04 August 2020
9 min read
Introduction
The NSW Government recently released the draft Strategic State Plan for Crown Land (Plan), as required under the Crown Land Management Act 2016 (CLM Act)[1].
Local government will be affected by any recommendations from the Plan, as it will likely impact:
In this editorial, we look at the Plan and cover the issues raised for the future of the Crown estate, including as it interacts with Aboriginal land rights and impacts on local government.
Summary of key proposals in the draft Plan
The purpose of the Plan is to set out the vision, priorities and overarching strategy for the management of Crown land in the State, having regard to the objects of the CLM Act and appropriate environmental, social, cultural heritage and economic considerations.
In summary, the draft Plan:
The Plan also identifies outcomes for each of these priority areas, as well as short, medium and long term timeframes from 2020 through to 2030.
Councils and the Crown estate
The Crown estate is vast. It contains some 580,000 land parcels covering 34 million hectares, or approximately 42 per cent of the State[2].
Almost all (84 per cent or 29 million hectares) Crown land is located in the Western Division of the State[3] and most of that land is used for grazing, cropping and extractive industries under perpetual leases[4].
The remaining 15 per cent or 5 million hectares of the Crown land covers many familiar parts of everyday life, including roads, coastal land and riverbeds of certain major rivers, travelling stock reserves, popular walking tracks, golf courses, surf life saving clubs and community centres. In addition to this land, there are 34,000 Crown reserves across the State. Of those reserves about 6,000 are managed by local councils[5].
The Plan is an attempt, following several previous reviews, to reconcile these uses with modern day requirements, from climate change, COVID-19 and with due consideration for Aboriginal land rights.
Approach to current challenges – bushfire, climate change and COVID-19
The Plan proposes numerous goals and strategies for using the Crown estate to address current challenges facing the economy and society. Local government will be interested particularly in how public space will be impacted, and in how the Plan in its final iterations apportions responsibility for managing modern day issues such as green space, energy innovation and bushfire prevention.
A clear part of the Plan intends to ensure jobs which flow from the implementation of the strategy it outlines. It proposes to create jobs through programs that address climate change and aim for adaption through technology projects that rely upon the Crown estate, including “closed-loop bio mass and clean technology” precincts and support for marine industries to address human health and enable recreation[6].
Further to its aims of addressing the quadruple bottom line, the Plan also outlines its aim to improve green space and increase climate change resilience. Its aim is to increase public green space by 10 per cent by 2023, and the advent of the position of Minister for Public Space surely reflects this aim. The draft Plan is not overly specific as to how it intends to activate or expand green space, though it notes that working with local councils will be a key aspect of its strategy, particularly as many local councils already act, or will act in future, as Crown land managers.
The main mechanisms for increasing green space include providing maps of Crown land to the public and conducting a review of land which is not being used for green space[7].
The Plan also includes a proposal to further resource Crown land managers and support a new generation in this endeavour, though there is more detail to be provided here to enable some certainty for those prospective and existing Crown land managers who already face complex management constraints.
In the context of the challenges outlined, further access to green space, provided it is appropriately balanced with Aboriginal land rights, will be a welcome addition to NSW for all stakeholders.
The Plan and Aboriginal land rights – backlog of claims and inefficiencies
The Plan currently recognises the complex relationship between Crown land and Aboriginal land rights. In particular, it acknowledges the current system has not worked well for Aboriginal land claimants, Crown land managers, and government at all levels. It does not specify clear parameters for addressing this inefficiency, which we suggest should be a priority for the final Plan and its implementation.
Background to Aboriginal land rights
In 1983, the Wran Government established the Aboriginal Land Rights Act 1983 (ALR Act). Under the ALR Act, if land is “claimable Crown land”, the land is transferred as freehold to the claimant land council and while the land may be subject to Native Title, the land council may otherwise deal with the land in the same manner as would any other freehold owner[8]. Once the land is transferred, it cannot be acquired back by the Government by compulsory process, other than by an act of Parliament. The beneficial purpose of the ALR Act is economic – once claimed, the land will be often sold and the proceeds used by a land council in the furtherance of its purposes.
