Aboriginal land claims

This page describes appeals that may be made to the NSW Land and Environment Court by Aboriginal Land Councils in NSW against the refusal by the Crown Lands Minister to grant an Aboriginal land rights claim. Appeals of this kind are allocated to Class 3 of the Court’s jurisdiction (s 19(g2) of the Land and Environment Court Act 1979).

Practice and procedure in Aboriginal land claims

The practice and procedure for Aboriginal land claims is stated in the Land and Environment Court Act 1979, Land and Environment Court Rules 2007, Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005 as well as the Aboriginal Land Rights Act 1983.

The Practice Note for Class 3 Aboriginal Land Claims (PDF , 124.7 KB) specifies the practice and procedure for Aboriginal land claim appeals.

The statutory provisions and Practice Note state the steps that need to be undertaken before the first directions hearing, at the first directions hearing, before the second directions hearing, at the second directions hearing, at the third directions hearing, at the final hearing, and the opportunities for conciliation, mediation and other means of resolving the proceedings without a hearing.

Process for Aboriginal Land Claims

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The Aboriginal Land Rights Act 1983 gives Aboriginal Land Councils in NSW the right to make a claim for Crown land.

The Minister administering the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 determines whether the whole or any part of the lands claimed is ‘claimable’ Crown lands. If the Minister determines that the whole or any part of the lands claimed is not ‘claimable’ Crown lands, the Minister can:

refuse the claim
refuse the claim to the extent that it relates to that part ( s 36(5)(b) of the Aboriginal Land Rights Act 1983).

An Aboriginal Land Council may appeal to the Land and Environment Court, in Class 3, against the Crown Land Minister’s refusal of a claim made by it (s 36(6) of the Aboriginal Land Rights Act 1983).

Under the Aboriginal Land Rights Act 1983, a claim for land can be made by:

the New South Wales Aboriginal Land Council acting on its own behalf or on behalf of one or more Local Aboriginal Land Councils
one or more Local Aboriginal Land Councils (see ss 36 and 37 of the Aboriginal Land Rights Act).

For an appeal to the Land and Environment Court, the person who may appeal under s 36(6) of the Aboriginal Land Rights Act is the Aboriginal Land Council who made the claim for land and whose claim was refused in whole or part by the Crown Lands Minister.

The claimant Aboriginal Land Council may commence the appeal against the refusal of a claim under s 36 of the Aboriginal Land Rights Act 1983 at any time within 4 months after the refusal (Pt 7 r 7.1(1)(b) of the Land and Environment Court Rules 2007).