Terry, John --- "Book Review - Aboriginal Land Rights in New South Wales" [1985] AboriginalLawB 50; (1985) 1(15) Aboriginal Law Bulletin 6

• Book Review-Aboriginal Land Rights In New South Wales

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Book Review -

Aboriginal Land Rights in New South Wales

by Meredith Wilkie

Alternative Publishing Co-operative Limited in association with Black Books, (1985).

Reviewed by John Terry

Meredith Wilkie has had a long association with the struggle for recognition of Aboriginal rights to land in New South Wales. She was instrumental in the production of the Keane Committee's report in 1981 which recognised the concession of those rights as a necessary condition to the improvement of the Aboriginal position. She was acutely aware of the disappointment, indeed anger, of Aboriginal people at the passage of a much watered down version of the report's recommendations into law as the Aboriginal Land Rights Act, 1983 (NSW). Her text reflects this.

The first three chapters are historically descriptive of the pre-1983 position; the remainder is more in the nature of analytical comment on the provisions of the Act itself. She also makes reference to a cognate enactment in the form of the Crown Lands (Validation of Revocations) legislation which, with ultimate cynicism, retrospectively deems lawful the alienation of a far greater area of Aboriginal land than that which the Land Rights Act guarantees. Wilkie accurately identifies the inadequacies of the Act - it is in many ways 'land rights without land'.

The former Aboriginal Lands Trust holdings ('a mere 4,500 hectares') add nothing to the Aboriginal estate.

The procedure for claiming Crown lands under s.36 of the Act, may indeed turn out to be illusory due to the power of the Lands Minister to deny a claim on the basis that the subject land is 'needed or likely to be needed for an essential public purpose'. (Certainly, the officers of the Minister Mrs Crosio's Natural Resources Department have interpreted her powers in this regard very widely and not without a sense of the ridiculous. The refusal of claims at Enggonia - an isolated village 100 kilometres north of Bourke - has been foreshadowed on the basis of the land being needed for future urban expansion!)

National Parks, State Forests and Travelling Stock Reserves (to all intents and purposes) are not claimable. The last category throws up some interesting questions: the Minister for Agriculture makes his decision on the basis of a 'recommendation' from the local Pastures Protection Board. There is no guidance as to what factors the Board is to take into account in reaching its conclusions, and the membership of those Boards is notoriously antagonistic to Aboriginal aspirations.

The remaining means to recover land - by purchase and by resumption or compulsory acquisition-are also addressed. How the resumption power - which may be exercised only where there are 'extraordinary circumstances' - is to be used has yet to be tested. I think the examples cited by Wilkie as 'probable' cases (viz: Stuarts Island and Warangesda) to be a little too optimistic an assessment of the government's determination in this regard.

Optimism, however, is not a fault of the book; indeed the reverse is arguable. There are a number of instances where Wilkie is unusually gloomy in her analysis.

At p.144, for example, there is an implication that the NSW Aboriginal Land Council is not subject to judicial review, being outside the purview of the Land and Environment Court. That the Council's operations are subject to review (albeit on technical grounds) by the Supreme Court is considerably more significant.

I take issue, too, with the characterisation of Regional and Local Aboriginal Land Councils as 'subordinate'. My interpretation of the Act leads me to draw the inference that all Land Councils are of equal status, save for the distinguishing feature that the NSW Land Council holds the purse strings. Certainly the functions conferred on Local Aboriginal Land Councils by s. 12 gives to that level the most important and wide-ranging area of activity. That is where the decisions concerning the acquisition and management of land are to be made: the implementation of those decisions is facilitated and ordered in priority at the Regional level and financed by the State body. It is, I would submit, a valid and worthwhile exercise to envisage the structure as an inverted pyramid where the NSW Land Council has a limited function dependent on judgments already formulated.

More significantly, it may be that Wilkie has read the oppressive s.36(8) too literally. The provision allows the Lands Minister to issue a certificate stating that Crown land is not claimable by virtue of its being needed for an 'essential public purpose' which is conclusive proof of its contents and not subject to appeal or review. In reality I see this as an evidentiary provision. While it gives the Minister a powerful weapon to defeat a claim, it is not necessarily fatal. The Court must retain the right to decide whether the certificate has been issued in accordance with proper administrative principles. Its validity may also depend on whether or not it was issued at the appropriate time.

My point is simple: while the Act is not sufficient, it is not utterly beyond manipulation and it awaits construction. This might be clever legal stuff, but simply to despair would be derelict.

Perhaps this is nit-picking, but the book does contain some inaccuracies. In a discussion of the functions of the State Land Council, Wilkie says at p.118:

Yet the NSW Land Council is to meet only twice a year.

and thereupon draws adverse inferences as to its capacity to remain effective.

A true reading of the Act discloses that the Council is required to meet at least once every six months; in fact it met 10 times in 1984. There are some other examples, but they are not fundamental.

Essentially, Wilkie is correct in her identification of the problems associated with the Act both philosophically and practically: notwithstanding the Preamble, there is no recognition that Aborigines might really have some rights which it behoves White Australia to contend with.

In her words (at p.51):

In reality, the Act does not fulfil any such acknowledgement or acceptance, does not act upon, remedy or redress traditional ownership and dispossession, tradition, significance or the lack or compensation.

The Act stands as a measure of the invaders - a belated salve to their wounded conscience. It is the government, its Ministers and administration which has real control. It has been said by opponents of the legislation that it has been enacted so as to cause confusion and division among Aboriginal communities, to diffuse and deflect Aboriginal claims tojustice. Yet let it not be thought that this is just another blow struck in the destruction of Aboriginal society.

Used creatively and imaginatively, even this legislation has proved to have a potential forgood. In the Western Region of the State the Local Aboriginal Land Councils have determined to pool their resources and, in the first year, acquired by purchase a 35,000 hectare property abutting the Darling River, rich in cultural significance and economically viable as a pastoral enterprise. This has proved to be a fillip to other Regional aspirations.

As a footnote I observe that in comparison with the Hawke Government's Preferred National Land Rights Model ('preferred by whom'?', we chorus) the NSW Act is a bold and exciting step into the future - and that, too, is faint praise.