Challenges for Land Councils

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The Bill becomes Law…

But when the Government finally brought its Bill to the floor of Parliament in 1983, it was not what Aboriginal people had hoped for. Without warning, another bill was introduced as the same time – the ‘Retrospective Validation of Revocations Act. Very few people knew this bill was coming, as Heidi Norman (2015) learned later when she interviewed many of the people in government at the time. Even the Government’s own Ministry of Aboriginal Affairs was not told! The Premier argued that in order to gain any Land Rights at all, this ‘deal’ was necessary, in part because the government had legal advice confirming revocations had occurred without legal instrument – the revocations were likely to have been illegal in the first place!

Even such bitter losses were not the end of the problems – during the debate over the bill, the right-wing of the governing ALP succeeded in reducing still further the land available to claim with amendments so that if Local Government Councils wanted to keep Crown land out of Aboriginal hands, all they had to do was claim that it was ‘needed’ for ‘an essential public purpose’ which made the land ineligible for claim. There was no need for proof or actual evidence of such ‘essential public purposes’ nor of any later development. This open-ended clause placed enormous power in the hands of local and shire councils to undermine Aboriginal land claims. To this day, there are many assets the government has unsuccessfully litigated to save from transfer to LALCs.

This is what Kevin Cook said about the Act in 1983:

The Land Rights Act 1983 ‘ignores many of the fundamental recommendations of the Keane Committee Report which in itself was inadequate and fell far short of reasonable Aboriginal expectations for just and equitable treatment by the Government. Once again Aboriginal people are left with only scraps.’

- Kevin Cook, Chairperson, Interim Land Council, 9 June 1983 (NSWALC - Our History)

In 1985, Kevin wrote:

By setting up land rights legislation, the government which took the land in the first place has forced a compromise on us. This Act is not what we wanted.

It does not give effective recognition to our prior ownership of the land and its waters, minerals and foods.

It does set up some compensatory measures. There is the “right” to claim whatever pockets of land have been left over from two centuries of White land grab – and even then, the government keeps a veto power. There is a little money to purchase land but it falls short of what Aboriginal people want. If Aboriginal people’s living standards are to improve then large amounts of land must be purchased all over NSW.

The power to protect our land or sites from destructive mining is severely limited, as are provisions for hunting or gathering. At the same time as it put through the Land Rights Act, The NSW Government legalised, in retrospect, the illegal selling off of three quarters of the old Aboriginal reserves.

- Kevin Cook, Chairman, NSW Aboriginal Land Council, 1977-1983, Preface, p. vi, in Meredith Wilkie, 1984: Aboriginal Land Rights in New South Wales, Alternative Publishing Co-operative Limited in association with Black Books.

The Interim Land Council

The Act did finally pass into law, over Aboriginal protests, and it set up an ‘Interim Land Council’ which was asked to consult widely with Aboriginal communities to advise the Registrar (Chris Kirkbright, an Indigenous lawyer appointed by the Government) to define the boundaries of the Local Land Councils. Members of the Interim Land Council were appointed by the Minister – Frank Walker.

Despite the sympathy of Walker and others on the left of the Government, Aboriginal activists were forced to make a terrible decision. Would they participate in the Interim Land Council which meant accepting the limits of the Act? Or should they refuse to participate and lose any chance of improving the situation even partially.

In the end, most leading activists decided reluctantly to take part. This included those most closely associated with the independent Land Rights campaigning body, the Aboriginal Land Council, like Kevin Cook, Barbara Flick, William Bates, Tombo Winters, Delia Lowe and others as well as key activists in the Aboriginal Legal Service like Paul Coe and Hewitt Whyman. Kevin Cook expressed their shared view when he said:

This is hardly the progressive law some say it is. It is accepted, however, that this is the first step towards gaining real Land Rights, and until this happens, the struggle will continue. (Preface to Wilkie, 1984)

The members of the Interim Land Council consulted within the regions where they were best known to bring community views on land council boundaries to be confirmed by the Registrar. There were eventually 113 Local Land Councils and everyone who was Aboriginal within the boundary of any Local Land Council was included as a member.

