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2011Emerging Issues: Claims to Land under the Aboriginal Land Rights Act 1983 (NSW) 811SOME EMERGING ISSUESIN RELATION TO CLAIMS TO LANDUNDER THE ABORIGINAL LAND RIGHTS ACT 1983 (NSW)JASON BEHRENDT I INTRODUCTIONIn 1983, the New South Wales Parliament passed the Aboriginal Land RightsAct 1983 (NSW) (‘ALRA’). The necessity to provide Aboriginal people witheconomic independence as well as providing compensation for past injustice wasat the forefront of the policy underlying the enactment of the ALRA. In his secondreading speech, the Minister for Aboriginal Affairs, Frank Walker noted that theKeane Report1 prepared by the Parliamentary Select Committee that preceded theALRA had noted that Aboriginal people experienced ‘severe economicdeprivations’ and that the Committee believed that ‘land rights could also, in ourtimes, lay the basis for improving Aboriginal self-sufficiency and economicwellbeing’.2 He stated that ‘[i]n this sense land rights has a dual purpose –cultural and economic. Some lands, with traditional significance to Aborigines,will retain a cultural and a spiritual significance. Other lands will be developed ascommercial ventures designed to improve living standards’.3The legislative policy expressed in the ALRA to return land to the Aboriginalpeople as ‘a form of economic compensation’ was noted by Sheller J in MinisterAdministering the Crown Lands Act v New South Wales Aboriginal LandCouncil.4For the last 25 years, the ALRA has operated with mixed success. AlthoughFrank Walker anticipated a quick process for the resolution of claims, the processof determining claims and transferring the land has taken much longer. As aresult, the capacity for Aboriginal land councils to realise the benefits of the 1234Solicitor, Chalk & Fitzgerald Lawyers and Consultants. The views expressed in the article are personalviews.Select Committee upon Aborigines, Parliament of News South Wales, M F Keane, First Report from theSelect Committee of the Legislative Assembly upon Aborigines: Report and Minutes of Proceedings(1980) (‘Keane Report’).New South Wales, Parliamentary Debates, Legislative Assembly, 24 March 1983, 5089 (Frank Walker).Ibid.Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 31NSWLR 106, 117 (Sheller J).

812UNSW Law JournalVolume 34(3)ALRA has been curtailed. This article looks at the land claim process under theALRA and some of the ways it has been hindered.II ABORIGINAL LAND RIGHTS ACT 1983 (NSW)Section 3 provides that the purposes of the ALRA are:(a) to provide land rights for Aboriginal persons in New South Wales,(b) to provide for representative Aboriginal Land Councils in New SouthWales,(c) to vest land in those Councils,(d) to provide for the acquisition of land, and the management of land andother assets and investments, by or for those Councils and theallocation of funds to and by those Councils,(e) to provide for the provision of community benefit schemes by or onbehalf of those Councils.The ALRA established 119 Local Aboriginal Land Councils (‘LALCs’),5 13regional councils6 and one State body entitled the New South Wales AboriginalLand Council (‘NSWALC’). The purpose of the land council system is toprovide a form of self-determination for Aboriginal people.7Membership of a LALC is not limited to people who might be regarded astraditional owners. It is open to an adult Aboriginal person who:(a) resides within the area of the LALC concerned and is accepted as beingqualified on that basis to be a member by a meeting of the Council, or(b) has ‘a sufficient association with the area of the Local Aboriginal LandCouncil concerned (as determined by the voting members of theCouncil at a meeting of the Council)’, or(c) is an Aboriginal owner in relation to land within the area of the LocalAboriginal Land Council concerned.8Because the ALRA allows for membership of a LALC based on residency, thescheme has the potential to benefit all Aboriginal people in an area, includingthose dispossessed or dislocated by past government policies. The objects of5678New South Wales Aboriginal Land Council, Annual Report 2009–2010 (2010) 22.Subsequent amendments to the ALRA in 2006 removed the regional council structure.New South Wales Aboriginal Land Council v Alan Jones (1998) 43 NSWLR 300, 310 (Handley JA,Powell JA agreeing); Darkinjung Pty Ltd v Darkinjung Local Aboriginal Land Council (2006) 203 FLR394, 430–1 [130]–[131] (Barrett J).ALRA s 54(2A). The reference to ‘Aboriginal owner’ is a specific reference to people placed on theRegister of Aboriginal Owners established under pt 9 of the ALRA. A person cannot be placed on theRegister in relation to land unless they are directly descended from the original Aboriginal inhabitants ofthe cultural area where the land is located, have ‘a cultural association with the land that derives from, thetraditions, observances, customs, beliefs or history of the original Aboriginal inhabitants’, and they haveconsented to being on the Register: ALRA s 171. This provision was introduced as part of the scheme forAboriginal ownership of National Parks under pt 4A of the National Parks and Wildlife Act 1974 (NSW).

