Australia, Aug. 2 -- New South Wales Land and Environment Court issued text of the following judgement on July 2:

1. The Minister Seeks to Amend His Statement of Facts and Contentions This is an application by the respondent, the Minister Administering the Crown Land Management Act ("the Minister"), to a Class 3 Aboriginal land rights claim commenced by the New South Wales Aboriginal Land Council ("the Land Council"), to amend his Statement of Facts and Contentions ("SOFAC").

2. The land claim was commenced by the Land Council on 12 December 2023. It concerns a public carpark adjacent to the Leeton Courthouse.

3. The application is attended by some urgency because the matter is set down for final hearing on 28 and 29 July 2025. Accordingly, upon hearing oral argument from the parties, I made orders allowing the amendments and making further necessary procedural directions to ensure that the proceedings are ready for hearing. I promised to publish written reasons as soon as practicable. These are those written reasons.

Circumstances Giving Rise to the Application to Amend

7. On 7 June 2024 the Minister filed his SOFAC. Part B of the SOFAC included the following issues as part of the Minister's case:

14. As at the Date of the Claim, the Claimed Land was not "claimable Crown lands" within the meaning of s 36 of the ALRA for the following reasons:

i. The Claimed Land was not vested in His Majesty; or, in the alternative

ii. The Claimed Land was vested in His Majesty but was lawfully used or occupied, such that s 36(1)(b) of the ALRA was not satisfied.

Not Vested in His Majesty

15. The Claimed Land was not vested in His Majesty.

Particulars

i. A Notification of Resumption of Land occurred pursuant to the Public Works Act 1912 (NSW), published in the NSW Government Gazette on 6 February 1925. There after the Claimed Land became appropriated for a certain authorised work, being the erection of the Leeton Courthouse.

ii. At the Date of Claim the Claimed Land was therefore vested in the Minister for Public Works and was not vested in His Majesty.

Lawful use or occupation

16. The Claimed Land was lawfully used or occupied.

Particulars

i. The Claimed Land was lawfully used or occupied as a carpark.

ii. The Claimed Land was a public carpark which provided parking to the adjacent Leeton Courthouse, Leeton Police Station and the public generally.

iii. The use or occupation of the Claimed Land was consistent with the Reserve Purpose, Reserve 751742 for 'Future Public Requirements'.

5. On 23 August 2024 the Land Council filed a SOFAC in reply. Part B of its SOFAC responded as follows (footnotes omitted):

Land was vested in His Majesty

16 As at the date of claim, the registered proprietor of Lot 1 was 'The State of New South Wales'.

17 As at the date of claim, the claimed land was Crown land and was the subject of Reserve 751742.

18 The Applicant contends that the Court would not be satisfied that, as at the date of claim, Lot 1 was 'not vested in His Majesty'. To the contrary, the Court would conclude that, as at the dates of claim, Lot 1 was 'lands vested in Her Majesty'. In particular, it is noted that land not vested in His Majesty cannot be the subject of a reserve under the CLA.

Land was not "lawfully used or occupied"

19 In the context of s 36(1)(b) of the ALRA, the legal and evidentiary onus is on the Minister to satisfy the Court that the whole of Lot 1 was:

a.) used or occupied in fact and to more than a notional degree; and

b.) that the use and occupation was lawful in the sense of being legally authorised.

20 The Applicant contends that the Court should not be satisfied on the evidence before it that, as at the dates of claim, the whole of Lot 1 (or any part of it) was lawfully used or occupied within the meaning of s 36(1)(b) of the ALRA.

6. The proceedings being Class 3 proceedings, the parties subsequently attended a conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 on 21 October 2024.

7. Following the s 34 conciliation conference, on 15 November 2024 the Minister filed an amended SOFAC, which removed the contention that the land was not vested in His Majesty as at the date of the claim ("the vesting issue").

8. On 28 November 2024 the Land Council filed a cognate amended SOFAC in reply removing the vesting issue from its SOFAC.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c98334cc6b4ba059b5e0a)

Disclaimer: Curated by HT Syndication.