Posted on November 10, 2022 by Frances Tse and Lindsay Taylor 8

Court upholds Aboriginal Land Claim over former Waverton Bowling Club

The Land and Environment Court (LEC) has found that the land of the former Waverton Bowling Club is ‘claimable Crown land‘ under s36 of the Aboriginal Land Rights Act 1983 (ALR Act) and has ordered that it be transferred to the Metropolitan Aboriginal Land Council within the next 6 months.

Background

The land of the former Waverton Bowling Club (Claimed Land) is Crown land that is reserved for the purposes of community and sporting club facilities. The Claimed Land adjoins other parcels of Crown reserves which make up a large continuous area of open space in Waverton.

For some time between 2013 and 2019, the Claimed Land was licenced to North Sydney Club for use as a bowling club until the club was liquidated.

In 2019 and 2020, the Minister administering the Crown Land Management Act 2016 granted three licences over the Claimed Land to North Sydney Council (Council) for the purposes of access and site investigation in relation to site risk assessments and reviews of the Waverton Bowling Club site (Licences). The Licences were granted following the Council’s request to become the Crown Reserve Manager of the Claimed Land.

On 30 April 2020 and 6 November 2020, the NSW Aboriginal Land Council lodged two Aboriginal land claims under the ALR Act for the Claimed Land (Land Claims). The Crown Lands Minister found that the Claimed Land was not ‘claimable Crown land’ and refused the Land Claims. The NSW Aboriginal Land Council appealed against that decision to the LEC.

Issue for determination by LEC

The LEC had to determine whether the Claimed Land was ‘claimable Crown land‘ within the meaning of s36(1) of the ALR Act. Specifically whether, as at the dates of the Land Claims, the Claimed Land:

• was not lawfully used or occupied (see s36(1)(b)), or
• was not needed, nor likely to be needed, for an essential public purpose (see s36(1)(c)).

If the Claimed Land was ‘claimable Crown land‘ as at the dates of the Land Claims, then the ALR Act requires it to be transferred to the relevant Aboriginal Land Council.

Was the Claimed Land lawfully used and occupied?

The LEC, citing previous cases, explained that the phrase ‘lawfully used or occupied‘ requires an actual use or occupation of the land that is more than notional or nominal. A use that is limited, casual or sporadic may be insufficient. The use or occupation must also be pursuant to a lawful right to do so for example under a licence or a permit.

The Crown Lands Minister argued that the Claimed Land was lawfully used and occupied on the basis that the Council had actually used and occupied the land pursuant to the Licences and had carried out general maintenance of the land. The Minister also argued that members of the public had lawfully used and occupied the land pursuant to their general right to access the Claimed Land.

The LEC did not accept the Minister’s arguments. On the evidence before it, the LEC found that:

• the Licences were relevantly for site investigation and that work was completed prior to the dates of the Land Claims,
• there was no evidence that any further or other investigations were required,
• the maintenance works carried out on the Claimed Land were not related to the site investigation and therefore not authorised by the Licences, and in any event, they were only nominal, and
• use of the Claimed Land by members of the public was not undertaken in furtherance of the reserve purpose of ‘community and sporting club facilities’, which given the context must be construed as something beyond just the land being made available for general use by the community and involving actual use of the bowling greens and clubhouse.

Was the Claimed Land needed, or likely to be needed, for an essential public purpose? 

The LEC, again citing previous cases, held that:

• an ‘essential‘ public purpose is a public purpose that is necessary or indispensable and that it must be beyond something that is desirable or even highly desirable,
• whether the land is ‘needed‘ means whether the land is ‘required‘ or ‘wanted‘,
• if it is argued that land is ‘likely to be needed‘, the need must be real or not remote.

The Crown Lands Minister argued that the Claimed Land was likely to be needed for the essential public purpose of open space based on actions by the Council. The Council had identified a desire to obtain and use the Claimed Land as open space, and the Council had taken steps towards this end such as requesting it to be made the Reserve Manager of the Claimed Land and carrying out community consultation in relation to the future use of the land. It was argued that this showed a trajectory towards the State government requiring the land for open space.

The LEC did not accept the Minister’s arguments. The LEC was of the view that even though the Council expressed a desire to use the Claimed Land for open space, this did not translate into a likelihood that the State Government would give the Claimed Land over as open space. In particular, the evidence showed that the State Government was only in the embryonic stages of determining the appropriate use of the Claimed Land and had not ruled out other potential uses of land such as club, hospitality, commercial and sporting uses. Further, any action taken by the Council could not be viewed as part of the State Government’s assessment on the future use of the land.

Conclusion

On the above basis, the LEC was not satisfied that as at either of the claim dates, the Claimed Land, was lawfully used or occupied, or would have a real chance or possibility to be used for the essential public purpose of open space.

In the result, the LEC  held that the Claimed Land was claimable Crown land within the meaning of s36(1) of the ALR Act, and made orders for the Claimed Land to be transferred to the Metropolitan Aboriginal Land Council.

Implications

Following the above case, there may well be an increase in the number of land claims over Crown land pursuant to the ALR Act, in particular for land that is not the subject of any current lease or licence, or which has not been the subject of any particular State government assessment, decision or action as to the public purposes for which the land will be used.

The case can be read in full here: New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130.

If you wish to discuss any aspect of this article, please contact Frances, Wing Yee Tse or Lindsay Taylor.