2011Emerging Issues: Claims to Land under the Aboriginal Land Rights Act 1983 (NSW) 813LALCs are ‘to improve, protect and foster the best interests of all Aboriginalpersons within the Council’s area and other persons who are members of theCouncil’.9 An LALC has a broad range of functions to pursue those objectives,including ‘to use, manage, control, hold or dispose of, or otherwise deal with,land vested in or acquired by the Council’, to make claims for Crown land, to‘protect the interests of Aboriginal persons in its area in relation to theacquisition, management, use, control and disposal of its land’, and to ‘takeaction to protect the culture and heritage of Aboriginal persons in the Council’sarea’.10 NSWALC has functions that include acquiring land and making claimson behalf of LALCs, to assist LALCs in relation to budgets and preparation ofcommunity, land and business plans, to provide policy advice to the Minister forAboriginal Affairs, and to take action to protect Aboriginal culture and heritage.11When the ALRA was enacted it provided for the immediate transfer of landthat was at that time being administered by the Aboriginal Land Trust.12 This wasonly about 4600 hectares of land.13 The ALRA also introduced a scheme forclaiming Crown land. As Mason P noted in the Wagga Land Claim, the landclaim process is the ‘primary mechanism’ for giving effect to the purposes set outin section 3 of the ALRA.14 That process is discussed in more detail below.Any land the subject of a successful claim is transferred in fee simple.15 Anytransfer includes ownership of certain minerals in the land, but does not includegold, silver, coal or petroleum.16 ‘Mining operations’17 cannot occur on landvested in a land council without its ‘consent’.18While the ALRA originally provided that transferred land would beinalienable, it was amended to allow for the disposal of land. Aboriginal peoplecan sell land to purchase other land that is of more significance to them or forother purposes. It also allows for the development of land for economic benefitwhich was one of the principle goals of the ALRA.There is however a detailed scheme for dealings with land under the ALRA.19A LALC cannot dispose of any interest in land without approval from NSWALC.Any dealing without approval is void and unenforceable against the land910111213141516171819ALRA s 51.ALRA s 52.ALRA s 106.ALRA s 35 as originally enacted. See by way of background, Meredith Wilkie, Aboriginal Land Rights inNSW (Alternative Publishing, 1985) 58.Ibid.New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 157LGERA 18, 24 [20] (Mason P) (‘Wagga (CA)’).ALRA ss 36(5), 36(7). The exception is that land in the western division is now transferred as a perpetuallease: ALRA s 36(9A).ALRA s 45(12).‘Mining operations’ is defined in s 45(1)(a) to mean ‘prospecting, exploring or mining for mineralresources or other natural resources’.ALRA s 45(4). That restriction does not apply to the mining of gold, silver, coal or petroleum: ALRA s45(12).See generally ALRA div 4.

