear from the parties as to the terms of relief and costs.