Chalk, Andrew --- "Land Rights under New South Wales Legislation" [1991] AboriginalLawB 55; (1991) 1(52) Aboriginal Law Bulletin 22

• Land Rights Under New South Wales Legislation
• Background To The Act
• Structure Of The Land Rights Scheme
• Land Claims
• Nature Of Title
• Rates
• Heritage Protection

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Land Rights under New South Wales Legislation

by Andrew Chalk

Background to the Act

In 1983, the Wran Labor Government in New South Wales passed the Aboriginal Land Rights Act 1983 (the ‘Act’). Its passage followed several years of protest and political pressure on the part of the State’s Aboriginal community and its supporters, and was in response to, if not conformity with, the recommendations contained in the Report of the Select Committee of the Legislative Assembly on Aborigines (known as the Keane Report).

Initially the Select Committee had been established under very broad terms of reference, only one of which specifically considered the issue of land rights. Its principal object was to inquire generally into ‘the causes of socio-economic deprivations and disadvantages suffered by the Aboriginal citizens of New South Wales’. However, the Select Committee shifted their principal focus directly to land rights after the community proclaimed its concern. The words of three South Coast elders capture the spirit of that concern:

We believe that we are speaking for the majority of Aborigines along the South Coast and throughout NSW when we say that the Committee’s terms of reference are WRONG! They are wrong because they do not give importance to Land Rights; they put Land Rights in third place and among a lot of other things to be considered.

The fact is, there is only one real problem facing NSW Aborigines and that is Land Rights. All these other things can be sorted out in time once we have our land ...[1]

The Keane Report set out a range of recommendations and matters requiring further consideration including the provision of rights to claim not only Crown land, but also possibly leasehold and freehold land.

It acknowledged the need to return responsibility for the protection and management of culturally significant places and raised the suggestion of making payments of royalties from all mining, quarrying and forestry operations. Although it was generally well received by the Aboriginal community, the Government baulked at endorsing the Report on the grounds of the financial cost of its implementation. Instead, a green paper containing a draft Bill was circulated, with the legislation enacted only two months later. Not only was the consultation considered entirely inadequate but the final legislation represented a substantial retraction from the Report’s recommendations. Most notably absent from the statute was any provision relating to sacred sites.[2]

Structure of the Land Rights Scheme

The Act establishes a three-tiered hierarchy of land councils at State, regional and local levels. There are presently 117 Local Aboriginal Land Councils and membership of each is restricted to Aboriginal persons who have an association with the area in which the land council is situated.

Amendments to the Act, passed in 1990 and finally proclaimed in August 1991, divest Regional Aboriginal Land Councils of many of their powers. Those powers have been transferred to State and local levels. The practical effect of the amendments has been to make Regional Aboriginal Land Councils an administrative arm of the New South Wales Aboriginal Land Council (NSWALC).

The two most important parts of the Act – in conferring substantive rights – are the land-claiming provisions and the funding provisions. NSWALC and Local Aboriginal Land Councils can make claims for certain Crown land,[3] and NSWALC is entitled to receive an annual funding allocation from the State Government calculated as 7.5% of the Government’s annual revenue from land tax.[4] Out of this allocation, which ceases in 1998, NSWALC is required to invest 50% and may fund its own current activities and those of other land councils with the remainder. In addition to the land claiming and funding provisions, the Act gives certain limited rights to land councils in respect of hunting and fishing, as well as ownership of minerals.

Land Claims

To date, the Act’s land-claiming provisions have proved extremely disappointing to the State’s Aboriginal community. The explanatory memorandum to the Bill commented that “vast tracts of Crown land will be available for claim and will go some way to redress the injustices of dispossession.”[5] However, the actual record tells a very different story. Of the 3 577 claims which had been lodged to June 1990, only 597 had been granted. A further 858 claims remained outstanding, with some having been lodged up to 6 years earlier. In terms of total area, approximately 34 500 hectares have been granted as freehold with another 1 560 hectares granted as western division leases. Over half of the freehold land granted was comprised in a single claim in the semi-arid far north-west of the State. In all, the land granted represents less than 0.05% of the total land in the State.[6]

The land-claiming provisions are contained in ss 36 and 37 of the Act. Claims can only be granted in respect of ‘claimable Crown lands’. Section 36(1) provides in part that:

‘claimable Crown lands’ means land vested in Her Majesty that, when a claim is made for the land under this division –
(a) are able to be lawfully sold or leased, or are reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901;
(b) are not lawfully used or occupied;
(b1)do not comprise lands which in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands; and
(c) are not needed, nor likely to be needed for an essential public purpose.

The NSW Court of Appeal has held that where a claim is made over land which can be shown to fall within the definition of ‘claimable Crown lands’ there is no residual discretion left with the Minister to refuse the claim.[7] Despite this, the statutory grounds for refusal are sufficiently broad as to leave the Minister with considerable scope to reject a claim. This was amply illustrated by the Winbar Claim.

In 1984 the NSWALC lodged a claim over 25 516 hectares of semi-arid grazing land located about 150km west of Bourke, The claim was refused, with the Minister informing the land council that:

I have had regard to the fact that these lands are required to ensure the maintenance of viable farming units in terms of the requirements for economically effective agricultural holdings in the western division of the State and the need for farm ‘build-up’ to meet these requirements.[8]

The Minister was effectively saying that the land could not be granted because of the need to further endow the existing land-holders in the area. However, the evidence, put before His Honour, Mr Justice Stein, when the claim went on appeal showed that the land had not been used for grazing or any other rural purpose in the previous 15 years. This was despite the Government offering the land to surrounding farmers – after the claim had been made – for the depasturing of stock following severe bush fires in nearby areas.

