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Barker, Michael L. --- "NSW Land Rights Reform - How Real?" [1983] AboriginalLawB 34; (1983) 1(9) Aboriginal Law Bulletin 9


NSW Land Rights Reform - How Real?

by Michael L. Barker

That Aborigines should be granted land rights is no longer a political issue in Australia. Instead, debate now focusses on the nature and extent of the rights to be granted to Aborigines in respect of land: which Aborigines may claim land; what land; on what basis; the appropriate land holding body; and the extent of Aboriginal control over land and resource use. Each of these issues is complex and must be grappled with in the formulation of any legislative land rights scheme. this article examines how the recent New South Wales Aboriginal Land Rights Act, 1983[1] has approached these issues.[2]

The Philosophical Basis of the Act

As the author has argued elsewhere,[3] land rights legislation should be motivated by a desire to acknowledge the prior sovereignty exercised by Aborigines over the whole of the Australian continent during a period in excess of 40,000 years and not merely by a desire to "recognize" customary Aboriginal rights or to discriminate positively towards a socially and economically depressed group in Australian society. In the context of the last 20 years of the twentieth century, only the sovereignty acknowledgment principle is capable of supporting a general grant of land rights to all Aborigines in Australian society, whether tradition-oriented or not.

In these terms, it is pertinent to note that the Act explicitly acknowledges that land in the State was traditionally owned and occupied by Aborigines, is of spiritual, social, cultural and economic importance to Aborigines, and that Aborigines have a need for land.[4]

The Broad Scheme of the Act

In consequence of this acknowledgment the Act proposes, firstly, to vest primarily in Local Aboriginal Land Councils constituted under the Act (s.6), lands presently vested in the Aboriginal Lands Trust under the former Aborigines Act, 1969, and, secondly, to transfer to each Local Aboriginal Land Council those lands, usually falling within the geographical area of the local council, which are "claimable Crown lands" (s.36). A local council may also acquire land by private treaty. Land might also be vested in, transferred to or acquired by the New South Wales Aboriginal Land Council (s.26(g) ).

Additionally, and significantly, the Act provides for a sum equivalent to 7.5% of annual New South Wales land taxes to be paid to the State Council annually for a period of fifteen years, to be applied largely towards land acquisition (s.28).

Aborigines who Benefit under the Act

The Act provides for the establishment of Local (s.6) and Regional (s.15) Aboriginal Land Councils and the New South Wales Aboriginal Land Council (s.22). The local and State council are intended to be land holding bodies, with a regional council, as well as the State council, having advice and supervisory functions in respect of the activities of a local council. Only Aborigines who are members of such councils derive benefit under the Act.

The members of the State council are drawn from the regional councils (s.22(3) ), and the members of a regional council are drawn from the local councils within its region (s.15). (Although, as an interim measure, the State council is comprised of 12 Aborigines appointed by the Minister for Aboriginal Affairs (s.22(2))). The membership criteria of a local council is, therefore, important to the eventual membership of a regional and the State council.

Any adult Aborigine (that is, an Aboriginal who has attained 18 years of age (s.4(l))) and resides within the area of a local council is entitled to be listed on the roll of the local council and thus to be a member of the council (s.7(2)(a) ). An Aborigine who has an association with the area may also be enrolled if accepted as a member by a meeting of the local council (s.7(2)(b) ). The list of members is to be compiled and maintained by the Secretary of a local council, although in the first instance a person appointed by a Registrar (s.49) shall complete the list (s.7(4) ).

The task of enrolling members of a local council may not be free from controversy for the Secretary (or other enrolling officer) clearly has a discretionary role to perform. It should be noted that only an Aborigine may apply for enrollment. An "Aboriginal" is defined by the Act to be a person who (a) is a member of the Aboriginal race of Australia; (b) identifies as an Aboriginal; and (c) is accepted by the Aboriginal community as an Aboriginal (s.4(l) ). Each qualification must be satisfied and may involve either determination of fact or the formation of a subjectibe opinion, or both, by the enrolling officer.

To satisfy qualification (a) it may be necessary only that an applicant show that he or she is possessed of the physical traits of a person of the Aboriginal race. Clearly, if a person can show descent from a person who was a member of the Aboriginal race, the qualification would be met. Qualification (b) appears to be quite subjective in its requirement, dependent on the applicant's perception of his or her race rather than the perception of the enrolling officer, although that officer must still hold the view that the applicant does identify as an Aborigine. Qualification (c), however, may well require an enrolling officer to assess factual and opinion evidence pertaining to aboriginality, evidence necessarily emanating from other Aborigines. Aboriginal "community" clearly is intended to be a broad expression and not limited merely to the community of the locality or region wherein the applicant resides.

