18 September 2017 

Draft Crown Land Management Regulation 2017- how to comment 

The new Crown Land Management Act 2016 is due to take effect in early 2018. 

As the next step in its implementation, the NSW Government has released a draft of the Crown Land Management Regulation 2017for public comment. 

The Regulation is intended to provide clarity and certainty in relation to the management and use of Crown land. It consolidates various existing regulations and introduces some new regulatory provisions. 

The draft Crown Land Management Regulation 2017 - along with Facts Sheets, FAQs, and an independent analysis of the proposed Regulation - are available on the NSW Department of Industry website at: http://www.crownland.nsw.gov.au/about_crown_land/publications/exhibition_and_information/information/draft-crown-land-management-regulation-2017 

Local Aboriginal Land Councils (LALCs) are strongly encouraged to put in submissions. A table of clauses of potential interest for LALCs is enclosed.

 

How to make a submission 

Submissions can be made via the following methods:

            Department of Industry Lands and Forestry
            PO Box 2185
            Dangar NSW 2309
    

 

Submissions must be received by 12am (midnight), Sunday 24 September 2017. 

All submissions and comments will be treated as public and may be published unless the author indicates that it is to be treated as confidential.

 

How to find out more

If you have any queries about the draft Regulation, please contact: 

  • Ilana Waldman, Director, Policy & Strategy, NSW Department of Industry (Lands & Forestry Division): (02) 9934 0716
  • David Clarke, Group Director, Governance & Strategy, NSW Department of Industry (Lands & Forestry Division): (02) 4920 5095

 

Draft Crown Land Management Regulation 2017

Clauses of interest to Aboriginal Land Councils

 

 

Clause In the Draft Regulation Summary of subject matter      NSWALC's comments     
5(1) & (2)    

A manager may by a publicly displayed notice restrict the times, areas and purposes for which a reserve can be used.  Breach of the notice is liable to a maximum fine of 50 penalty units.

NSWALC will enquire into what consultation with LALCs will be required when restricting access to a reserve, particularly where the reserve holds cultural or spiritual significance.     
6

A manager may set aside parts of a reserve for specific uses.   

Any setting aside must however be consistent with any Plan of Management.

NSWALC will enquire into what consultation with LALCs will be required when setting aside a reserve, particularly where the reserve holds cultural or spiritual significance.     
7(1) & (2) A manager can levy fees or charges for various activities on a reserve, e.g. parking, use of utilities, rubbish and cleaning, and the removal of effluent.     NSWALC will seek clarification on how fees or charges are to be determined. NSWALC will seek amendments to the clauses so that LALC or Aboriginal community members can seek reduced or non-payment of fees and charges. 
7(3) The manager is to have regard to any contractual arrangements when setting fees and charges.     NSWALC will seek clarification on how fees or charges are to be determined. NSWALC will seek amendments to the clauses so that LALC or Aboriginal community members can seek reduced or non-payment of fees and charges. 
7(5)      The manager may waive payment of any fee or charge.      NSWALC will seek clarification on how fees or charges are to be determined. NSWALC will seek amendments to the clauses so that LALC or Aboriginal community members can seek reduced or non-payment of fees and charges. 
7(6)      The Minister may disallow or vary any fee or charge by serving notice on the manager.      NSWALC will seek clarification on how fees or charges are to be determined. NSWALC will seek amendments to the clauses so that LALC or Aboriginal community members can seek reduced or non-payment of fees and charges. 
8 Persons who enter a reserve do so subject to any conditions determined by the manager displayed on public notices.  Conditions may relate to entry and exit points. The maximum penalty for breach is 50 penalty units. NSWALC will recommend special access arrangements for LALCs involved in cultural or spiritual activities on reserve land.    
9(1)(d)     

Clause 9(1) of the Regulation prohibits various activities on reserved Crown land. Clause 9(1)(d) confirms a person must not "walk over, mark, scratch or otherwise mutilate, deface, injure, interfere with, remove or destroy any Aboriginal rock carving, its surrounds or any other Aboriginal object in or on the land".

Maximum penalty: 50 penalty units.     

NSWALC will seek further clarification regarding how these provision are consistent with current and proposed new culture and heritage laws.

NSWALC will continue to advocate for greater protections of Aboriginal culture and heritage.  
9(2)     

This part of the Regulation says: 

"It is a defence to the prosecution of an offence against this clause if the defendant proves that there was a reasonable excuse for the conduct that is alleged to give rise to the offence."    

NSWALC will seek further clarification regarding how these provision are consistent with current and proposed new culture and heritage laws.