At the appeal of the Winbar Claim, the Minister issued a certificate pursuant to s 36(8) of the Act stating that the land was needed for an essential public purpose. This section deems that such a certificate:

shall be accepted as final and conclusive evidence of the matters set out in the certificate and shall not be liable to appeal or review.[9]

After considerable litigation and an amendment to the Act aimed at preventing land councils being granted anything but leasehold land in the State’s western division, the Minister transferred the land as a lease in perpetuity. This was unacceptable to the NSWALC and the matter was taken to the Court of Appeal a second time where the Minister was ordered to transfer a fee simple estate. Despite the eventual success, the case highlighted the potential for Ministers to refuse claims on the ground that the land is needed for an essential public purpose and to then rely on a s 36(8) certificate to stifle any appeal on the merits. Bignold J has described s 36(8) as:

conceptually hostile in the legislative context which not only confers a clear presumptive entitlement on Aboriginal Land Councils to ‘claimable Crown lands’ but confers appeal rights to seek to vindicate that entitlement ...[10]

In more colloquial language, Stein J has likened it to “the act of giving food with one hand and taking it away with the other, before the food has reached the mouth.”[11]

Nature of Title

Prior to the 1990 amendment of s 40 of the Act, any land acquired by land councils, was inalienable to the extent that it could not be sold or mortgaged. Land could nevertheless be leased or transferred to another land council.

The 1990 amendments now allow the sale of land which is purchased by a land council as “an investment under sections 29 or 31”.[12] Those sections regulate disbursements from land council bank accounts. The new provision is somewhat ambiguous in that most culturally significant land is acquired through purchase under ss 29 or 31 rather than by claim. However, since such acquisitions are not intended to realise any financial gain, it would be misleading to categorise them as ‘investments’. Yet, in the absence of any special notation on the certificate of title, potential purchasers or mortgagees may be unaware of any restriction on the land’s sale.

Sections 40C and D provide that land which is acquired by claim can also be sold where a special resolution of the Local Aboriginal Land Council – which either owns the land or in whose area the land is situated – is passed determining that the land ‘is not of cultural significance to Aborigines of the area’. Such a resolution requires an 80% majority to be effective. The secretary of the land council can issue a certificate evidencing that the disposal of the land does not contravene the Act.

Rates

Although s 43 of the Act makes provision for the Minister to exempt any land council from the requirement to pay rates on specified parcels of land, this power has been used most sparingly. So much so that the obligation to pay rates is probably the most important factor inhibiting the economic development of many land councils and threatens to be a major drain on land council resources in the future. Sections 44 and 44A provide some consolation in that the land itself cannot be sold by writ of execution for non-payment of rates, although relevant local and public authorities are given the right to recover unpaid monies from NSWALC.

Heritage Protection

In terms of providing rights to land, the Act has many obvious shortcomings. Foremost of these is its failure to take any account of land which is of spiritual or cultural significance to Aboriginal communities. In fact, it is framed in such a way that it could fairly be described as recognising only the economic value of land, the Act’s preamble notwithstanding. By doing so, it ignores one of the fundamental bases upon which Aboriginal rights to land are asserted. In his second reading speech, Frank Walker, the Minister for Aboriginal Affairs at the time, acknowledged this failing:

I mention that there is one element missing from what could be considered an essential element of land rights legislation – that is, provision for the protection of sacred sites of significance. Land and the law affected by legislation in this area is highly complex, because of its religious and spiritual nature. It is my intention to seek the assistance of the new Aboriginal councils that will be formed under the proposed legislation before introducing an Aboriginal heritage commission bill for the protection and ownership of sacred sites and sites of significance.[13]

While a preliminary report was eventually released in 1988 by the Ministerial Taskforce on Aboriginal Heritage and Culture the Greiner Government has taken no further action in pursuance of it. Responsibility for the management and protection of Aboriginal heritage remains in the hands of the predominantly non-Aboriginal officers of the National Parks and Wildlife Service.

In 1983 Frank Walker suggested that Aboriginal people in NSW were likely to regard the Act “as the first step in their struggle for justice.”[14] Despite its limitations, the legislation has nevertheless proved an important milestone and one which the Aboriginal community has demonstrated its strong commitment to defend.

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[1] Quoted in Wilkie, M, Aboriginal Land Rights in New South Wales, (APCOL, Sydney 1985) p17.

[2] See Wilkie, M, op cit.

[3] Sections 36 and 37.

[4] Section 28.

[5] Hansard, Assembly 24 March 1983 at 5095.

[6] Extracted from Land Claims Briefing Paper prepared by NSWALC and NSWALC 1990, Annual Report.

[7] NSWALC v Minister Administering Crown Land (Consolidation) Act and the Western Lands Act (the Winbar claim No 3) (1988) 66 LGRA 265 at 271.

[8] NSWALC v Minister for Natural Resources (the Winbar Claim) (1986) 59 LGRA 333 at 334.

[9] The 1986 amendments to the Act attempted to further strengthen the privative effects of s 36(8).

[10] Darkingung LALC v Minister for Natural Resources (1985) 58 LGRA 298 at 303.

[11] Darkingung LALC v The Minister for Natural Resources (No 2) (1987) 61 LGRA 218 at 230.

[12] Section 40(3).

[13] Hansard, Assembly 24 March 1983 at 5090.

[14] Ibid at 5093.