One of the key ways the Aboriginal Land Rights Act 1983 provides land rights to Aboriginal people is by enabling Aboriginal Land Councils to make claims for ‘claimable Crown lands’. If the Crown Lands Minister is satisfied that the whole or part of the land is ‘claimable Crown lands’, the Minister must grant the claim and transfer the land to the claimant Aboriginal Land Council, which may then sell the land to fund its purposes. Accordingly, the definition of ‘claimable Crown lands’ is important.

The definition of ‘claimable Crown lands’ excludes ‘lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands’ (s 36(1)(b1)).

In order for this subsection to apply, the Crown Lands Minister must form the opinion that the land claimed is needed or is likely to be needed as residential land. In previous decisions, the Court has said that:

  1. the assessment needs to be made by the Minister by reference to the date the claims were made, not the date the claims were determined
  2. the Minister, not a departmental officer, must personally form the opinion
  3. the opinion may be formed by reference to direct evidence or inferentially on the whole of the evidence.

This often creates a factual vortex because claims are often not determined until years after the claims were made. Within that period, it is not unusual for the Crown Lands Minister to have changed – indeed, the government may also have changed.

In circumstances where the person who is the Crown Lands Minister at the time the claim is made is not the person who is the Crown Lands Minister at the time of determination, how do you determine the opinion of the Crown Lands Minister at the date the claims were made?

In the recent case of Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council [2016] NSWCA 253 (Crown Lands Minister v NSWALC), the Court of Appeal concluded that a proper construction of s 36(1)(b1) does not require that the Minister’s opinion to be actually and subjectively held. Justice Leeming said ‘it … must be the case that the requisite opinion is one which can be imputed to him, on the relevant date’. One of the reasons for this construction is that the relevant Minister will almost certainly not have formed an actual opinion about the claimed land on the date the claim is lodged. That is, it is improbable that the Minister at the time will have turned his or her mind to the actual claim on the date that the claim is made.

This construction was applied in Crown Lands Minister v NSWALC as follows:

  1. In 1986, as a result of a direction of the Premier, an area including the whole of Lot 489 in DP755242 and Lots 7043 and 7044 in DP93598 were identified as a housing project.
  2. In 1989, the Koompahtoo Local Aboriginal Land Council lodged a claim over the whole of Lot 489, but not Lots 7043 and 7044.
  3. In July 2004, after 15 years, the Minister, refused the claim of the Koompahtoo Local Aboriginal Land Council on the basis that the land was needed, or likely to be needed, as residential lands. That decision was never challenged.
  4. Since 2004, Tetratheci Juncea had been identified on the land. Tetratheca Juncea is listed as a vulnerable species in Schedule 2 of the Threatened Species Conservation Act 1995 (NSW).
  5. On 3 November 2008, the Lake Macquarie City Council released the Morisset Structure Plan which identified that the majority of the claimed land was described as ‘land with biodiversity values’ and was not intended for residential use.
  6. In February 2009, claims were made by the NSW Aboriginal Land Council in relation to all three lots (Lots 489, 7043 and 7044).
  7. On 14 April 2014, the Crown Lands Ministers (there were two at the time) asserted their satisfaction that the bulk of the lands were ‘needed or likely to be needed for residential land’. As a result, the lands were not ‘claimable Crown lands’ under the Act.
  8. The NSW Aboriginal Land Council appealed that decision to the Land and Environment Court and orders were made requiring that the land be transferred to the Biraban Local Aboriginal Land Council. The Land and Environment Court:
    • identified that it was the opinion of the Crown Lands Minister in February 2009 which was relevant, not the opinion of the Joint Crown Lands Ministers on 14 April 2014
    • was not satisfied that the Minister’s decision in July 2004 with respect to the 1989 claim for Lot 489 could be imputed to the Minister in February 2009 with respect to the NSW Aboriginal Land Council’s claim for Lots 489, 7043 and 7044. The Court was not satisfied that the relevant Minister would have concluded that Lots 489, 7043 and 7044 were needed or likely to be needed as residential land after Tetratheci Juncea had been identified. That is, the circumstances with respect to the land had changed since 2004. Whist the Court of Appeal took issue with the language used and process undertaken by the Land and Environment Court, it ultimately accepted the conclusion was open to the Court.

This case highlights the difficulty in applying the ‘residential lands’ exclusion to the definition of ‘claimable Crown lands’ in the Act. Indeed, in a previous case, Justice Basten in the Court of Appeal observed that the drafting of section 36(1)(b1) will make it hard for the Minster to establish that the exception is made out. That prediction is certainly correct.