814UNSW Law JournalVolume 34(3)council.20 A LALC cannot dispose of land that is of cultural significance to itsmembers without first considering that significance.21Once land is vested22 in a LALC, section 42B of the ALRA provides that itcannot ‘be appropriated or resumed except by an Act of Parliament’. 23In addition to the claims process the ALRA established a fund to supportAboriginal land councils and to provide a means of purchasing land. For 15 years7.5 per cent of land tax was paid into the fund. As at 30 June 2010, the value ofthe fund was 554 million.24 That fund provides a basis for land purchases andsupport for economic development in the future. The income earned also fundsthe administration of the land council system.The ALRA also makes provision for agreements for access to private land forthe purposes of hunting, fishing and gathering.25 Where agreement cannot bereached there is scope for the Land and Environment Court to determine thematter.26 There has however been little utilisation of the provision.27III THE LAND CLAIM PROCESSA ‘Claimable Crown Land’The process for making claims under the ALRA is straightforward. A landcouncil need only write to the Registrar of Aboriginal Land Rights identifyingthe land it wishes to claim. The Registrar then forwards it to the Crown LandsMinister (‘the Minister’) who then considers the claim. The usual practice is thatthe Department of Lands (‘the Department’) investigates the claim and makes arecommendation to the Minister. The only enquiry is whether the land is‘claimable Crown land’ as defined in section 36(1). If the Minister determinesthat it is ‘claimable Crown land’ she or he must transfer it to the Aboriginal landcouncil. If the Minister refuses the claim the land council can appeal to the Landand Environment Court. The Court then determines the claim again. At any suchhearing, the Minister has the onus of satisfying the Court that land is ‘claimable2021222324252627ALRA ss 42C, 42E(4), 42E(5).ALRA s 42G(5).ALRA s 40(2) provides that land is ‘vested’ in an Aboriginal Land Council if:(a) the Council has a legal interest in the land, or(b) the land is the whole or part of land the subject of a claim under section 36 and:(i) the Crown Lands Minister is satisfied that the land is claimable Crown land under section 36,or(ii) the Court has ordered under section 36(7) that the land be transferred to the Council, and theland has not been transferred to the Council.ALRA s 42B (formerly s 42).New South Wales Aboriginal Land Council (2010), above n 5, 62.ALRA s 47.ALRA s 48.See, eg, J Behrendt and P Thompson, ‘The Recognition and Protection of Aboriginal Interests in NewSouth Wales Rivers’ (2004) 3 Journal of Indigenous Policy 37, 91–2.

2011Emerging Issues: Claims to Land under the Aboriginal Land Rights Act 1983 (NSW) 815Crown land’.28 The Court will comprise a judge and at least one commissionerwith ‘suitable knowledge of matters concerning land rights for Aborigines andqualifications and experience suitable for the determination of disputes involvingAborigines’.29In this process, in contrast to claims under the Aboriginal Land Rights(Northern Territory) Act 1976 (Cth) or the Native Title Act 1993 (Cth), there isno need for any anthropological evidence, proof of traditional connection, orjustification for why a land council may want the land. The only question to bedetermined is whether it is ‘claimable Crown land’.Section 36(1) of the ALRA provides that land is ‘claimable Crown land’ if itcomprises lands vested in Her Majesty, that at the date the claim was lodged:(a) are able to be lawfully sold or leased, or are reserved or dedicated forany purpose, under the Crown Lands Consolidation Act 1913 or theWestern Lands Act 1901,(b) are not lawfully used or occupied,(b1) do not comprise lands which, in the opinion of a Crown LandsMinister, are needed or are likely to be needed as residential lands,(c) are not needed, nor likely to be needed, for an essential publicpurpose.30Because