New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act

2025/00491083

LAND & ENVIRONMENT – pursuant to the Aboriginal Land Rights Act 1983 (NSW) (ALRA), the appellant lodged Claim 7961 and Claim 52818 on 31 October 2005 and 4 February 2021, respectively, over land in Brunswick Heads – on 22 May 2023, the respondent, by his delegate, refused Claim 7961 insofar as it related to Part Lot 50 in DP 1067782 (Lot 50 (Central)), and Claim 52818 insofar as it related to Part Lot 2 in DP 728659 (the Riverfront Portion) – the respondent refused the claim to Lot 50 (Central) on the ground that the land was “needed for the essential public purpose of nature conservation” so was not “claimable Crown lands” under s 36(1)(a) of the ALRA – the respondent refused the claim to the Riverfront Portion on the ground that the land comprised a public road under the Roads Act 1993 (NSW) and was “not able to be lawfully sold or leased” so it too was not “claimable Crown lands” under s 36(1)(a) – the appellant appealed against those decisions pursuant to s 36(6) of the ALRA – the respondent relied on the initial reasons for the refusals, as well as the additional reason that, pursuant to s 36(1)(d) of the ALRA, Lot 50 (Central) was not “claimable Crown lands” because it was the subject of an application for the determination of native title under the Native Title Act 1993 (Cth) – the primary judge upheld the respondent’s argument that Lot 50 (Central) was not “claimable Crown lands” because it was within the boundaries of a claimant application for the determination of native title under the Native Title Act as at the date of claim – in so holding, the primary judge considered that, while the relevant Native Title Act application in its terms excluded land including Lot 50 (Central) from the claim area, that land was still “the subject of” an application for an approved determination of native title for the purpose of s 36(1)(d) of the ALRA – the primary judge further held Lot 50 (Central) was not needed for the “essential public purpose” of nature conservation – the primary judge held that the Riverfront Portion was “claimable Crown lands” because it was “reserved or dedicated for any purpose” under the Crown Land Management Act 2016 (NSW), and the respondent had not established any of the exceptions provided for in s 36(1)(b)–(e) of the ALRA – the primary judge dismissed the appeal insofar as it related to Lot 50 (Central) and allowed the appeal insofar as it related to the Riverfront Portion – the primary judge ordered that the respondent transfer the Riverfront Portion to the appellant – whether the primary judge erred in construing "lands that are the subject of an application for a determination of native title" in s 36(1)(d) as capable of including land excluded by an application under the Native Title Act from the area covered by that application – whether the primary judge erred in holding that Lot 50 (Central) was not "claimable Crown lands" within the meaning of s 36(1) by reason of the operation of s 36(1)(d).  

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Brunswick River Claim) [2025] NSWLEC 144