Native title year in review 2025-2026

What you need to know

• Three recent decisions of the NSW Land and Environment Court have further clarified the scope of the definition of "claimable Crown lands" under s 36(1) of the Aboriginal Land Rights Act 1983 (NSW) (ALR Act) and continue to narrow the grounds on which the Minister can resist Aboriginal land claims.
• The NSW Parliament has passed the Crown Land Management Amendment (Statutory Review) Bill 2026. The Bill establishes, amongst other things, new powers for the Minister to validate and vary holdings under the Crown Land Management Act 2016 (CLM Act). The exercise of such powers may pose significant challenges for existing and future claims made under the ALR Act in terms of satisfying the definition of "claimable Crown lands".

What you need to do

• Occupiers of Crown land should audit their occupation arrangements to confirm legal authority exists for their actual use and occupation of Crown land.
• Developers with interests in Crown land — particularly reserved land, Crown roads and land in informal government use — should factor land claim risk into due diligence and project approval processes.
• Lessees of Crown land should consider if their holdings may be subject to the new validation and variation framework introduced by the CLM Act amendments.

Refresher on the meaning of "claimable Crown lands" under the ALR Act

Section 36(1) of the ALR Act relevantly defines "Claimable Crown lands" as follows:

Claimable Crown land means land vested in Her Majesty that, when a claim is made for the lands under this Division –

• are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under Crown land legislation;
• are not lawfully used or occupied;
• are not needed, nor likely to be needed, for an essential public purpose;
• do not comprise lands that are the subject of a registered application for a determination of native title (other than a non-claimant application that is an unopposed application).

We have reported on the evolving case law on the meaning of "claimable Crown lands" in our previous editions of Native Title Year in Review (see our 9 September 2025 alert "Claimable Crown lands" under NSW Aboriginal Land Rights Act – new law after 40+ years).

This alert summarises the key findings in three recent decisions of the Land and Environment Court and identifies practical implications for landholders, government agencies and developers arising from these decisions.

Brunswick River Claim

In New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (Brunswick River Claim) [2025] NSWLEC 144, the NSW Aboriginal Land Council (NSWALC) appealed the Minister's refusal of two land claims in the Brunswick River area of northern NSW: one related to part of Lot 50 in DP 1067782 (Central Land Portion) and the other related to part of Lot 2 in DP 728659 (Riverfront Portion). Three issues arose under the definition of "claimable Crown lands".

Native title issue: Central Land Portion

The Central Land Portion fell within the external boundary of the Bundjalung native title determination application. The Minister argued the Central Land Portion was excluded from "claimable Crown land" because it was "the subject of a native title determination application" under s 36(1)(d).

At first instance, Pepper J held that the Minister can take at face value what appears on the Register of Native Title Claims. A descriptive formula excluding areas subject to previous exclusive possession acts does not remove land from the application area. Whether extinguishment occurred remains a question for the Federal Court - not the Minister. Pepper J determined that the Central Land Portion was not claimable Crown lands.

This finding was the subject of a successful appeal by NSWALC to the NSW Court of Appeal in New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2026] NSWCA 183. The NSW Court of Appeal found that land is only the subject of a native title determination application if it can validly be the subject of such an application under the Native Title Act 1993 (Cth), and that because the grant of Scheduled interest leases over Lot 50 constituted "previous exclusive possession acts" which completely extinguished native title, a claimant application could not validly be made in respect of that land. Accordingly, the Court held that the Minister had failed to discharge the onus under s 36(7) of satisfying the Court that Lot 50 was not claimable Crown land, and the appeal was upheld with an order that Lot 50 be transferred to the Council.

Crown road issue: Riverfront Portion

The Riverfront Portion was both a Crown road under the Roads Act 1993 (NSW) and part of Crown Reserve R69040 for future public requirements. The Minister argued the land could not be lawfully sold or leased pursuant to Crown land legislation because it was reserved under separate legislation (i.e. the Roads Act) and therefore fell outside section 36(1)(a).

