Crown Lands has created confusion over the process of appointing the board of management for the Dirawong Reserve at Evans Head, according to locals.
This follows Crown Lands failing to appoint a board of management, despite having what critics say were six qualified applications for the four board positions, before the end of the previous board’s five-year term on 8 August. Instead NSW Minister for Lands and Property MP Stephen Kamper has appointed Mr Silas Sutherland, Area Manager, North Coast, Crown Lands, Department of Planning and Environment as administrator for the 364ha Dirawong Reserve site for a six-month period.
‘This follows the failure of Crown Lands to provide advice to the former board about transition arrangements to make sure there was continuity in management including payment for highly-valued contractors and day-to-day running of basic facilities. The board had sought advice from Crown Lands well before their term was up to no avail,’ said former three-term Board Member, Dr Richard Gates, from Evans Head.
Dr Gates told The Echo that it was odd that Crown Lands had appointed an administrator when there were already at least six applicants for board positions when applications closed six weeks earlier. All six were eminently qualified to take up the positions, according to Dr Gates.
‘Crown Lands informed the former board that the new board appointments had been held up because of a “late application from the Bandjalang Corporation”. No explanation was given as to why the late application had stopped the appointment of the six applicants.’
Crown Lands readvertises board positions
Dr Gates said that the former board had learned just recently that Crown Lands had advertised again for positions on the Dirawong Board with applications closing on 31 August, more than two months after the original June closing date.
‘What’s interesting about the new call for applications is that it is not easily found. It’s reminiscent of what some government departments used to do when they wanted to make sure that no-one responded to requests for comments. It would be advertised in some obscure site well away from conventional sources,’ commented Dr Gates.
‘In the case of the current call for applications conventional search engines don’t bring it up. You have to create an account with a government portal online, log in to that account, and then undertake a search to look for positions on the Dirawong. Once you have found it you can then apply. Normally you would expect such positions to be widely advertised.
‘All of this begs the questions: “Why has Crown Lands gone out of its way to make the advertisement of the positions so hidden? How many people would know or want to look on a government portal for a position when applications were known to have closed in June? Which portal? Where?”. Crown Lands needs to provide an explanation for this readvertisement. But more than that it should have informed existing applicants that the positions were being readvertised and that their applications were still in the running, a common courtesy usually extended to existing applicants.
‘The relationship of the current process for new applications to the late application from the Bandjalang Corporation is not clear. Is it the case that the new date is to accommodate that corporation’s late application?’
‘That Crown Lands might be giving priority to the Bandjalang Corporation for membership of the board is consistent with the previous state government’s Strategic Plan – Crown Land 2031 and its objectives under Priority 3 of that plan to ‘Accelerate the realisation of Aboriginal land rights and native title in partnership with Aboriginal people.’ In correspondence with the board after its termination, Crown Lands makes reference to a ‘partnership’ with the corporation to ‘unlock economic and social benefits’ of the reserve.
The 2031 Strategic Plan unequivocally states that: ‘A key focus of Crown land 2031 is to support reconciliation with Aboriginal people in NSW by brokering a greater diversity of access and use with Aboriginal landowners. Crown Land 2031 recognises the importance of Aboriginal land rights and native title interests, and supports a partnership approach with Aboriginal landholders to promote enterprise and economic development.’
‘If it is the intention of Crown Lands to implement the 2031 Plan it should say so publicly so that the process is transparent from the outset,’ said Dr Gates.
Native Title Rights determined December 2013
‘Native Title Rights were determined for the Dirawong Reserve on 2 December 2013, ten years ago. The Determination gave non-exclusive rights to the native title holders to:
hunt, fish and gather the traditional natural resources of the Consent Determination Area for non-commercial personal, domestic and communal use;
take and use waters on or in the Consent Determination Area;
access and camp on the Consent Determination Area;
do the following activities on the land:
(i) conduct ceremonies;
(ii) teach the physical, cultural and spiritual attributes of places and areas of importance on or in the land and waters; and
(iii) to have access to, maintain and protect from physical harm, sites in the Consent Determination Area which are of significance to the Bandjalang People under their traditional laws and customs.
‘However, the nature and extent of the native title rights and interests held by the Bandjalang People were subject to a number of General Limitations defined in the December court determination including that the “native title rights and interests… are exercised for personal, domestic and non‑commercial communal purposes and do not confer possession, occupation, use or enjoyment to the exclusion of all others”, and
“The native title rights and interests do not confer any right to control public access or public use of the land and waters of the Consent Determination Area.” and
“The native title rights and interests in the Consent Determination Area are subject to and exercisable in accordance with:
(a) the laws of the State of New South Wales and the Commonwealth, including the common law; and
(b) the traditional laws acknowledged and traditional customs observed by the Bandjalang People”.’
Contradiction of rights
Dr Gates said that a previous Dirawong Board had given direct and full support for native title rights in the Determination Process, and the most recent board also recognised the December Determination Decision.
‘However, what was not dealt with at the time was that some of the granted rights contradicted the government-gazetted purpose for the Dirawong, “the protection of flora and fauna and related no camping and no dogs rules of the Reserve”. On the one hand rights to hunt have been given by the court under the Native Title Determination, while on the other there is a requirement for protection of fauna which is not consistent with hunting,’ explained Dr Gates.
The former board was aware of this and other potential conflicts between native title rights and state and local government legislation, statutes and regulations. Board members attended courses for Crown Land managers but none of these courses addressed the problem.
‘The board actively requested direct written advice from Crown Lands about how to manage and resolve these apparent conflicts over more than a year, but none was forthcoming. Crown Lands had drummed into the board the importance of risk management yet would not provide written advice about how to manage potential risks associated with conflicting matters,’ said Dr Gates.
‘It was more than disappointing that Crown Lands failed to provide advice about such an important issue particularly given that 42 per cent of the state’s land is Crown Land and our board can’t have been the only board with such a problem. What position does this put a Crown Land manager in when someone claims they are entitled to hunt on a property where hunting is, in effect, prohibited? Is the Crown Land manager to be made the arbiter of who can and who can’t hunt? That’s part of the reason why advice from Crown Lands was sought. The issue also raises questions of the land manager’s legal liability.’
Area of cultural significance
Dr Gates said that the Dirawong Reserve is widely recognised as one of the last intact areas of major cultural significance to the Aboriginal community on the North Coast.
‘It is also recognised that the Dirawong came from grass roots actions of the whole community including Aboriginal Elders rather than something imposed from the top. The Aboriginal community was part of the process from the get-go,’ he said.
‘Care must be taken to make sure that the Dirawong is preserved for the whole community and that Crown Lands provides appropriate, sensitive, advice about the management of what appear to be conflicting legal matters, matters which if not managed appropriately could create division in the community and consequential potential neglect of the Reserve itself. No-one wants that to happen.’
Join the board
Applications from the community for positions on the board are still open but close on 31 August. To access to Crown Land Portal for the Dirawong position you need to create an account and login to apply for a Dirawong position under ‘Board Applications in Progress’, ‘All Available Board Positions’ here.
Friends of the Dirawong
For those who do not seek a manager position but are interested in supporting the preservation of the Dirawong a ‘Friends of the Dirawong’ group is in the process of formation to undertake volunteer work on the Reserve and to lobby government to make sure that the gazetted objects of the Reserve were preserved.