New South Wales Consolidated Acts

ABORIGINAL LAND RIGHTS ACT 1983 - SECT 36

36 Claims to Crown lands

(1) In this section, except in so far as the context or subject-matter otherwise indicates or requires--

"claimable Crown lands" means lands vested in Her Majesty that, when a claim is made for the lands under this Division--

(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 ,

(b) are not lawfully used or occupied,

(b1) do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands,

(c) are not needed, nor likely to be needed, for an essential public purpose, and

(d) do not comprise lands that are the subject of an application for a determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and

(e) do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).

"Crown Lands Minister" means the Minister for the time being administering any provisions of the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 under which lands are able to be sold or leased.

(2) The New South Wales Aboriginal Land Council may make a claim for land on its own behalf or on behalf of one or more Local Aboriginal Land Councils.

(3) One or more Local Aboriginal Land Councils may make a claim for land within its or their area or, with the approval of the Registrar, outside its or their area.

(4) A claim under subsection (2) or (3)--

(a) shall be in writing and, if a form for making such a claim has been prescribed, shall be in or to the effect of that form,

(b) shall describe or specify the lands in respect of which it is made,

(c) shall be lodged with the Registrar, who shall refer a copy thereof (together with a copy of any approval necessary under subsection (3)) to the Crown Lands Minister or, if there is more than one Crown Lands Minister, to each of them.

(4A) The Registrar may refuse to refer a claim, or part of a claim, to the Crown Lands Minister if the Registrar is satisfied that--

(a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or

(b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement recorded in the register of Aboriginal Land Agreements under section 36AA while such an undertaking remains in force.

(4B) Before refusing to refer a claim, or part of a claim, to the Crown Lands Minister, the Registrar must--

(a) inform the claimant, by notice in writing, of the Registrar's intention to refuse to refer the claim, or the part of the claim, and the reasons for the refusal, and

(b) invite the claimant to provide further information supporting the claim, or part of the claim, within 28 days of the giving of the notice (or such greater period as may be specified in the notice), and

(c) consider any further information provided by the claimant within that period.

(4C) If the Registrar has not referred a claim, or any part of a claim, to the Crown Lands Minister within 60 days after the claim was lodged with the Registrar or by the end of the period within which the claimant has been invited to provide further information supporting the claim, the Registrar is taken to have refused to refer the claim, or the part of the claim, to the Crown Lands Minister.

(4D) An Aboriginal Land Council may appeal to the Court against a refusal to refer the claim, or any part of the claim, to the Crown Lands Minister.

(4E) The Court is to hear and determine any appeal made to it under subsection (4D) and may order that the claim, or any part of the claim, be referred to the Crown Lands Minister if the Registrar fails to satisfy the Court that--

(a) the claim, or the part of the claim, relates to lands that are not vested in Her Majesty, or

(b) the claim, or the part of the claim, has been made in contravention of an undertaking given by the claimant in an Aboriginal Land Agreement recorded in the register of Aboriginal Land Agreements under section 36AA while such an undertaking remains in force.

(5) A Crown Lands Minister to whom a claim for lands (being lands which are, or, but for any restriction on their sale or lease, would be, able to be sold or leased under a provision of an Act administered by the Crown Lands Minister) has been referred under subsection (4) shall--

(a) if the Crown Lands Minister is satisfied that--

(i) the whole of the lands claimed is claimable Crown lands, or

(ii) part only of the lands claimed is claimable Crown lands,

grant the claim by transferring to the claimant Aboriginal Land Council (or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council) the whole or that part of the lands claimed, as the case may be, or

(b) if the Crown Lands Minister is satisfied that--

(i) the whole of the lands claimed is not claimable Crown lands, or

(ii) part of the lands claimed is not claimable Crown lands,

refuse the claim or refuse the claim to the extent that it applies to that part, as the case may require.

(5AA) The Crown Lands Minister to whom a claim for lands has been referred must not grant a claim under subsection (5) if the Crown Lands Minister is satisfied that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim.

(5AB) An Aboriginal Land Council may appeal to the Court against a decision of the Crown Lands Minister under subsection (5AA).

(5AC) The Court is to hear and determine any appeal made to it under subsection (5AB) and may order the Crown Lands Minister to determine the claim if the Crown Lands Minister fails to satisfy the Court that the claimant has entered into an Aboriginal Land Agreement under section 36AA that includes an undertaking by the claimant not to lodge a claim in respect of the lands claimed or to withdraw such a claim.

(5A) Where, under subsection (5), a Crown Lands Minister is not satisfied that the whole or part of the lands claimed is claimable Crown lands because the lands are needed, or likely to be needed, for an essential public purpose, but that the need for the lands for the public purpose would be met if the claim were to be granted in whole or in part subject to the imposition of a condition (whether by way of covenant or easement or in any other form) relating to the use of the lands, the Crown Lands Minister may, notwithstanding that subsection, where the condition is agreed to by the Aboriginal Land Council making the claim, grant the claim under that subsection subject to the imposition of the condition.

