Steps taken preparatory to the sale of Crown land that is vacant and surplus to departmental needs do not constitute 'use' of the land within s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW). A qualifying pre-condition under s 36(1)(a) (that land be able to be lawfully sold) cannot simultaneously constitute a disqualifying condition under s 36(1)(b). Crown land that has been vacant for years, is in disrepair, and is surplus to needs is claimable notwithstanding that sale processes are underway. However, the decision does not mean Crown land becomes claimable whenever sale is put in train — actual use or occupation independent of the sale process may still exclude a claim.
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