Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council

The Minister Administering the Crown Lands Act (NSW) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned a claim by the Bathurst Local Aboriginal Land Council for certain Crown land, which was reserved for the preservation of native flora. The Minister contended that the land was not lawfully used or occupied by the Land Council at the date of the claim, as required by the relevant legislation.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had applied the correct test for determining lawful use or occupation of Crown land reserved for a public purpose, and whether the Land Council's use or occupation of the land was established to a more than notional degree. The Court also considered whether the intended cessation of use or occupation was relevant to this determination, and the distinction between questions of law and fact in the context of an appeal from the Land and Environment Court.

The Court of Appeal reasoned that the Land and Environment Court had correctly applied the legal principles governing lawful use and occupation of Crown land. It held that the Land Council's activities on the land, including maintenance and upkeep of fauna, constituted a sufficient degree of use and occupation, even though the nature park had been closed. The Court distinguished between a complete cessation of use and a temporary closure for the purpose of land management, finding that the latter did not negate the existing lawful use or occupation. The Court further clarified that the question of whether use or occupation was established to a more than notional degree was a question of fact, and that the primary judge had not erred in law in their determination.

The appeal was dismissed with costs.