What this qualification does not make clear, though, is whether the broad Aboriginal community should accept this person as a member of that "community" or simply accept that the person is an "Aboriginal". The Act strictly construed seems to stand for the latter proposition although it also suggests the first. The latter reading may be considered the fairer as it does not foster any element of discrimination between different Aborigines or groups within Aboriginal society.

It remains conceivable, nonetheless, that an Aboriginal person who, in the parlance of an earlier era, is fully integrated or assimilated in European society and who does not maintain any real relationship with other Aborigines, may no longer be accepted by the broad Aboriginal community as an Aboriginal.

Broadly speaking, however, the Act does ensure that land councils will be comprised only of Aborigines.

Aboriginal Lands

The land to be vested in a local or the State council which was formerly vested in the Aboriginal Lands Trust, largely comprises lands formerly reserved for Aborigines throughout the State and apparently comprising as little as 43 square kilometres.[5] To recognise this obvious deficiency in the Act, provision is also made for these councils to make claim to the Minister for Lands in respect of "claimable Crown land". The definition provided by the Act for this expression is, therefore, crucially important to the successful operation of the Act.

The expression "claimable Crown lands" means land vested in "Her Majesty" that, when claim is made to them, (a), are able to be lawfully sold or leased, or are reserved or dedicated under the Crown Lands Consolidation Act, 1913 (NSW) or the Western Lands Act, 1901 (NSW); (b), are not lawfully used or occupied; and, (c), are not needed, nor likely to be needed, for an essential public purpose 1-.36(1)). Five broad points might be made about this definition.

First, for a claim to succeed, the lands claimed must be vested in "Her Majesty". Excluded from claim, therefore, are lands vested in other government instrumentalities such as municipalities and other statutory authorities, at least where such bodies are not representative of the Crown.

Secondly, only those Crown lands which are ble to be lawfully sold or leased, or are reserved or dedicated under the Crown Lands Consolidation Act, 1913 or the Western Lands Act, 1901, may be claimed. Thus, lands vested in the Crown under other legislation, for example, the National Parks and Wildlife Act, 1974 or the Forestry Act, 1916 are not claimable.

Thirdly, because part (a) of the definition requires the land, "at the time of the claim", to be "able to be lawfully sold or leased" under the relevant two Acts, it is possible that a claim might still be made in respect of Crown lands which have already been leased or made subject to some other tenure. In such a case Crown land may still be "able" to be sold or leased even though it is presently subject to a tenured interest in some person other than the Crown. For example, it may still be possible to grant a lease (of one type or another) even though a Permissive Occupancy is already in existence: the lease could be made subject to the Occupancy. what is less clear, however, is whether the "able" refers to presently able or able in a more abstract sense. Where, for example, a lease has been given under one of the two Acts it may be argued that, due to the terms of the lease is no longer available for further sale or lease, and thus the Crown is not "able" to sell or lease that land at the time of the claim. On the other hand, it may be argued that the land subject to the lease is "able" to be sold or leased at the time of the claim but that contractual restraints forbid any immediate form. of alienation of property interests in the land.

Fourthly, turning to part (b) of the definition.(which, incidentally, suggests that the more abstract view of "able" should be adopted in part (a) of the definition) it is unclear whether the "lawful use and occupation" should be actual to disqualify land from claim. Land may will be lawfully used and occupied in a legal sense if one has a legal Permissive Occupancy right, for example, under the Crown Lands Consolidation Act, even though actual physical use and occupation cannot be proved. It may be that "use and occupation" requires actual physical use, but this is not stated explicitly in s.36(1). Furthermore, under a legal right the land may once have been used actually but the use long since abandoned. Considerable difficulty may arise when the question is later put whether the land is still in use. Such a problem arises in land use planning law in respect of existing use rights. In New South Wales, the Environmental Planning and Assessment Act, 1979, (NSW) s.107(3) has attempted to deal with it by requiring land to be "actually so used".

Finally, part(c) of the definition is likely to cause considerable trouble in the implementation of the Act. the need to take account of land on which "essential public purposes" are carried on may be quite proper. As the definition stands, however, there are a number of difficulties. First. what is an "essential public purpose"? There is no definition provided by the Act. Secondly, by what standard does one measure whether land "is likely to be needed" for an essential public purpose?

The Act seeks to overcome these contentious issues by allowing the Minister for Lands to issue a certificate conclusively determining them (s.36(8) ). This determination is not subject to "review or appeal" (s.36(8) ). How successful this provision will be to oust the jurisdiction of a court if the Minister incorrectly interprets the essential purpose requirement will remain to be seen.

