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

The New South Wales Aboriginal Land Council (NSWALC) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning a claim to Crown land. The land in question had been dedicated for use as a gaol, which was subsequently decommissioned. However, the dedications had not been formally revoked, and the land and buildings were maintained and used on weekends by offenders undertaking community service orders. NSWALC contended that the primary judge erred in finding the land to be lawfully occupied.

The central legal issues before the Court of Appeal were whether the primary judge had erred in fact, including in relation to the shifting of the evidential burden, and whether the primary judge had erred in law in finding that the occupation of the land was lawful. Further questions arose regarding whether the primary judge had erred in law by failing to consider parts of the claimed land separately, and whether the occupation was lawful despite activities not being inconsistent with the original dedications. The court also considered the effect of section 2 of the *New South Wales Constitution Act 1855* on the occupation of Crown land, specifically whether it required statutory authorisation.

The Court of Appeal reasoned that the primary judge’s findings of fact were open to be made and that any alleged errors of law were not material or operative. The court found that the activities occurring on the land were not inconsistent with the original dedication for gaol purposes, and therefore the occupation was lawful. The court also determined that section 2 of the *New South Wales Constitution Act 1855* did not abrogate the Crown's prerogative to manage and control Crown lands in the manner it did, nor did it require statutory authorisation for the occupation of Crown land on behalf of the Crown in this context. The court concluded that the primary judge had not erred in law.

The appeal was dismissed, and NSWALC was ordered to pay 80% of the Minister’s costs of the appeal.