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[2026] NSWCA 183
appellant. The appeal was upheld. Orders 1 and 4 made by Pepper J on 15 December 2025 were set aside. The 3 September 2026 order initially required transfer of Lot 50 to the New South Wales Aboriginal Land...
A broad registered native title application did not automatically make every parcel inside its outer boundary unavailable for an Aboriginal land claim. The Court held that land affected by a previous exclusive possession act, which extinguished native title and could not validly be covered by a claimant application, was not excluded by s 36(1)(d) of the ALR Act. The decision-makers had to assess that issue themselves. Because agreed lease facts and the 2019 Federal Court determination showed that native title was extinguished over Lot 50, the Minister did not prove it was excluded from claimable Crown lands. The appeal succeeded and a transfer was ordered, with the recipient later changed by consent.
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2,122 words · generated 08/10/2026
The Court of Appeal considered whether Lot 50 in DP 1067782, adjoining the Brunswick River, was excluded from “claimable Crown lands” because it lay within the outer boundary of a registered native title determination application. The claim was made under s 36 of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).
10 cited instruments linked from this judgment.
The Byron Bay Native Title Determination Application had been registered in 2001. When the Council lodged its land claim on 31 October 2005, Lot 50 was within that application’s external boundary. The Minister argued that this was enough to make Lot 50 “the subject of” the registered application, excluding it from claimable Crown lands under s 36(1)(d): [17], [22]-[24].
There was also an agreed historical fact with particular significance: Lot 50 had been the subject of two special leases, one issued under the Crown Lands Act 1884 (NSW) and one under the Crown Lands Consolidation Act 1913 (NSW): [30]. Their relevant grant dates were 29 November 1911 and 14 October 1955: [32]. The Federal Court’s 2019 determination identified Lot 50 in an area where native title was extinguished: [36].
The Minister refused the claim on 22 May 2023. The Land and Environment Court accepted the Minister’s construction of s 36(1)(d) and dismissed the appeal: [18], [37]. The Court of Appeal held that the primary judge had misconstrued and misapplied that provision: [40]-[41]. It upheld the appeal and ordered a transfer. The original order named the New South Wales Aboriginal Land Council as recipient, but, on 15 September 2026, the Court varied it by consent to name Tweed Byron Local Aboriginal Land Council and to identify the land by reference to Annexure A to the Land and Environment Court application.
The statutory question was not simply whether Lot 50 sat inside the outer boundary of a registered native title application. The Court read s 36(1)(d) of the ALR Act in the context of the Native Title Act 1993 (Cth). It distinguished between areas for which a native title claimant application may be made under s 61 and areas it must not cover under s 61A: [2]-[3], [27]-[29].
One prohibited category is an area where a previous exclusive possession act was done: s 61A(2). The Native Title Act identifies the grant or vesting of a Scheduled interest as such an act: s 23B(2)(c)(i). The relevant schedules include special leases under the two Crown Lands statutes involved here: [28]-[30]. Section 23A(2) provides that a previous exclusive possession act completely extinguishes native title: [31], [41].
The Court therefore rejected the approach that treated the application’s outer boundary as conclusive. It held that land could only be “the subject of” a native title determination application for ALR Act purposes if it could validly be the subject of such an application. Where native title had already been extinguished by a previous exclusive possession act, a claimant application could not validly cover that area: [41].
The Minister’s concern was that a Minister or the Land and Environment Court might decide the issue incorrectly, with a later Federal Court determination reaching a different conclusion: [4]-[6]. Bell CJ and Payne JA addressed that concern by pointing to the ALR Act’s provisions for a transfer that is subject to native title rights and interests existing immediately beforehand. Sections 36(9) and 36(9A) expressly qualify transfers in that way: [8], [12]. Section 40AA, later renumbered s 42, restricts dealings with land transferred subject to native title unless there is an approved determination of native title: [9], [13]. In the Court’s view, these provisions showed that the legislation contemplated possible uncertainty or error and supplied a way to manage its consequences. That possibility did not justify adopting the Minister’s construction.
The Court also held that the Minister and the Land and Environment Court were not required to wait for, or defer to, the Federal Court on whether a previous exclusive possession act had occurred. They had to make their own decision for the purpose of applying s 36(1)(d): [14]-[15], [44]. A later Federal Court decision about whether extinguishment had occurred was declaratory, not constitutive. It declared the legal effect of an earlier act rather than bringing that effect into existence at the date of the determination: [42], [46].
Finally, s 36(7) put the onus on the Minister to satisfy the Court that the land was not claimable Crown land: [22], [43]. The agreed lease facts established the relevant Scheduled interests, and the 2019 determination identified Lot 50 as within an extinguished area: [36], [45]-[47]. The Minister therefore did not discharge that onus.
The judgment set aside the primary judge’s approach in the particular dispute. As summarised at [25], the primary judge had treated all land described within the registered application’s boundaries as its subject, including areas that might ultimately be found to have had native title extinguished. The primary judge considered that investigating the historical leases would intrude on the Federal Court’s role and risk duplicate or inconsistent fact-finding.
