Consultation Paper on proposals for change – Department of Natural Resources and Environment Tasmania, 8 June 2022

An improved model for returning land to Tasmania’s Aboriginal people

Introduction

The passing of the Aboriginal Lands Act 1995 (“the Act”) by the Tasmanian Parliament has been recognised as a historically important development in the recognition of Tasmanian Aboriginal people and their deep connection to the land. The legislation was developed to facilitate the return of Crown land to Tasmania’s traditional owners in a legal environment where, due to Tasmania’s unique and tragic history, native title is unable to be established. The legislation also provides for land that is otherwise acquired, whether ‘returned’ by a private landowner where they volunteer to do so, or purchased by or on behalf of Aboriginal people to be declared as ‘Aboriginal land’.

The Act established the Aboriginal Land Council of Tasmania (ALCT), an autonomous body elected by Aboriginal people, as a statutory authority with responsibility for the use and sustainable management of statutorily defined ‘Aboriginal land’, and its natural resources, on behalf of all Aboriginal people. ALCT holds that land in perpetuity for all Tasmanian Aboriginal people. The Act outlines the functions and powers of ALCT and establishes the mechanism for electing members to the Council.

By the end of its first decade in operation, the Act had been the means of transferring more than 55,000 hectares of Crown land to ALCT to hold on behalf of all Tasmanian Aboriginal people. The land parcels involved are set out in the first section of Appendix 1.

In 2012 and 2013, an attempt to return Crown land at larapuna (Eddystone Point) and Rebecca Creek failed to pass the Legislative Council, and the processes in that House highlighted some criticisms of the Act and the operations of ALCT.

As Appendix 1 illustrates, the transfers under the Act have not been limited to land returned by the Crown. ALCT and other Aboriginal organisations have entered into their own property acquisition arrangements with partner organisations outside the Act.

For example, the two parcels comprising Kings Run, a 711-hectare site between the Arthur River and Marrawah, were purchased by ALCT through collaborative funding arrangements with other organisations. This approach has been used successfully for other ALCT property acquisitions. In addition, land has been acquired outside of the processes set out in the Act, including substantial agricultural properties now owned by the Flinders Island Aboriginal Association Inc. and by the weetapoona Aboriginal Corporation. Other Aboriginal organisations have approached the Government seeking to negotiate land returns and joint land management arrangements outside the Act.

In 2016 the Government announced its policy agenda for Resetting the Relationship with Tasmanian Aboriginal people. One of the five key priorities was to ‘Explore joint land management arrangements and review the current land return model’. Fulfilling that commitment, and with the clear aim of facilitating the return of further Crown land, in November 2017 the Tasmanian Government formally commenced a review of the model for returning land to Aboriginal people.

A consultation process supported by a Discussion Paper occurred in 2018, and a Consultation and Stakeholder Feedback Report: Improving the Model for the Return of Land to Aboriginal communities summarising feedback from the 151 submissions received was released in July 2019. Consultation with Aboriginal organisations continued throughout the review, and the conversation is ongoing.

The importance of land return was also reflected in the consultations undertaken by Professors Kate Warner and Tim McCormack, documented in their Pathway to Truth-Telling and Treaty report. The findings of their consultations are consistent with the Government’s proposals.

This Consultation Paper has been informed by the consultation undertaken to date and outlines the Government’s proposed approaches and directions on key amendments to improve the implementation of An improved model for returning land to Tasmania’s Aboriginal people 7 Consultation Paper on proposals for change the Act, and facilitate the return of land to Aboriginal people.

These proposals reflect what the Government has heard and are to:

• extend the scope and intent of the Act to meet community expectations;

• enable broader representation on the ALCT electoral roll;

• simplify the process for land return;

• expand provisions for local or regional Aboriginal community organisations to play a role in land management;

• create transparent processes and clear criteria for proposing and assessing land for return; and

• clarify the role of ALCT and require reporting of administrative and land management activity. The key roles of ALCT (ie holding the title of the land and overseeing its management on behalf of all Tasmanian Aboriginal people) are not intended to change.

Proposed directions for amendments to the Act

The Government intends to maintain the framework of the Aboriginal Lands Act 1995 and the intent that it should provide the legal framework for land to be:

• transferred to an independent statutory authority, ALCT, comprising members elected by Aboriginal people; and

• held and managed by ALCT, as statutorily defined ‘Aboriginal land’, in perpetual trust for, and for the benefit of Aboriginal people.

The following proposals seek to improve the transparency, ease and inclusivity of the processes that support ALCT, and provide a clearer process for transferring land. This paper outlines the proposed policies and approaches that will inform the amendments to the Act.

Read the full consultation paper here: https://nre.tas.gov.au/Documents/Consultation%20Paper%20on%20Proposals%20for%20Change.pdf.

Media release – Roger Jaensch, Minister for Aboriginal Affairs, 8 June 2022

Next step in supporting the return of more land to Aboriginal people

The Tasmanian Liberal Government recognises that Aboriginal people have a profound and ongoing connection to Tasmanian lands and waters. Connection to Country, and the responsibility to care for it, is central to Aboriginal culture and identity.

Returning more land to Tasmanian Aboriginal people is a priority for the Tasmanian Government and is a key aspect of our Reset the Relationship policy agenda. The Review into the model for returning land, which aims to identify the barriers to returning land and explore options to improve the land return process, is an integral step in this process.

