On 30 June 2011, the New South Wales Aboriginal Land Council lodged a land claim over the Newcastle Post Office on behalf of the Awabakal Local Aboriginal Land Council (Awabakal LALC).  On 31 August 2011, the Minister for Primary Industries refused the claim, but this decision was overturned by the NSW Land and Environment Court last year.  The Court ordered that the Minister transfer the land to Awabakal LALC within 3 months of the decision.  This has now been done.

No.  A native title claim could not be sustained over a building like the post office.  One of the reasons for this is that a native title claim group would need to prove that it still observes traditional laws and customs in relation to the land.  As the post office has been on the land for decades, an Aboriginal group would not be able to demonstrate this.

An Aboriginal land claim was made under the Aboriginal Land Rights Act 1983 (NSW) (ALR Act).  This law was introduced by the Wran Government in recognition that land in NSW was traditionally owned and occupied by Aborigines and that, as a result of past Government decisions, the amount of land set aside for Aborigines had been progressively reduced without compensation.  It was passed before native title was recognised by the Australian legal system (before the Mabo decision was handed down and before the Native Title Act 1993 (Cth) was introduced by the Keating Government).

The ALR Act established a tiered system of elected Aboriginal land councils throughout New South Wales.  On the frontline are the Local Aboriginal Land Councils (such as Awabakal LALC) which are bodies corporate that can own land.  At the next tier is the Sydney-based NSW Aboriginal Land Council which oversees the LALCs and acts as the state’s peak representative body for Aboriginal affairs.

The ALR Act permits a LALC or the NSW Aboriginal Land Council (NSWALC) to make a claim over Crown land that:

• is able to be lawfully sold or leased;
• is not in lawful use or occupation; and
• is not needed or likely to be needed for an essential public purpose or for residential use

If the land fulfils these criteria, the Minister is required to transfer the land to the Aboriginal Land Council.

The Minister argued that the Post Office was not land that could be claimed under the ALR Act for three reasons.

Perhaps the most controversial issue at trial was whether the land was being “lawfully used or occupied”.  While Novocastrians would be aware that the Post Office had long since become derelict, the Minister argued that the Government was using it at the time of the claim.  The Court rejected this argument on the basis that:

• the Government had no clearly identifiable plan for the site (the Court held that the Minister had nominated “an ill-defined selection of inchoate possible uses” for it); and
• the preservation activities undertaken by the Government (such as fencing off the Post Office and undertaking remedial work) were too limited and sporadic to constitute use or occupation of the land (the Court held that there was “ample evidence of the state of disrepair on the land at the time of claim”).

A second argument put forward by the Minister was that the land was needed for the public purpose of heritage preservation (including for tourism and community use).  The Court rejected this, ruling that there was no proposal for the land to be used for heritage purposes (such as a museum), but instead the Government intended for the land to be developed for private commercial purposes in a manner that retained the heritage values of the building.  While the public may benefit from such a development, the Court held this was not the same as the land being actively put to a public use by the Government.  Further, the Court held that as the Government had no clear plan for the land, it could not demonstrate that it “needed” it for any particular purpose.

An additional, technical, argument put forward by the Minister was that the Post Office land was not able to be lawfully sold or leased under the Crown Lands Act 1989 as it had not yet been declared to be public land in a Government Gazette.  The Court found that this was not required as the land had vested in the State when it was purchased in July 2010.

Having dismissed the Minister’s arguments, the Court ordered that the land be transferred to the ownership of the Awabakal LALC.

Awabakal LALC will need to comply with the planning and heritage controls over the land, which will be extensive.  The LALC has indicated that the site is contaminated so significant work will need to be done to manage this.  In addition, the LALC will need to apply to the NSWALC for approval before developing the land.  The NSWALC will consider transparency and probity issues as well as the commerciality of the proposal when deciding whether to grant such an approval.

Of course, the biggest challenge for the LALC in developing the site will be funding.  The LALCs (and the NSWALC) do not receive Government funding, hence Awabakal LALC will almost certainly require a financial partner for any development.  NSWALC will scrutinise any joint venture and will almost certainly expect the LALC to obtain independent advice on its commerciality.

With all of these hurdles to navigate, it seems likely that Newcastle will be waiting a while longer before it witnesses the rejuvenation of the historic site.  Hopefully, however, the checks and balances will ensure that, when the land is eventually developed, it is done in a manner and for a purpose that is sustainable.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.