Native title year in review 2024-2025

What you need to know

• In a significant development for case law concerning land claims under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act), a majority of the High Court in September 2025 found that land is not "lawfully used" by the Crown merely by reason of the land being the subject of an existing lease. Land is only "lawfully used" if, when the land claim was made, the land is being physically deployed for a purpose (La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32).
• This decision likely means that a broader range of land claims could be granted.
• In  another notable decision in December 2024, the NSW Court of Appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 294 confirmed that, to prove that claimed land was required for an "essential public purpose", the Minister must be able to show evidence of an actual decision to that effect, as at the date of claim.

What you need to do

• Consider any leasehold interests you may hold in Crown land and if the land subject of those interests is being physically deployed for a purpose. 

• If you are planning to access Crown land in NSW, you need to think about the ALR Act – develop a strategy to be able to lawfully access the Crown land having regard to potential claims under the Aboriginal Land Rights Act 1993 (NSW).

• Government decision-makers should document any decisions that Crown land is required for an essential public purpose and their reasons for that decision.

High Court finds Crown's leasing of land insufficient to establish "lawful use"  – La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd

In 2016, the NSW Aboriginal Land Council lodged a bulk land claim over lands within the boundary of La Perouse Local Aboriginal Land Council including the former Paddington Bowls Club.

The relevant land was subject to a lease which gave the tenant the right to occupy and use the land for the purposes of "Community and Sporting Club Facilities, Tourist Facilities and Services, Access" and not for any other purpose. The facilities on the land had largely fallen into disrepair and the land was not being used by its tenant for any of the purposes permitted by the lease. Tennis courts on the land were being used by the Wentworth Tennis Club, which was not the tenant, under an oral sublease with the tenant but without the Crown's consent as lessor.

In 2021, the Minister determined that the land was claimable Crown land. The Minister's decision was upheld by the Land and Environment Court, but overturned by the Court of Appeal (Quarry Street Pty Ltd v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 107).

The Court of Appeal found that the term "used" must be interpreted having regard to the definition of "land" in the ALR Act, which includes "any estate or interest in land, whether legal or equitable". The Court of Appeal said that it is an ordinary meaning of "use" or "used" that where land is leased, it is used by the tenant conducting physical activities on the land and also used by the landlord to derive rent from the land.

The Court of Appeal found that the Crown was lawfully using the land by leasing it and the land was not claimable.

On appeal to the High Court, a majority of the High Court found, for differing reasons, that land is not "lawfully used" by the Crown merely by reason of the land being the subject of an existing lease. Land is only "lawfully used" if, when the land claim was made, the land is being physically deployed for a purpose (La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32).

NSW Court of Appeal confirms test to establish that land is "needed for an essential public purpose"

NSW Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2024] NSWCA 294 concerned an appeal from a decision of the Land and Environment Court in which the primary judge found no error in the Minister's decision that land occupied by the privately owned St George & Sutherland Community College was not claimable Crown land because it was needed for an essential public purpose of education.

The claimed land was part of the former Jannali Girls High School site. The High School closed in 1991, and the site was used by the College for adult and community education. In October 2016, the Minister signed a briefing note accepting a recommendation that the claimed land be declared "surplus to educational requirements" and sold to the College. The Minister approved the sale based on an eight-year settlement period and the College remaining on the site with an eight-year lease. In December 2016, the NSW Aboriginal Land Council made two land claims including Crown land occupied by the College. In May 2021, the land claims were refused by the Minister. 

At first instance, the primary judge accepted the Minister's argument that the land was needed for an essential public purpose of education. The primary judge accepted the Minister's submission that the Department of Education's intention was to sell the land specifically to the College so that the College could continue using the site to deliver education to members of the public. 

No evidence of an "actual decision" that the land was needed for an essential public purpose

The Court of Appeal found that the primary judge had correctly identified the principles that apply to section 36(1)(c) of the ALR Act, including that the executive government is required to form a positive opinion that claimed land is needed for an essential public purpose. However, the primary judge's reasons did not disclose a finding that an "actual decision" had been made by the Government that the land was needed for the essential public purpose of education. The briefing note signed by the Minister was not sufficient. The Court of Appeal noted that no evidence was adduced by the Minister that was capable of proving that the executive government considered that the land was necessary for the public purpose of community education.     

The Court of Appeal notably found that:

• It was implausible that the claimed land could be considered surplus to educational requirements and simultaneously qualify as land needed, or likely to be needed, for an essential public purpose, particularly in the absence of restrictions on the College's use of the site. The conditions of sale and the eight-year lease did not impose restrictions on the College's use of the site.  The College could have used the site for any available private purpose, including sale.

• The Court of Appeal's decision in Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253, could not be distinguished. In that case, the Court of Appeal said that, "I would not consider that land which is proposed to be sold (whether to developers for on-sale or directly to owner occupiers) for private residential purposes would amount to land which is needed or likely to be needed for an essential public purpose." Although in the context of another limb of the definition of "claimable Crown lands", the same considerations apply in this case.

• The College's purposes were its own private purposes (although the provision of those services may have benefited those members of the public to whom the services were provided). The Minister's decision that the claimed land was surplus to educational requirements and could be sold to a private body for its own purposes was inconsistent with a decision of the executive government that the claimed land was needed for an essential public purpose.

