The year 2023 marked the 40th anniversary of Aboriginal land rights in NSW. The edited collection of essays in ‘Land Back: Aboriginal Land Rights in New South Wales, Today and Always’ brings together many voices in discussion to consider outstanding business and future agendas.
The collection addresses a significant gap in our understanding of Aboriginal land rights in Australia. Most studies and public commentary on Aboriginal land rights focus on the north of the continent and tend to confuse or conflate land rights with Native Title rights and interests, in circumstances where the Aboriginal estate covers vast stretches of land and coastline.
Recognition of land rights in New South Wales in 1983, both then and today, includes unique and significant features, and challenges. Put simply, there is much to learn and appreciate from the experience of land rights in NSW, this first and most sustained point of contact.
For this collection, I asked contributors to reflect on four decades of the operation of the Aboriginal Land Rights Act 1983 (ALRA) and nominate areas of success, describe the changes that are needed, and contemplate the opportunities land rights could create for our communities in the next 40 years. While the past is a feature in all the entries, most are focused on land rights now and in the future.
In recent research, undertaken from 2018–2021, I focused on the approaches to economic development made possible by NSW land laws, which are a unique feature of the Act. This work followed on from my earlier history of Aboriginal land rights. 1 I met with more than 40 LALCs, conducted 88 in-depth interviews with CEOs and chairs, NSWALC staff, and staff from four local government areas, and conducted two LALC surveys with follow-up interviews. I asked interviewees what they viewed as the benefits of Aboriginal land rights in NSW. Without hesitation, interviewees in the city and bush responded, a little exasperated at the necessary simplicity: ‘The land!’, followed by, Getting back the land. Each word was clearly enunciated.
The late Peter Thompson’s chapter in this volume reminds us that there are a multitude of reasons to want your land back:
To continue traditional ties and spiritual beliefs; to support cultural survival; to heal past trauma and overcome despair; to have a livelihood; for living areas and homelands; to regenerate the country; to be independent; to feel equal with non-Aboriginal neighbours; to feel a sense of ‘home’; to support local control; to make some income; to locate a variety of community social needs; the freedom to hunt, fish, gather food and camp; to ensure a share in the ‘new’ industries such as tourism and bush foods; to develop alternative uses; and to have something that is always there.
After nearly 200 years of colonial land dealings, recognition of Aboriginal land rights in NSW had to be different. On the lands now known as NSW, notwithstanding the multiple acts of resistance and survival, the erasure and elimination of personal and political autonomy gathered pace. From near complete dispossession a land titling revolution, of sorts, has been underway in Australia. The recognition of Aboriginal land rights – first enacted by the South Australian Parliament in 1966 – sought to restore both political and property rights within the larger structures of liberal democracy. Therefore, land rights has not so much restored old rights, but created new rights in an altered social and political context. In NSW these laws advanced more conceptual things, such as the economic and political autonomy and wealth and wellbeing of First Nations peoples as a distinct group. Land rights in NSW has therefore been an exercise in new selves shaped by practical and material possibilities and imbued with ideas about spiritual practices, cultural responsibilities and political ambitions.
Across the federation of states and territories that make up the Australian Commonwealth, a patchwork of legislative regimes developed that have brought about a spatially uneven and complex system of land rights. Since 1972, Commonwealth governments have promised national land rights: Prime Ministers Whitlam in 1973, Fraser in 1976 and Hawke in 1984, but all eventually walked away from this reform, leaving land justice to the states and to litigation through the courts. In the absence of government action, litigation culminated in the High Court decision in Mabo and, from 1992, the Commonwealth Government’s native title laws. As well, multiple arrangements have developed over time in different jurisdictions that variously recognise Indigenous interests and rights in their land, and (sometimes) political recognition and cultural heritage protection.
Kooris and Murris, often acting with the influence and guidance of South Coast Elders, organised for land rights through groups such as the Black Defence Group and, from 1977, the NSW Aboriginal Land Council (NSW ALC) with support of Tranby College. They were joined by a wide base of ally supporters (organising through the Land Rights Support Group, among others). They succeeded in convincing the NSW Government that the best course of action was to recognise Aboriginal land rights. In 1978 a parliamentary inquiry began that culminated in the NSW Parliament passing the Aboriginal Land Rights Act 1983 (ALRA) in March. In the Second Reading Speech for the Aboriginal Land Rights Bill in 1983, then Minister for Aboriginal Affairs The Hon. Frank Walker QC said:
The Government has made a clear, unequivocal decision that land rights for Aborigines is the most fundamental initiative to be taken for the regeneration of Aboriginal culture and dignity, and at the same time laying the basis for a self-reliant and more secure economic future for our continent’s Aboriginal custodians.
This was a time of immense transformation in the administration of Aboriginal Affairs in NSW and recognition of land rights was the central architecture that announced self-determination. At the same time that the inquiry into Aboriginal Land Rights and Sacred Sites was underway, the first Ministry for Aboriginal Affairs was created in 1980; Frank Walker became the inaugural Minister and Ms Pat O’Shane the Director.
With Aboriginal land rights came enormous expectation and optimism for change and improvement in lives and wellbeing.