the ALRA fixes the enquiry into whether land is ‘claimable Crownland’ at the date the claim is made, land may not be claimable at one point intime but may become claimable later. There is no prohibition on repeat landclaims. Indeed a substantial injustice would be worked against Aboriginal peopleif there was, particularly where uses expire or if the need for particular landsdissipates. The Wagga Land Claim31 is a recent example where land hadpreviously been the subject of an unsuccessful land claim, but a subsequentclaim, which was lodged when the land was about to be sold, was successful.The definition of ‘claimable Crown land’ allows for unreserved Crown landand land reserved or dedicated under Crown lands legislation to be claimed. Itdoes not allow for claims to land reserved under other legislation such as theNational Parks and Wildlife Act 1974 (NSW) (‘NPWA’) or the Forestry Act 191628293031ALRA s 36(7). The Minister has the burden of ‘satisfying the trial judge of the ultimate fact, namely thatthe lands were not claimable Crown lands’ and has ‘the burden of establishing such primary facts andinferences as must be drawn therefrom in order for his decision to be upheld’: Minister Administering theCrown Lands Act v Bathurst Local Aboriginal Land Council (2009) 166 LGERA 379, 422 [202] (BastenJA) (‘Bathurst’).See ss 12(2)(g), 37(2) of the Land and Environment Court Act 1979 (NSW). Section 37(2) provides that ajudge is to ‘be assisted by 2 Commissioners or, if the Chief Judge so directs, by one Commissioner’.There are two further exceptions relating to land the subject of a registered native title claim or adetermination of native title under the Native Title Act 1993 (Cth): ALRA ss 36(1)(d)–(e).Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (2008) 237CLR 285 (‘Wagga (HCt)’).

816UNSW Law JournalVolume 34(3)(NSW).32 Lands vested in a Minister or Ministerial holding company or vested ina local government body are not claimable.33It has been noted that the ALRA is remedial and beneficial legislation and theexceptions to ‘claimable Crown land’ in section 36(1) are to be ‘narrowlyconstrued’.34 Generally speaking, land is ‘lawfully used or occupied’ if it is used‘in fact’ or to more than ‘a merely notional degree’.35 A constructive use oroccupation is insufficient,36 as is a future use.37 Minor or transitory uses,38 oradministrative processes in relation to the land,39 have also been held to beinsufficient.In order to fall within section 36(1)(c) of the ALRA the public purpose needsto be ‘essential’. ‘Essential’ means ‘necessary or indispensable’.40 It has beennoted that the reference to ‘essentiality’ sets a high standard and involves a‘significant restriction’ on the exception to claimable Crown lands. It is notenough that the public purpose be ‘desirable’ or ‘highly desirable’.41There are a broad range of matters which can, in given circumstances,comprise an essential public purpose including roads, schools, sewerage32333435363738394041National Parks and State Forests cannot therefore be claimed under ALRA s 36(1). There is however aseparate scheme for Aboriginal owned national parks under t 4A of the NPWA.Mogo Local Aboriginal Land Council v Eurobodalla Shire Council (2002) 54 NSWLR 15, 29–30 [57]–[58] (Giles JA).Minister Administering the Crown Lands Act v Deerubbin Local Aboriginal Land Council (No 2) (2001)50 NSWLR 665, 674 [53]–[54] (Spigelman CJ) (‘Maroota (CA)’). See also Bathurst (2009) 166 LGERA379, 419 [186] (Tobias JA), 426 [217] (Basten JA); Darkinjung Local Aboriginal Land Council vMinister Administering the Crown Lands Act (2006) 149 LGERA 162, 170 [14]–[15] (Pain J); WanaruahLocal Aboriginal Land Council v Minister Administering the Crown Lands Act (2001) 113 LGERA 163,183 [97]–[98] (Lloyd J) (‘Wanaruah’); Wagga (CA) (2007) 157 LGERA 18, 24 [21], 25 [25] (Mason P);Muli Muli Local Aboriginal Land Council v Minister Administering the Crown Lands Act (2010) 176LGERA 182, 209 [48]–[49] (Pain J) (‘Urbenville