Aboriginal Law Bulletin
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by Meredith Wilkie
Almost two hundred years after their dispossession by British colonists, Aborigines in New South Wales are still waiting for land justice and for an acknowledgement of their right of self-determination.
A Draft Land Rights Bill, released in December 1982 by the NSW Minister for Aboriginal Affairs, purports to grant land rights to the 45,000. Aboriginal people in NSW and to implement a policy of self-determination and community control. The Draft Bill and an accompanying Green Paper purport to reflect the recommendations of the Select Committee of the Legislative Assembly upon Aborigines which reported on land rights in August 1980. In fact some important principles recognised by the Select Committee have been ignored or rejected, and the Draft Bill represents a compromise which falls far short of the expectations and demands of Aborigines.
The Select Committee was established in late 1978 to examine and report not only upon land rights and sacred and significant sites, but also upon the causes of socio-economic deprivation and disadvantage among Aborigines, the general conditions in which Aborigines live in NSW, and the effectiveness of current Commonwealth-State arrangements for Aboriginal matters. The Committee determined that the land rights issue should take priority and proceeded to collect evidence from interested organisations and individuals, including a number of Aboriginal witnesses who were visited in their communities. To assist it, the Committee appointed an Aboriginal Task Force co-ordinated by Ms Pat O'Shane, now Secretary of the NSW Ministry for Aboriginal Affairs. The Task Force was composed of one liaison officer and two researchers.
The Committee's brief was not to consider whether land rights should be granted, as the Government had already made a commitment that they would be granted. The Committee had to consider how land rights should be granted.
The Committee recommended that Aboriginal `self-determination' should be the essential basis of Aboriginal policy planning, and that government recognition of Aboriginal rights to land would acknowledge their claim based on prior ownership, tradition, needs and compensation. In addition, the Committee recommended that the State Government should commit a certain amount of funds to the attainment of land rights and to the implementation of the Committee's recommendations, including the establishment of a hierarchy of land rights organisations.
The Land Rights Report was, on the whole, well received by the Aboriginal community as an important first step towards a land rights settlement. Particularly welcomed was the Committee's final recommendation:
That the necessary funds and facilities be made available to the Aboriginal people of New South Wales to enable them to meet in local, regional and State conferences for the purpose of discussing the recommendations of the Select Committee and advising the Government of their decisions. (First Report, page 18).
The Government did not implement this recommendation, however, and Aborigines are still waiting for adequate consultation to occur. Consultation since the release of the recent Green Paper on Aboriginal Land Rights has been minimal. Certainly Aboriginal organisations have not been funded to research and consult with a view to preparing policy positions and submissions. Yet the Bill was presented to Parliament in March this year and appears likely to pass in its present form. Even the recent intervention of the new Commonwealth Minister for Aboriginal Affairs, Mr Holding, requesting that the NSW Government delay passage of the Bill to allow further consultation, seems to have fallen on deaf ears.
The Bill includes significant provisions with respect to: lands which are to become Aboriginal lands, and the means by which this will be achieved; new Aboriginal organisations to administer land rights; special features attaching to Aboriginal title; and funding.
The Draft Bill, as did the Select Committee, provides for three ways in which lands are to become Aboriginal lands: direct transfer pursuant to the Act; claim; and purchase.
Transfer The Bill provides that -former Aboriginal reserves now owned by the Aboriginal Lands Trust will be transferred to local community organisations to be called Local Aboriginal Land Councils. The Trust currently owns 4,600 hectares of land in NSW.
Claim Only a very narrow category of Crown lands in NSW will be claimable. In contrast, the Select Committee recommended that all land in NSW, of whatever status, should be potentially claimable by Aboriginal community organisations.
The Crown lands claimable under the Draft Bill must be vacant, not lawfully used or occupied and not likely to be needed in the future for an essential public purpose. National Parks are not claimable, nor is Crown land subject to a lease or permissive occupancy. The total area of land in NSW which fits this description is unknown, but acknowledged to a tiny proportion of the total land mass.