The Court of Appeal instead construed “the subject of” in s 36(1)(d) by reference to whether the parcel could validly be the subject of a claimant application under the Native Title Act: [41]. This makes the statutory prohibition in s 61A relevant to identifying the land covered for the ALR Act question. The judgment does not say that every parcel within an outer boundary is excluded, nor that every historical lease automatically satisfies the statutory test. Its reasoning depends on the statutory character of the interest, the relevant acts and the facts established in the case.
The decision also clarifies the relationship between the State land-claim process and the Commonwealth native title process. The Minister and the Land and Environment Court must answer the question arising under the ALR Act themselves, even though the Federal Court determines native title matters under the Native Title Act: [44]. The Court rejected a general rule of deference to the Federal Court on the particular issue of whether a previous exclusive possession act had extinguished native title for the s 36(1)(d) inquiry.
The Court’s explanation of s 36(9), s 36(9A) and s 40AA (now s 42) is important to its treatment of uncertainty. A transfer can remain subject to native title rights and interests existing immediately before transfer, while statutory restrictions govern certain subsequent dealings: [12]-[13]. The judgment therefore treats these provisions as part of the legislative response to possible errors or later inconsistent findings, not as a reason to avoid applying s 36(1)(d).
The decision is about the construction and application of these provisions on the facts before the Court. It does not resolve every question about what evidence will establish a previous exclusive possession act in another claim, or how a different lease or statutory interest should be classified.
At [41], Preston CJ of LEC stated that land “the subject of” a native title determination application must be land that “can validly be the subject of such an application.” In plain English, the existence of a registered application with a broad outer boundary is not necessarily enough. The Court asks whether the relevant parcel could lawfully be included in a claimant application under the Native Title Act.
At [42], the Court explained that a Federal Court finding about whether a previous exclusive possession act occurred is “a declaratory decision, not a constitutive decision.” Put simply, the later judgment declares the effect of an earlier event; it does not make the extinguishment happen only when judgment is delivered. That reasoning allowed the 2019 determination to be relevant to the status of Lot 50 at the earlier date of the land claim.
At [44], the Court said there was “no warrant” for the Minister or the Land and Environment Court to defer to the Federal Court on whether a previous exclusive possession act occurred. The practical meaning is that each decision-maker applies the statutory test entrusted to them, even though the Federal Court has its own role under the Native Title Act.
At [47], the Court concluded that the Minister “could not and did not discharge the onus” under s 36(7). That was an application of the burden of proof to the established lease facts and the determination concerning Lot 50, not a general statement that a Minister will always fail where a parcel falls within an application’s outer boundary.
The reasoning is most directly engaged where a Crown land claim under s 36 of the ALR Act concerns land within the outer boundary of a registered native title determination application, but there is evidence that a previous exclusive possession act may have occurred over the particular parcel. The judgment’s example is a special lease that qualifies as a Scheduled interest under the Native Title Act: [30]-[32], [45].
Other relevant features of this case were that the parties agreed the leases concerned Lot 50, the statutory classification of those leases was established, and a Federal Court determination had later identified Lot 50 as land where native title was extinguished: [30], [36], [45]-[46]. The onus also mattered: the Minister had to satisfy the Court that the land was not claimable Crown land under s 36(7): [22], [43].
The judgment does not establish that any historical occupation, lease or land use is enough. It addresses the statutory category of a previous exclusive possession act, including the relevant provisions on Scheduled interests, and the consequence of extinguishment. In another matter, the precise terms, dates, statutory source and legal effect of the alleged act would be material questions under the legislation. The Court expressly accepted that factual or legal uncertainty may arise in other cases: [4]-[6], [42].
The supplied judgment contains no decisions issued after this Court of Appeal judgment that consider or apply its reasoning. It therefore does not provide a basis to describe later judicial treatment.
The Court referred to four earlier Federal Court decisions at [13], but did so as examples of non-claimant negative declaration proceedings that a Land Council may seek where there is doubt about native title: Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales [2012] FCA 792; Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; and Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales [2026] FCA 595. The Court did not identify those decisions as having decided the statutory construction issue in this appeal.
The supplied text records a subsequent procedural variation on 15 September 2026. By consent, the transfer order was changed to name Tweed Byron Local Aboriginal Land Council as recipient and to specify the land by reference to an annexure. That was a variation of the order, not a later decision about the precedent’s reasoning.
The judgment recognises that factual or legal uncertainty may remain about whether a particular parcel was affected by a previous exclusive possession act. It gives examples of uncertainty about whether land was subject to an exclusive agricultural or pastoral lease: [6]. It does not specify a general evidentiary test for resolving every such dispute. The question whether the relevant instrument falls within the statutory definition and affects the parcel will depend on the provisions and facts applicable to that instrument.
The judgment also does not set out how all possible errors by the Minister or the Land and Environment Court would be resolved in later cases. It identifies the statutory treatment of transfers subject to native title and restrictions on dealing with land as the relevant internal mechanism: [12]-[13]. The exact operation of those provisions in circumstances other than those before the Court remains outside the decision.
Nor does the judgment determine the consequences for every kind of application or every statutory exclusion. Its core reasoning concerns s 36(1)(d), claimant applications, previous exclusive possession acts and the agreed special-lease facts relating to Lot 50. It distinguishes claimant applications from the non-claimant application exception written into s 36(1)(d), but does not analyse that exception in depth: [21], [27].