The Basis of a Land Claim

Rather than prescribe grounds upon which a claim may be made - such as traditional ownership, long association, social or economic need - the Act establishes a fairly arbitrary claim procedure.

As discussed in the preceding section, a claim may be made to the Minister for Lands by a local or the State council in respect of any "claimable Crown land". Once the Minister is satisfied that lands claimed fit the definition of such lands, the claim must be granted: the Minister has no discretion in the matter (s.36(5)(a) ).

As observed above, however, the "claimable Crown lands" definition effectively provides the Minister with a discretionary grant power as it is he who is empowered to decide whether the definitional criteria have been met.

In relation to land needed for an essential public purpose, the Minister's decision is apparently unappelable and unreviewable, although in respect of other definitional issues a land council may appeal to the Land and Environment Court. On the appeal, the Minister effectively must prove that the lands are not "claimable" (s.36(7) ).

To the extent that the lands claim procedure is arbitrary it has the advantage of more speedily dealing with land claims. It may be contrasted with the lengthy (and not always successful) hearing conducted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cmth).[6]

Land and Natural Resource Control

A land council has full common law rights to use its land as it thinks fit subject to common law rules and statutory laws of general application.[7] This follows from the command in s.41 that a land council may do all things with its property "that it could lawfully do or suffer if it were a natural person having, in the case of land, the same estate or interest in the property" (emphasis supplied). As a result, Aboriginal land use may be or become subject to generally applicable State land use planning and environmental legislation.

In relation to minerals and natural resource use, however, different rules apply. First the vesting in or transfer of land to a land council includes the vesting or transfer of "mineral resources or other natural resources" in the land (s.41(2)(a),(b) ). When a council purchases land it also acquires the title to all mineral and other natural resources in the land which were at the time of the purchase vested in the Crown (s.45(2)(c)(i) ). Any other land acquired by the Minister of Aboriginal Affairs and vested in a council also includes a vesting of such resources. 45(2)(c)(ii) ).

There are, however, two broad exceptions to this grant of natural resource ownership: first, in respect of gold, silver, coal and petroleum; and, secondly, in respect of any mineral the subject of mining operations approval under the Mining Act, 1873, or other law, at the time lands are "vested" in a local council (or a renewal or extension thereof) (s.45(12)). It would appear that the second exception only affects land "vested" and not "transferred" to or "purchased" by a land Council.

Apart form the grant of substantial resource ownership to land councils, the Act also excludes from operation on Aboriginal land any legislation which "provides for a person to explore for or exploit mineral resources, or other natural resources, vested in another person (s.45(3) )." Accordingly, except in relation to gold, silver, coal and petroleum and in respect of existing mining authorities over "vested" land, the New South Wales Mining Act, 1973 has no application to mining operations conducted on Aboriginal land. The question arises, however, as to what other resources are included in the expression "natural resources" and so what other legislation is not applicable to Aboriginal land.

The expression is not defined in the Act. It seems sensible to suggest, However, that the contextual meaning of the expression will provide the most useful definition. In Part VII of the Act, "natural resources" are spoken of in the same context as minerals. The Act in this part is also concerned to prohibit "mining operations" on Aboriginal land unless approved by a land Council (s.45(4) ). "Mining operations" is itself defined to mean "prospecting, exploring or mining for mineral resources or other natural resources" (s.45(1)(a)). Consequently, "natural resources" must be limited to those resources which are recovered from land by a mining process. Of course, what activities constitute "mining" is itself a nice question.[8] It seems that mining is primarily comprised of activities which involve the recovery of materials from underground, although as Gibbs J. (as he then was) has noted, " the expression is one whose ordinary and natural meaning is flexible rather than fixed".[9]

Although, the Act specifically prohibits mining operations on Aboriginal land, a land Council may consent to mining operations of its land (s.45(4) ),[10] and may give its consent subject to such terms and conditions, including terms or conditions with respect to fees and royalties, as it thinks fit to impose (s.45(5) ).

Importantly, and unlike other similar Australian legislation, the Act provides no exception to the power of a land Council to refuse mining approval.

Where a local council proposes to consent to mining, on the other hand, its approval and any conditions thereto, must be approved by the State council or the Land and Environment Court (s.45(6) ). The court may only exercise its approval power on a reference from a local or the State council (s.45(7) ). The consent or conditions of a local Council may only be refused or altered if they are inequitable to the Local Aboriginal Land Council concerned or would be detrimental to the interests of members of other Local Aboriginal Land Councils (s.45(9) )."

