31 August, 2014
“What do we want?” sings Archie Roach in Too Many Bridges. “Land Rights! Land Rights is what we say.” Songs cry for it. Red, black and gold marches pound the streets for it. Laws enact it. But how does the land rights system work in NSW? And is it working hard enough?
Aboriginal people can claim land through two processes – Land Rights and Native Title. While both enable communities to build a land base and have the potential to generate income, the two systems operate under different laws and grant different rights and titles to land.
In 1983 the NSW parliament passed the NSW Aboriginal Land Rights Act (ALRA). This gave Aboriginal people a powerful legal right to make claims on Crown lands. If these lands are not used, occupied or needed they are claimable and must be returned to Land Councils through a freehold grant.
The ALRA aimed to compensate for two centuries of dispossession and recognised the enduring disadvantage found within Aboriginal communities. The mechanism is established through NSWALC and a network of 120 Local Aboriginal Land Councils (LALCs).
Successful land claims enable Aboriginal communities to create and manage their own wealth base. They also encourage cultural and social revitalisation. All of this provides the key foundations for Aboriginal communities being more in control of their futures.
“The NSW Aboriginal Land Rights Act provides the best economic package for compensation any Parliament has offered Aboriginal people throughout Australia,” says Steve Wright, Registrar of the Aboriginal Land Rights Act 1983. “The economic benefit leads to the empowerment of the Aboriginal community and this source of power is independent of the government.”
Unlike Native Title, the ALRA is not based on Aboriginal people having a connection to country – although they often do. This is crucial as historically our mob have been dislocated from their traditional homelands making it hard to prove continual connection to country. Additionally, any Aboriginal person living inside a LALC area over the age of 18 or with an association to the area can become a member of the Council, irrespective of whether they are Traditional Owners or not.
But the most significant distinction is the form of title granted. Through the claimable crown lands process the ALRA generally grants freehold title to land. This means it becomes private property excluding all other interests and gives access to certain minerals on the land.
“Once you have something in freehold title, you cannot it take away,” explains NSWALC Chair Craig Cromelin. “People then have the opportunity to do whatever they want with that land – develop it, sell it or go into a joint arrangement, use it for cultural purposes or have it in perpetuity for the kids to use.
“Native title and Land Rights are both important systems that provide rights for and advance the interests of Aboriginal people in NSW and we encourage LALCs and their members to explore all options.”
How communities benefit from claimed land
Since 1983 the Act has provided NSWALC with approximately $600 million in a statutory fund and $1 to 2 billion in undeveloped land assets.
These assets cover everything from town lots to pastoral leases in the west, through to prime real estate on the east coast. It also covers areas of significant cultural and social value, sacred sites and places that connect local communities to their dreaming stories.
However, in NSW the area of Aboriginal-owned land is approximately 0.2% of the State of NSW’s total land mass.
“Thirty years isn’t a long time in the scheme of things,” says Wright. “For any group this kind of transfer of wealth and land is a huge responsibility.”
Since changes to the legislation in 1990 allowed LALCs to sell or mortgage their land under certain conditions, Land Councils are developing a more entrepreneurial approach to their land assets.
“Some LALCs will sell the land to improve their bank balance. That’s their prerogative,” says NSWALC Deputy Chair Roy Ah-See.
Other Land Councils, such as Darkinjung on the Central Coast are subdividing land for housing and other projects as a form of wealth generation and also to provide community benefits to members.
In a social initiative, other Land Councils are working to fund community housing following an agreement between the NSW government and NSWALC, together with Commonwealth monies to build houses on Aboriginal-owned land.
In other parts of the state, Aboriginal communities are trying new and innovative ways to leverage their land and create local opportunities in cultural connection, economic development and environmental management.
Coonabarabran Local Aboriginal Land Council has developed a successful financial model allowing the LALC to fund a local community benefit scheme.
In partnership with the Office of Environment and Housing (OEH) and Catchment Management Authority (CMA), Tibooburra LALC has restored the former reserve into a camping area with a cultural walking trail and established a Keeping Place Museum as part of their office.
In hand-back or lease-back arrangements, claimed land is jointly owned with other bodies such as National Parks. This has been successfully negotiated in several regions, including the Mutawintji National Park in western NSW and most recently at Gaagal Wanggaan at Nambucca Heads on the mid-north coast.
Worimi LALC has established a three-way solution to managing and profiting from land at Stockton Bight. Licenses to tourism operators on the sand dunes of the Worimi Conservation Lands operate alongside agreements with construction companies for sand extraction on land covered by freehold title.
“A lot of communities are looking at what they can do now. Views have broadened and changes to the ALRA have helped that,” says Cr Ah-See.
When a claim is unsuccessful NSWALC works with the LALCs to advise and fund appeals on a case-by-case basis. In a successful outcome, NSWALC will then transfer the land to the relevant LALC.
“At NSWALC our strategy is once a claim is refused, our legal department determines what claims should be appealed. We pursue those that will have a flow-on effect.
“Given that LALCs don’t generally have their own lawyers, we assist and fund LALC land claim appeals,” continues Cr Cromelin.
The way ahead
The fact that NSWALC and LALCs are independent from the government is crucial to their success.
While the funding of many Aboriginal organisations is slashed with each new government, Land Councils can rely on their assets to continue to earn an income into the future. This paves a solid path to self-determination.
Since its enactment the ALRA has undergone considerable amendments and review. While this has facilitated some aspects of the land claims process, there are still many undetermined land claims.
“”It’s derogatory to say that there is a ‘backlog’ of land claims,” says Wright. “I prefer to call the 26,500 waiting claims ‘a big land bank.'”
In addition to addressing the issue of unresolved land claims with the NSW Government, NSWALC has been working with the LALCs to improve how the Act can better protect Aboriginal culture and heritage, especially in relation to the more undisturbed parcels of Crown land such as travelling stock reserves which have very high culture and heritage values.
“We certainly have a strong membership,” says Cr Cromelin. “This is the largest blackfella organisation in the country with over 23,000 members.
“We have a responsibility to them to sit down with government and resolve these claims.
“NSWALC knows that to have these lands available to our local members is something of tremendous value, spiritually, economically and socially.
“After all, Aboriginal people looked after the land for over 40,000 years and we are still the first and primary custodians of the land.”