(6) An Aboriginal Land Council may appeal to the Court against a refusal under subsection (5)(b) of a claim made by it.

(7) The Court shall hear and determine any appeal made to it under subsection (6) in respect of any lands claimed and may, if the relevant Crown Lands Minister fails to satisfy the Court that the lands or a part thereof are not or is not claimable Crown lands, order that the lands or the part, as the case may be, be transferred to the claimant Aboriginal Land Council or, where the claim is made by the New South Wales Aboriginal Land Council, to a Local Aboriginal Land Council (if any) nominated by the New South Wales Aboriginal Land Council.

(8) A certificate being--

(a) a certificate issued by a Crown Lands Minister stating that any land the subject of a claim under this section and specified in the certificate is needed or is likely to be needed as residential land, or

(b) a certificate issued by a Crown Lands Minister, after consultation with the Minister administering this Act, stating that any land the subject of a claim under this section and specified in the certificate is needed or likely to be needed for an essential public purpose,

shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be called into question in any proceedings nor liable to appeal or review on any grounds whatever.

(9) Except as provided by subsection (9A), any transfer of lands to an Aboriginal Land Council under this section shall be for an estate in fee simple but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9A) Where the transfer of lands to an Aboriginal Land Council under this section is of land to which the Western Lands Act 1901 applies but which is not within an area determined by the Minister administering that Act as being the urban area of a city, town or village, the transfer shall be effected by the granting to the Council of a lease in perpetuity under that Act but shall be subject to any native title rights and interests existing in relation to the lands immediately before the transfer.

(9B) A lease referred to in subsection (9A)--

(a) may be granted without the necessity for the payment of any rent under the lease or may require the payment of a nominal rent, and

(b) notwithstanding the Western Lands Act 1901 , shall not be cancelled unless the Minister administering that Act has consulted with the Minister administering this Act.

(9C) Land transferred under this section to 2 or more Aboriginal Land Councils may be transferred to those Councils as joint tenants or as tenants in common.

(10) A transfer of lands pursuant to this section operates to revoke any dedication or reservation under the Crown Lands Consolidation Act 1913 to which the lands were subject immediately before the transfer.

(11) Where, by reason of the existence of a forestry right (within the meaning of section 87A of the Conveyancing Act 1919 ) granted in respect of them or of an easement over them, any lands claimed under this section could not, but for this subsection, be regarded by a Crown Lands Minister as claimable Crown lands, the Crown Lands Minister may, for the purposes of this section, treat the lands as claimable Crown lands.

(12) A transfer of lands pursuant to this section is subject to the following--

(a) any easements affecting the lands immediately before the transfer,

(b) any condition imposed under subsection (5A),

(c) any forestry right within the meaning of section 87A of the Conveyancing Act 1919 , and any restriction on use or covenant imposed under Division 4 of Part 6 of that Act in connection with that forestry right, in force in respect of the lands immediately before the transfer.

(13) Where the transfer of lands in accordance with this section would not, but for this subsection, be authorised by the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901 , the transfer of the lands in accordance with this section shall be deemed to have been authorised by whichever of those Acts the lands were subject to immediately before the transfer.

(14) The New South Wales Aboriginal Land Council or a Local Aboriginal Land Council may request a Crown Lands Minister to supply or cause to be supplied to it such information in relation to the Crown land or dealings in Crown land as is specified in the request and the Crown Lands Minister shall, so far as is reasonably practicable, comply with that request.

(15) Duty under the Duties Act 1997 is not payable in respect of a transfer of lands in accordance with this section.

(16) The definition of
"claimable Crown lands" in subsection (1) is taken to include land vested in Property and Development NSW that complies with paragraphs (a)-(e) of that definition and that was, immediately before it vested in that Authority, claimable Crown lands within the meaning of that definition.

(17) The provisions of this section are modified as follows in relation to its application to land vested in Property and Development NSW--

(a) subsection (4)(c) requires the Registrar to refer a copy of a claim in relation to the land to the Minister administering the Property and Development NSW Act 2006 in addition to the other Ministers referred to in that paragraph,

(b) a reference in subsection (5) to the Crown Lands Minister granting a claim by making a transfer referred to in that subsection is to be read as the Crown Lands Minister granting a claim and requiring Property and Development NSW to transfer the relevant land as referred to in that subsection,

(c) a reference in subsection (14) to a Crown Lands Minister is to be read as a reference to Property and Development NSW,

(d) a reference in subsection (14) to Crown land is a reference to land vested in Property and Development NSW that, immediately before it was vested in that Authority, was Crown land.

(18) In accordance with a requirement by a Crown Lands Minister under subsection (5) (as modified by subsection (17)(b)), Property and Development NSW is to transfer land vested in it in relation to which a claim has been granted by that Minister, subject to the taking of any action required to implement a condition imposed under subsection (5A) on the grant of the claim.