The judgment’s treatment of the 2019 Federal Court determination is specific: the determination identified Lot 50 as within the extinguished area, and the Court treated it as declaratory and in rem: [38], [46]. The supplied text does not explore the effect of a determination with different wording, a different procedural history, or a disputed relationship between a parcel and the land identified in such a determination.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2026] NSWCA 183
Hearing dates: 10 July 2026
Date of orders: 03 September 2026
Decision date: 03 September 2026
Before: Bell CJ and Payne JA at [1]
Preston CJ of LEC at [16]
Decision: (1) The appeal is upheld.
(2) Orders 1 and 4 of Pepper J made on 15 December 2025 are set aside.
(3) The respondent is to transfer to the New South Wales Aboriginal Land Council Lot 50 in DP 1067782 within 90 days of the date of this order.
(4) The respondent is to pay the appellant’s costs of the appeal in this Court and the proceedings in the Land and Environment Court.
Catchwords: ABORIGINAL LAND RIGHTS – “claimable Crown lands” – whether land is – whether land is “the subject of” an application for native title determination under Commonwealth Native Title Act – native title determination applications that must not be made – land on which previous exclusive possession act done – such act includes grant or vesting of Scheduled interest – Scheduled interest includes leases of Crown lands – land claimed subject to such leases – Federal Court determination that native title extinguished – land is claimable Crown land
Legislation Cited: Aboriginal Land Rights Act 1983 (NSW), ss 36, 42
Crown Lands Act 1884 (NSW), s 90
Crown Lands Consolidation Act 1913 (NSW), s 75
Native Title Act 1993 (Cth), ss 23A, 23B, 61, 61A, 62, 190, 190A, 190B
Cases Cited: Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792
Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales [2026] FCA 595
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Brunswick River Claim) [2025] NSWLEC 144
Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; 373 ALR 667
Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3
Category: Principal judgment
Parties: New South Wales Aboriginal Land Council (Appellant)
Minister Administering the Crown Land Management Act (Respondent)
Representation: Counsel:
J Gleeson SC with H Rogers (Appellant)
P Herzfeld SC with A Flecknoe-Brown and M W Adams (Respondent)
Solicitors:
Chalk & Behrendt, Lawyers & Consultants (Appellant)
NSW Crown Solicitor’s Office (Respondent)
File Number(s): 2025/491083
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
New South Wales Aboriginal Land Council (the Council) lodged a claim under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) for Crown lands adjoining the Brunswick River in northern New South Wales. One of the lands claimed was Lot 50 in DP 1067782 (Lot 50). The Minister administering the Crown Land Management Act (the Minister) refused the claim. The Council appealed to the Land and Environment Court (the Court). The Minister argued that the claim should be refused by the Court because Lot 50 was “the subject of an application for determination of native title … that has been registered in accordance with the Commonwealth Native Title Act” [Native Title Act 1993 (Cth)] and therefore was excluded from the definition of claimable Crown lands by s 36(1)(d) of the ALR Act. The primary judge agreed, finding that Lot 50 was not claimable Crown land under s 36(1)(d) of the ALR Act and dismissed the appeal.
The Council appeal on two grounds: first, that the primary judge misconstrued the phrase “the subject of an application for a determination of native title” in s 36(1)(d) of the ALR Act and, secondly, that the primary judge misapplied that construction to find that Lot 50 was not claimable Crown land.
The Court held (Preston CJ of LEC with Bell CJ and Payne JA agreeing with additional reasons):
BELL CJ and PAYNE JA: We agree with the orders proposed by Preston CJ of LEC and his Honour’s reasons. The following additional reasons are not intended to qualify that agreement.
As Preston CJ of LEC explains, the Native Title Act 1993 (Cth) is clear in distinguishing between the areas in relation to which a native title determination application may be made (s 61) and the areas in relation to which such an application must not be made (s 61A).
One of the areas in relation to which a claimant application must not be made is an area in relation to which a previous exclusive possession act has been done (s 61A(2)). The grant or vesting of a Scheduled interest is a previous exclusive possession act (s 23B(2)(c)(i)). A Scheduled interest includes a special lease issued under the Crown Lands Act 1884 (NSW) or the Crown Lands Consolidation Act 1913 (NSW) (Schedule 1). A previous exclusive possession act completely extinguishes native title (s 23A(2)). In the present case it was an agreed fact in the court below that the land the subject of this appeal (Lot 50 (Central)) was historically the subject of the two special leases under the Crown Lands Act and the Crown Lands Consolidation Act, which are Scheduled interests under the Native Title Act.
In addressing the correct construction of s 36(1)(d) of the Aboriginal Land Rights Act 1983 (NSW) it may be accepted, as the Minister submitted, that the question of whether land claimed as “claimable Crown lands” is “the subject of an application for a determination of native title” that has been registered in accordance with the Native Title Act may involve a degree of factual or legal complexity.
The Minister highlighted that potential uncertainty in supporting the construction of s 36(1)(d) of the Aboriginal Land Rights Act preferred by the primary judge. The risk highlighted by the Minister was of the Minister or the Land and Environment Court reaching a conclusion that is inconsistent with later findings of the Federal Court under the Native Title Act.
