Mogo Local Aboriginal Land Council v Eurobodalla Shire Council

Mogo Local Aboriginal Land Council (the Council) appealed to the Court of Appeal of New South Wales against declarations made by the primary judge concerning land that had been resumed by Eurobodalla Shire Council (the Shire). The dispute centred on the nature of the Shire's interest in the land after it had been dedicated as a public reserve and subsequently declared to be Crown land, and whether this declaration divested the Shire of its fee simple interest and vested the land in the Crown for the purposes of the *Aboriginal Land Rights Act 1983* (NSW).

The Court of Appeal was required to determine whether the Shire had been divested of its fee simple interest in the land upon its declaration as Crown land, and consequently, whether the land had vested in Her Majesty within the meaning of the *Aboriginal Land Rights Act 1983*. Further, the Court had to consider whether the actions of the Registrar General in deleting the Shire as the registered proprietor, recording the land as Crown land, and cancelling the Certificate of Title were conclusive evidence of the Shire's divestment and the land's vesting in the Crown, and whether the Court possessed the power to rectify the register.

The Court of Appeal affirmed the primary judge's reasoning that the Shire's fee simple interest in the land was not extinguished by its dedication as a public reserve. It held that the subsequent declaration that the land might be dealt with as Crown land, pursuant to the relevant provisions of the *Local Government Act 1919* (NSW), operated to divest the Shire of its fee simple interest and vest the land in the Crown. The Court found that the Registrar General's actions were a consequence of this statutory divestment and were not themselves determinative of the legal effect of the declaration. The Court also confirmed that the land, having vested in the Crown, was "claimable Crown land" within the meaning of the *Aboriginal Land Rights Act 1983*.

The appeal was dismissed with costs, and the first declaration made by the primary judge was amended to clarify that the land was Crown land "within the meaning of the definition of claimable Crown lands in the *Aboriginal Land Rights Act 1983*".