New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (the Nelson Bay Claim)

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 that dismissed its application. The dispute concerned a claim made by NSWALC under the *Aboriginal Land Rights Act 1983* (NSW) for certain Crown lands, which the Minister administering the Crown Lands Act had formed an opinion was needed or likely to be needed for residential purposes, thereby precluding the claim under section 36(1)(b1) of the Act.

The primary legal issue before the Court of Appeal was whether the opinion required by section 36(1)(b1) of the *Aboriginal Land Rights Act 1983* (NSW) must be held personally by the Minister at the time the claim is made, or if it could be held by departmental officers acting under the *Carltana* principle, which permits the delegation of ministerial functions to public servants. NSWALC also contended that even if the *Carltana* principle applied, the opinion formed by the Minister or his department was not valid because it was based on a flawed land assessment and did not properly consider the suitable land uses identified in that assessment.

The Court of Appeal allowed the appeal, holding that the *Carltana* principle did apply to the formation of the opinion under section 36(1)(b1). This meant that the opinion could be validly held by departmental officers. However, the Court found that the evidence did not establish that a proper opinion had been formed, particularly in light of the concerns raised about the land assessment and the subsequent communications between Ministers and the Premier regarding the future management of Crown lands, which suggested a different intended use for the claimed land. The Court therefore set aside the Land and Environment Court's dismissal of the application and remitted the matter for determination of any outstanding issues.