Background
The New South Wales Aboriginal Land Council (NSWALC) lodged Aboriginal Land Claim 51922 on 26 August 2020 over Lot 1, Section 42 in DP 758606 — an unsealed dirt-and-gravel carpark on the corner of Oak Street and Church Street in Leeton, NSW, adjoining both the Leeton courthouse and the Leeton police station. As at the date of claim, the lot was used informally as a carpark by NSW Police Force personnel, a Corrective Services NSW employee, the courthouse Registrar, a visiting Magistrate, and members of the public. There was no signage restricting or authorising parking, and vehicular access ran through a gate on the adjoining police station lot.
The land’s history was complex. In February 1925, a Gazette notification under the Public Works Act 1912 (NSW) resumed Lots 1, 2 and 3 of Section 42 for the purpose of erecting a courthouse at Leeton, vesting them in the Minister for Public Works as Constructing Authority. However, the Minister for Public Works was never recorded as registered proprietor on the certificate of title. In 2010, a folio conversion registered the State of New South Wales as proprietor under the Real Property Act 1900. In 2012, the title was further annotated to record the lot as a Crown Reserve for future public requirements under the Crown Lands Act 1989.
In August 2023, the Minister’s delegate refused the claim on the sole ground that the land was “not vested in His Majesty.” NSWALC appealed to the Land and Environment Court. Before Pritchard J (assisted by Acting Commissioner Smith), the Minister also argued in the alternative that the land was lawfully used or occupied within the meaning of s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) (ALRA), which would independently disqualify it from being claimable Crown land.
The Court’s Holding
Pritchard J upheld the appeal on both issues. On the first question, the court found that Lot 1 was “lands vested in Her Majesty” within s 36(1) of the ALRA as at the date of claim. Notwithstanding the 1925 resumption under the Public Works Act 1912 and the historical failure to register the Minister for Public Works as proprietor, the folio conversion in 2010 had resulted in the State of New South Wales being recorded as registered proprietor, and the 2012 Crown Reserve notation confirmed the land’s status as Crown land. The court examined the relationship between s 42 of the Real Property Act 1900 (indefeasibility of registered title) and s 43 of the Public Works Act 1912 (statutory vesting upon Gazette notification) and concluded that the land was properly characterised as vested in Her Majesty.
On the second question, the court found that Lot 1 was not lawfully used or occupied within s 36(1)(b) of the ALRA. The Minister argued that use of the lot as a carpark by employees and agents of the NSW Police Force and the Department of Communities and Justice was authorised by the Court Security Act 2005 (NSW), relying on the definition of “court premises” in s 4 of that Act. The court rejected that argument, holding that the Court Security Act does not confer any right to use or occupy adjoining Crown land. The court further held that employees or agents of the NSW Police Force and the Department of Communities and Justice cannot use or occupy Crown land without authorisation from the Minister administering the Crown Land Management Act 2016 (NSW), and no such authorisation had been granted here. Informal use of the lot by members of the public similarly did not constitute lawful use or occupation. Accordingly, both statutory conditions for claimable Crown land were satisfied and the appeal was upheld.
Key Takeaways
- Crown land registered in the name of the State of New South Wales — including after a folio conversion — satisfies the “lands vested in Her Majesty” requirement in s 36(1) of the ALRA, even where the historical chain of title following a Public Works Act resumption was never formally completed on the register.
- The Court Security Act 2005 (NSW) does not, by itself, authorise NSW Police or court-administration staff to use or occupy Crown land adjacent to a courthouse; such use requires specific authorisation from the Minister administering the Crown Land Management Act 2016.
- Informal use of Crown land as a carpark — whether by government employees or members of the public — without ministerial authorisation under Crown lands legislation does not constitute “lawful use or occupation” under s 36(1)(b) of the ALRA and will not defeat an Aboriginal land claim.
- Section 42(3) of the Real Property Act 1900 (inserted in 2009) provides that the indefeasibility principle prevails over inconsistent provisions of other Acts unless those Acts expressly override it; the Public Works Act 1912 was not among the Acts amended to include such an express override.
Why It Matters
This decision has practical significance for Aboriginal land claims over Crown land parcels that are used incidentally by government agencies — particularly carparks, service lots, and curtilage land associated with police stations, courthouses, and other public buildings. It establishes that proximity to, or operational association with, a government facility does not by itself render such land “lawfully used or occupied” under the ALRA; a positive grant of authority under Crown lands legislation is required. Landholding agencies across NSW may need to review whether their occupation of adjacent Crown parcels is properly authorised.
The case also contributes to the ongoing jurisprudence on the interaction between Torrens title indefeasibility and statutory vesting mechanisms under the Public Works Act 1912, clarifying how the 2009 amendments to s 42 of the Real Property Act bear on that relationship in the Aboriginal land rights context.