Crown land reserved for a specified public purpose is not, by reason of that reservation alone, 'lawfully used or occupied' for the purposes of s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW). Where the Minister relies on lawful use or occupation, the activities must be directed to implementing the purpose for which the land is reserved. Maintenance of captive fauna on land reserved for 'preservation of native flora', pending relocation after closure of a nature park, may be treated as transitory and insufficient to constitute lawful use or occupation. An intended but not yet implemented cessation of activities does not negate the existence of those activities at the date of claim, but the evaluative judgment as to whether those activities constitute use or occupation is a question of fact, not law.
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