The Court held that "or" in section 36(1)(a) carries its ordinary disjunctive meaning. Two alternative categories exist: (1) land able to be lawfully sold or leased under Crown land legislation; or (2) land reserved or dedicated for any purpose under Crown land legislation. The Court found the Crown reserve engaged section 36(1)(a), and the Riverfront Portion was claimable Crown lands.

Essential public purpose issue

The Minister contended both the Central Land Portion and the Riverfront Portion were needed for nature conservation. Applying principles from the Court of Appeal's decision in Jannali (discussed in our previous update), the Court required: (a) a need or likely need for an essential public purpose existing at the claim date; (b) an actual decision by Cabinet or Executive Council as to that need or likely need; (c) more than a mere possibility of use; and (d) more than a departmental desire or bureaucratic process.

The Court rejected the Minister's reliance on 1998–2002 Cabinet decisions and regional forest agreements. No decision specifically identified the Central Land Portion as required for nature conservation. For the Riverfront Portion, the extensive passage of time (no steps since April 2010) and the Minister's 2019 Indigenous Land Use Agreement providing for third-party management were inconsistent with any continuing intention to add the land to the National Parks and Wildlife Service estate.

Result: Following the Court of Appeal's decision on the native title issue, the end result was that both the Central Land Portion and the Riverfront Portion were claimable Crown lands.

Narooma Claim (Golf Course)

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act (“Narooma Claim”) [2026] NSWLEC 39 concerned the eastern portion of Lots 613 and 833 in DP 752155 in Narooma, occupied by the Narooma Golf Club under a Crown lease as part of its eighteen-hole golf course. The Minister refused NSWALC's land claims on the basis the land was "lawfully used". Four claims lodged between July 2006 and December 2016 were in dispute. The Court answered two questions.

Was the Golf Club's use lawful?

The Court confirmed the principle from prior authority that, for reserved Crown land, use must further or be incidental to the reserve purpose (here, public recreation). The Court found the Minister failed to prove:

• The land was open to the public generally as of right - a substantial proportion of playing time was reserved for members and visitors.
• Most golf played was by non-members, rather than members.
• The Golf Club was not using the land as a source of private profit - green fees, membership income and average annual profits of ~$100,000 indicated otherwise.

The lease was not in furtherance of the public recreation purpose.

Was public use independently lawful?

No. Because the Golf Club had no lawful right to occupy, it could not confer a valid licence on the public. The reservation alone did not create a right for the public to use the land.

Result: The land was claimable Crown land. The Court ordered transfer to Wagonga Local Aboriginal Land Council in fee simple.

Leeton Courthouse Claim

New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act ("Leeton Courthouse Claim") [2026] NSWLEC 69 concerned the Minister's refusal to grant the NSWALC's claim over Lot 1, Section 42 in DP 758606 in Leeton.

Factual background

In 1925, Lots 1, 2 and 3 were resumed under the Public Works Act 1912 (NSW) for the authorised work of erecting a courthouse. Although the courthouse was built on what became Lot 2, the claimed land was Lot 1. In May 2010, a folio conversion resulted in Folio 1/42/758606 being created in the name of the State of New South Wales under the Real Property Act 1900 (NSW), and the State remained the registered proprietor as at the date of claim.

At the date of claim, Lot 1 was being used as a carpark. The users included the New South Wales Police Force, an employee of Corrective Services NSW, the Registrar of the Leeton courthouse, a visiting Magistrate, and members of the public. The Minister relied on this use to argue that the land was lawfully used or occupied and therefore was not claimable Crown land.

Was the land lawfully used or occupied?

No. The CLM Act supplied the governing framework for lawful use of the land. The power to authorise use rested with the Minister or a Crown land manager. No authorisation existed. The Minister's reliance on the Court Security Act 2005 (NSW) (arguing the carpark formed "court premises") failed. Public use also failed because it depended on the same unauthorised availability.