There may be, as was submitted, cases where the Minister is faced with factual or legal uncertainty about whether, for example, a particular parcel of land has been subject to an “exclusive agricultural lease” or an “exclusive pastoral lease”. The possibility may also be accepted that the Minister may, incorrectly as it turns out, decide that a particular parcel of land is claimable Crown land under the Aboriginal Land Rights Act only for a later, inconsistent, determination of native title under the Native Title Act to be made.
This issue, a transfer of land under the which is inconsistent with a later determination of native title under the , is expressly contemplated and addressed by the .
36 Claims to Crown lands
…
(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall:
(a) if the Crown Lands Minister is satisfied that:
(i) the whole of the lands claimed is claimable Crown lands, or
(ii) part only of the lands claimed is claimable Crown lands,
grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or
(b) if the Crown Lands Minister is satisfied that:
(i) the whole of the lands claimed is not claimable Crown lands, or
(ii) part of the lands claimed is not claimable Crown lands,
refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.
…
(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.
…
(9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
(9A) Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.
…
(13) Where the transfer of lands in accordance with this section would not, but for this subsection, be authorised by the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901, the transfer of the lands in accordance with this section shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer.
40AA Disposal of land subject to native title restricted
(1) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may not sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests under section 36 (9) or (9A) unless the land is the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act).
(2) Subsection (1) does not apply to or in respect of the lease of land by the New South Wales Aboriginal Land Council or one or more Local Aboriginal Land Councils to the Minister administering the National Parks and Wildlife Act 1974 under Part 4A of that Act in accordance with a condition imposed under section 36A (2).
Section 36(5) of the Aboriginal Land Rights Act requires (and empowers: see s 36(13)) the Minister to grant a land claim by transferring the land to the claimant Land Council if the Minister is satisfied that the whole or part of the lands claimed are claimable Crown lands. It is the Minister’s satisfaction that claimed land comes within s 36(1), and not the objective fact, on which the provision operates. To that extent, every limb of “claimable Crown lands” as defined in s 36(1) is attended by a theoretical risk of an incorrect decision by the Minister.
In the case of s 36(1)(d), the Aboriginal Land Rights Act recognises the possibility that the Minister will make an incorrect decision about whether or not the claimed land was, objectively, claimable Crown land.
Section 36(9) and (9A) provide an internal conflict resolution mechanism addressing just that issue. Section 36(9) explicitly recognises that there could be circumstances in which a transfer of lands is required under s 36, but native title rights and interests exist under federal law immediately before the transfer in relation to that land. The section provides that the grant remains a valid grant, but subject to any native title rights and interests existing in relation to the lands immediately prior to the transfer.
Section 40AA (now re-numbered as s 42) provides that if there is a transfer of land under s 36, the recipient Land Council cannot sell, exchange, lease, dispose of, mortgage or otherwise deal with land vested in it subject to native title rights and interests, as referred to in ss 36(9) and (9A), unless the land is the subject of an approved determination of native title within the meaning of the Native Title Act. Accordingly, after a transfer under the Aboriginal Land Rights Act has occurred, the transfer is subject to native title rights and interests. There is a prohibition upon dealing with the land in the ways outlined unless there is first an approved determination of native title. As was pointed out in argument, a Land Council in receipt of land under the Aboriginal Land Rights Act may need to approach the Federal Court for a non-claimant negative declaration of native title in cases of any doubt. This is a fairly regular occurrence: see, for example, Worimi v Worimi Local Aboriginal Land Council (2010) 181 FCR 320; [2010] FCAFC 3; Lightning Ridge Local Aboriginal Land Council v Premier of New South Wales in his capacity as the State Minister pursuant to the Native Title Act 1993 (Cth) [2012] FCA 792 at [7]-[24]; Tweed Byron Local Aboriginal Land Council v Attorney General of New South Wales [2019] FCA 936; 373 ALR 667 at [2]; Metropolitan Local Aboriginal Land Council #3 v Attorney-General of New South Wales [2026] FCA 595 at [1]-[2].
36 Claims to Crown lands
(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires—
claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division—
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901,
(b) are not lawfully used or occupied,
(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,
(c) are not needed, nor likely to be needed, for an essential public purpose, and
(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
Crown Lands Minister means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.
The Minister in the appeal in the court below contended that the Court would not be satisfied that the lands claimed (Lot 50) “do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act”. Under s 36(7) of the ALR Act, the Minister bore the onus of satisfying the Court that Lot 50 was not claimable land in this respect. This involved negativing a negative, which thereby involved proving a positive. The Minister bore the onus of proving that Lot 50 was land that was the subject of an application for a determination of native title that has been registered in accordance with the Native Title Act 1993 (Cth) (Native Title Act).
There was no dispute that, at the date when the claim was made by the Council under the ALR Act on 31 October 2005, an application for a determination of native title had been registered under the Native Title Act. This was the Bundjalung People of Byron Bay Native Title Determination Application (Federal Court Proceedings NSD 6020/2001) (the Byron Bay NTDA). The Byron Bay NTDA had been registered under the Native Title Act in 2001 before the claim for lands (including Lot 50) had been lodged under the ALR Act. It was not in dispute that Lot 50 was within the external boundary of the large area covered by the Byron Bay NTDA.