The Court of Appeal determined that the Minister had not established that the claimed land was claimable Crown land and ordered that the land be transferred to the land council.

NSW Land and Environment Court further clarifies meaning of "lawfully used or occupied"

The case concerned an appeal from the Minister's refusal of the Deerubbin Local Aboriginal Land Council's (DLALC) December 2009 claim over land in Mount Irvine (Deerubbin Local Aboriginal Land Council v Minister Administering the Crown Land Management Act [2024] NSWLEC 127).

The claimed land was part of a reserve comprising the Mount Irvine Village Hall, an open area and a tennis court. The land was reserved in 1928 for the public purpose of "For Public Hall". A tennis court was built on the land in 1935. The claimed land was vested in the Reserve Trust, which had responsibility for the care, control and management of the reserve. The applicant did not press its claim to the public hall but argued that the uses and occupation of the open area and tennis court were not lawful because they were not for the reserve purpose of "For Public Hall". The issue for the Court was whether the claimed land was divisible into the three areas, and if so, whether the open area and tennis court were being lawfully used or occupied. 

The divisibility issue

The Court was satisfied that the claimed land was divisible in the manner contended by the applicant because the ALR Act contemplates the possibility of claims succeeding in part.  As a practical matter, the open space and tennis court were used and occupied to a different extent and in a different manner from each other and from the public hall.  No characteristic of the open space or tennis court was sufficient to warrant either of them being treated as part of the whole of the claimed land.

Lawfulness of use and occupation

The Court said that it was incumbent upon the Minister to satisfy the Court that the use or occupation of the claimed land was lawful, or "legally authorised". To be “lawful” for the purpose of s 36(1)(b) of the ALRA, the use must be authorised by, or reasonably in furtherance or ancillary to, the purposes for which the claimed land was reserved and not for “some unrelated purpose”.

The Court was satisfied that the open area was being lawfully used because the activities being carried out in that space served a purpose that was either consistent with the reserve purpose or an incident of or complementary to the use of the public hall. The reservation of the land “For Public Hall” is not limited to the use of the physical buildings. Rather, it being for the purpose of “For Public Hall”, the open space surrounding that structure plays a central role in facilitating and furthering the reserve purpose. 

The Court was not satisfied that the tennis court was being lawfully used because the recreational activities that took place on the tennis court were not consistent with the reserve purpose, or ancillary to that purpose. The recreational sporting activities carried out on the tennis court, while undoubtedly undertaken by the local community, were sufficiently divorced from the use of the public hall so as to remove it from the ancillary sphere of the reserve purpose.  

Finally, the Court considered whether the open space and tennis court were lawfully occupied. 

The Court held that the open space was lawfully occupied. While there was no continuous physical presence over the entirety of the open space, this is not necessary. The evidence demonstrates that the open space was regularly maintained and beautified by both volunteers and for payment, that were either organised, or at the very least, authorised by the Trust Board. The acts of occupation were the acts of the Reserve Trust. This was more than notional occupation or occupation as a matter of constructive inference - it was occupation in fact.

The same conclusion was not drawn in respect of the tennis court, for the following reasons

• The tennis court was open to anyone, and the Reserve Trust exercised no control over its use other than locking the tennis net in the public hall.

• Evidence of the use of the tennis court by the public were not acts that constituted occupation by the Reserve Trust. Only acts of the Reserve Trust were relevant for the purpose of determining occupation in fact.

• It was not clear to what extent acts of maintenance were carried out by or for members of the Mount Irvine community rather than the Reserve Trust.

• To the extent that quotes for repair works were obtained and grant money was sought, the work was never executed.

Accordingly, the appeal was allowed in part and the Court ordered that the land comprising the tennis court be transferred to the DLALC.

Key insights

La Perouse: The High Court's finding that land is not "lawfully used" by the Crown merely by reason of the land being the subject of an existing lease and is only "lawfully used" if the land is being physically deployed for a purpose represents a significant development in the case law and likely means that a broader range of claims could be granted. 

Jannali: The Court of Appeal's decision makes it clear that the executive government is required to form a positive opinion that the claimed land is needed for an essential public purpose and there must be evidence of an actual decision or view in this regard. It is not sufficient to rely on evidence of the nature of the activities carried out on the land being consistent with the public purpose.

Mount Irvine: The decision confirms that claim areas are divisible. Interest holders concerned about land claim risk should turn their mind to whether the whole of the relevant land is being lawfully used or occupied, consistently with its public purpose and is actually under their control and management.

Other author: Katrina Hall, Lawyer.

Want to know more? 

• NSW Court clarifies meaning of "lawfully used or occupied" in Aboriginal Land Rights Act, 12 June 2024 – summarises the 2023 case of Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2023] NSWLEC 134, in which the Land and Environment Court confirmed that lawful occupation of land does not require that the use is also lawful.

• Essential public purpose: NSW Courts raise bar for Minister to refuse claims under Aboriginal Land Rights Act, 3 August 2023 – summarises two important 2022 decisions concerning the meaning of "essential public purpose" in the definition of "Claimable Crown lands" under the ALR Act.