The NSW Government has extended consultation on a Crown land bill after Aboriginal land councils and the state’s peak legal body warned a provision could undermine Aboriginal land rights claims.
The New South Wales Aboriginal Land Council (NSWALC) confirmed on Wednesday, 1 July that the Government had extended the consultation window for the Crown Land Management Amendment (Statutory Review) Bill until Friday, 31 July.
The extension followed a request from NSWALC, who said the proposed amendments had only been delivered by Minister for Lands and Property Steve Kamper on Friday, 19 June, leaving little time to consult the wider Aboriginal Land Rights Network before any action was taken.
NSWALC Chairperson Dr Raymond Kelly said the Network needed more time to properly consider the implications.
“We have worked tirelessly over the past week to carefully consider the NSW Government’s proposed amendments and, with the support of the Land Rights Network, remain firm on our position… that without more time to consult, the NSW Government are acting to the detriment of Aboriginal people of NSW,” Dr Kelly said.
“There are 121 Local Aboriginal Land Councils and more than 30,000 members across the State. We want to make sure they have adequate time to consider the implications of the amendments.”
NSWALC Deputy Chair Leeanne Hampton, Councillor for the Wiradjuri Region, said the Bill in its current form would weaken Aboriginal land rights in the state.
“The Network has been strong in their continued advocacy, unity and mobilisation against the Bill,” Deputy Chair Hampton said.
“The way the NSW Government introduced this Bill and the proposed amendments was not done in good faith, and we’re pushing for that to change.”
“Any decisions to validate or alter Crown land affecting Aboriginal land claims needs meaningful consultation with Aboriginal Land Councils, and with full transparency.”
NSWALC asked the Government to make five further amendments to the Bill. These included requiring the concurrence of the Minister for Aboriginal Affairs before any Crown land holding affecting a land claim is validated or changed, guaranteeing Aboriginal Land Councils receive all relevant lease and licence information during consultation, and setting a minimum 28-day consultation period that cannot be reduced by regulation.
When the extension was confirmed, NSWALC said it welcomed the decision as a first step, but remained opposed to what it called discriminatory elements still contained in the Bill.
“NSWALC and the wider Aboriginal Land Rights Network remain in opposition to the discriminatory elements of the Bill. The Bill still contains provisions that would adversely affect Aboriginal land rights,” they said.
According to the Bill’s Statement of Public Interest, tabled in Parliament, the legislation amends the Crown Land Management Act 2016 based on recommendations from a five-year statutory review. The Government states the objectives are to maximise public value from Crown land, strengthen Crown land managers, and ensure the land is managed in more contemporary ways. The statement says the review process included a public discussion paper and one-on-one meetings with key stakeholder groups.
That account of consultation has been disputed by the Law Society of NSW, which has focused its concern on one specific clause: proposed section 5.20B(4) of the Act.
The provision goes to the heart of a High Court decision handed down last year involving a disused bowling club site in Paddington, commonly referred to as the Quarry St decision. Developer Quarry Street Pty Ltd held a long-term Crown lease over the site, but had not put it to any physical use. The High Court found that holding a lease alone did not amount to “lawful use” of the land under the Aboriginal Land Rights Act, meaning the site remained claimable Crown land and could be handed back to the La Perouse Local Aboriginal Land Council.
Law Society of NSW President Ronan MacSweeney said the new provision could remove that protection.
“This legislation fundamentally alters what has been long understood to be land claimable under the ALRA, and reconfirmed in the Quarry Street High Court judgment last year,” Mr MacSweeney said.
“The proposed amendment to the Crown Land Management Act 2016 (NSW) (CLMA) appears to overturn the Quarry Street decision and override longstanding practice under the ALRA, through which Aboriginal communities are able to claim land rights on Crown land that is ‘not lawfully used or occupied’.”
“It is important to note that the ALRA is intended to be remedial and beneficial legislation designed to compensate Aboriginal people for historic dispossession.”
Mr MacSweeney said the proposed new section would deem the mere granting of a lease as “lawful use for the purposes of another Act”, which he said could allow the Government to bank Crown land by granting a lease and then leaving it unused, without the Quarry Street protections applying.
He said the provision responded to a recent, rushed statutory review of the Act, and had not itself been recommended by that review or put out for consultation.
“The Law Society is concerned that this proposed section, which has the potential to thwart otherwise valid claims by Aboriginal communities to disused Crown land, was not a recommendation of the statutory review. It was not subject to consultation before being introduced without notice,” Mr MacSweeney said.
“The lack of consultation with affected stakeholders on this provision is exacerbated by the publication of the statutory review two days after the amending legislation was introduced.”
“The Law Society is concerned that proposed s 5.20B has been inserted into this Bill, rather than via direct amendment to the ALRA itself, to avoid scrutiny of a measure which would undermine the purpose and operation of the ALRA.”
Mr MacSweeney called for the provision to be withdrawn and for the rest of the Bill to be referred to a parliamentary inquiry.
“The Law Society calls on the NSW Government to withdraw the provision and refer the remainder of the amending legislation to a parliamentary inquiry,” Mr MacSweeney said.
For more information on the Crown Lands Management Amendment Bill, visit the the NSWALC website: https://alc.org.au/crown-land-management-amendment-bill/
Got something you want to say about this story? Have your say on our opinion and comment hub, New England Times Engage