Legal Language

The first challenge that Aboriginal people found was the legalistic language of the Act and its regulations. John Terry, working with the Aboriginal Legal Service and Tranby, wrote a ‘Plain Language’ version of the Act, which was used by many people including the women who had been part of the Tranby NOW course in Western Sydney.

In an interview in 2002, Robyn Williams, Judy Chester and Janny Ely, who had taken part in the NOW course in western Sydney, remembered how important it was to have the learning involved in this ‘Plain Language’ version of the Act:

Judy: And Tranby set up some little courses and they also set up a course on the actual Land Rights Act itself, our bible. John Terry wrote the plain English version. See you need an organisation like Tranby was back then. I mean they used to teach us. We could parrot that Act off. We knew every part of the legislation, the sections and that. John Terry used to take us through it, you know. We’d be sitting in there with bureaucrats and go, ‘Oh well what about section such and such’. And they’d look at you, you know. We used to think we were pretty suave. You know, we could quote that Act off inside out and back to front.

Robyn: But what it did, it also educated people about how to understand other Acts and how to read Acts. Not be intimidated about going to the National Park Act or the Police Act, any other Act. Environment, Planning. You just grab it now and look through it! That’s what those whitefella lawyers and politicians all do, they don’t know it all in their heads, they just look through it and so we’ll just look through it and read it!

Judy: That was a form of oppression. Because we didn’t understand. Nobody wanted to teach people how to read legislation, it took people like John Terry to say, ‘It’s not really scary you know. It’s bloody lawyers just write it up like that’. And he used to take us through stuff and that, you know. Send stuff over to us. We’d read it and the next day he’s say, ‘What part do you want me to work on?’ We’ll talk about it, and he’ll take us through it, you know? And he taught people not to be frightened of it.

Janny: Remember when the Land Rights Act first came out? You took one look at it and thought, ‘Well, shit!’ Because you had the Act there but as well you had to read the Act with the regulations. It was just all jargon to us. So learning how to understand it – that was real learning...

- Kevin Cook and Heather Goodall, 2013: Making Change Happen, p253.

Claiming land: empowering students

The important role Tranby played for many communities was in empowering its adult learners with literacy, numeracy and research support to undertake the research necessary to find vacant Crown Land which was claimable. For some, this meant introductions to the staff at the Lands Department Office. For others, it meant scouring the Government Gazettes. For others again, it was the confidence to locate the support and assistance they needed to do the research. Robyn Williams, Janny Ely and Judy Chester remembered how things were for Gandangara Land Council, in a built-up area in western Sydney:

Robyn: We had a problem with land prices in the city too.

Janny: We couldn’t even buy a bit of land with the money we got into the local land council. We couldn’t do much with it at all. That’s why we put it into an investment fund and we waited until we had a couple of allocations and we had enough to purchase a property. But we did a lot of research into how to claim land. Oh yes... we rang Cookie once again!

Judy: Cookie had an answer for it – he sent her down to the Land Claims Unit in the Department of Lands. See Cookie’s responsible for everything! Janny always called him ‘Mirrors’ – cause he was always saying, ‘I’ll look into it!’

Janny: He did this time too – he said to me: ‘Just go down and knock on the door of Colin Clague and just tell him “Colin, Cookie sent me”.’ Colin wasn’t even expecting me. He said, ‘What are you here for?’ I said, ‘I want you to show me how to distinguish Crown land’.

I think they thought at the Land Claims Unit that it was going to be a one-day thing but I was backwards and forwards, every week. Imagine the shock of me landing on their door! I still remember their reaction that first day: ‘Oh there’s no-one here Aboriginal but we are going to put on a trainee’!!

I remember telling Cookie, and he was killing himself laughing! That was their reaction. ‘Oh, there’s no-one here Aboriginal’. I felt like saying, ‘Well, I can bloody see that!’…‘But we are thinking about putting on a trainee’. I don’t know if that ever happened. Anyway, I went home with all this knowledge from the claims department. Photocopies of all these maps. Bring them home and sit there and work out. You had to know what to look for.

