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13 Jun 14
Awabakal Aboriginal Land Council granted ownership of historic Newcastle building

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On 5 June 2014, the New South Wales Land and Environment Court determined a long running Aboriginal Land Claim by order that ownership of the former Newcastle Post Office building be transferred from the New South Wales State Government to the Awabakal Local Aboriginal Land Council (Land Council). 

The heritage listed building, which has been vacant since May 2001, was purchased by the New South Wales Government for $4.25 million in May 2010.  Since then, the Government has expended significant amounts of money commissioning site assessments, emergency repairs and actions to prevent vandalism.  The site however remains undeveloped and in a state of disrepair.

The Court’s decision comes almost three years after the Land Council first lodged their claim under the Aboriginal Land Rights Act 1983 (NSW).  To be successful in a land rights claim, the Land Council must show that the relevant land is ‘claimable Crown Land’ under s36 of the Act being Crown Land that is:

  • able to be sold, leased, reserved or dedicated under the Crown Lands legislation
  • not lawfully used or occupied
  • not needed for an essential public purpose
  • not needed as residential land, and
  • not the subject of an application for or approved determination of native title.

The Land Council’s claim was initially rejected by the Minister on the grounds that the land did not satisfy the first three of these criteria.  The Land Council appealed this decision in November 2011.

Appeal decision

The Court upheld the Land Council’s appeal and held that the Post Office was claimable Crown Land within the meaning of the Act.

Able to be sold or leased
The Court rejected the Minister’s argument that land could not be sold, leased, reserved or dedicated under the Crown Lands legislation unless the land had been first been declared to be Crown Land by gazettal.   It was enough that the land was vested in the State of New South Wales and thus fell within the definition of Crown Lands. 

Lawfully occupied
The Minister submitted that because the land in question had been specifically and intentionally bought in order to preserve it as a heritage asset and put to a use, and it was being prepared for that use as at the date of the claim, the land was being lawfully used or occupied.

Evidence was put forward detailing that the State Government had installed locks and fences, commissioned site assessments and pest control measures, commenced negotiations with potential development partners and undertaken costly maintenance work.

The Court held that these actions were sporadic and did not rise above a nominal or notional use of the land.  The mere expenditure of funds did not amount to occupation or use.  The building had been vacant for years and was not occupied at the time that that the Land Council made the claim.  Any actions that had been taken were merely administrative preparatory steps to some possible use or occupation of the site in the future.

Needed for a public purpose
The Minister’s final argument was that the land was needed for essential public purposes.  The purchase of the Post Office site was characterised as a response to calls from the public to preserve and restore an important part of Newcastle’s heritage.  Public purposes suggested by the Minster included revitalising Newcastle’s central business district, contributing to the tourism industry and preserving local heritage.

This argument was also rejected.  Whilst the Court accepted that the preservation of heritage may be desirable and that development of the site could benefit the community, it held that aspirational statements about a poorly defined future public purpose were not sufficient to defeat a land rights claim.  Further, the Court noted that it was more likely that the land would be used for the purposes of private commercial development rather than some kind of essential public purpose.

Outcomes
The Court ordered that the Post Office Site be transferred to the Land Council within three months of the decision.  The Minister is currently determining whether to appeal.

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Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication. 

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