In making its recommendation the Select Committee was particularly mindful of the fact that many former Aboriginal reserves had been revoked and transferred to white interests. The current holdings of the Aboriginal Lands Trust represent about one-fifth of the total stock of Aboriginal reserves held in 1891. Most of the revoked reserves continue to be of great significance to former residents, and most land claims currently before the government concern revoked reserves which are now privately owned or leased, or otherwise do not satisfy the Draft Bill's definition of 'claimable' Crown lands.
In addition, the Committee was aware of the advice of the NSW Solicitor-General that a number of the revocations were in fact unlawful. The pending challenge to the legality of the revocations by the Aboriginal Legal Service is likely to be pre-empted by retroactive validating legislation.
Recovery of many of these revoked reserves will be impossible under the proposed Act. `Claimants' must wait until the land sought is offered for sale. Even then, the Draft Bill would give Aboriginal purchasers no priority over others.
Purchase A fund is established from which money may be expended to acquire privately-held lands for an Aboriginal Land Council. Significant additions to the stock of Aboriginal land in NSW will only be made by this method of acquisition, in spite of the Bill's emphasis on claims for Crown land.
A claim for Crown land will be made to the Minister for Crown Lands who may only refuse the claim on the basis that the land claimed does not satisfy the definition of claimable Crown land. That decision is reviewable by the Land and Environment Court.
Another of the Select "Committee's recommendations rejected by the Minister is that a special Tribunal should be established, constituted by a judge of the Supreme Court, two elected Aborigines, and two experts in anthropology, archaeology or land use appointed by the Minister. This Tribunal, it was recommended, should hear and determine land claims and claims for compensation, as well as arbitrate in disputes between individuals, land councils, and the State funding body.
Instead, the Bill provides that disputes arising under the proposed Act will be determined by the Land and Environment Court. A new category of assessors is created: persons with suitable knowledge, qualifications, and experience in dealing with Aboriginal people and land rights issues. They will not necessarily be Aborigines.
To determine disputes between individuals, Local and Regional Land Councils, this Court will be constituted by an `Aboriginal' assessor sitting alone. Redress in the case of an alleged wrong action of the NSW Land Council is not provided for. The Court will be constituted by a Judge and two `Aboriginal' assessors in other matters arising under the Act. These include oversight of claims for Crown land, approval of mining agreements, applications for access permits for hunting, fishing or gathering, and objections lodged in the context of the formation of Land Councils. In these matters the assessors will assist and advise the Judge, but will not adjudicate.
In any other matter concerning Aboriginal land, but not arising under the Land Rights Act, such as zoning applications, environmental protection proceedings, and so on, the Aboriginal assessors will be disqualified from sitting. In addition, no guidance is given to the Court as to how it should deal with Aboriginal land; there is no acknowledgement of the special nature of the Aboriginal relationship to land.
The Draft Bill establishes a hierarchy of Aboriginal Land Councils at local, regional and State levels.. Local Aboriginal Land Councils (currently there are approximately one hundred) will be the primary land holding bodies. They will be bodies corporate, and each adult Aboriginal resident within the boundaries of a Local Land Council will be eligible to be a member. Between six and nine regional Land Councils will be established. The members will be two representatives from each Local Council in the Region. The NSW Aboriginal Land Council will be made up by two delegates from each of the Regional Land Councils.
While the Regional and State Councils may own land, most Aboriginal land under the proposed Act will be owned at the local level.
The Select Committee recognised that Aboriginal communities have a special relationship to their land, a relationship which should be reflected in the nature of the title they receive. Some of these factors are acknowledged by the Draft Bill.
Ownership. The Bill provides that land is to be held communally rather than by individuals. Local Land Councils are corporate bodies established to hold title to land.
Disposition. The stock of Aboriginal land is to be protected for future generations. Local Land Council land may not be sold, mortgaged or otherwise disposed of, although it may be leased.
Mineral Rights. Certain mineral rights will attach to Aboriginal land. Minerals vested in a Land Council (which minerals will not include gold, silver, coal, or petroleum) will be protected from exploration and exploitation activity except with the consent of that Council. No Council will be able to prevent development of gold, silver, coal or petroleum resources on its land. Moreover, the Bill only guarantees these `mineral rights' in respect of land transferred from the Aboriginal Lands Trust. Land purchased by a Land Council will not automatically include ownership of minerals.
