Background

The appellants, La Perouse Local Aboriginal Land Council and the NSW Aboriginal Land Council, challenged the decision of the Court of Appeal of the Supreme Court of New South Wales, which had overturned a Ministerial determination that certain Crown land (Lot 5 DP 1156846, formerly the Paddington Bowling Club) was “claimable Crown land” under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).

The land had been leased by the Crown to private entities, but was in disrepair and not actively used at the time of the Aboriginal land claim. The key issue was whether the existence of a lease alone constituted “lawful use or occupation” under s 36(1)(b) of the ALR Act, thereby rendering the land ineligible for claim.

Issues

Whether “land” in s 36(1)(b) refers to physical land or includes legal interests.

Whether the existence of a lease, without actual physical use, constitutes “lawful use or occupation” under s 36(1)(b).

Whether the Minister’s decision to grant the claim was legally unreasonable.

Decision

The High Court allowed the appeal, holding that:

1. The term “land” in s 36(1)(b) refers to the physical land, not merely legal or equitable interests;
2. The phrase “lawfully used or occupied” requires actual, physical use or occupation of the land. The mere existence of a lease, without purposeful physical deployment of the land, does not satisfy this requirement;
3. The Court of Appeal erred in concluding that the lease alone constituted “use” of the land; and
4. The Minister’s decision was not legally unreasonable; it was open to the Minister to find that the land was not lawfully used or occupied at the time of the claim.

Orders

Appeal allowed.

Orders of the Court of Appeal set aside.

The appeal to the Court of Appeal is dismissed.

Quarry Street Pty Ltd is to pay the appellants’ costs.

Significance of the decision

This decision affirms that for land to be excluded from claim under s 36(1)(b) of the ALR Act, there must be substantive physical use or occupation. The ruling clarifies that passive or notional use—such as holding land under lease without activity—is insufficient to defeat a land claim under the ALR Act.

This article was written by Peter Barakate, Partner.