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Chapter 11.

May 1976 – March 1988

"Anti Discrimination and Land Rights Acts fail to restore

Aboriginal rights"

Documents 1976-1998

" A Select Committee, which produced what became known as the Keane Report, was set up in 1978 to consider the general issues affecting Aborigines in New South Wales." [LBC Page 147]

" ... 'other private dwellings' are also overcrowded. These are very likely housing some people who find it difficult to afford adequate housing, including Aborigines and old people." [1]

"Government policies to reduce exploitation and put the Aboriginal population on a footing comparable with that of 'mainstream' Australians are not in sight." [2]

"The Aboriginal population ... has never had a happy relationship with any government, although from 1972-5 a Department of Aboriginal Affairs was established, and considerable funds were spent in developing and providing services for the Aboriginal population. Since the Fraser government has been in office, expenditure through the Department of Aboriginal Affairs has declined sharply. However many of the functions performed have been transferred to the service departments such as Social Security, Health, Education, and Housing and Construction. It is difficult to assess whether service diminution in the Department of Aboriginal Affairs is adequately compensated for through other service departments. What is certain, however, is that government policies to reduce exploitation and put the Aboriginal population on a footing comparable with that of 'mainstream' Australians are not in sight." [2]

"Australia is just as unequal as it ever was ... this pamphlet is intended to do more than encourage people to hate the rich. Every portrait reveals the connection between the rulers of every section of the economy. Newspaper magnates own bauxite mines, the boss of Hardie Asbestos (Cases, Baryulgil?) is into BHP and Avis Rent-a-Car, the boss of CSR (sugar, asbestos, coal etc.) is also head of the Commercial Banking Company."[3]

Aboriginal Land Rights Act and Amendments 1980 "This Act aims to give rights over Crown land to representatives of Aboriginal people to help redress the injustice caused to the Aboriginal community by the deprivation of their land following the settlement of Australia. The Act establishes Aboriginal Land Councils (ALCs) at State, regional and local levels. Definitions NSW or local Aboriginal land councils may claim "claimable Crown lands" for vesting in the relevant council. "Claimable Crown lands" are defined as: land vested in the Crown which can be sold, leased or reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901; land which is not lawfully used or occupied; land which, in the opinion of a Crown lands minister, is not needed or likely to be needed as residential land or for an essential public purpose; and land which is not covered by a registered native title determination ..."

When the Aboriginal Land Rights Act 1983 (NSW) was passed it incorporated some features of the Keane Report (of 1978), but did not implement all of the Select Committee's recommendations. [Chalk, a, Land rights Under NSW Legislation (1991) 52 ALB 22, in LBC Page 148] The Aboriginal Land Rights Act 1983 and the Crown Lands (Validation of Revocations) Act 1983 were introduced into Parliament on the same day. The latter piece of legislation was introduced to counterclaims by the New South Wales Aboriginal Legal Service that all revocations of reserves made between 1909 and 1969 had been illegal. [Wilkie M, Aboriginal Land Rights in NSW (Sydney, Alternative Publishing Cooperative, 1985, 48, for a list of former reserves affected by the legislation): in LBC 147]

land. An ALC may appeal against a Minister's decision to refuse a claim. A certificate issued by the minister stating that land is needed (or likely to be needed) as residential land or for an essential public purpose, shall be accepted as final, shall not be called in to question in any proceedings and is not liable to appeal or review on any grounds.

perpetuity is granted under that Act but subject to existing native title rights and interests. Both the fee simple and lease include minerals or other natural resources in the land apart from gold, silver, petroleum and coal. An ALC has all the powers of a natural person in relation to the land and is entitled to explore for and exploit, or cause to be explored for and exploited, any mineral or natural resources vested in it. Subject to the other conditions that follow, mining operations (defined to mean prospecting, exploring or mining for mineral or other natural resources) cannot be conducted on ALC land without the consent of the relevant ALC. Any consent given may be subject to terms and conditions, including

payment of fees or royalties, as the ALC wishes to impose. A local ALC may only give consent if the consent and any terms and conditions are approved by the NSW ALC or the NSW Land and Environment Court. A proposal may be referred to the Land and Environment Court if the NSW ALC has refused to approve the consent given by the local ALC. The NSW ALC or Land and Environment Court may only refuse consent on the ground that giving consent is inequitable to the ALC or detrimental to the interests of members of other ALCs.