When finally enacted, the ALRA extended the Whitlam Government’s model advanced from the Woodward Inquiry to the very different circumstances facing Aboriginal people in NSW. These features amounted to compensation and reparation for the loss sustained by violent colonial occupation – loss of land, loss of your people and language, loss of autonomy and economy. The ALRA included three key features: ongoing land claims process confined to certain available Crown Lands and transferred to community ownership as freehold title; a network of regional and local Aboriginal land councils; and a funding stream to support land rights into the future and to fund land council enterprises and land purchase. NSW Aboriginal land rights also included mineral rights and a mechanism for sharing generated wealth across land councils. The approach to land repossession was as compensation for lost land and colonial dispossession, considering both pre-colonial and historically formed Aboriginal family networks.
We see this reflected in land council membership being open to all Indigenous Australian adults, based on current residence or cultural connection; 30,000 Aboriginal people were active members of their LALC in 2023, representing approximately 8.5 per cent of the self-identified NSW Indigenous population.
The ALRA conjoined land recovery with realising Aboriginal political and economic power and cultural resurgence. Economic power was to be achieved through Aboriginal-initiated enterprises and a land base purchased from the compensation fund, with political power exercised through the network of autonomous land councils present in most NSW towns and cities. The compensation fund was based on 7.5 per cent of state land tax revenue, for a period of 15 years from 1984–1999. Half of the compensation was to be set aside in an Aboriginal- controlled investment account to fund the network into the future, with the rest to fund land council enterprises and land purchases.
What remained of the Aboriginal reserves in NSW was transferred to the relevant land councils, and a claims process was established to allow certain available ‘claimable’ Crown lands to be transferred to land councils as freehold title; land councils also hold privately purchased and bequeathed properties. The NSW land council estate includes a range of land holdings that are of social, cultural, conservation, economic and biodiversity significance – as much as 80 per cent of the Aboriginal Land Council (ALC) estate has some form of conservation or environmental zoning.
Several land councils, mostly along the east coast, lead successful enterprises, are leading service providers, run successful tourism and hospitality ventures, have developed their land for housing and other enterprises, and a few are the largest land holders, second to government, in the local government area. But most land councils are one-person outfits that juggle multiple functions and requests with very limited resources. All land councils take responsibility for culture and heritage care, support their communities at times of Sorry Business and most provide some housing for their members.
The ALRA was far from perfect and key limitations persist today. One leading limitation is the amount of land recovered: less than a fraction of 1 per cent of the land of NSW has been returned to Aboriginal people, organising through their land councils. Since the enactment of the ALRA in 1983, land councils have lodged 56,157 land claims as at 2024. Of these, 39,939 land claims, equivalent to 70 per cent of land claims lodged over the last 42 years and covering approximately 1.12 million hectares of Crown land, awaited determination by the NSW Government in 2024. Of these claims, 4,741 have been granted, 1,050 part-granted and 10671 refused by Crown Lands.
As well, Native Title rights and interests continue to exist on most of the land returned freehold to Aboriginal land councils, thus creating a complex interaction between the two land laws with different peoples, rights and interests constituted by each.
Further, land returning to land councils is often piecemeal and unanticipated. I recall visiting one LALC where, with great excitement, the CEO of a small-town land council that had limited land assets waved about title deeds that had arrived in the post that morning, unannounced and without fanfare. The land recovered was a significant wetlands and bird migration area for which, it turned out, a land claim had been lodged some 20 years earlier.
Over the day, members arrived at the LALC to marvel at the postage envelope, scratching their head, and contemplating how they might manage the land and its tourism and land care possibilities. In other circumstances, there have been efforts to address land claims in a more systematic way.
The introduction of agreement making has introduced an alternate pathway for the return of land to LALCs. One early example of using this mechanism was by a South Coast land council. The land council had long insisted on the return of a land parcel and raised objections to the government’s Forestry Department denial of the claim due to their competing interest. In this example the land council was unrelenting and persisted with its land claim that the Forestry Department had blocked and thus denied them their land. For more than twenty years the land council continued to push for the land claim over the culturally significant site and was eventually successful using the land negotiation process under the ALRA. There is indication that land claims are being processed in higher numbers with dedicated staff along with improved liaison with land councils and improved systems underway by the Office of the Registrar of the Aboriginal Land Rights Act . In the 2023–24 financial year, 474 Aboriginal land claims were resolved and of these 296 claims were returned either in full or part to land councils representing 1,989 hectares of land to 55 land councils, from a total of 474 Aboriginal land claims assessed.
While an improvement on government processing of land claims, there is still some way to go to address the long queue of land claims. Land Back brings together many voices and perspectives, including those who were at the forefront of the movement, along with others who have worked to realise and sustain the ambitions of the Aboriginal land rights movement and challenge its limitations. Lawyers, NSW Aboriginal Land Council Youth Committee members, students, activists and organisers, long-time land rights advocates, Aboriginal Land Council staff, and researchers, feature in this volume. They reflect on what has been achieved through land rights, the successes and disappointments, how the operations of land rights changed over time, and what might be possible in the future.
The story of forty years of Aboriginal land rights in NSW is one of incredible dedication by thousands of Aboriginal members who have worked to rebuild our social, cultural and economic base.
Governments have come and gone, and wider changes in urban and regional economies have had positive and negative impacts on land councils and their land estate. Land rights is a heavy responsibility for Aboriginal people and families, but across New South Wales, Aboriginal land councils have risen to the challenge. Land Back is a book about the work that has been done, and is yet to be done, to get our land back.
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This blog is the Introduction of ‘Land Back: Aboriginal Land Rights in New South Wales, Today and Always’ republished in full with permissions from the author, Professor Heidi Norman.
‘Land Back’ is available to order in the ANTAR store.
Cover artwork: When land speaks ©️ Frances Belle Parker 2024
