Power, History and Fairness: When “Use” of Crown Land Becomes the Turning Point

Home › Case Studies › Land & Environmental › Aboriginal land rights › La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 (3 September 2025)

Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)

Many clients worry that when a dispute involves government records or historical use, the evidence that matters may sit outside their control. That feeling is common, and this case shows why early pathway decisions play a larger role than most expect.

Case Summary

In La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32 (3 September 2025), the High Court considered when Crown land is claimable under s 36(1)(b) of the Aboriginal Land Rights Act 1983 (NSW), specifically, whether the relevant question is whether the Crown used the land, or whether someone else’s occupation prevents a land council from claiming it.

The Minister had refused the Council’s claim because the land was used for a sewer line. The Land and Environment Court held that the land was nevertheless “unalienated Crown land” and therefore claimable. The Court of Appeal disagreed.

The High Court restored the primary judge’s decision. It held that the correct inquiry under s 36(1)(b) is whether the Crown was using the land at the time of the claim, not whether another entity was occupying it. The statutory focus is on Crown use, and the Act does not import broader common-law concepts of possession or occupation.

Risk Classification

In-litigation risk — cost-incentive failure arising from statutory-construction uncertainty.

Core Legal Risk Identification

The Court noted that prior decisions had sometimes drifted into assessing occupation, possession or the presence of third-party infrastructure. The High Court rejected that approach and reaffirmed that “the focus of s 36(1)(b) is whether the Crown is using the land”, not whether others have structures on it.

For clients, the practical risk is clear: statutory language can trigger sharply different pathways depending on how courts interpret a single term. When one word, like use, controls the entire outcome, litigation cost and strategy may pivot late in the proceeding. Under your safeguard rules, this is a cost-incentive risk, so the required safeguard is cost-alignment (one-path funding).

Default Structural Context

Clients often experience uncertainty when a matter depends on historical evidence, archival records, or fine-grained statutory interpretation. Structural clarity, mapping decision points, timing windows and budget options, helps them navigate that uncertainty without implying the underlying land-use history could have been changed.

Why It Still Matters

Public-law disputes increasingly turn on narrow statutory terms linked to historical or administrative facts. This judgment confirms that courts will not expand statutory concepts beyond what Parliament intended. For modern landholders, local authorities and community organisations, that means outcomes may depend on a single statutory element, especially when claims involve diverse forms of infrastructure or historical occupation.

It also signals that the presence of utilities, easements or infrastructure is not dispositive unless the Crown itself is using the land. Understanding how these distinctions influence pathways helps clients anchor expectations early.

How to Avoid the Same Trap

For this matter, the correct safeguard is cost-alignment (one-path funding).

Two lawyers often cost less than one - because you fund one path, not both.

Typical models require clients to fund the litigation pathway and parallel settlement or alternative strategies simultaneously. A safer structure separates the roles: the courtroom lawyer focuses on litigation, while the client-side lawyer manages timing, settlement opportunities and budget oversight through escrow.

This prevents duplicated spend when statutory-interpretation issues, as in this case, cause the dispute to shift late in the process. Cost-alignment ensures clients fund only the single pathway they ultimately take, keeping the financial exposure stable even when the legal test narrows or expands.

The Practical Lesson

When a dispute turns on how a court reads a key statutory word, the pathway may shift rapidly. Clients who structure their matter around one funded path can adapt without carrying the cost of parallel preparation.

To see how one-path funding and escrow safeguards work in practice, visit our Two-Lawyer Collaboration & Escrow Oversight page.

To understand how independence is kept visible, no referral fees, ACNC governance and trust-account audits, visit our Independence page or book a confidential discussion.

By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.

Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.