The royalty payable on Land Council - owned minerals (once the minerals are exploited) will be paid to the NSW Land Council for disbursement as follows: 30 per cent to the Land Council which owns the minerals; 30 per cent to the NSW Land Council; and the remaining 40 per cent distributed among Regional Land Councils.
What's Missing? A range of other special features attaching to Aboriginal land recommended by the Select Committee are missing from the Bill. One is the freedom from licencing restrictions in respect of hunting and fishing for certain species on their land.
Another concerns the question of land use. The Draft Bill offers no remedy for a widespread problem documented by the Select Committee: that the imposition of white values in respect of land use by local government, State authorities and the then Planning and Environment Commission, effectively stifled development of Aboriginal land in accordance with Aboriginal culture and values, thereby rendering Aboriginal ownership in many cases, much less useful and meaningful.
The Minister has rejected the following proposals of the Select Committee:
a) that special planning provisions apply to Aboriginal land permitting the development of projects otherwise contrary to local environment plans; and
b) that Aboriginal communities should be notified of, and have opportunity to object to, proposals for developments on adjacent land which could adversely affect Aboriginal land.[1]
All costs arising under the proposed Act, including administrative costs of all Land Councils, plus costs of preparing claims, purchasing land, and development of projects, will be met from a single account to be controlled by the NSW Aboriginal Land Council. Funding will be from State land tax revenues: 7.5 per cent annually commencing mid 1983-84 and continuing to mid 1998-99 will, be paid into the NSW Land Council' account. Each year over this fifteen year period, half the fund must be invested. Costs must be met from the other half: the current fund. It is anticipated that after fifteen years, the capital fund will be large enough for half the annual interest to support land rights operations.
NSW law has never recognised the rights of Aborigines to hunt, fish and gather traditional foods, except in one instance. The Fisheries and Oyster Farms Act exempts Aborigines from the requirement of obtaining an inland angling licence in order to fish in inland waters. Otherwise, Aborigines are bound by the same licensing regulations and provisions about protected fauna, native plants, endangered species, national narks and nature, timber and flora reserves, and so on, as all other citizens.
The Draft Bill's provisions with respect to hunting, fishing and gathering do not alter this position in any respect. The provisions simply allow a Local Land Council to negotiate with the owner, occupier or person in control of any land for a permit to have access to that land for the purposes of hunting, fishing and gathering. If negotiations break down, the Local Land Council may request the Land and Environment Court to grant the permit. The Local Council must satisfy the Court that access is sought to traditional food for domestic purposes, and the land in question was traditionally used for that purpose, or gives access to such land.
The permit granted by the Court will be more limited than that secured by negotiation. The Court's permit unlike a negotiated permit, may not provide for gathering of firewood, hunting of post-contact foods such as rabbits and foxes, or hunting for commercial purposes. In considering a Land Council's application, the Court must of course, consider the objections of the owner.
The hunting, fishing and gathering provisions therefore are very restricted indeed. An impression of the granting of rights is given, but quickly evaporates when it is realised that any person may negotiate with a land owner for access to hunt on his land. The only additional right granted to Aborigines is the right to the Court - in very limited circumstances.
The Select Committee, acknowledging the valuable work of the Sites Section of the NSW National Parks and Wildlife Service, recommended nevertheless that title to sacred and significant sites should vest in appropriate Local Land Councils, and that resources for identification, protection and acquisition of sites should be lodged in a body of elected Aborigines to be called the Aboriginal Heritage Commission. Legislation to give effect to these recommendations should accompany land rights legislation.
No such legislation accompanies the Draft Bill. For the time being, control of Aboriginal sites will continue to remain with the National Parks and Wildlife Service. Dedicated Aboriginal sites will not even be subject to claim under the Draft Bill as they do not satisfy the definition of claimable Crown lands. Access to sites over private land might, of course, be privately negotiated. However, no provision is made in the Draft Bill for enforcement of a right of access.
At least 30 per cent of Aborigines in NSW live in Sydney. Many of these people are in Sydney for reasons of health, housing or employment. They retain strong ties to their homes in country towns or on former reserves. Yet the Draft Bill denies them any role in Local Land Councils in these areas, unless they return and take up residence there.
