NSW 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 concerning a claim to Crown land under the *Aboriginal Land Rights Act 1983* (NSW). The dispute centred on whether certain Crown land, which was being prepared for sale, could be claimed by the NSWALC. The Minister administering the *Crown Lands Act 1989* (NSW) was the respondent.

The primary legal issue before the Court of Appeal was the interpretation of section 36(1)(b) of the *Aboriginal Land Rights Act 1983*. This provision allows for claims to Crown land that is "not lawfully used or occupied or otherwise used". The court had to determine whether land being held and prepared for sale by the Crown constituted "use" for the purposes of this section, thereby precluding an Aboriginal land claim. A secondary issue involved the potential for inconsistency between the *Aboriginal Land Rights Act 1983* and the *Crown Lands Act 1989*.

The Court of Appeal reasoned that the phrase "otherwise used" in section 36(1)(b) should be interpreted in a broad sense. It held that the Crown's preparation of the land for sale, including actions such as surveying and marketing, constituted a form of "use" of the land. This interpretation meant that the land was "otherwise used" and therefore not available for claim under section 36(1)(b). The court found no internal inconsistency between the two Acts, concluding that the *Crown Lands Act 1989* did not prevent the operation of the *Aboriginal Land Rights Act 1983* in this context.

The appeal was allowed, and the orders of the primary judge were set aside.