Crown land dedicated for a public purpose (such as a gaol) may be found to be 'lawfully occupied' within s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW) even after the specific use has ceased, where there is a continuing physical presence (such as 24/7 security) and regular activities on the land (such as community service order work). Section 2 of the New South Wales Constitution Act 1855 does not require statutory authorisation for all occupation of Crown land; the Crown retains prerogative power to occupy its own land provided activities are not contrary to any dedication. The statutory burden on the Minister under s 36(7) does not preclude inferential fact-finding or displace the ordinary evidential processes, and a claimant Land Council runs a tactical risk if it fails to adduce countervailing evidence.
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