Chalk & Fitzgerald - Lawyers & Consultants

NSW ordered to transfer land to Biraban LALC

The New South Wales Aboriginal Land Council has successfully challenged a refusal of two claims known as "Moira Park Road No. 1 and No. 2" by the Minister Administering the Crown Lands Act in relation to land at Morisset on the NSW central coast. The NSW Land and Environment Court upheld the appeal and ordered the Minister to transfer two titles to the Biraban Local Aboriginal Land Council as a result.

The proceedings concerned two claims made under the Aboriginal Land Rights Act (NSW) in February 2009 for land, close in proximity to one another, located in an urban area on the western side of Lake Macquarie. One site is 4.7 ha in size and the other 3.9 ha. Both land claims were refused by a single letter from the Minister, the Hon Andrew Stoner.

The Court considered whether the current claims were precluded on the basis of the earlier refusals made by the Minister over the land for a claim made in 1989. The Minister argued that the earlier “opinion” was capable of being relied upon in the later refusal. The Court also had to determine whether the claimed land was needed or likely to be needed for an essential public purpose and whether residential development was capable of being an “essential” public purpose, which would be a proper basis for the refusals.

In coming to its conclusion the Court paid close attention to the Lake Macquarie Local Environment Plan 2004 and the relevant business plan for the area.

The Court rejected the argument that the earlier refusal, containing a valid opinion of the Minister as required in 2004, was capable of being the basis of the opinion of the Minister in 2009. The reason was both the amount of time that had transpired but more importantly that “by the time of the claims that are the subject of these proceedings, the development contemplated had radically changed from that providing a proper basis for the formation of the opinion in 2004 concerning what was envisaged at the date the 1989 claims was made”. Acting Judge Moore went on to describe the change as a “fundamental factual discontinuity”.

Further, the Judge determined that the terms of the Act were not capable of characterising residential development as an “essential” public purpose under section 36(1)(b) of the Act, and therefore the refusal would not stand.

A small portion of one of the claimed areas was conceded by NSWALC. This site is used for a pumping station forming part of a sewerage treatment network.

Chalk & Fitzgerald represented the NSWALC in these proceedings.

The full set of reasons can be accessed here: https://www.caselaw.nsw.gov.au/decision/564e3caae4b003c5681facc3