The Minister claimed that this fact, that Lot 50 was within the area covered by the Byron Bay NTDA, was sufficient for Lot 50 to be “the subject of” the Byron Bay NTDA. The Minister submitted that all that is needed in order for land claimed under the ALR Act to be the subject of an application for a determination of native title that has been registered in accordance with the Native Title Act is that the land be within an area in relation to which the determination is sought. This simply involves the land claimed under the ALR Act being within the external boundaries of the area in relation to which a determination of native title is sought under the Native Title Act. No consideration need be given to any particular area falling within the external boundaries of that broader area, in relation to which an application for a determination of native title (a claimant application) must not be made. The Native Title Registrar is required to consider the claim made in the application (see s 190A of the Native Title Act) and include in the Register the claim if accepted for registration by the Registrar (s 190(1) of the Native Title Act). That consideration and registration does not involve a determination of native title in relation to any area, not only the area in relation to which an application is made but also any area in relation to which a claimant application must not be made (such as an area in relation to which a previous exclusive possession act was done and a claimant application must not be made under s 61A(2) of the Native Title Act). That determination of native title is made later by the Federal Court. Until the Federal Court does determine the claimant application, the whole of the area in relation to which the application is made (that is to say, the whole area within the external boundaries including any internal areas within these external boundaries that might not be able to be claimed), is the “subject of” the application for determination of native title for the purposes of s 36(1)(d) of the ALR Act.
(a) The expression “the subject of” in s 36(1)(d) of the ALR Act must be construed within the context of the Native Title Act. Land that is not stated to be within the external or internal boundaries of the claim area is land that is not “covered by” an application for determination of native title (s 62(2)(a)(ii) of the Native Title Act) and is therefore not “claimed” (s 190B(2) of the Native Title Act). Land that is not claimed under the Native Title Act is not land that is “the subject of” the application under the ALR Act: [127]. (b) The question of whether the land is within the internal boundaries of the claim area (such as being the subject of a special lease) so as to extinguish native title, required further investigation and enquiries of a legal and factual nature to be undertaken and concomitant findings to be made: at [128]. (c) These questions of extinguishment of native title over land within the internal boundaries of the claim area cannot be decided by the Native Title Registrar at the time of registration of the claim but must be resolved by the Federal Court at a later stage in the native title determination process: at [129]. (d) Although s 36(1)(d) of the ALR Act is only engaged once an application for a determination of native title is registered under the Native Title Act, which can only occur when the Registrar has concluded that the claim’s external and internal boundaries are described in a manner that provides “reasonable certainty” as to whether an area of land is covered by the claim (s 190B(2) of the Native Title Act), such registration is not the determination of the existence or extinguishment of native title over that area: at [130]. (e) For the Land and Environment Court to make a finding that land is or is not the subject of an application for a determination of native title for the purposes of s 36(1)(d) of the ALR Act would require the Court to go behind the registration of the application for a determination of native title under the Native Title Act in order to ascertain whether the land formed part of the claim or not. To the contrary, s 36(1)(d) of the ALR Act defers the process of deciding an application for the determination of native title under the Native Title Act to the Federal Court: at [131]. (f) An application for the determination of native title under the Native Title Act comprises all of the areas identified in it, including the non-excluded and excluded areas. That is to say, the application can include areas where extinguishment of native title will ultimately be found to have occurred due to a previous exclusive or non-exclusive possession act: at [132]. (g) The lands that are “the subject of” an application for a determination of native title for the purposes of s 36(1)(d) of the ALR Act are coterminous with the lands that comprise the application for a determination of native title under the Native Title Act. This includes all lands that potentially fall within the subject of the claim described in the application for a determination of native title: at [133]. (h) Applying this construction of s 36(1)(d) of the ALR Act, the lands that are “the subject of” the registered application for a determination of native title under the Native Title Act include all of the lands described in that application, and the standard language used in the Byron Bay NTDA did not have the effect of excluding Lot 50 from the lands that are the subject of the application: at [135]. (i) Similarly, the fact that Lot 50 was historically the subject of two special leases under the and the does not matter: at [136]. Section 36(1)(d) of the ALR Act seeks to avoid the need for the Minister and the Court to examine the underlying facts and circumstances of the application for a determination of native title, such as whether the land claimed is subject to special leases. Such factual examination would usurp the function of the Federal Court and also result in duplicate or inconsistent fact finding by the Minister (and the Court) and the Federal Court in order to determine the content of the application: at [139]. (j) Viewed this way, the land (Lot 50) was “the subject of” an application for a determination of native title for the purpose of s 36(1)(d) of the ALR Act irrespective of whether the land was purportedly excluded from “the area covered by the application” for native title: at [145].
The Council contested the primary judge’s construction of s 36(1)(d) of the ALR Act. The Council submitted that lands claimed under the ALR Act are only “the subject of” an application for a determination of native title that has been registered in accordance with the Native Title Act if the lands may validly be the subject of a native title determination application under the Native Title Act.
The scheme of the Native Title Act is to prescribe the native title determination applications that may be made (see s 61) and the native title determination applications that must not be made (s 61A). One of the restrictions on making a native title determination application (that is a claimant application) is in s 61A(2), which provides:
(2) If:
(a) a previous exclusive possession act (see section 23B) was done in relation to an area; and
(b) either:
(i) the act was an act attributable to the Commonwealth; or
(ii) the act was attributable to a State or Territory and a law of the State or Territory has made provision as mentioned in section 23E in relation to the act;
a claimant application must not be made that covers any of the area.
