Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council & Anor [2009] NSWCA 352

Reported Decision: 171 LGERA 56

New South Wales Court of Appeal

CITATION: Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council & Anor [2009] NSWCA 352

HEARING DATE(S): 30 July 2009

JUDGMENT DATE: 11 December 2009

JUDGMENT OF: Hodgson JA at 1; Basten JA at 38; Macfarlan JA at 100

(1) Appeal allowed in part. DECISION: (2) Direct the parties within fourteen days of the date of this judgment to submit agreed Short Minutes of Order or, if agreement cannot be reached, competing forms of Short Minutes of Order together with short submissions in support thereof, identifying the variations which should be made to the orders below to give effect to these reasons. (3) No order as to the costs of the appeal.

CATCHWORDS: ABORIGINALS – land rights under legislation – claim to Crown land – whether lands needed or likely to be needed as residential lands or for essential public purpose of nature conservation – whether lands lawfully used or occupied – Aboriginal Land Rights Act 1983 (NSW), s 36(1) - ADMINISTRATIVE LAW – judicial review – jurisdictional error – conclusive certificates issued by Crown Lands Minister – decision based on briefing note – whether wrong question asked – whether mandatory relevant considerations taken into account – whether certificates void – Aboriginal Land Rights Act 1983 (NSW), s 36(8)

Aboriginal Land Rights Act 1983 Aboriginal Land Rights (Amendment) Act 1986 Crown Lands Act 1989 Crown Lands Consolidation Act 1913 Crown Lands (Continued Tenures) Act 1989 LEGISLATION CITED: Housing Act 1985 Land and Environment Court Act 1979 Landcom Corporation Act 1985 Lands Act 1989 Migration Act 1958 (Cth) National Parks and Wildlife Act 1974