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

The High Court in La Perouse Local Aboriginal Land Council v Quarry Street [2025] HCA 32 confirmed that Crown land is claimable under s 36(1)(b) of the Aboriginal Land Rights Act unless the Crown itself is using the land at the relevant time. The Court rejected approaches that focused on third-party occupation or the presence of infrastructure, holding that the statutory test turns solely on Crown use. This matters for clients because disputes involving land, infrastructure and public records often hinge on narrow statutory terms, and late-stage interpretation shifts can change the litigation pathway and its cost exposure. Cost-alignment (one-path funding) helps clients manage this uncertainty by ensuring they fund only the pathway they ultimately take, rather than preparing for settlement and litigation at the same time.