Feedback from consultation undertaken to date has made it clear the current process to return land does not work for all Tasmanian Aboriginal people, and a new approach is necessary if land returns are to play a constructive part in our reconciliation journey with all Aboriginal Tasmanians.

Today, I am pleased to release the Consultation Paper ‘A revised model for returning land to Tasmania’s Aboriginal people – Consultation Paper on proposals for change’ which has taken that feedback into account, and outlines the Government’s proposed approaches to amend the Act and return more land to Aboriginal people.

Key amendments proposed in the Consultation Paper include:

  • Extending the scope and intent of the Act to meet community expectations;
  • Enabling broader and more inclusive representation on the ALCT electoral roll;
  • Simplifying the process for land return by creating a new instrument of transfer for significant parcels of Crown land;
  • Expanding provisions for local or regional Aboriginal community organisations to play a role in land management;
  • Create transparent processes and clear criteria for proposing and assessing land for return; and
  • Clarify the role of the Aboriginal Land Council of Tasmania and require reporting of administrative and land management activity.

Importantly, the key role of the Aboriginal Land Council of Tasmania to hold the title of the land and oversee its management on behalf of all Tasmanian Aboriginal people are not intended to change.

Written submissions are encouraged by Sunday, July 24, however, engagement throughout this process will be ongoing and we will reach out to and meet with Aboriginal people during this time. Feedback from this process will inform the drafting of the amending legislation, which will be released in the form of a Draft Exposure Bill for further consultation.

Tasmanians’ priorities are our priorities and my intention is to introduce legislation to Parliament as soon as possible to facilitate the return of more land to Tasmanian Aboriginal people.

The Consultation Paper and further information about this phase of consultation is available on the Department’s website: https://nre.tas.gov.au/about-the-department/aboriginal-legislative-reform/aboriginal-lands-act.

Written submissions can also be made to [email protected]

Media release – Aboriginal Land Council of Tasmania (ALCT), 8 June 2022

A storm is brewing around Land Rights reform

The Aboriginal Land Council of Tasmania (ALCT) has received the long-awaited consultation report in relation to reviewing the mechanism for Land Rights.

“The Aboriginal Land Council of Tasmania received the report, and although we are disappointed with many of the recommendations being put forward, there are also some we would like to see eventuate” said Rebecca Digney, manager of ALCT

Ms Digney welcomed the recommendation that land could be returned to the Aboriginal community without the need for legislative amendments stating “any reform that makes returning land to Aboriginal people easier is a welcome reform”

However, one of the most contentious recommendations of the consultation report is the proposed change to the eligibility criteria for those who wish to participate in the ALCT process.

“Currently, in the law, there is a standard whereby people who wish to be involved in ALCT are required to substantiate their eligibility. That process is open and transparent and includes provisions outlining that the arbitrators of disputes around eligibility are large, public institutions such as the Tasmanian Electoral Commission and the Supreme Court of Tasmania. This proposal intends to remove any such eligibility requirement, but also, more worryingly, remove the entire eligibility process from the public to private domain.”

Ms Digney said “On the question of expanding number of people on ALCT electoral roll, the government plan is to make it a completely open-slather process: anyone who signs a piece of paper will be regarded by government as Aboriginal. In every other state and territory, the onus is on those who claim to be eligible to benefit from Aboriginal identified services. In Tasmania alone, that would no longer be the case, bringing Aboriginal rights in Tasmania into disrepute and by making a mockery of us. In Roger Jaensch’s backyard at Circular Head, Smithton claims to have 8,000 Aborigines and Jacqui Lambie, claims the numbers are some 4000 greater than that”

The Government has claimed that the aim of reforming land rights legislation is to improve the process for land return. ALCT remain cynical of that aim. “We’ve heard a lot about truth-telling recently, and we are calling on the Government to come clean about the real intention of these reforms, which seemed geared towards undermining the rights of Aboriginal people and moving debates around eligibility and participation in the Land Council process from the public to the private domain” Ms Digney said.

“It is hard not to be cynical of the position that the Government is motivated to increase land returns, when the Aboriginal community have submitted a claim for the return of unallocated crown land, that at today’s date, remains unanswered, despite attempts on behalf of the Aboriginal community to progress the matter further” said Ms Digney referring to a land rights claim submitted in response to the previous Premier, Peter Gutwein’s call for submissions during his 2021 State of the State address.

Ms Digney stated that in effect of the proposed reforms will undermine internationally recognised rights of the Tasmanian Aboriginal people.

“The Aboriginal community are often portrayed as troublesome and demanding when we are asserting our rights, but in truth, we are not being unreasonable at all, we are simply upholding our rights which are recognised the world over” she said.

“These reforms, if they succeed, will stand to undermine those rights. Particularly, the right to be self-determining”

The recommendations fly in the face of internationally enshrined rights under the United Nations Declaration on the Rights of Indigenous People.

“Inherit to our Aboriginality, we have the right to determine our identity and membership, as well as determine the structure and membership of our own institutions in accordance with our own procedures – What is being proposed by the Government is an approach that aims to take that all away” Ms Digney said.

“The Aboriginal community will contest these reforms as they are currently proposed. As a people, we are well accustomed to fighting for our rights. Every recognition we have ever received in this state has come through hard fought battles. The struggle continues” she said.