Judy: Yeah, she had maps everywhere. You should have seen the bloody place, it was full of maps. Janny did it all, nobody else. Just with the help of ‘Mirrors’. Janny just claimed everything!

Janny: Whatever was Crown land, I claimed it!

Judy: Anything that didn’t have a house on it, she claimed it.

Janny: I thought well, if we get something out of it, we’ll get something. If we don’t, we don’t.

Just as Robyn, Janny and Judy explained, in long-settled NSW, the amounts allocated to each LALC were seldom enough to purchase an income-generating property to restore economic independence. Most Local and Regional Land Councils in cities struggled to do more than purchase land for houses or offices.

But in Far Western Regional Land Councils, and to a lesser extent in the North West Region, money could be pooled at the Regional level to purchase larger properties – the goal was that eventually, each Local Land Council would be able to hold at least one income-generating property to restore some economic base to its members. It required substantial trust and confidence for any LALC to wait its turn while other LALC areas gained access to substantial properties. So it was hardly surprising that few Regions developed this method of land acquisition. But the Far Western Region managed to purchase a number of properties, the first of which was Weinteriga Station in 1985, a river frontage pastoral property on which many Wilcannia people had worked.

Management and Accounting Skills: Tranby’s Land Council courses

There was widespread concern among community members that LALC offices were not being managed transparently. Furthermore, the government required LALC officers to manage funds and procedures in rigorously defined ways in order to gain a clear audit – with the eventual effects, analysed by Heidi Norman, of drawing Indigenous politics into deeper engagement with the state. At least some of the issues of concern, however, arose because of the long-term educational disadvantage of most Indigenous populations in the formal education systems. 

From as early as 1985, Tranby also tried to support Land Council members to address this long-term educational discrimination. Working closely with Regional Land Councils, Tranby mounted a series of training courses in book-keeping and management. In 1986, Accounting workshops were run, in local halls and clubs in many towns across the state, like this North-West Regional workshop pictured in 1986 in the Walgett Bowling Club. Teaching was undertaken by Tranby staff, along with local professionals like Rob Price, shown speaking to the North Western regional meeting.

From 1987 to 1990, the Land Councils called on the Government to fund more courses with the support of the State and Commonwealth Education departments, NSW TAFE and the Commonwealth’s DEET as well as Tranby. The ADU published a report in 1989 explaining the development of these Land Council courses, assessing their effectiveness to date and the feedback from learners and LALCs. These courses were established as a sequenced program but, following the principles of all Tranby teaching, were designed to be responsive to the needs and level of knowledge of LALC nominees. From 1989 and 1990 there were ‘Train the Trainer’ courses run in this framework as well.

→ Land Councils Management and Planning Training: 1987–1990 - Report 1989 [PDF 1.5MB]

In parallel, from 1985 to 1996, Tranby’s ADU and the Real Estate Institute conducted a long series of workshops on property management for Land Councils, in recognition of the sudden need for LALCs to manage the large number of houses on lands for which they became the owners once land was acquired by claim or purchase. These included courses about the management as landlords of homes on Aboriginal land (1987-89), and the management needs of Housing Companies with which the LALCs were involved (1988-96).

Greiner Amends Land Rights Act 1990

In 1988, the Greiner Liberal government came to power. At first it tried to revoke the whole Aboriginal Land Rights Act entirely, but when it became clear that this was not legally possible, the conservative Greiner government launched major amendments. These were finally passed in September 1990, with the agreement of some of the State Land Council members, although a number refused to concede, leading the grim demonstration which took place outside Parliament House in Macquarie Street as the Amendments were passed.

These amendments made major changes to the Land Rights Act by removing the Regional Land Council ‘tier’, centralising power in the State Land Council and by making Aboriginal land saleable. This account draws on Heidi Norman’s 2015 book What Do We Want?: A Political History of Aboriginal Land Rights in New South Wales, published by Aboriginal Studies Press, which gives a detailed account of Amendments and the troubled years which followed. 