(2) An act is a previous exclusive possession act if:
(a) it is valid (including because of Division 2 or 2A of Part 2); and
Note: As at the commencement of this section, acts such as grants before 1 January 1994 that were invalid because of native title have been validated by or under Division 2.
(b) it took place on or before 23 December 1996; and
(c) it consists of the grant or vesting of any of the following:
(i) a Scheduled interest (see section 249C);
(ii) a freehold estate;
(iii) a commercial lease that is neither an agricultural lease nor a pastoral lease;
(iv) an exclusive agricultural lease (see section 247A) or an exclusive pastoral lease (see section 248A);
(v) a residential lease;
(vi) a community purposes lease (see section 249A);
(vii) what is taken by subsection 245(3) (which deals with the dissection of mining leases into certain other leases) to be a separate lease in respect of land or waters mentioned in paragraph (a) of that subsection, assuming that the reference in subsection 245(2) to “1 January 1994” were instead a reference to “24 December 1996”;
(viii) any lease (other than a mining lease) that confers a right of exclusive possession over particular land or waters.
(1) A Scheduled interest is:
(a) anything set out in Schedule 1, other than a mining lease or anything whose grant or vesting is covered by subsection 23B(9), (9A), (9B), (9C) or (10) (which provide that certain acts are not previous exclusive possession acts); or
(b) an interest, in relation to land or waters, of a type declared by a regulation for the purposes of this paragraph to be a Scheduled interest.
Schedule 1 lists things that are covered by the expression “Scheduled interest”. Of relevance to this case are the various types of leases under the Crown Lands Act 1884 (NSW) and the Crown Lands Consolidation Act 1913 (NSW) (in Schedule 1 Part 1 cls 2 and 3 of the Native Title Act). It was an agreed fact that Lot 50 was historically the subject of Special Lease 1950-26 Murwillumbah for Dairying and Agriculture issued under s 75 of the Crown Lands Consolidation Act 1913 and Special Lease 1910-36 Murwillumbah for Grazing and Agriculture issued under s 90 of the Crown Lands Act 1884.
If an act is a previous exclusive possession act, such as granting or vesting of a Scheduled interest, the act will have completely extinguished native title: s 23A(2) of the Native Title Act. This is the reason that a claimant application must not be made that covers any of the area in relation to which a previous exclusive possession act was done: see s 61A(2) of the Native Title Act.
The Council submitted that the consequence of this legislative scheme is that the Byron Bay NTDA could not validly be made in relation to Lot 50, as a previous exclusive possession act had been done in relation to that area. The previous exclusive possession act consisted of the grant or vesting of a Scheduled interest before 23 December 1996, being the gazettal of Special Lease 1910-36 Murwillumbah for Grazing and Agriculture under s 90 of the Crown Lands Act 1884 on 29 November 1911 and the gazettal of Special Lease 1950-26 Murwillumbah for Dairying and Agriculture under s 75 of the Crown Lands Consolidation Act 1913 on 14 October 1955. Those previous exclusive possession acts completely extinguished native title in relation to Lot 50.
The Council submitted that, as an application for a determination of native title under the Native Title Act could not be made in relation to Lot 50 because native title has been extinguished by the doing of a previous exclusive possession act, the Byron Bay NTDA should be construed as being a valid application that does not cover the area of Lot 50 in relation to which the previous exclusive possession was done. If Lot 50 was not covered by the Byron Bay NTDA, Lot 50 could not be “the subject of” that application for a determination of native title. Paragraph (d) of the definition of “claimable Crown lands” in s 36(1) of the ALR Act was therefore satisfied.
The Council submitted, therefore, that the primary judge erred in construing the words “the subject of” in s 36(1)(d) of the ALR Act as not bearing this meaning of referring to an application for a determination of native title that can validly be made under the Native Title Act. A valid application for a determination of native title cannot be made that covers any area in relation to which a previous exclusive possession act was done (s 61A(2) of the Native Title Act). Accordingly, land in relation to which a valid application for a determination of native title cannot be made under the Native Title Act cannot be land that is “the subject of” an application for a determination of native title for the purposes of s 36(1)(d) of the ALR Act.
I find that the primary judge erred in both the construction of s 36(1)(d) of the ALR Act and the application of that construction to the facts, for the reasons given by the Council and summarised above.
Starting with the construction of s 36(1)(d) of the ALR Act, lands that are “the subject of” an application for a determination of native title under the Native Title Act are lands that can validly be the subject of such an application. The Native Title Act is clear in demarcating the areas in relation to which a native title determination application may be made (s 61) and the areas in relation to which such an application must not be made (s 61A). One of the areas in relation to which a claimant application must not be made is an area in relation to which a previous exclusive possession act has been done (s 61A(2)). The grant or vesting of a Scheduled interest is a previous exclusive possession act (s 23B(2)(c)(i)). A Scheduled interest includes a special lease issued under the Crown Lands Act 1884 or the Crown Lands Consolidation Act 1913 (Schedule 1). A previous exclusive possession act completely extinguishes native title (s 23A(2)). An application for a determination of native title cannot be made in relation to an area in relation to which native title has been extinguished. The consequence is that land in relation to which native title is extinguished cannot validly be “the subject of” an application for a determination of native title under the Native Title Act for the purposes of s 36(1)(d) of the ALR Act.