ALC consent is not required for any mining operations that may be carried out on ALC land for: gold, silver, coal or petroleum; or any other mineral under any right conferred by the Mining Act 1992, the

Offshore Minerals Act 1999, or any other law, where that right was in force at the time the lands were vested in that ALC; or a mineral claim or authority under an exclusive right conferred by the Mining Act 1992 or a renewal of any right, mineral claim or authority.

the renewal or extension of any right, mineral claim or authority in force at the time the lands were vested in the ALC; the registration of a mineral claim; the granting of an authority under an exclusive right conferred by the Mining Act 1992; or the granting of a licence under an exclusive right conferred by the Offshore Minerals Act 1999.

Any Act (such as the Mining Act) which provides for a person to explore for or exploit mineral or other natural resources that are vested in another person, does not apply to mineral or natural resources vested in a NSW or local ALC.[4]

"The precedent (the Aboriginal Land Rights (Northern Territory) Act 1976 [Cth]) of restoring land to Aboriginal people was followed, in varying ways, in other Australian jurisdictions. The Aboriginal Land Rights Act 1983 (NSW) also vested remaining reserves in Aboriginal Land Councils and established a clearly circumscribed claims process which does not depend on the proof of traditional ownership of the land claimed." [5]

If the Crown lands Minister is satisfied that land subject to a claim is claimable Crown land, he or she will transfer the land to the relevant ALC. If the Minister is satisfied that land subject to a claim is not claimable Crown land, he or she will refuse the claim over the land. However, if the Minister is not satisfied that land claimed is claimable Crown land because it is needed for an essential public purpose, he or she may grant the claim subject to a condition relating to the use of the land. An ALC may appeal against a Minister's decision to refuse a claim. A certificate issued by the minister stating that land is needed (or likely to be needed) as residential land or for an essential public purpose, shall be accepted as final, shall not be called in to question in any proceedings and is not liable to appeal or review on any grounds.

Most land is transferred to or vested in an ALC (ALC land) for an estate in fee simple. In the case of land subject to the Western Lands Act 1901 not within the urban area of a city, town or village, a lease in perpetuity is granted under that Act but subject to existing native title rights and interests. Both the fee simple and lease include minerals or other natural resources in the land apart from gold, silver, petroleum and coal. An ALC has all the powers of a natural person in relation to the land and is entitled to explore for and exploit, or cause to be explored for and exploited, any mineral or natural resources vested in it. Subject to the other conditions that follow, mining operations (defined to mean prospecting, exploring or mining for mineral or other natural resources) cannot be conducted on ALC land without the consent of the relevant ALC. Any consent given may be subject to terms and conditions, including

"Minister for Aboriginal Affairs; Principle Areas of Responsibility of the Minister, Coordination of policies for Aboriginal affairs. Departments, Statutory Authorities, and Semi-Autonomous Bodies Under the Minister; Aboriginal Policy Coordination Unit: Aboriginal Land Trust." [6]

"This book isolates the major legal issues facing Aboriginal and white Australia. All the issues addressed represent real, unsolved problems for those concerned with the role of justice. Much of the writing has been influenced by, and is largely a response to, Aboriginal statements and ideas, as expressed through, for example, the management of the aboriginal Legal Services, the development of Aboriginal land claims, and the research and consultation processes of law reform commissions and parliamentary inquiries..." [7]