Regional Land Councils had been intended to offer technical and political support to Local Land Councils in their autonomous efforts to claim land. Removing that ‘tier’ from the Land Rights structure meant that Local Land Councils were inadequately resourced to make claims for vacant Crown Land, despite being still entitled to do so by the Act. The Greiner Government, however, dramatically slowed the rate of dealing with Land Claims. The Labour Government had, between 1984 and 1988, had fully granted 261 land claims and partially granted 200. The conservative Greiner Government, however, ensured that there were only 16 land claims granted in 1989. The removal of the Regional ‘tier’ meant necessarily that increasingly power would be concentrated in the State Land Council, to which would be allocated funding from the proportion of Land Tax guaranteed under the Act for 15 years, and would manage the Investment fund for future land purchases. Finally, the amendment to allow the sale of what had been intended under the 1983 Act to be inalienable community-owned land led to far reaching changes in the direction and purposes of the State Land Council. 

Land Rights becomes ‘Development’

With these Amendments, the Greiner Government made clear its expectation that the State Land Council would play a regulatory role and ensure compliance with formal, bureaucratic procedures right across the network. There were some State Land Council members who accepted this regulatory role, but others who saw the autonomy of the Local Land Councils as crucial and were not prepared to undermine it. There were years of intense conflict, particularly in the early 1990s within the State Land Council as well as opposition from many Local Land Council members to these directions. 

However, there were also Aboriginal complaints made against Land Council office bearers at both Local and State level. Some complaints were well grounded although others seem to have been suspicions aroused by rumour and lack of transparency. Yet it meant there was a rising groundswell of accusations of corruption and mismanagement. This led to a series of ICAC investigations, into both overall management in the State Land Council and into specific land sales. Heidi Normal argues that ‘the State Government and the ICAC assumed the necessity of the Council exercising its authority and insisting on compliance across the network, and by 1998 insisted on the councillors assuming this role very actively.’

These widespread accusations, rumours and formal inquiries were publicised in a series of investigative articles in the Sydney Morning Herald in December 2002, confirming widespread Aboriginal and non-Aboriginal alarm. Finally, the Statutory Investment Fund associated with the Land Rights Act was seen to be dropping in value. While this loss in value was primarily due to the fall in global stockmarkets after the 9/11 attacks in New York, it nevertheless allowed the Government to step in during 2003 to stand down the State Land Council and appoint an administrator. By the time the State Land Council was reinstated in 2007, the State Government had revised the Land Rights Act as well. The role of land as a commodity was firmly established. Heidi Norman (2015) has summed up the ‘reforms’ which had been locked into place by this period under administration: 

‘The reforms of the ALRA in 2007 marked a distinct transition to a ‘business model’ and enhanced emphasis on the commodification of land […] the ‘new-look’ Land Council emerging as a centralised corporatist organisation, focussed on the development of land to provide an economic base in order to service the social needs and cultural aspirations of Aboriginal people in New South Wales.’

As land became a commodity, governments increasingly pressured the Land Councils to make income generation from land sales and development into the focus of their activity, rather than having the first goals of gaining land to be as a cultural and social resource.

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LINKS
In order of publication date

→ Heather Goodall 1990 ‘Land in our own country', published in Aboriginal History, vol 14

→ Heather Goodall 2008 Invasion to Embassy: Land in Aboriginal Politics in New South Wales, 1770–1972, 1770–1972 [PDF 1.9MB]

→ Heidi Norman 2015 What do we want?’: A political history of Aboriginal land rights in New South Wales Aboriginal Studies Press, Canberra. Read an extract - Chapter 7 [PDF 170KB]

FURTHER READING
In order of publication date

→ Peter Tobin, 1972: Aboriginal land rights in N.S.W.: demands, law and policy [PDF 12.6MB]

→ Meredith Wilkie 1985 Aboriginal Land Rights in New South Wales, Alternative Publishing Co-operative Ltd, Sydney

→ Lee Chittick and Terry Fox, 1997: Travelling with Percy: A South Coast Journey. Aboriginal Studies Press, Canberra. 

→ Gaynor MacDonald, 2004: Two steps forward, three steps back: A Wiradjuri Land Rights Journey, LhR Press, Sydney.