Native Title Year in Review 2022-2023

What you need to know

• After a quiet year in 2021, the courts have twice overturned the Minister's decision to refuse claims under the Aboriginal Land Rights Act 1983 (NSW).  
• Land reserved for charitable purposes and a former bowls club was transferred to Aboriginal Land Councils, following successful appeals. 
• To prove that claimed land was required for an essential public purpose and so not in fact "claimable", the Minister must be able to show that consideration had been given as to whether it was needed at the date of the claim). 

What you need to do

• Keep an eye out for potential claims made over any Crown land that you may hold interests in 

Reminder about definition of "claimable Crown lands" under the NSW Aboriginal Land Rights Act

Section 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) relevantly defines "Claimable Crown lands" as follows:

Claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division – 

are not lawfully used or occupied;

are not needed, nor likely to be needed, for an essential public purpose.

Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Management Act 

In 2009, the Darkinjung Local Aboriginal Land Council made a claim under the ALR Act  for two lots in Gosford.  

The lots were Crown land subject to a reserve trust.  The land was reserved for the purpose of charitable organisations in the 1970s.  The trustee of the reserve was a charity that worked with intellectually disabled people.  The charity established a workshop to provide employment and training on the land. 

The Minister refused the claim on the basis that the land was needed for an essential public purpose.  The Minister's decision was upheld by the Land and Environment Court, but overturned by the Court of Appeal (Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Management Act [2022] NSWCA 275)  

The Minister must prove they considered the land was needed for an essential public purpose when the claim was made

The key issue on appeal was whether the Minister, at the time the claims were made, had formed a view that the land was needed for an essential public purpose. 

The primary judge decided it was unnecessary for the Minister to prove that the government held the view that the land was needed for an essential public purpose at or around the date of the claim.  The primary judge considered the Minister's onus of proof was discharged by proving that): 

• a decision was made in the 1970s that the land was needed for an essential purpose; and
• the land has been continuously used for that purpose. 

The Court of Appeal overruled the primary judge.  The court said that the government at the time the claim was made must have considered whether the land was needed for an essential public purpose and concluded that it was.  Where the decision that land is needed for an essential public purpose significantly pre-dates the claim for land, there must be evidence that the government at the date of the claim had adopted the earlier decision.  

That evidence was totally lacking in this case.  While investigating the Land Council's claims, the government became aware that the charitable organisation had not occupied the reserve since the 1980s.  In fact, it had been wound up more than 30 years earlier.  Another charitable organisation had occupied the land and operated the workshop ever since.  The government had never authorised it to occupy or use the reserve.

The Court of Appeal concluded that the government at the date of the claim did not hold the view that the land was needed for an essential public purpose.  Accordingly, the land was claimable Crown land and the court ordered that the Minister transfer it to the Land Council. 

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club

In 2020, the New South Wales Aboriginal Land Council claimed land which had previously been the Waverton Bowls Club.  

In December 2020, the Minister refused the claim on the basis that the land was not claimable Crown land, because it was lawfully used and occupied by the North Sydney Council and the public, and it was needed for the essential public purpose of public recreation.  

The Council said the use and occupation of the land by the Council and the public was lawful because it had licences which related to the land when the land was claimed.  However, the licences did not allow the Council or the public's use of the land at the date of the claim.  The licences permitted the Council to conduct site investigations, and provided that the licences could not be relied upon  except for that purpose.  The site inspections were completed in May 2019, before the claims were made.  The licences did not authorise Council to open the grounds to the public.  

The Land and Environment Court found that Council's use and occupation of the land after the site investigation report was finalised was unlawful (New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130).

As a consequence, the public's use and occupation of the land was also unlawful. 

The Minister argued that the land was likely to be needed for the essential public purpose of recreation.  The court was not satisfied that, at the date of the claim, the government had formed the view that the land was needed for that essential public purpose.  The government was in the early stages of determining the use of the claimed land.  On the claim date, the process had not progressed in any meaningful way.

The court therefore found the land was claimable Crown land and the Minister was ordered to transfer it to the Land Council.

Authors: Sophie Westland, Senior Associate and Sophie Pruim, Lawyer.