The Aboriginal Land Rights Act 1983 was the brainchild of the Wran government and its carriage was the responsibility of attorney general Frank Walker (later of the District Court) who presented it to parliament shortly after the establishment of the first Ministry for Aboriginal Affairs.
The purpose of the Act was to provide land rights for Aboriginal people in NSW; to provide for representative Aboriginal Land Councils across the State; to vest land in those councils; and to provide for the acquisition of land, and the management of land and other assets and investments, by or for those councils and the allocation of funds to and by those councils.
In the words of historian Ken Turner the legislation was designed to, “provide some financial basis for compensation in recognition of Aboriginal claims for loss of land and the deprivation so caused”. (The People’s Choice, Electoral Politics in NSW, Vol. 3, Published by the Parliament of NSW and the University of Sydney, 2001.)
Turner went on:
“Critics complained that this was still not self-determination, that the minister had too much reserve power, and that the funding formula was inadequate. Certainly, in its early years, relatively few claims were granted, and usually after long delays. Yet an important foothold had been provided.”
As the years have rolled by, it looked less like a foothold and more a tenuous toehold.
The first onslaught on the legislation came in March 1988 with the election of the Greiner government. The initial plan – to sweep the Act off the statute books – was thwarted because the Coalition did not control the upper house and faced certain defeat from Labor and the crossbenches.
Greiner’s second line of attack was to propose regulations to take control of all the funds of the NSWALC and the 130 local councils, seeking to bring them to their knees.
But the government’s legal attack was challenged in the Supreme Court with Justice John Bryson upholding the NSWALC plaintiffs’ “inconsistency argument” and awarding costs.
Writing in the 2006-07 annual report, the NSWALC’s CEO Geoff Scott recorded the mauling that the legislation has received over the years.
“I think it is fair to say, as we head towards the 25th anniversary of land rights in NSW, that the original legislation, which was proclaimed on June 10, 1983, is now one of the most heavily amended statutes in the state.
“So much so, many in the land council system are struggling to keep fully abreast of the changes. There have now been seven different sets of amendments to the legislation since 1986. Many have resulted in significant imposts to the requirements placed upon NSWALC and Local Aboriginal Land Councils. In my view, they have significantly increased inbuilt tensions within the Act.”
In the same report Scott also expressed some of the organization’s misgivings about the pace of progress:
“NSWALC is acutely conscious that many members in the land rights network see little benefit flowing directly to them from the hard-won gains of the past 20 years or so … I can understand this sentiment but I do not agree with it.”
While the council’s planned “commemorations and celebrations” at parliament house next week are undoubtedly well-intentioned, they have failed to generate much excitement or interest beyond Aborigines on the land councils’ payroll and state government bureaucrats who administer Aboriginal affairs.
The shocking neglect of Aboriginal communities during the 13 years of the Carr and Iemma Governments – notably with the appointment of Milton Orkopoulos and then Reba Meagher as ministers for Aboriginal affairs between 2005 and 2007 – has turned the trail-blazing 1983 legislation into little more than a sick joke.
The current minister, Paul Lynch, MP for Liverpool and a former solicitor, has embarked on a “fresh approach” but has been starved of funds and Cabinet support for a full-scale overhaul.
Nevertheless, we can confidently expect a showcase announcement on land rights in parliament next week as the government “spins” its way forward.
In fact, the grim legacy of the 25-year-old legislation is that today there are literally thousands of land claims logjammed in the filing cabinets, committees and computers of the state bureaucracy; some claims have been waiting so long to be adjudicated that the original applicants are now deceased.
Jeffrey Bradford, a former member of the Darkinjung Land Council on the central coast, has turned down the NSWALC’s invitation to attend Tuesday’s celebrations in the “Bear Pit”, because he’s of the view that “there is very little to celebrate”.
Bradford said that the 2006 legislative changes, introduced by Orkopoulos, “have disempowered Local Aboriginal Land Councils [and] set the land rights movement back many, many years”.
The jailed sex abuser and drug offendor was responsible for keeping the Darkinjung council in administration and bringing to a halt a self-development scheme that the elders were financing from a $40 million property sale at The Entrance.
“I can only hope that when your celebrations are concluded, the NSW Aboriginal Land Council can find time to undo the many wrongs perpetrated against the Darkinjung Local Aboriginal Land Council and its members. I can assure you that we will never give up our fight for justice.”
And they won’t. The only people who have given up are the politicians in Macquarie Street, which isn’t surprising since they were responsible for encouraging the land theft in the first place.
Alex Mitchell is former state political editor of The Sun-Herald.