On the face of it, the autonomy of a local council (or the State council) to refuse to approve mining on its land is nearly absolute. A close examination of the Act reveals, however, that autonomy is only absolute in respect of a refusal to consent to mining. A decision to approve mining remains subject to any relevant State land use planning and environmental laws ( and indeed Commonwealth laws), as only laws dealing with the provision of authority to a person to explore or exploit anther's resources - and not the use of land - are excluded form operation on Aboriginal lands.[11]

The conditional consent power would appear to support a financial agreement between a land Council and a person proposing to conduct mining operations. Whilst it might be argued that a general power to impose terms and conditions and fees does not extend to the imposition of a monetary condition on consent, the additional power in s.45(5) to impose a condition relative to "royalties" largely puts this issue beyond doubt.

As State Government control over gold, silver, coal and petroleum is, significantly, retained through the provisions excluding them from Aboriginal ownership and control, mining in respect of these resources remains subject to the Mining Act 1973, the Coal Mining Act, 1973 and the Petroleum Act, 1955. Land Councils have, therefore, only those limited rights available under the general law to control such activities on their land.

Given the obvious economic importance of these particular resources, it may fairly be asked how deep has been the commitment of the New South Wales legislature to the principles or purposes of the Act set forth in its Preamble. Certainly, in this important regard, the Act fails to embrace totally the concept that Aborigines should have near full autonomy in respect of natural resource use.

Summary

The New South Wales land rights reforms allow considerable Aboriginal land and resource control.[12] Freehold land has been or will be vested or transferred to land councils for use as they see fit; substantial mineral and natural resource ownership also resides or will reside in land councils; and broad control over mining operations on its land may be exercised by land councils. Nevertheless, and apart from the perceived difficulties of legal detail noted above, any positive evaluation of the new legislation must be subject to the qualifications that the amount of land vested or available for claim by land councils may not be great and that important natural resources will continue to remain outside Aboriginal ownership or control. These limiting factors are, however, offset to some extent[13] by the radical provision of the Act that for a period of 15 years, 7.5% of the State's annual land taxes be paid to the State council to facilitate land purchases.


[1] The Act, at the time of writing, was awaiting proclamation. Presumably such matters as the composition of the interim State Land Council (s.22(2)) and the drafting of land council Rules (ss.13, 21,27) have delayed proclamation of the Act.

[2] The general issue of Aboriginal natural resource control in Australia is discussed in greater detail in Michael L. Barker, "Aborigines, Natural Resources and the Law" (1983) a paper presented to the ANZAAS Conference (Law Section), Perth, 16 May 1983; UWest Aust LR forth.

coming.

[3] Id, pp.4-9

[4] See the Preamble to the Act.

[5] See "The Bulletin", May 10, 1983, p.40.

[6] For a discussion of the complex nature of claims under this Act, see: Graeme J. Neate, "Legal Language Across Cultures: Finding The Traditional Owners Of Land" (1981) 12 Fed LR 187.

[7] s 47 & 48 allow a local council, in certain circumstances, to negotiate or claim traditional hunting, fishing and gathering rights over land not owned by the council.

[8] See note 6, paras 402-404.

[9] ICI v. Commissioner of Taxation (1971) 46 ALFR 35, 687.

[10] The Act does not, however, specifically address the issue of whether approval from both the State and a land council is required where mining is proposed in respect of a mixed ore deposit; e.g. where gold and copper occur in the one deposit. I am grateful to Dr M. Crommelin for raising this issue. It would seem that, aside from a strict construction of the Act requiring two approvals, State approval to, say, gold mining would also authorize the copper mining, although ownership of the copper would remain with the land council. See, e.g., A-G (AS W) v. Great Cobar Copper Co 21 NSWLR 351

[11] See, e.g., Associated Consolidated Minerals Ltd v. Wyong Shire Council (1974) 48 ALJR 464, where the Privy Council drew such a distinction between the NSW mining and land use planning legislation.

[12] An issue not dealt with in this paper relates to the additional capacity of a land council to enter into and operate all manner of commercial enterprises on its land and elsewhere. It is anticipated that a focal land council may conduct "enterprises" (s. 12(c) ). It is not so clear, though, whether such enterprises may be conducted on land not owned by the council (see ss.I2(c), 41 which suggest a broad construction of the power; but note s.38(4) which suggests a more limited power.

[13] It has been estimated, e.g., that this payment, or compensation, may amount to some S400 million over the 15, year period: "The Sydney Morning Herald", Wednesday, March 23, 1983.


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