The difficulty of organising Sydney people into Local and Regional Land Councils may also mitigate against those people being adequately represented. Claimable Crown lands are going to be few and far between in the metropolitan area, and urban land purchases are going to prove heavily draining of available funds.
In order to evaluate land rights legislation it is important to realise that such legislation may have one or more purposes. Without embarking on a detailed analysis, some aims of land rights provisions might be listed:
The theoretical basis adopted will, of course, influence the detail of the provisions of the legislation. Some Aboriginal groups demand a settlement on the basis of the latter. two purposes. These demands have been rejected by the NSW Government. This is perhaps most clearly seen in the way the concept of self-determination has been subverted.
The Select Committee's recommendation with respect to a hierarchy of land councils has been criticised as being too expensive. The need for a Statewide body at all has been questioned. At the same time it is generally appreciated that the Select Committee's proposal ensured that control over land would be firmly in the hands of local community bodies which would be self-defining, self-organising and largely self-regulating.
The Draft Bill, on the other hand, denies local communities the right of self-determination by means of the imposition of a range of paternalistic measures. For example, all Land Councils will be corporate bodies: the right :o organise as they choose is denied. The boundaries of Land Council areas, and their membership is defined by the Minister. The first rules are imposed and subsequent amendments are subject to :he Registrar's power of veto. The Registrar is effectively the Ministry of Aboriginal Affairs.
The Minister has power to appoint an administrator in respect of any Local Land Council area and may dissolve the NSW Land Council. Neither action mould require legislation, but is purely in administrative decision.
These provisions establish that the Government has not acknowledged the demands of Aborigines for community self-determination.
It is apparent that the Bill confuses two aims or intentions: to compensate for past dispossession and to facilitate future improvement of socio-economic conditions. Making Crown lands available for claim and providing for funding from land tax revenues are said to be compensatory measures. Yet if the true loss suffered by Aborigines were to be calculated, just beginning with the total land mass and natural resources of the State, the amount owed would be far in excess of what is offered by the Bill. This point exposes the Bill for what it truly is: a welfare measure that is not about rights at all. It is a measure imposed by an exasperated Government, frustrated at the lack of `progress' which Aborigines have made in spite of long-standing policies of special government assistance and assimilation.
It is not surprising then that the Aboriginal response has been unenthusiastic. Both the Organisation for Aboriginal Unity and the NSW ALP Aboriginal Affairs Policy Committee have rejected the Bill outright.
Meanwhile the Premier, Mr Wran, asserted recently that 'in this State, in the next few months, [fair treatment] is what they [Aborigines in NSW] will get'. Not a lot of `them' have yet agreed with him.
Since this article was submitted, the Land Rights Bill has been slightly, but significantly amended. Minister for Lands, Mr Lyn Gordon, proposed an amendment with respect to claimable Crown lands. The amended Bill, which passed Cabinet, Caucus and the Lower House (on 30 March), leaves the decision whether Crown lands are 'claimable' entirely at the discretion of the Minister for Lands. No appeal against his decision will lie to the Land and Environment Court. Thus, in this respect, the Bill represents no advance over the present Aborigines Act 1969, pursuant to which the Aboriginal Lands Trust may apply to the Minister for Lands to have vacant Crown lands vested in it.
A second important amendment concerns the residence qualification for membership of a Local Aboriginal Land Council. Residence within the boundaries is no longer a necessary pre-requisite.
A preamble was added to the Bill recognising that 'land in the State of New South Wales was traditionally owned and occupied by Aborigines'. As we have seen, the Bill in reality does not act upon any such recognition. A further proposal to Cabinet ('whereas that land was forcibly taken from the Aboriginal inhabitants without acknowledgement and without compensation') was rejected as being too emotive.
The Land Rights Bill has proceeded at all stages in tandem with Mr Gordon's Bill validating retroactively the illegal revocations of reserves by the Aborigines Protection and Welfare Boards. The bitter irony of the partnership of the two Bills has provoked an outcry from some Labor backbenchers condemning it as 'immoral' and justifying a felony'.
[1] Aboriginal Land Rights and Sacred and Significant Sites, First Report, Select Committee of the Legislative Assembly upon Aborigines, August 1980, page 102, para. 9.19.
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