No-one can benefit from locked-up land
Land is one of the greatest assets that many Aboriginal and Torres Strait Islander people have, yet for decades collective ownership and paternalistic government regulations have prevented them from developing this asset for the economic benefit of their family and future generations.
The battle for land rights has been hard-fought, and First Australians have painstakingly won land ownership since 1975. The recognition of these rights has been viewed by some as the end of the struggle, but we are now entering a new phase of land rights: the right of Aboriginal people to have the same rights over the future use, development and protection of their land as other Australians.
Each state and territory has treated Aboriginal land rights slightly differently and not all jurisdictions have a formal process for making claims to land. Only the Northern Territory, Queensland and New South Wales have a formal claims process.
In Western Australia, South Australia and Victoria, Aboriginal land trusts have been established to acquire, manage and use land for the benefit of Aboriginal people. In Queensland, land can be transferred to an Aboriginal community under the state's Aboriginal Land Act, but the community does not hold freehold title of the land. This means they cannot sell or mortgage the land, and there are restrictions on leasing it.
In NSW and the NT, Aboriginal people can make a claim for unused Crown land under the respective Aboriginal land rights acts if the land is 'claimable', which means it is able to be sold or leased, is not already occupied, and is not likely to be needed for residential purposes.
But the problem begins when government authorities decide that in order to set aside 'green zones' for the community, parcels of land need to be retained as parklands for conservation. There are many cases where prior to the actual handover of the land, there is a complete change in the ways in which the land can be used.
In NSW more than 10,000 land claims remain undetermined, and there is no legal requirement in any of the three jurisdictions with a formal claims process for the claims to be resolved in a timely fashion.
In Tasmania, it takes an average of 28 days for a development application to be dealt with. Many claims under the NSW Aboriginal Land Rights Act are in the same system for 18 to 20 years before they are considered. Imagine how a commercial developer would react it was subject to this process?
These claims form a vast network of parcels of land that should already have been granted, and while some of them are very small and don't appear to be particularly valuable, in many cases it's everything to the claimants who still live on country in regional NSW.
A successful land claim requires Aboriginal landowners to prove their traditional relationship to the land, which involves extensive research by anthropologists with the burden of proof resting on the claimant. Since 2009, NSW claimants face the additional barrier of formal land boundary surveys, for which they must foot the bill. Until these expensive surveys are undertaken the precise area to be transferred is unknown, and the land remains under the control of the Land and Property Management Authority.
These acts of land tenure bastardry against the original land owners continue unabated, and one has to question the motives of a department which is able to nimbly change the land-use conditions at the last minute after such a lengthy process to leave Aboriginal people with no opportunity to earn a living from it.
Normal legal practice would be that when there's a case under way, people just can't step in and alter the parameters. But in the case of NSW Aboriginal land claims it has simply become the convention, that between when the claim is lodged and when the land is handed over, significant conditions are attached.
It's symptomatic of an archaic and patronising view that Aboriginal people only want to conserve their land and have no interest in or are unable to exploit the development opportunities that land represents.
I believe Aboriginal people do not want paternalistic governments that control their interests - they want to participate in and contribute to our economy.
Environmental laws that protect the unique biodiversity values of specific regions in Australia are important and must be enacted. But the price paid to enact these laws must be shared equally by all Australians, not manifestly borne by Aboriginal land owners.
All Australians need to fight for this next tranche of land rights. It shouldn't be an Aboriginal fight. Australians should have the fight with the NSW Government, and in the case of the Wild Rivers Act, the Queensland Government, to demand equality for our First Australians.
It's not about the land you get, it's what you're able to do with it, and we need to demand that legislation is put in place that ensures Aboriginal people have the same or equitable economic opportunities that other Australian's enjoy with regards to their land.
* as published in the Koori Mail, 06 April 2011
