Minister Administering the Crown Lands ACT v New South Wales Aboriginal Land Council

[2009] NSWCA 151

NSW Court of Appeal

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Interrogate

Catchwords

1. Aboriginals
2. › Land rights under legislation
3. › New South Wales
4. › Claim to Crown land
5. › Whether land needed or likely to be needed as residential lands
6. › Whether Crown Lands Minister held requisite opinion at date of claim
7. › Subjective opinion requirement
8. › Aboriginal Land Rights Act 1983 (NSW), s 36(1)(b1)
1. Aboriginals
2. › Aboriginal land claim
3. › Evidence
4. › Permissible use of evidence of events and conduct post-dating claim
5. › Whether such events and conduct irrelevant considerations
6. › Evidence of future events admissible to confirm a foresight not to prove a hindsight
1. Appeal
2. › Appeal from Land and Environment Court
3. › Right of appeal on question of law
4. › Whether error of law demonstrated
5. › Correct articulation of legal principle by trial judge
6. › Whether no other conclusion available on basis of facts as found
7. › Land and Environment Court Act 1979 (NSW), s 57

Quick Take

Under s 36(1)(b1) of the Aboriginal Land Rights Act 1983 (NSW), the Minister bears the burden of proving that a Crown Lands Minister held the opinion at the date of claim that the land was needed or likely to be needed as residential lands. Where the trial judge correctly articulates the legal principles and declines to draw inferences favourable to the Minister from equivocal evidence, no error of law is demonstrated merely because the appellate court might have drawn different inferences. Evidence of objective circumstances is admissible to establish whether the subjective opinion was held, and post-claim evidence may be used to confirm what was known at the date of claim, not as impermissible hindsight.