Result: The land was claimable Crown land. The Court ordered transfer to Leeton and District Local Aboriginal Land Council in fee simple.

Crown Land Management Amendment (Statutory Review) Bill 2026: Implications for Aboriginal Land Claims

On 16 September 2026, the Crown Land Management Amendment (Statutory Review) Bill 2026 was passed by the NSW Parliament following a statutory review. The Bill contains amendments to the CLM Act that are relevant to the operation of the ALR Act.

One of the provisions contained in the first version of the Bill was proposed section 5.20B(4), which would have deemed the granting of a lease under the CLM Act to constitute a "lawful use" for the purposes of another Act, including the ALR Act. This was considered by the NSW Aboriginal Land Council as a legislative override of the High Court's decision in La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd (discussed in our previous update), which confirmed that issuing a lease over Crown land is not itself a "use" of the land and that land must be physically used or occupied to defeat a claim under section 36. Combined with the Minister's power under proposed section 5.20B(1)–(3), proposed section 5.20B(4) would have allowed the Minister to retrospectively validate invalid holdings by Gazette notice if reasonably satisfied that it was in the public interest.

An amended version of the Bill was reintroduced to Parliament on 15 September 2026 following a period of further consultation. The Act as passed establishes a new framework for the validation and variation of holdings under the CLM Act. The Minister may declare a holding to be valid where reasonably satisfied that the declaration is in the public interest and there is a community benefit, but must first consider, amongst other things, the impact on existing Aboriginal land claims and consult with each relevant person (including affected Aboriginal Land Councils), with a minimum 28-day consultation period where the land is subject to an undetermined Aboriginal land claim. The Minister may also vary a holding to correct minor errors. Declarations and variations are made by Gazette notice and may take effect retrospectively. The Minister's powers under Division 5.5A cannot be delegated, and the Minister must report annually on declarations or variations affecting land the subject of an Aboriginal land claim.

Notably, the Act as passed does not include the previously proposed section 5.20B(4), which would have deemed the granting of a lease under the CLM Act to constitute a "lawful use" for the purposes of another Act, including the ALR Act. That provision has been removed from the final form of the legislation. However, the power for the Minister to make declarations which validate or vary a holding and operate retrospectively remains.

Key takeaways

These decisions reinforce several themes for landholders, government agencies and developers:

• The "lawfully used or occupied" threshold remains high. Actual, long-standing use or occupation of Crown land does not defeat a claim unless formal legal authority for that actual use or occupation exists under the applicable statutory framework.
• Informal or tolerated use or occupation is likely insufficient. Government agencies likely cannot rely on historic, assumed or administrative arrangements. They must point to specific statutory authority to support lawful use and occupation, in addition to actual use or occupation.
• The "essential public purpose" defence demands rigour. Brunswick River reaffirms that the Minister must show an actual decision by Cabinet or Executive Council that the specific land was needed for the nominated purpose, at the claim date. Departmental aspirations, regional processes and lengthy inaction will not suffice.
• Disjunctive reading of s 36(1)(a) broadens claimability. Land reserved or dedicated for any purpose under Crown land legislation is independently claimable regardless of whether it can be sold or leased. Developers and government agencies holding Crown road interests should reassess exposure.
• Whether land is the subject of a native title application requires analysis. Land is only the subject of a native title determination application for the purposes of the definition of "claimable Crown lands" under the ALR Act if it can validly be the subject of such an application under the Native Title Act 1993. This may require analysis of historical tenure.

Want to know more?

• "Claimable Crown Lands" Under NSW Aboriginal Land Rights Act - New Law After 40+ Years (9 September 2025)
• Native Title Year in Review 2024-2025 (9 September 2025)

Authors: Guy Dwyer, Partner;Joel Moss, Counsel and Katrina Hall, Lawyer.