Keon-Cohen, Bryan --- "Land Rights News" [1982] AboriginalLawB 11; (1982) 1(3) Aboriginal Law Bulletin 13

• Land Rights News
• Queensland Government Proposals
• The Portland Case: Onus And Another V Alcoa
• New South Wales Land Rights Legislation
• Victorian Alp Land Rights Policy

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Land Rights News

Bryan Keon-Cohen

Queensland Government Proposals

The Queensland Government is at present developing its so-called `land rights' proposals which were adopted by Cabinet on 1 March last. This continues despite considerable opposition to the proposals expressed by various Aboriginal groups, most notably the National Aboriginal Conference. As at late March, the following broad proposals had been made public:

• Title to land in Queensland's, Aboriginal and Torres Strait Islander Reserves (totalling 30,000 sq km.) will be vested in trust in elected Community Councils (`trustee councils').
• The form of land tenure so vested will be a `deed of grant in trust' under the State's Land Act. This form of tenure is normally used, for example, to enable local councils to administer land for public purposes such as sports areas and cemeteries. It is the form of tenure used for land holdings of universities and hospitals.
• The fourteen current reserves and the Aborigines Act 1971-1979 and the Torres Strait Islanders Act 1971 -1979 are to be abolished, and new legislation enacting these proposals framed.
• Powers vested in the trustee Aboriginal and Islander Councils will include powers:

1. To lease land parcels within the Deed area to residents (but only with written Ministerial approval).
2. To introduce by-laws controlling access to the land.
3. To sue and be sued.
4. To take out mining leases on the land provided the costs of required capital developments can be met.

Matters which are causing concern include:

1. No power is vested in the Councils to sell or sub-divide land.
2. No rights are granted in minerals or rights to compensation for resource development on the land.
3. Pursuant to the Land Acts. 343, a land trust can be wound up by the Governor-in-Council and the land revert to the Crown for a variety of reasons, for example, if the trust affairs are not being properly managed in the public interest; if the land is being used in a manner contrary to the trustees' purposes; if for any other reason, it appears to the Governor-in-Council desirable for for the land to revert to the Crown.
4. There is no provision, so far as is known, for `traditional owners' to lay claim to land, nor for any claim process.
5. Cabinet may, under the Land Acquisition Act resume any land for public purposes, such as pasturage, quarries or camping.

Criticising the proposals in the Parliament, Senator Bonner pointed out that the elected trustees can be removed and replaced by Cabinet appointees, and that the Minister for Lands may cancel a grant if he believes that the lease conditions are not being met. Such a scheme may be appropriate for racecourses and cemeteries, but it hardly seems to create genuine `land rights' for Queensland's Aboriginal and TSI communities.

The Portland Case: Onus and Another v Alcoa

After interlocutory proceedings late in February, this matter will proceed to trial unless a settlement is worked out between the Portland Aborigines, Alcoa and the Victorian Government returned on 3 April. On 24 February, Southwell J in the Victorian Supreme Court ordered that pending trial, five relic sites situated on the smelter construction area at Portland be protected. Pursuant to the Archaelogical and Aboriginal Relics Preservation Act 1972, the Judge made an `order for preservation' requiring Alcoa to fence, mark or otherwise delineate five sites to prevent vehicles passing over them. The trial, which is still some months away, will consider inter alia whether the sites contain relics within the meaning of the Act, and whether the Alcoa (Portland Aluminium Smelter) Act over-rides the Relics Preservation Act.

New South Wales Land Rights Legislation

The NSW Attorney General and Minister for Aboriginal Affairs, Mr Frank Walker, announced on 2 March in Wee Waa, NSW, and on 21 March in Sydney that the NSW Government would introduce land rights legislation in the NSW Parliament later this year.

Victorian ALP Land Rights Policy

For the record, the Victorian ALP Aboriginal Affairs policy (March 1982) includes the following:

Labor will recognise the prior ownership of land by Aboriginal communities. [Labor] will grant land rights through legislation which will be negotiated with Victorian Aborigines. This legislation will be generally based on the principles and recommendations of the Aboriginal Land Rights Commission's Woodward Report, and the recommendations of. the NSW Select Committee on Aborigines; it will take into account the needs of Victorian Aborigines.

As a first step, land rights will be granted at Framlingham. Further land rights will be granted as claims are lodged, investigated and settled.

Initially, land rights will be limited to unalienated Crown land. Expenses incurred will be met from existing resources. Federal funds will also be sought to purchase freehold land in appropriate cases.

Any payments that may be made by the State Government as compensation to the Aboriginal people will depend upon the outcome of negotiations and will require Parliamentary approval.

Speaking personally, I view the above not only as virtually meaningless, but insofar as it relies upon other inquiries conducted in times past in other States involving entirely different conditions and considerations, it is irrelevant and could be dangerous. What is the relevance of Woodward J’s findings concerning traditional Aborigines in the NT in 1973-74 to Aborigines in Victorian cities and country towns in 1982? Nothing. In my view, a Victorian inquiry and report are required.