Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council [No 2]

The Minister Administering the Crown Lands Act (the Minister) appealed from a decision of the Land and Environment Court of New South Wales, which had upheld a claim by Deerubbin Local Aboriginal Land Council (Deerubbin) for certain Crown lands. The dispute concerned whether the land was "claimable" under section 36(1)(c) of the *Aboriginal Land Rights Act 1983* (NSW), which requires that the land not be "needed or likely to be needed for an essential public purpose." The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the Land and Environment Court had erred in finding that the subject land was not needed or likely to be needed for an essential public purpose. This involved determining whether the question of whether land was likely to be needed for an essential public purpose was a question of law or fact, and interpreting the meaning of "likely" in the context of section 36(1)(c). The Court also considered whether the Land and Environment Court had correctly assessed the evidence, including facts that arose subsequent to Deerubbin's application.

The Court of Appeal held that the question of whether land was likely to be needed for an essential public purpose was a question of fact, not law. It further clarified that "likely" in this context meant a "real or not remote chance or possibility." The Court found that the Land and Environment Court had not erred in its factual findings, concluding that only one conclusion was open on the evidence presented. Therefore, the appeal was dismissed.