NSW Court of Appeal determines Aboriginal land claim for almost 2000sq m of land next to St George and Sutherland Community College

An Aboriginal land council has been granted control of almost 2000sq m of land next to a private community college in Sydney’s south after a long-running stoush over the site.

An Aboriginal land council has been granted control of almost 2000sq m of land next to a private community college in Sydney’s south after a long-running stoush over the site.

The NSW Court of Appeal has granted an appeal by the NSW Aboriginal Land Council over the ownership of land occupied by the St George and Sutherland Community College in Jannali.

The appeal overturned a Land and Environment Court ruling, which, in April this year, rejected the land council’s claim for the site.

The Land and Environment Court had found the land was being “lawfully used and occupied for public schooling purposes”, which should be allowed to continue.

However, the appeal court found the Land and Environment Court’s conclusion was “unreasonable”, clearing the way for the land to be transferred to the land council.

The Jannali college.

The land claim covers 1838sq m of crown land, which is currently used as a carpark, a community garden and a “mates shed” for college programs.

The NSW Aboriginal Land Council said the successful appeal would allow the land to be transfer to the local Gandangara Local Aboriginal Land Council.

Gandangara Local Aboriginal Land Council chief executive Melissa Williams said the land council would commence consultation to work through “the best interests of all members of the community” for the future uses of the site.

Gandangara Local Aboriginal Land Council chief executive Melissa Williams.

The NSW Aboriginal Land Council filed its first claim for the site back in 2016.

Crown Lands rejected it five years later, prompting the subsequent challenge in the Land and Environment Court.

During the legal process, the St George and Sutherland Community College objected to the claim, arguing students and staff used the land to access classrooms, while it was also used by college vehicles designed to cater for students with disabilities.

The college also argued the “mates shed” building on the site accommodated student activities, such as creative welding, surfboard-making workshops and antique restoration programs, at the 1100-pupil campus.

An overview of the land subject to the appeal.

The NSW Aboriginal Land Council – in its appeal – argued the privately operated college was not lawfully using the land, which was therefore claimable under the Aboriginal Lands Rights Act.

The land council also stated the post-secondary education offered at the site was “not an essential public purpose” and many of the activities “did not constitute education, let alone activities carried out for public schooling purposes”.

The appeal court, in its decision, found Crown Lands had adduced “no evidence” capable of proving the claimed land was necessary for the public purpose of community education.

“The primary judge’s conclusion that the claimed land was not claimable crown lands within the meaning (of the Aboriginal Land Rights Act) was legally unreasonable,” the appeal court stated.

Records show the site has been under the control of the NSW Government since 1935 and was previously home to Jannali Girls High School before being turned into St George and Sutherland Community College in 1993.