This construction is not affected by the fact that there may be, in some circumstances, uncertainty as to whether a previous exclusive possession act has been done in relation to any particular area, which uncertainty may need to be resolved by the Federal Court when it determines the claim. The Federal Court’s decision of whether there has or has not been a previous exclusive possession act done in relation to any particular area is a declaratory decision, not a constitutive decision. The decision declares what is already the fact – that native title has been extinguished by the doing of the previous exclusive possession act – rather than constitutes that fact by the making of the decision. The consequence of the declaratory decision, therefore, is that the area in relation to which native title has been extinguished could never validly have been the subject of an application for a determination of native title under the Native Title Act.
For the purposes of s 36(1)(d) of the ALR Act, the Minister bore the onus under s 36(7) of the ALR Act of establishing whether or not this fact exists at the date of the claim under the ALR Act. If a previous exclusive possession act has been done which extinguishes native title in relation to an area of the land claimed, that area cannot validly be “the subject of” an application for a determination of native title under the Native Title Act, for the purposes of s 36(1)(d) of the ALR Act. The area is, therefore, claimable Crown land.
The Council has established that the primary judge erred in the construction and application of s 36(1)(d) of the ALR Act, which errors were material in the primary judge finding that Lot 50 was not claimable Crown land and dismissing the appeal in relation to Lot 50. The appeal should be upheld and the primary judge’s order dismissing the appeal set aside.
The Council and the Minister agreed that in the event of the appeal being upheld on the basis that Lot 50 is claimable Crown land, the appropriate order is not to remit the matter but instead to order that Lot 50 be transferred to the Council. The appropriate costs order in this event is that the Minister pay the Council’s costs of this appeal, as well as the costs of the proceedings in the court below.
I propose the Court make the following orders:
The appeal is upheld.
Orders 1 and 4 of Pepper J made on 15 December 2025 are set aside.
The respondent is to transfer to the New South Wales Aboriginal Land Council Lot 50 in DP 1067782 within 90 days of the date of this order.
The respondent is to pay the appellant’s costs of the appeal in this Court and the proceedings in the Land and Environment Court.
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On 15 September 2026 the Court made the following order by consent of the parties: Pursuant to r 36.15(2) of the Uniform Civil Procedure Rules, Order 3 made on 3 September 2026 is varied by: (a) replacing “New South Wales Aboriginal Land Council” with “Tweed Byron Local Aboriginal Land Council”; and (b) inserting after the words “DP 1067782” and before “within”, the words “shown on Annexure “A” to the Application in Land and Environment Court of New South Wales proceedings 2023/300387”.
New South Wales Aboriginal Land Council
Minister Administering the Crown Land Management Act
The appeal was upheld. Orders 1 and 4 made by Pepper J on 15 December 2025 were set aside. The 3 September 2026 order initially required transfer of Lot 50 to the New South Wales Aboriginal Land Council within 90 days and ordered the Minister to pay the appellant’s costs of the appeal and Land and Environment Court proceedings. By consent on 15 September 2026, the transfer recipient was changed to Tweed Byron Local Aboriginal Land Council, and the land was further identified by reference to Annexure A to the Land and Environment Court application in proceedings 2023/300387.
As at the date of this claim (31 October 2005), the Aboriginal Land Rights Act relevantly provided:
Having addressed the potential uncertainty raised by the Minister, we wish to emphasise that we agree with Preston CJ of LEC that, on the correct construction of s 36(1)(d) of the Aboriginal Land Rights Act, there is no warrant for the Minister or the Land and Environment Court on appeal to defer to the Federal Court to decide whether there has been a previous exclusive possession act that extinguishes native title in relation to the area of land claimed.
For these reasons, in addition to those given by Preston CJ of LEC, land in relation to which native title is extinguished cannot validly be “the subject of” an application for a determination of native title under the Native Title Act for the purposes of s 36(1)(d) of the Aboriginal Land Rights Act. The Minister or the Land and Environment Court must decide for themselves whether an area of land is or is not claimable Crown lands, having regard to the statutory test under s 36(1)(d) of the Aboriginal Land Rights Act.
PRESTON CJ of LEC: This appeal concerns the proper construction and application of the definition of “claimable Crown lands” in s 36(1) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).
The appellant, New South Wales Aboriginal Land Council (the Council), had lodged a claim under the ALR Act for lands adjoining the Brunswick River in northern New South Wales. One of the lands claimed was Lot 50 in DP 1067782 (Lot 50). The respondent, the Minister Administering the Crown Land Management Act (the Minister), refused the claim. The appellant appealed to the Land and Environment Court. The Minister raised on the appeal different reasons for refusal of the claim than those given for the original refusal. One of these new reasons was that Lot 50 was not claimable Crown lands within the definition in s 36(1) because, at the date of the claim, it was “the subject of an application for a determination of native title … that has been registered in accordance with the [Native Title Act 1993 (Cth)]” and therefore was excluded from the definition of claimable Crown lands by s 36(1)(d) of the ALR Act.
