with Brian Johnstone, originally published at New Matilda on November 26, 2014
The NSW government was prepared to rush through “misleading” legislation curtailing land rights despite being warned that public access to beaches was not threatened by Aboriginal land claims in an attempt to drum up a fear campaign around the issue, a Greens MLC has told Parliament.
NSW Greens Aboriginal affairs spokesperson Jan Barham addressed Parliament last week following the tabling of internal documents leading up to the Baird government’s controversial legislation which would have extinguished hundreds of Aboriginal land claims over coastal areas.
It followed an order of discovery lodged by Christian Democrats MLC Fred Nile in November.
In late October, Minister for Natural Resources, Land and Water Kevin Humphries introduced the Crowns Land Amendment Bill with no consultation with the NSW Aboriginal Land Council, the peak Aboriginal land rights organisation, with the government saying it wanted to protect public access to the state’s coastal areas.
It followed a successful land claim in Coffs Harbour by the local Aboriginal Land Council, known as the Red Rock decision. The decision was handed down on the basis the local Aboriginal Land Council would allow public access to the beach in perpetuity.
The Baird Government chose not to appeal that decision, and instead sought to pass legislation while claiming that public access to beaches were threatened by Aboriginal land claims.
The NSW Aboriginal Land Rights Act 1983 allows Aboriginal land councils to claim vacant Crown land on freehold title for cultural, economic and social purposes. The NSW Land rights system is widely regarded, despite its faults, as the best in Australia.
Aboriginal land claims have never blocked public access to coastal areas in NSW.
The Humphries legislation was withdrawn following a snap protest by members of the NSW land rights network, who rallied outside Macquarie Street earlier this month as the NSW government attempted to pass it in the last sitting week of Parliament before the state election next year.
While the legislation has been withdrawn, it is not off the table, with Mr Humphries signalling it could be brought back.
Ms Barham told Parliament the documents released under Rev Nile’s order include a list of “high profile” beach and coastal areas subject to unresolved Aboriginal land claims and maps of coastal land claims.
“They all appear to have been crafted to suggest that the bill was needed to prevent loss of public access to beaches, despite the clarity of the Red Rock decision,” she told Parliament.
The interpretation of the Red Rock decision, and “the rejection of the need for this bill”, was made clear to the Baird government by legal experts and stakeholders, Ms Barham told Parliament.
She said the government had been warned the legislation was a potential breach of the Racial Discrimination Act.
“Legal experts and the Aboriginal land councils regard that assertion as inaccurate and have suggested that the bill was unnecessary, unreasonable and potentially in violation of the Commonwealth Racial Discrimination Act,” Ms Barham said.
She argued Mr Humphries had misled Parliament on the Red Rock judgement because “the Land and Environment Court’s judgement made clear the ‘foreshore’ was not included in the land claim, that the Coffs Harbour and District Aboriginal Land Council and the court were both of the view that the ‘beach and any land necessary for access to it was not claimable, and that the provision of an easement was adequate to ensure public access in perpetuity”.
Ms Barham did not tell Parliament whether the documents explained why the NSW government had chosen not to appeal the Red Rock decision, and had instead attempted to introduce legislation affecting all Aboriginal land claims.
The Red Rock decision was a significant victory for the Local Aboriginal Land Council and the wider NSW land rights network, and it settled a 20-year long fight.
The claim was first knocked back by the Lands Minister in 2008, nearly two decades after it was first lodged in 1993. The Coffs Harbour Local Aboriginal Land Council won the decision in the NSW Land and Environment Court last year, with a key condition being allowing public access to the coastal area in perpetuity.
The land is of deep cultural significance to local mob and the claim was lodged following concern over vandalism and degeneration over significant cultural sites.