NSWALC will continue to advocate for greater protections of Aboriginal culture and heritage.  
11 Authorised persons like a manager's employees do not commit offences for destruction etc. if done with the consent of the manager and not otherwise prohibited under the Act or other legislation.    

NSWALC will seek further clarification regarding how these provision are consistent with current and proposed new culture and heritage laws.

NSWALC will continue to advocate for greater protections of Aboriginal culture and heritage.  
17

Under the Act the Minister can direct a non-council manager to appoint a community advisory group for a reserve with a function to advise on management proposal impacts on community. 

NSWALC will propose that non-council managers should appoint a LALC representative or Aboriginal community member to any community advisory groups that are formed. 
26

Under 4.6 of the Act, the Minister can vest land in local councils if the Minister is satisfied, "after taking into account the prescribed criteria that the land is suitable for local use".

Where a land claim exists over land being considered for transfer, written consent will be required by the LALC before the land can be vested in the local council. 

This clause of the regulation sets out the prescribed criteria for "local land" including "whether the land use is consistent with the functions of local government or could be used for activities consistent with those functions" and "whether the land is managed, or has identified potential to be managed, as a community asset by a local council or some other body".

NSWALC will seek clarification as to what types of bodies could be vested with Crown land.

 

27

Under 4.9 of the Act local councils can be vested with Crown land.  The Act says however that native title rights survive and must be managed by Council. However, 8.13 of the Act then requires the Council to indemnify the State for things Council does that might impact native title rights. 

This clause of the Regulation reinforces the requirement on local councils vested with Crown land to indemnify the Government for any compensation the Government might be liable for regarding damage to native title rights and interests relating to land vested in the local council.

NSWALC will seek further clarification regarding these clauses. 

28

Under 4.12 of the Act, the Minister can vest Crown land directly in another government agency, state owned corporation or statutory corporation (but only with the LALC's or NSWALC's written consent if the land is under an ALRA claim).

This clause of the Regulation clarifies that a statutory corporation can only be vested with land if its functions are consistent with the reserve purposes and the relevant Minister consents.    

Under 4.14 of the Act, when Crown land is vested in an agency all existing dedications and reserves are revoked and the land ceases to be Crown land. 

 

NSWALC will seek clarification as to what the implications are for vested land where the purpose or function of the agency or corporation change.
30

Under 5.9(1)(c) of the Act, the Minister can convert a Western lands perpetual lease to freehold if within a prescribed distance of an urban centre.

This clause of the Regulation prescribes the distance to be 20 kms.    
This clause may be of interest to LALCs who hold perpetual leases in the Western Division.    
31

Under 2.20 of the Act, the Minister can grant short-term licences over reserved or dedicated land if it is for a purpose and within a term prescribed by the Regulation.  This can include a purpose that is inconsistent with the reserve or dedication purpose.

The Regulation prescribes broad purposes for which licences can be granted including entertainment, meetings, sales, recreational activities etc.

This clause of the Regulation prescribes the purposes of short-term licences and a maximum term of one year.     

NSWALC will seek clarification as to what criteria the Minister will consider when granting short-term licences.

 

NSWALC will also request that additional consideration be given to LALC or Aboriginal community applications for short-term licences.    
32

Under 5.26 of the Act, the Minister can impose a licence on unauthorised occupiers or users of Crown land under prescribed terms including releasing the Minister from any liability.

This clause of the Regulation prescribes what kind of terms can be included in such a licence, for example terms relating to the payment of rent in advance, making good and remediation.

NSWALC will seek further consideration as to whether it is appropriate to indemnify the Minister for liability where the licence holder is responsible for any interference, destruction or damage to Aboriginal culture and heritage. 

62

And Part 1 of Schedule 1    
These parts of the Regulation set out fees that can be charged for various things like applications to the Minister for a licence.      NSWALC will recommend consideration of a fee waiver or reduction for LALCs and Aboriginal people where the charges relate to Crown land that holds cultural or spiritual significance.     
64     

Under Division 12.4 of the Act, the Secretary is to prepare for the Minister a 10 year State Strategic Plan for Crown Land which is to "set the vision, priorities and overarching strategy for the management of Crown land" having regard to things like "environmental, social, cultural heritage and economic considerations".

In preparing the Plan the Minister is to seek advice from prescribed entities including NSWALC and NTSCORP.     
NSWALC will seek LALC input regarding what to advice to provide to the Minister in relation to the Strategic Plan.     
Schedule 2

This Schedule in the Regulation sets out the amount payable under any penalty notice for particular offences.

NSWALC will submit that the penalty for any damage, destruction or removal of any Aboriginal culture or heritage should be increased to reflect the severity of the offence and should be consistent with new culture and heritage laws.