The primary judge upheld this reason, finding that Lot 50 was not claimable Crown land under s 36(1)(d) of the ALR Act and dismissed the appeal: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Brunswick River Claim) [2025] NSWLEC 144.
The Council appealed against the primary judge’s decision on two grounds, contending that the primary judge erred in law by, firstly, misconstruing the phrase “the subject of an application for a determination of native title” in s 36(1)(d) of the ALR Act and, secondly, applying that misconstruction to find Lot 50 was not claimable Crown land.
I consider the primary judge did misconstrue and misapply s 36(1)(d) of the ALR Act in finding that Lot 50 was not claimable Crown land. I would uphold the appeal, set aside the primary judge’s decision and order 1 made on 15 December 2025, and instead order that the appeal in relation to Lot 50 be upheld and that the land be transferred to the Council.
The Council submitted that the primary judge also erred in finding that the Minister had discharged his onus under s 36(7) of the ALR Act of satisfying the Court that Lot 50 was not claimable Crown land. The agreed fact between the Minister and the Council in the court below was that Lot 50 was the subject of Scheduled interests, being the two special leases under the Crown Lands Act 1884 and the Crown Land**s Consolidation Act 1913 in relation to Lot 50 (s 23B(2)(c)(i) of the Native Title Act). The grant or vesting of those Scheduled interests were previous exclusive possession acts that completely extinguished native title in relation to Lot 50 (s 23A(2) of the Native Title Act). In this circumstance, the Minister could not and did not discharge the onus under s 36(7) of the ALR Act of satisfying the Court that Lot 50 was not claimable Crown land under s 36(1)(d) of the ALR Act.
The Council further submitted that the primary judge erred in not having regard to the evidence that the approved determination of native title under the Native Title Act expressly excluded Lot 50 as being an area in which native title had been extinguished. The Federal Court (Robertson J) determined and ordered on 30 April 2019 that native title exists in the Native Title Area described and depicted in the map attached to Schedule One to the Determination (Order 1) and that native title is extinguished in the Extinguished Area described and depicted in the map attached to Schedule Two to the Determination (Order 2). Schedule Two to the Determination described the Extinguished Area as comprising the land or waters set out in paragraph (e), including “Lot 50 DP 1067782”, which is Lot 50.
The Council noted that this determination in 2019, although after the date of the claim under the ALR Act on 31 October 2005, was before the Minister determined that claim on 22 May 2023 and the primary judge decided the appeal from the Minister’s decision on 15 December 2025. The Council submitted that the primary judge could and should have taken account of the evidence of the determination that native title had been extinguished in relation to Lot 50.
The Federal Court’s Determination that native title is extinguished in the Extinguished Area was not a constitutive decision, that is to say, extinguishing native title by and from the date of the Determination, but a declaratory decision, that is to say, declaring a fact that already existed. The reason why native title was extinguished in relation to Lot 50 was that a previous exclusive possession act had been done in relation to Lot 50 (being the grant or vesting of the Scheduled interests). The Determination that native title had been extinguished in relation to Lot 50 was a judgment in rem. The primary judge could and should have found that, by reason of the extinguishment of native title, Lot 50 was not an area covered by the application for a determination of native title, and hence could not be “the subject of” the application for a determination of native title for the purposes of s 36(1)(d) of the ALR Act.
On this basis, there is no warrant for the Minister or the Court to defer to the Federal Court to decide whether there has been a previous exclusive possession act that extinguishes native title in relation to the area of land claimed. The Minister and the Court must decide whether that fact exists for themselves, for the purposes of determining whether that area of land is or is not claimable Crown lands under s 36(1)(d) of the ALR Act. Each decision-maker under each statutory scheme must make their own decision about whether the land is the subject of an application for determination of native title under the Native Title Act, even though the purposes for which they are making the decision are different.
Turning to the application of this construction of s 36(1)(d) of the ALR Act, the primary judge erred in not finding that the Minister had failed to satisfy the Court that Lot 50 was not claimable Crown land, in discharge of the onus under s 36(7) of the ALR Act. It was an agreed fact in the court below that Lot 50 was the subject of the two special leases under the Crown Land**s Act 1884 and the Crown Lands Consolidation Act 1913, which are Scheduled interests under the Native Title Act (see s 249C and Schedule 1). The grant or vesting of a Scheduled interest is a previous exclusive possession act (s 23B(2)(c)(i)), which completely extinguished native title. In these circumstances, the Minister could not and did not discharge the onus under s 36(7) of the ALR Act of satisfying the Court that Lot 50 was not claimable Crown lands.
Moreover, the Federal Court’s Determination in 2019 that native title had been extinguished in the Extinguished Area, which was described to include Lot 50, was a judgment in rem. Native title was extinguished upon the previous exclusive possession act being done, which was when the special leases were issued on 29 November 1911 (for the Special Lease issued under the Crown Lands Act 1884) and 14 October 1955 (for the Special Lease issued under the Crown Lands Consolidation Act 1913). The Determination had the effect of declaring this effect of the extinguishment of native title in relation to Lot 50.
In these circumstances, the Minister could not and did not discharge the onus under s 36(7) of the ALR Act of satisfying the Court that Lot 50 was land that was the subject of an application for a determination of native title under the Native Title Act.