NSW land rights model a world beater: Anaya

BY AMY MCQUIREAUGUST 10, 2011

Originally published in Tracker Magazine.  

UN Special Rapporteur on the Rights of Indigenous Peoples James Anaya.

NATIONAL: In the last instalment of Tracker’s Going National series, the United Nation’s Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya, supports a national land rights scheme based on the NSW land rights model.

An international expert on Indigenous rights has hailed the New South Wales land rights model as “remarkable”, and says it goes much further than the land rights regimes in Canada or America.

The United Nations Special Rapporteur on the Rights of Indigenous Peoples, Professor James Anaya, believes it is the model that should be used if Australia were to adopt a national land rights scheme.

Professor Anaya spoke to Tracker at the NSW Aboriginal Land Council’s* statewide conference in April, where he delivered the keynote address. While not perfect, the NSW land rights scheme went a long way towards delivering land justice, he said.

“It’s quite impressive in many respects, and it seems that it has been a factor that has assisted Aboriginal communities to rebuild, restore, and move towards a better future. That’s my perception,” Professor Anaya told Tracker.

“I think it would have been better for the whole country to have followed this model, that’s my view.

“I could be wrong, but it seems like other states in Australia are deficient in their recognition of Aboriginal land rights, or in facilitating the restoring of that relationship that Aboriginal people have with the land, with territory and with country.

“If others were to follow the model of NSW, things would be better there… that’s my perception.”

In the last three editions of Tracker, Aboriginal leaders from across the country have said they would support a national land rights scheme based around the NSW Aboriginal Land Rights Act 1983.

The last time such a scheme was on the agenda was in the 80s, when the Hawke government proposed its national land rights model. It was subject to a heavy scare campaign by lobbying interests, in particular the WA Chamber of Mines.

The proposed model, which gave many concessions to the mining companies, was also divisive amongst the Aboriginal community and was the subject of heated protests at the time.

Since then, the fight for national land rights has fallen off the political agenda. While the majority of states, excluding Western Australia, have developed their own land rights laws, it is New South Wales that has the standout legislation.

It provides for the return of land as a matter of redress or compensation for past wrongs, by allowing vacant crown land to be claimed by a Local Aboriginal Land Council of the area, without requirements to define a specific need or association to that land. Professor Anaya said States should be encouraged to follow the NSW example which is also unique in an international context.

“In many respects (the NSW land rights legislation) goes much further. It allows for the possibility for any crown land that isn’t being effectively used to revert to Aboriginal ownership.

“In Canada and the US, we just don’t see that opportunity.

“If anything, the trend is to negate any possibility for Indigenous people to acquire lands that have passed into the hands of the state or federal governments.

“We have limited examples of lands being returned, but that’s very much the exception. The possibility that exists here under the land rights legislation is quite remarkable.

“But apparently it is working, there are claims that are being made and land is being passed into Aboriginal hands. That is a positive thing; we don’t see that in other countries.”

Professor Anaya said it was also important not to discount the ability of Native Title to bring land justice. He says that the High Court’s 1992 ruling over the Mabo case also can be used internationally.

“I became interested in the Mabo case from the standpoint of someone seeing how this could be a precedent for Indigenous peoples elsewhere, how that created some recognition on that part of the legal system, that could to some extend be emulated or followed by judicial systems of other countries,” he added.

“I’ve been involved in litigation where we’ve used the Mabo decision to try and urge courts in those other countries to recognise a form of Aboriginal Native Title.

“I understand the difficulties with the Native Title regime within Australia, at least some of the difficulties, but I’m limited because I’m not living those difficulties.

“I think everything needs to be done to make Native Title genuinely a source of assistance for Indigenous peoples to make those reconnections, with country, with their territory, with their ancestral and traditional lands.

“It shouldn’t be some complex judicial mechanism system by which to further muddle affairs or complicate efforts to make those reconnections.

“I think it has potential. It’s always displayed that ability to assist Indigenous people with reconnections.”

* Tracker magazine is published by the New South Wales Aboriginal Land Council.

WHAT THEY SAID: ABORIGINAL LEADERS CALL FOR NATIONAL LAND RIGHTS

RODNEY DILLON, TASMANIA:
“The model on which the NSW Aboriginal Land Council was set up, that gives a form of self-determination. It would be good if we had that model in Victoria, in Queensland and Tasmania to South Australia and Western Australia… “

GLEN KELLY, WESTERN AUSTRALIA:
“… We do look at the NSW system with some envy because it looks to have provided people a land base… that is something we are trying to secure through native title negotiations.”

KLYNTON WANGANEEN, SOUTH AUSTRALIA:
“From what I can see, right around the country [NSW] is far and away the best. It’s the only model where Aboriginal communities have control of the policies, the practices and the land, and the dollars that go with it.

TONY McAVOY, QUEENSLAND:
“I apologise if I sound a little frustrated, but it’s because I believe if we had in Queensland what you have in NSW, things would be so much better for us up there.
“…Certainly there are many aspects of the NSW Aboriginal Land Rights Act which could be adopted at a national level with enabling legislation in the states.”

RICHARD FRANKLAND, VICTORIA: 
“I think I would want to pursue a model similar to the NSW model, but it would have to be pertinent to our cultural shape down south… One of the things I’ve noticed is that during the early days of the Native Title debate, those in Victoria, Tasmania, lower South Australia and others lost their voice completely in the debate.

• The struggle for land rights will continue to be a focus in future Tracker editions.

CAPTION: UN Special Rapporteur on the Rights of Indigenous Peoples, James Anaya speaking at NSWALC’s State Conference in April.

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