The effect of a claim on Crown land is that it ‘freezes’ the ability to deal with the land at the point in time when the claim is lodged. Therefore, until such time as a claim is determined, there is uncertainty with respect to how land as the subject of a claim can be dealt with, and how it will impact on future projects by either Aboriginal land claimants or other stakeholders such as Crown land managers and local councils.
This issue is compounded as a result of the current delays in the processing of claims. In fact, the State’s progress on determining undetermined land claims has been called a “national disgrace” and a “betrayal” of Aboriginal people[9]. Figures suggest the backlog is increasing. As at June 2017, there were 32,261 outstanding land claims[10]. Other figures suggest that in March 2019, there were some 34,891 undetermined land claims[11]. Between March 2019 and June 2020, that figure rose to 38,000, in part because of concerns that a successful Native Title claim could potentially extinguish future Aboriginal land claims over that land. It is also because of a rise in the number of lodgements brought about by additional staffing and access to GIS mapping technology by the NSW Aboriginal Land Council in 2018-19[12].
The backlog and time taken to process the claims has been described by Justice Pain in the Land and Environment Court as “excessive”[13].
What does the backlog mean for the Crown estate?
Even the Department has conceded that the overlap of undetermined Aboriginal land claims and Native Title claims now means that much of the State’s Crown land cannot be divested, or used for certain purposes[14].
40 per cent of the State of NSW is currently subject to a native title claim. The majority of the Crown land in the South Coast area of NSW is also subject to undetermined land claims[15]. In this way, the failure of the State to resource and determine undetermined claims works against their ability to achieve the other objectives identified in the Plan.
For that reason, it is essential in our view that the NSW Government, through consultation and in the final State Strategic Plan, better resource and determine the bulk of Aboriginal land claims in the next 10 years. Failure to do this will mean that the estate will remain in a state of limbo. Also, it is critically important that any final Plan made under the CLM Act should outline concrete mechanisms to resolve these claims in a timely manner.
What’s next?
Crown land is land owned by the people of NSW. It is therefore the people of NSW that must ensure that determining undetermined land claims is a genuine priority for any Strategic State Plan for Crown land, not only for the benefit of Aboriginal people but for the benefit of the Crown estate as a whole.
The NSW Government has put the draft Plan on public exhibition until 20 August 2020.
Anyone can make a submission on the draft Plan by using the link to the online submission tool which can be found here or by mailing your submission to Attention: SSP Crown Land, PO Box 2155, Dangar NSW 2309.
Authors: Peter Holt & Clara Klemski-Edwards
[1] Section 12.17, Crown Land Management Act 2016.
[2] Draft State Strategic Plan – Crown Land at p. 12; Auditor General’s report into the Sale and lease of Crown land: Department of Industry—Lands (2016) at p.2.
[3] See p14. https://www.industry.nsw.gov.au/__data/assets/pdf_file/0019/294211/State-Strategic-Plan-A-Vision-for-Crown-Land.pdf
[4] The Western Division covers the following Local Government Areas: Balranald Shire Council Bourke Shire, Brewarrina Shire, Broken Hill City Central Darling Shire, Cobar Shire, Walgett Shire, Wentworth Shire, see the Department’s website at https://www.industry.nsw.gov.au/lands/what-we-do/crown-land/western
[5] Crown reserve land manager portal https://reservemanager.crownland.nsw.gov.au/who-we-are/who-manages-crownland/council-crown-land-manager
[6] Draft State Strategic Plan, at p.32.
[7] Draft State Strategic Plan at p.43.
[8] Section 36, Aboriginal Land Rights Act 1983.
[9] “A national disgrace – 37,000 Aboriginal land claims left languishing in NSW” The Guardian, 9 July 2020 https://www.theguardian.com/australia-news/2020/jul/10/a-national-disgrace-37000-aboriginal-land-claims-left-languishing-by-nsw
[10] 2018-19 Annual Report by the NSW Aboriginal Land Council.
[11] Calculated using the information published in the 2015-16 Annual Report by NSW Aboriginal Land Council at p.13.
[12] Above n9.
[13] Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council [2018] NSWLEC 26, at [94].
[14] See presentation by the Department in November 2019, available here https://www.lgnsw.org.au/files/imce-uploads/581/Crown_Lands_Presentation-Virginia_Newell.pdf
[15] Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council [2018] NSWLEC 26, at [9].
Disclaimer
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.