"Not only have Aboriginal Australians been incarcerated at a disproportionately high rate. By the late 1980's it seemed that there was also a disproportionate representation of Aborigines among those who were dying while in 'protective' custody of police or prison officials. So numerous did those deaths become that, in October 1987, the Federal Government overcame its protracted inertia on the subject and, in response to a lobbying campaign which saw the issue taken into the international arena, ... officially invoked a Royal Commission into Aboriginal Deaths in Custody."[8]

" ... surely the distinctive and unenviable contribution of Australian jurisprudence to the history of the relations between Europeans and the indigenous peoples of the non-European world. It was not to provide justification for conquest or cession of land or assumption of sovereignty – others had done that before Australia was settled – but to deny the right, even the fact, of possession to people who had lived on their land for 40,000 years. Settlers in comparable countries (New Zealand, United States, Canada, South Africa) did not deny that the indigenes were the original owners of the soil, whatever else they may have done in the course of colonisation."[9]

Repealed by: Statute Law (Miscellaneous Provisions) Act 1988 No. 20 [11] (online copy available).

"Before 1988 the National Prison Census did not reveal the rate at which Aboriginal and Torres Strait Islanders were gaoled. This is hardly surprising since ... the disparity in figures per 100,000 population is alarming. Aboriginal and Torres Strait Islander males are incarcerated at a rate of up to thirty two times greater than white males. The plight of Aboriginal and Torres Strait Islander women is even more damning, particularly in Western Australia, where they are incarcerated at a rate forty four times greater than white females." [12]

" ... the political practice of the liberal democratic nation state ... is aimed at maintaining a measure of social harmony and equity internally, and an image of moral rectitude in the world at large. Its specific application arises when ... the state finds itself embarrassed at home and abroad by the existence of a small indigenous group, which it has constituted as a minority in the course of colonisation, but is unable to dissolve simply by declaring the members citizens. Cultural views and modes, whether originating before conquest or formed under conditions of colonial exclusion, cannot be cancelled by decree: moreover, the expropriation and marginalisation, which are the common outcomes of colonisation have produced a level of poverty and deprivation which is beyond the capacity of the market or the welfare apparatus to remedy (but why?) ... Yet another contradictory feature of welfare colonialism is its need to secure the assent of its subjects as evidence of their political enfranchisement. ... Ironically, the subjects are often so politically weak and fragmented that the state is itself obliged to create the channels of political expression and articulate indigenous aspirations." [13]

[1] Neutze, Max: Urban Development in Australia (Allen and Unwin 1977) (Page 152)

[2] Graycar, Adam: Welfare Politics in Australia, A Study in Policy Analysis (Macmillan 1979) (Page 66)

[3] Cockcroft, P: Introduction, in Murphy, Brian, Who's Running Australia? Portraits of the Ruling Class (A "Tribune" Publication, Printed by Intervention Printery, Wollongong, 1979) (Page 1)

[4] Reference?

[5] Nettheim, Garth; in Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 105

[6] New South Wales Yearbook (No. 68, 1983) Page 34

[7] Hanks, Peter and Keon-Koen, Bryan (Eds.); Aborigines and the Law Essays in memory of Elizabeth Eggleston (George Allen and Unwin, 1984)

[8] Hazlehust, Kayleen; Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 218

[9] Reynolds, Henry; The Law of the Land (Ringwood, Penguin, 1987) Page 267

[10] Anderson, I Koorie Health in Koorie Hands: An Orientation Manual in Aboriginal Health for Health Care Providers, Melbourne: Koorie Health Unit, Health Department of Victoria, 1988, p 21

Brooks, Marie: op cit, (Page 253) Aboriginal deaths in custody

[11] (online copy available) http://bulletin/prod/parlment/nswastsregs.nsf/ &c &c

[12] Stafford, Christine, in Legal Pluralism and the Colonial Legacy, indigenous experience of justice in Canada, Australia, and New Zealand (Avebury 1995) page 218

[13] Beckett, Jeremy (Ed.) Aboriginality, Citizenship and Nation State; Aborigines and the State in Australia (Special Issues Series, Social Analysis, Journal of Cultural and Social Practice, no.24, 1988) Page 14