Claim’).Daruk Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1993) 30 NSWLR 140,164D–E (Priestley JA) (‘Hawkesbury River Claim’); Minister Administering the Crown Lands Act v New SouthWales Aboriginal Land Council (1993) 31 NSWLR 106, 108D–E (Priestley JA), 119G (Sheller JA) (‘NowraBrickworks (No 1)’). See also Wagga (HCt) (2008) 237 CLR 285, 305–6 [69] (Hayne, Heydon, Crennan andKiefel JJ); Griffith Local Aboriginal Land Council v Minister Administering the Crown Lands Act [2008] NSWLEC108, [39] (Pain J) (‘Hillston’).Hawkesbury River Claim (1993) 30 NSWLR 140, 164B–D (Priestley JA).Wagga (CA) (2007) 157 LGERA 18, 25 [32], 28 [50] (Mason P, Tobias JA agreeing); Nowra Brickworks (No 1)(1993) 31 NSWLR 106, 121C (Sheller JA).New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2008]NSWLEC 241 (29 August 2008) [143] (Sheahan J) (‘Berowra LEC’); New South Wales Aboriginal LandCouncil v Minister Administering the Crown Lands Act [2008] NSWLEC 35 (31 January 2008) [69](Jagot J) (‘Shoalhaven’).Hillston [2008] NSWLEC 108 (18 March 2008) [71] (Pain J).New South Wales Aboriginal Land Council v Minister for Natural Resources (1986) 59 LGRA 318, 331–2 (Stein J) (‘Tredega Claim’); Worimi Local Aboriginal Land Council v Minister Administering theCrown Lands Act (1991) 72 LGRA 149, 163 (‘Worimi’); La Perouse Local Aboriginal Land Council vThe Minister (No 2) (1991) 74 LGRA 176, 183 (Bannon J) (‘La Perouse’).Minister Administering Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA71, 80 [32(2)] (Hodgson JA, McColl JA agreeing) (‘Illawarra (CA)’). See also Maroota (CA) (2001) 50NSWLR 665, 674 [55] (Spigelman CJ); Dorrigo Plateau Local Aboriginal Land Council v MinisterAdministering the Crown Lands Act (2007) 155 LGERA 307, 313 [10] (Jagot J) (‘Dorrigo’); La Perouse(1991) 74 LGRA 176, 182–3 (Bannon J).

2011Emerging Issues: Claims to Land under the Aboriginal Land Rights Act 1983 (NSW) 817facilities, and nature conservation. Where the purpose can be dealt with by wayof a grant subject to condition, the ALRA allows for the transfer by way of aconditional grant.42The word ‘likely’ in section 36 means ‘a real or not remote chance’.43 InMinister Administering the Crown Lands Act v Illawarra Local Aboriginal LandCouncil44 the requirement of a real and not remote chance was referred to as a‘substantial’ chance.45Section 36(1)(b1) of the ALRA differs from the other subsections in section36(1) as it is termed by reference to an ‘opinion of a Crown Lands Minister’.46Section 36(1)(b1) requires that the opinion exist as at the date of claim.47 Theexistence of such an opinion can be found by reference to direct evidence orinferentially from the whole of the evidence.48 The fact that land is included in afuture land release strategy, or is acknowledged in public planning documents ashaving a capacity for future urban development, does not necessarily establishthat it is relevantly needed or likely to be needed as residential land.49 The factthat the Land Commission or a local government body have made plans forfuture residential development, or that a local government body has soughtpermission to compulsorily acquire land for that purpose, has also been held to beinsufficient.50What constitutes ‘residential lands’ is yet to be fully resolved. It is at leastclear that ‘residential lands’ is not synonymous with ‘urban development’, whichcould clearly include a broader range of uses including commercial, industrialand recreation.51 In any large subdivision there may be roads, green space andcommunity facilities provided for. In those circumstances it is arguable th

(b) the land is the whole or part of land the subject of a claim under section 36 and: (i) the Crown Lands Minister is satisfied that the land is claimable Crown land under section 36, or (ii) the Court has ordered under section 36(7) that the land be transferred to the Council, and the land has not been transferred to the Council.

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