Seminal land rights decision challenged

According to Law Society of NSW president Ronan MacSweeney, this could significantly affect land rights claims for Aboriginal Australians.

Under the Aboriginal Land Rights Act 1983 (NSW) (ALRA), land can only be claimed if it is “not lawfully used or occupied”. In addition, the High Court ruling from late 2025 outlined that land “use” required actual physical activity, declaring that the Crown cannot block a land claim due to a “paper lease” if the land is effectively disused.

However, the latest bill contains a provision (proposed section 5.20B (4)) that bypasses this ruling by deeming the granting of a lease under that act as “lawful use for the purposes of another act”.

Not only would this allow retrospectively validated leases to defeat pending land claims, but it would enable the government to “bank” any Crown land by granting a lease and “sit” on the land without using it.

The Law Society of NSW has criticised the legislation’s intention to “fundamentally alter what has been long understood to be land claimable under the ALRA”.

MacSweeney said: “The proposed amendment of the Crown Land Management Act 2016 (NSW) (CLMA) appears to overturn the Quarry Street decision and override longstanding practice under the ALRA, through which Aboriginal communities are able to claim land rights on Crown land that is ‘not lawfully used or occupied.’

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“It is important to note that the ALRA is intended to be remedial and beneficial legislation designed to compensate Aboriginal people for historic dispossession.”

The NSW Aboriginal Land Council (NSWALC) stated that the bill was introduced without consultation or notice, and presented as a minor procedural amendment. The body also claimed that it demonstrated an intention to prioritise private commercial interests over public use of Crown lands, including Aboriginal Land Rights.

NSWALC chairperson Dr Raymond Kelly called the proposal an attack in stealth mode that seeks to wind back the clock on advancements by local Aboriginal land councils (LALCs).

“For more than 40 years, Aboriginal Land Rights has been a driving force for justice, empowerment and self-determination for our communities. We have secured land, defended country, built housing, created jobs, and grown an economic base for our people. This benefits everyone in this state,” Kelly said.

NSWALC deputy chairperson Leeanne Hampton said: “This bill will have a significant impact on the viability of local councils and LALCs across NSW, with the minister having powers to impose costs and make orders with respect to neighbouring properties.”

MacSweeney agreed the subsection was included in the bill among other provisions responding to a rushed statutory review of the CLMA, stating the proposed section was not a recommendation nor subject to consultation.

He further explained that “the lack of consultation with affected stakeholders on this provision is exacerbated by the publication of the statutory review two days after the amending legislation was introduced. The Law Society is concerned that proposed section 5.2B has been inserted into this bill, rather than via a direct amendment to the ALRA itself, to avoid scrutiny of a measure which would undermine the purpose and operation of the ALRA.”

MacSweeney said: “The Law Society calls on the NSW government to withdraw the provision and refer the remainder of the amending legislation to a parliamentary inquiry.”

The proposal has been deferred for further consultation as of 25 March.