New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016

The New South Wales Aboriginal Land Council (NSWALC) appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court. The dispute concerned whether certain Crown land, Lot 3 in Deposited Plan 1001659, was "claimable Crown lands" under section 36(1)(c) of the *Aboriginal Land Rights Act 1983* (NSW). The primary judge had found the land was not claimable because it was needed for an essential public purpose, specifically education provided by a private community college.

The appeal required the Court of Appeal to determine whether the primary judge had erred in law in applying section 36(1)(c) of the *Aboriginal Land Rights Act 1983*. Specifically, the court considered whether the primary judge had failed to address the absence of a formal decision by the executive government that the land was needed for a particular purpose, and whether the identification of education provided by a private community college as an "essential public purpose" was legally unreasonable. The court also considered whether the grounds of appeal raised questions of law, as an appeal from the Land and Environment Court is limited to questions of law.

The Court of Appeal found that the primary judge had erred in law. The court reasoned that the determination of whether Crown land is needed for an essential public purpose requires a decision by the executive government, which had not been made in this instance. Furthermore, the court held that the primary judge's conclusion that education provided by a private community college constituted an essential public purpose was legally unreasonable in the context of the statutory scheme. The appeal was allowed, the primary judge's orders were set aside, and the Minister Administering the Crown Land Management Act 2016 (NSW) was ordered to transfer the land to NSWALC within 90 days. The respondent was also ordered to pay NSWALC's costs.