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Aboriginal Law Bulletin

Aboriginal Law Bulletin (ALB)
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Chapman, Murray --- "NSW Government Green Paper on Aboriginal Affairs" [1989] AboriginalLawB 28; (1989) 1(38) Aboriginal Law Bulletin 10


NSW Government Green Paper on Aboriginal Affairs

by Murray Chapman

There is a trend internationally in the area of indigenous peoples' rights towards the replacement of 'consultation' by 'consent' as the basis of dealings between states and indigenous peoples. Although the principle is yet to be implemented in a major international instrument, the trend is at least reflected in many places by an increased willingness on the part of governments to conduct more than perfunctory consultation with indigenous peoples and their representatives.

Unfortunately, this cannot be said of recent events in New South Wales where, despite a process described by the State Government as 'consultation', Aboriginal people now face the prospect of an Aboriginal affairs administration reminiscent of the days of the assimilation policy.

The NSW Government's March 1989 Green Paper was produced in the wake of those consultations. Despite its admission that the majority of submissions received as part of the consultations opposed the repeal of the Aboriginal Land Rights Act 1983, the governments' Green Paper reaffirms its commitment to repeal the Act. The Green Paper illustrates how fragile and susceptible to dismantling gains like the NSW Aboriginal Land Rights Act 1983 can be and how transient apparent political goodwill on Aboriginal issues can be.

The coalition Government's 'new directions' in Aboriginal affairs are based on a policy of 'mainstreaming'. Mainstreaming is defined in the Green Paper as co-ordination by a proposed Aboriginal Affairs Commission (AAC) of service provisions to Aboriginal communities by "functional departments" such as FACS, Housing, Health and Education. The Green Paper, in a nice piece of indulgence, asserts that:

Functional State departments are required to provide effective services to Aboriginal people, as to other citizens, on a basis of need. When appropriate, but only then, they will do this through special programs designed to meet special needs and overcome particular disadvantages... (page 6).

The proposed Aboriginal Affairs Commission (AAC) is described as a mechanism for the "development, coordination and review of State policies and programs for Aboriginal development", a function now ostensibly performed by the Office of Aboriginal Affairs (OAA). The OAA together with Aboriginal Land Councils, will be absorbed and 'streamlined' by the AAC.

Despite claims that the new structure will streamline the "present cumbersome, unworkable and politicised" Land Council system, the proposed new structure incorporating the AAC is at least as complex as the existing arrangements.

The AAC will consist of a full-time Chairman and five to nine part-time members appointed by and responsible to the Premier. If the perfunctory consultation undertaken so far and the near slander of Aboriginal people involved in the Land Councils are anything to go by, it seems unlikely that advice which runs counter to the government's view will be given much weight. This assumes that any of the AAC's members will be appointed from Aboriginal community organisations which have overwhelmingly expressed concern at the government's "new directions". Disturbingly, the Green Paper is silent on the issue of Aboriginal membership of the AAC.

The AAC will, according to the Green Paper, review existing policies and programs, ensure that programs take proper account of the needs of Aboriginal people, ensure that functional departments maintain and develop appropriate programs and co-ordinate the programs of functional departments, particularly through co-operation with commonwealth agencies. These responsibilities will be additional to the administration of any provision made for Land Rights as part of the government's 'new directions'. Under these, the unelected AAC will oversee the activities of an as yet undetermined number of regionally based Aboriginal Land and Development Councils (ALDCs).

With the form of "land rights" yet to be made clear, the only role for the AAC which is clear at present is an essentially advisory one with the AAC developing policy and overseeing the activities of "functional" service providers. Either "mainstream" or those specialised for Aboriginal needs. Unfortunately the Green Paper does not make clear which features of the proposed AAC will make it better able to co-ordinate service provision and policy development than the office of Aboriginal Affairs.

Nor does it outline which of the existing specialised services within the 'functional' departments will remain and which will be deemed 'marginal and ineffective' and therefore dismantled. Mere assertion that mainstream service-providers are obliged to provide services on a basis of need is of small comfort since so many patently fail to provide services appropriately to Aboriginal communities.

The Human Rights and Equal Opportunity Commission's Toomelah Report demonstrated shortcomings in the services provided by both specialised and mainstream service providers. The government's cure for perceived 'marginality' or 'ineffectiveness' in these specialised services is their termination rather than genuine efforts to improve by way, for example, of restructuring, amending policies and priorities, or increasing funding. The Green Paper suggests no cure, however, for those 'mainstream' service providers which fail to respond appropriately to the needs of Aboriginal communities.

Ironically, despite its criticisms of the "cumbersome, unworkable and politicised" three-tiered Land. Council structure, the Green Paper proposes to replace the existing system with what is effectively a four-tiered model. At the base of the new structure are the proposed ALDCs. Although the Green Paper asserts that they will be 'based more on community level', the Green Paper neglects to say whether membership of the ALDCs will be determined by appointment or by election. The only function which the Green Paper provides for these bodies is holding of title to land already obtained under the 1983 Act and the making of decisions about land use.

The ALDCs will be empowered to dispose of land held by them but this power is so hedged about by qualifications as to be largely illusory. The ALDCs will only be permitted to sell or mortgage land, for example, with the written approval of the Minister, providing the Minister is satisfied that the disposal has the support of most adult Aboriginal people in the area. Before the disposal of an interest in Aboriginal land, there will presumably either be a plebiscite in Aboriginal communities or an official of the AAC will form a judgement as to the views of Aboriginal people in his or her region.

In either case, no disposal of land can take place unless either the regional AAC officer or, through him or her, the responsible Minister is satisfied that the proposal is "in the best interests of the Aboriginal people." Similarly, before purchasing land, ALDCs will be required to obtain AAC approval and to justify the purchase on unspecified grounds. Although the grounds are not detailed in the Green Paper, they will probably include something like the "best interests of the Aboriginal people' requirement involved in disposing of interests in land.

The second tier consists of Regional Offices of the AAC. The new bureaucracy will "provide the administrative support necessary to ensure that public monies are properly used and accounted for". In effect, the AAC Regional Offices will administer a largely advisory net work of community-based Aboriginal organisations. It seems likely that decisions about the supposed interests and wishes of Aboriginal communities which are necessary for dealings in Aboriginal land-will be made, at least in the first instance, by regional AAC officials.

The third tier will consist of the five to nine part-time, appointed AAC members who will in turn be responsible to the Premier, the fourth and most powerful of the four tiers in the proposed new structure. There is nothing very new in conflicts between Aboriginal interests as perceived by Aboriginal communities and wider interests (however described) involving the exercise of Ministerial powers. The 1983 Act, imperfect as it is, allows at least a modicum of Aboriginal decision-making power in relation to land if not service provision. The proposed new Aboriginal affairs structure in NSW, however, represents a swing back to the days of almost unfettered Ministerial discretion and relative Aboriginal powerlessness.

The Green Paper does not detail any mechanism for appealing or challenging administrative decisions relating to the disposal or acquisition of Aboriginal land. Under the 1983 Act there is recourse in some circumstances to the Land and Environment Court. The fact that the Green Paper omits any reference to appeal mechanisms does not of itself mean that none will be established. In the context of other proposals contained in the Green Paper, however, Aboriginal people in NSW certainly have more cause for concern.

Self-determination as a goal of policy has been abandoned explicitly by the NSW Government in favour of 'main-streaming'. It might have been expected, however, that in its return to essentially assimilationist terms the government would have expressed in less obvious and patronising terms its lack of confidence in the ability of Aboriginal people to make judgements and decisions about their own interests and futures.


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