NSW Court of Appeal clarifies when land is claimable under the Aboriginal Land Rights Act

The NSW Court of Appeal (NSWCA) has upheld an appeal and ordered the Minister for Lands and Property to transfer land in Janalli to the NSW Aboriginal Land Council (NSWALC). The NSWCA found that the land was “claimable Crown lands” because the executive government had not formed a positive view that it was needed for an “essential public purpose”.

Snapshot

• Land cannot fall within the scope of “claimable Crown lands” under section 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) where it is needed, or likely to be needed, for an “essential public purpose”.
• At first instance, the Land and Environment Court of NSW (LEC) found that the relevant land in Janalli was being used for an “essential public purpose” on the basis of objective evidence about its use.
• In New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 294, the NSWCA allowed an appeal by the NSWALC and confirmed that it is necessary to show that the executive government formed a subjective, positive opinion that claimed land is needed for an “essential public purpose”. The appeal was allowed because no such subjective opinion was discernible from the evidence.
• State Government agencies should carefully review their land portfolios and determine the need, or likely need, of any Crown land for an “essential public purpose”.

Background

In December 2016, NSWALC filed two land claims under the ALR Act in respect of land located in Jannali (Land).

At the time the claims were lodged:

• The Land was Crown land occupied by the St George & Sutherland Community College (College).
• The Land was in the process of being sold to the College. In October 2016, immediately prior to the claims, the Minister for Education signed an internal briefing note, declaring the Land as “surplus to educational requirements” and agreeing that it be sold to the College.

Identifying when land is needed for an “essential public purpose”

The legal principles relevant to identifying when land is needed for an “essential public purpose” were not in dispute.

Relevantly, section 36(1)(c) of the ALR Act applies only where the executive government of the State has, as at the date the land claim is made, formed a positive opinion that the land is needed, or likely to be needed, for an essential public purpose. This requires the Minister to show that the executive government has, prior to or at the date of an ALR Act claim, turned its mind to the question and formed the opinion that land is needed for such a purpose.

The issue on appeal was the application of these principles to the facts of the case.

LEC initially finds that there is an "essential public purpose"

At first instance, the LEC held that:

• At the date of the land claims, the Land had been identified by the State Government as land needed for the essential public purpose of education. The State Government identified this in its decision to sell the Land to the College.
• The College provided educational services that are both “essential” and “public” on behalf of the State Government. The Land was therefore, as at the date of the land claims, being sold for the public purpose of education.  
• The Minister for Education’s declaration that the Land was “surplus to educational requirements” needs to be understood in the context that the sale was made to the College and not the public at large, for the limited purpose of enabling the College to continue providing its educational services.

Court of Appeal overturns the LEC’s decision and clarifies the application of key principles

Last month, the NSWCA found that the LEC misapplied the law and allowed the appeal on the following bases:

• The first instance reasons did not identify any positive view formed by the executive government that the Land was needed for an essential public purpose.
• The objective purpose of the proposed sale of the Land to the College is irrelevant. The NSWCA held that evidence relating to the College’s activities and services, and the NSW Department of Education’s knowledge of those activities and intention to sell the Land to the College, could not establish that the executive government had formed the subjective view that the Land was needed for an essential public purpose.
• The only evidence, if any, relevant to the question of the executive government’s subjective view was the internal briefing note signed by the Minister of Education, which confirmed that the Land was “surplus to educational requirements” and could be sold to the College (a private body) for its own purposes. The NSWCA found that the internal briefing note was inconsistent with the claimed land being needed for an essential public purpose.

The NSWCA set aside the LEC’s orders, and ordered that the Minister transfer the claimed land to NSWALC and pay NSWALC’s costs.

Key takeaways

The decision affirms that the executive government must hold a subjective, positive view that land is needed, or likely to be needed, for an “essential public purpose” for land to not be claimable under s 36(1)(c) of the ALR Act. An objective intention inferred from the circumstances of actions by the State Government is inadequate.

This means that State Government agencies should carefully consider the status of Crown land within their respective land portfolios and determine the need, or likely need, of each Crown land parcel for an “essential public purpose”.

If you would like to understand what this case means for you, please do not hesitate to get in touch.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Rainer Gaunt, Solicitor. With thanks to Mia Li, Vacation Clerk.