Posted on September 22, 2026 by Dominic Smith and Megan Hawley 8

Court of Appeal confirms Crown Land Minister’s obligation to determine Aboriginal land claims subject to native title applications

The Court of Appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2026] NSWCA 183 (“Brunswick River Claim“) has clarified how the Aboriginal Land Rights Act 1983 (ALR Act) and the Native Title Act 1993 (NT Act) interact when an Aboriginal land claim is made over Crown land which is also subject to a native title application.

How the ALR Act and NT Act interact when an Aboriginal land claim is lodged

In order for the Crown Lands Minister to grant land subject to a claim under the ALR Act to an Aboriginal Land Council, the land must be  “claimable Crown lands”. Section 36(1) of the ALR Act defines ‘claimable Crown lands’. Under s36(1)(d) land will not be claimable if the land that is the subject to ‘an application for a determination of native title…that has been registered in accordance with the Commonwealth Native Title Act’ (Registered Claimant Application).

Section 36(1)(e) provides that land the subject of an approved determination that native title exists is not claimable.

This raises the question of whether Crown land is “the subject of an application for a determination of native title”. 

The NT Act and ALR Act are intended to operate together, rather than in sequence. Land over which native title has already been extinguished by a previous exclusive possession act cannot validly be claimed in a native title application, so it is not excluded from being the subject of a land claim by s 36(1)(d). If land is later transferred under the ALR Act pursuant to a land claim and native title in fact exists, the grant remains valid but the land remains subject to native title rights and interests and dealings are restricted until there is an approved native title determination. Section 42 of the ALR Act 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.

In respect of this last point, we note that that a bill was introduced into parliament to amend s42 of the ALR Act on 16 September, which we will separately write about.

Background

In the Brunswick River Claim, the New South Wales Aboriginal Land Council (NSWALC) lodged an Aboriginal land claim under the ALR Act over Crown lands adjoining the Brunswick River in northern NSW. The land claim was refused by the Crown Lands Minister.

On appeal, the Minister argued that the Court should refuse the claim because that land was subject to a native title claim under the NT Act and was therefore excluded from the definition of claimable Crown lands by s 36(1)(d) of the ALR Act.

The land was subject to a native title application as at the date of lodgment of the Aboriginal land claim.  Subsequently the Federal Court had determined that the particular land was subject to a previous exclusive possession act (within the meaning of the NT Act) and therefore native title had been extinguished over that land. This was because there had been a grant of scheduled interests, being grants of special leases under the Crown Lands Act 1884 and Crown Lands Consolidation Act 1913.

At first instance, the Land & Environment Court held that the land was not claimable Crown land under s36(1)(d) of the ALR Act because at the time of lodgment of the claim it was subject to an application under the NT Act.

NSWALC appealed the Land and Environment Court decision on the grounds that:

1. the Court misconstrued the phrase “the subject of an application for a determination of native title” in s 36(1)(d) of the ALR Act; and
2. the Court misapplied that construction to find that land was not claimable Crown land.

Court of Appeal’s Decision

The Court of Appeal upheld the appeal.

The Court of Appeal held that land is “the subject of an application for a determination of native title” under s 36(1)(d) of the ALR Act, only if a native title claim can validly be made over that land.

Section 61A of the NT Act expressly excludes land the subject of a previous exclusive possession act from being subject to a native title application.  Therefore, despite there having been a registered application made at the time of the lodgment of the land claim, as that application was not validly made, s36(1)(d) did not apply and the land was claimable.

Preston CJ of the Land & Environment Court (sitting in the Court of Appeal) (Bell CJ and Payne JA agreeing) relevantly found that this was the case, even though it meant that there was in other cases, potential factual or legal uncertainty about whether a tenure interest was considered by the Minister or the Land & Environment Court to constitute a previous exclusive possession act and for the Federal Court to later come to a different conclusion.

As noted above, if the Minister or Land & Environment Court granted a land claim, and incorrectly assumed native title rights and interests had been extinguished, this would not affect those native title rights and interests, which would remain over the land (despite the change in ownership to the Land Council) under ss 36(9) and (9A) of the ALR Act and s 42 would continue to restrict further dealings over that land until there is an approved native title determination.

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 land claimed. The Minister and the Court must decide whether that fact exists for themselves to determine whether the land claimed is or is not claimable Crown lands under s 36(1)(d) of the ALR Act.

Implications

The issue is particularly important for local councils when conducting its due diligence in respect of any proposals for the acquisition of Crown land or the management of Crown land as a Crown land manager. If historic tenures (such as special leases) extinguished native title, the land may still be “claimable Crown lands” and transferable in freehold to an Aboriginal Land Council. When acquiring or managing Crown land, Councils should assess the tenure interests over the Crown land and consider the relevance of any potential historical extinguishment to address any potential interests claimed under the NT Act and ALR Act.

Crown Lands had been delaying the determination of Aboriginal land claims pending the outcome in the case. It is not known whether the Court of Appeal handing down this decision will mean there will now be progress on any outstanding Aboriginal land claims.

A copy of the decision of the Court of Appeal is available can be read here.

If you have any questions regarding this article, please leave a comment or contact Megan Hawley on 02 8235 9703 or Dominic Smith on (02) 8235 9712.