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Inside track: Local Government

12 February 2020

#Local Government

Published by:

Declan Johnston

Inside track: Local Government

Review of Aboriginal land claim negotiation program findings due soon – existing negotiations on hold

The NSW Department of Planning, Industry and Environment commenced its review of the Land Negotiation Program (Program) late last year in response to a review into the effectiveness of Crown land claims. The review is being led by Ms Chris Ronalds AO SC and its outcomes are due for release in March 2020.

Aim of the review

Late last year, the NSW Government initiated a review into the effectiveness of the Land Negotiation Program, a framework to guide negotiation of Aboriginal Land Agreements (ALAs) under the NSW Aboriginal Land Rights Act 1983 (ALRA).

The Program has been in place since 2016 and is a partnership between the NSW Department of Planning, Industry and Environment (DPIE), the NSW Aboriginal Land Council, local councils and NSW based Local Aboriginal Land Councils (LALCs) to ensure that the “people of NSW can gain social, economic, cultural and environmental benefits” from Crown land and to retain the benefit of land for future generations. The review responds to recommendations from the “Crown Lands for the Future: Crown Lands Management Review” conducted in 2014 and which aimed to combine approaches to Crown lands in a streamlined way across legislative areas. Led by Ms Chris Ronalds AO SC, the Program was under review from November to December 2019 with a final report to be published online on 2 March 2020.

Background to the Program

The Program was initiated in 2016 with a small number of stakeholders from the local government areas of Tweed, Tamworth, Northern Beaches and additional councils joining in following years including Randwick, Central Coast, Hilltops, Orange, Cabonne Shire, Blayney Shire and Lismore. The uptake and engagement from local councils has not, as yet, been across the board.

The purpose of the Program is to enable and support outcomes under the ALRA. The ALRA provides for a mechanism by which relevant LALCs can enter into ALAs. ALAs are voluntary agreements entered into by LALCs and government to resolve land claims and were introduced into the ALRA on 1 July 2015. An ALA is entered into by the Minister responsible for administering the Crown Lands Management Act 2016 and one or more LALCs. To provide guidance to the negotiation of ALAs, the Program was introduced to provide greater certainty to parties and to support more efficient processing of land claims. Local councils are affected by ALAs as local government is usually tasked with managing a reserve trust, the subject of a land claim.

What could be improved?

The Program is an innovative initiative which has had some success in achieving its aims. Supporting the purpose of the ALRA, which is primarily economic, the Program has attempted to address the backlog of land claims by giving stakeholders an alternative way to participate and achieve a reasonable outcome. To illustrate, as at 31 March 2019 there were approximately 34,891 undetermined land claims in NSW. As the Program is still in its early stages, there is currently only one ALA in place for land in the local government area at Griffith.

One of the key issues in administering land claims is that once a claim is lodged it presents considerable difficulty for all involved in identifying relevant factual background to support or dispute a claim, particularly when the passage of time has made determining the status of land use the subject of significant effort, resources and investigation.

The ‘big picture’ approach to land claims, Crown land and negotiated agreements

In the context of the review of management of Crown land reserves across NSW and the land estate held by the Crown, the use of ALAs has the potential to significantly speed up land use decisions to the benefit of all stakeholders. This could include, for example, consideration of negotiated agreements to address ‘diverse uses and values’ more broadly for Crown land in a way which is sensitive to the historical issues relating to Aboriginal land use and European settlement, and also provides for economic and social benefits that can be implemented much sooner than the current system allows. Further, local councils will have greater certainty as to the preferred approach to management of reserve trusts in a way which appreciates the complexity of relationships and ownership claims across NSW.

The present backlog and delay in dealing with land claims acts as a potential blockage to a fairer and more equal means of dealing with land use. However, this sort of expansion beyond the Program will only be possible if the nascent success of ALAs is able to grow, and its lessons applied to the management of Crown land more broadly. This will require further resourcing of the Program and education for all stakeholders to ensure an appreciation of the varied interests that could and will benefit if an efficient system is realised.

Expected outcomes of the review

Once completed, Ms Ronalds will make recommendations on the following:

  • vesting of land to local councils
  • use of ALAs to transfer land to LALCs
  • improvements to DPIE’s approach to addressing Aboriginal land claims.

The key focus of the review is to evaluate the Program’s progress. The review will be conducted against the core objectives of the Program, being the retention of certain Crown land for the benefit of all people of NSW and the transfer of appropriate land to Land Councils and LALCs as part of the Program’s commitment to delivering improved economic, social and cultural opportunities for Aboriginal people.

The review was open to program partners, who were invited to provide feedback on the Program. 

Due to the review, current land negotiations will be placed on hold. However, this does not mean the negotiations have been cancelled.

The review will benefit local governments with the report illuminating ways in which the NSW Aboriginal Land Council, LALCs and local councils can best implement the Program. We will look at Ms Ronalds’ report next month.

Authors: Peter Holt, Clara Edwards & Declan Johnston

In the media

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OIA Queensland – Decisions
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In the making of the Winton Shire Council Certified Agreement 2019 [2020] QIRC 12
(CB/2019/134) Industrial Commissioner Thompson 28 January 2020

In the making of the Goondiwindi Regional Council Certified Agreement 2019-2021 INDOOR [2020] QIRC 7
(CB/2019/132) Pidgeon IC 14 January 2020

In the making of the Goondiwindi Regional Council Certified Agreement 2019-2021 OUTDOOR [2020] QIRC 5
(CB/2019/130) Pidgeon IC 14 January 2020



Subordinate legislation as made - 31 January 2020
No 3 Proclamation No. 1—Electoral and Other Legislation Amendment Act 2019 (commencing certain provisions)
No 5 Rural and Regional Adjustment (2019–2020 Extraordinary Bushfires Disaster Recovery Funding) Amendment Regulation 2020
No 6 Local Government (Change of Representation for Cloncurry Shire Council) Amendment Regulation 2020

Subordinate legislation as made – reminder
No 228 Proclamation—Local Government Electoral (Implementing Stage 2 of Belcarra) and Other Legislation Amendment Act 2019 (commencing remaining provisions)
This Proclamation fixes the following dates for the commencement of a number of remaining provisions: 20 January 2020, and 30 March 2020. To improve transparency and public accountability of local government elections in line with State and Commonwealth electoral and governance frameworks  

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Declan Johnston

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