Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138

New South Wales Court of Appeal

CITATION: Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138

HEARING DATE(S): 7 April 2009

JUDGMENT DATE: 10 June 2009

JUDGMENT OF: Ipp JA at 1; Tobias JA at 85; Basten JA at 190

DECISION: Appeal dismissed with costs

CATCHWORDS: ABORIGINALS – Land rights under legislation – New South Wales – Claim to Crown land – Lawfully used or occupied – Claimed land was nature park containing flora and fauna – Claimed land reserved for the preservation of native flora – At date of claim nature park had been closed to allow reversion of land to woodland area – Maintenance activities and upkeep of fauna continued on land – Whether claimed land lawfully used or occupied at date of claim – Whether use or occupation to a more than notional degree established or was required to be established – Whether primary judge applied correct test of lawful use and occupation – Whether intended cessation of use or occupation relevant to determining whether actual use or occupation at date of claim – What is required for use or occupation of Crown lands reserved for a public purpose - APPEAL – Appeal from Land and Environment Court – Right of appeal – When appeal lies – Error of Law – What is – Difference between question of law and question of fact – Powers of Court of Appeal to determine questions consequential upon finding error of law

Aboriginal Land Rights Act 1983 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) Crown Lands Act 1989 Crown Lands Consolidation Act 1913 LEGISLATION CITED: Exhibited Animals Protection Act 1986 Interpretation Act 1987 Land and Environment Court Act 1979 Native Title Act 1993 (Cth) Suitors' Fund Act 1951