Posted on February 26, 2026 by Thuy Pham, Frances Tse and Megan Hawley 10

The Extent to Which Public Works Extinguish Native Title Claims

A decision handed down by the Federal Court  in December 2025 provides crucial guidance on how the “undertaking of public works” can extinguish native title claims.  The judgment is of particular importance to government agencies managing Crown lands who need to consider the native title implications when dealing with Crown land.

Background

The Hay Local Aboriginal Land Council (Land Council) sought a determination from the Federal Court that no native title exists over a small parcel of land at Hay, New South Wales. The Land Council owned the land, as a result of a grant of a land claim over the land under the Aboriginal Land Rights Act 1983 (NSW). Under that Act when a land claim is granted, the land is transferred subject to any native title rights and interests in the land (see s36). Section 42 of that Act then restricts the Land Council from dealing with the land unless it is the subject of an approved determination of native title.

The Land Council wished to construct an early childhood education centre on the land and so sought a determination under the Native Title Act 1993 (Cth) (NT Act) as to whether native title exists in the land.

The land in question comprised several components:

• The House: A former residence for the Hay Court House caretaker, sheriff officer, or clerk, constructed around 1898;

• Yard Spaces: Front yard, outdoor patio, back yard, north side yard, and south side yard;

• Further Fenced-In Area: A separately fenced portion at the back, which historically contained public toilets and had been maintained by Court House gardeners.

Legislative Framework: Native Title Act Section 23B

Under section 23B of the NT Act, acts falling within the definition of a “previous exclusive possession act” extinguish native title.

Under section 23B(7), an act is a previous exclusive possession act if:

1. It is valid (including under specified historical validating provisions);

2. It occurred on or before 23 December 1996;

3. It consists of the construction or establishment of a public work that commenced construction on or before 23 December 1996.

Section 253 of the NT Act then defines “public work” to mean any of the following that is constructed or established on behalf of the Crown, or a local government body or other statutory authority, including:

• A building or other structure (including a memorial) that is a fixture;

• A road, railway, or bridge;

• A well or bore for obtaining water;

• Major earthworks;

• A building constructed with the authority of the Crown (but not on a lease).

Each of the components of the land was considered by His Honour Raper J against this legal framework.

The House

The historical evidence adduced to establish that the House itself qualified as a public work was substantial:

• The New South Wales Department of Public Works accepted a tender to construct the House on 15 June and 11 July 1898;

• Contemporary newspaper reports confirmed the house and other police buildings (barracks, offices) were completed by February 1909;

• The NSW Department of Public Works submitted tenders for subsequent repairs and painting in 1913;

• The construction was authorised under the Public Works Act 1888 (NSW) and properly tendered.

Raper J accepted that the constructing authority—the NSW Department of Public Works—possessed the relevant statutory power under the Public Works Act 1888 (NSW) to advertise, tender, and construct the works.

His Honour also found that the adjacent Court House was a public work, which has some flow-on implications on subsequent findings in the case.

With the construction of the House being confirmed as a previous exclusive possession act within section 23B, the Land Council argued that all of the land contained one public work, and so native title was extinguished for the whole parcel. The Court rejected this contention.

In doing so, Raper J applied section 251D of the NT Act, which provides:

A reference to land and waters on which a public work is constructed, established or situated includes a reference to any adjacent land or waters the use of which is or was necessary for, or incidental to, the construction, establishment or operation of the work.

This means that extinguishment extends beyond the physical boundaries of the work itself to encompass land that is functionally necessary for the work’s operation. The question then becomes: how much adjacent land is “necessary for, or incidental to” the operation?

The Court noted that the purpose of section 251D is:

To ensure that areas around and immediately proximate to land on which public works were located were available and unencumbered by native title rights and interests to facilitate the initial construction or establishment and ongoing operation of the works.

An example cited by the Court was that with regards to a public work being a bore (a water extraction facility), the extinguishment zone would be “the land necessary to maintain the continuing operation of the bore,” not the entire underground water source from which it extracted water. The surrounding land must serve the work’s construction, establishment, or operation in order to be considered part of the public work. These requirements are necessarily closely linked to the circumstances and the nature of the public work.

Raper J also identified that access, maintenance, and security are necessarily linked to a public work’s operation:

The existence and use of a public work necessarily requires access for both the establishment and the operation of the works, that the work be maintained and kept secure from unauthorised outside interference. These requirements are necessarily closely linked to the circumstances and the nature of the public work.

The Yard Spaces

Justice Raper concluded the yard spaces were necessary and incidental to the House’s operation as a residence. The evidence showed:

• A former police officer who lived in the House from approximately 1983 for two years deposed that he used those areas to enter and exit the House;

• He drove and parked his car in those areas;

• He kept animals in the yards;

• He dried laundry in those areas;

• He maintained the lawns and gardens;

• The paving, concrete, and a hills hoist clothesline indicated the backyard facilitated residential use.

These yard spaces were “confined and proximate to the House” and evidenced ordinary residential use. Justice Raper noted that earlier authority had contemplated that land adjacent to a public camping area, necessary as a buffer zone, could lead to native title extinguishment via section 251D. The same logic applied to residential amenities.

The Further Fenced-In Area

The Further Fenced-In Area—separated by fence from the back yard—presented a more complex picture. Evidence revealed:

• It had been separated from the backyard at least since the early 1980s;

• Upkeep was maintained by the Court House gardener (not the House’s occupant);

• Public toilets for Court House users likely have been situated in this area, although they have since been demolished and there were difficulties establishing the precise location of those once-built structures.

Justice Raper was initially not satisfied that this area was necessary and incidental to the House alone. However, he then considered that the Further Fenced-In Area was necessary and incidental to the operation of the Court House and the associated toilet block together.

Although the precise location of the public toilets (now demolished) was unclear, there was some evidence that it was located in the Further Fenced-In Area. It was also shown that the constructed toilets were connected to the Hay sewer in 1906 and not demolished until 1992. During that time, those structures were maintained until at least the 1980s. Accordingly, Justice Raper found that the toilets “constituted a fixture with a degree of permanency.”

Applying section 251D to this extended public works complex, the Further Fenced-In Area was held to be necessary for or incidental to the operation of the Court House and related infrastructure (the toilets), even though it did not functionally serve the residential use of the House.

The decision reinforces that the scope of “land on which a public work is situated” extends beyond bricks and mortar to encompass reasonably necessary adjacent land. However, this extension is not unlimited—it requires a functional nexus to the construction, establishment, or operation of the work. A government authority cannot simply claim vast tracts as part of a public work without demonstrable necessity or incidental use.

The full text of the Court of Appeal’s judgment can be found here: Hay Local Aboriginal Land Council v Attorney General of New South Wales [2025] FCA 1581

If you have any questions regarding this article, please contact Megan Hawley on 02 8235 9703, Frances Tse on (02) 8235 9711 or Thuy Pham on (02) 8235  9731.