For more than a year and a half the former Board of the 360ha Dirawong Reserve at Evans Head sought the advice of Crown Lands about how to resolve potential conflicts between non-exclusive native title rights granted by the courts to the Bandjalang People on 2 December 2013, the by-laws of the Reserve, the Crown Lands Management Act 2016 and various state laws.
In a nutshell we wanted to know how we were to deal with the broader issue of legal liability and protection of all users of the Reserve. Such issues were raised, for example, by the problem of hunting and camping, granted under the Native Title Determination, when inter alia the published legal purposes of the Reserve were protection of the plants and animals, and camping and dogs were prohibited. How we were to deal with these serious issues which potentially presented risk of injury and death? How were we to distinguish between native title holders and those not entitled? We were sensitised to these issues by Crown Lands about our responsibility to ‘manage risk’ for all users.
These questions were raised at courses run by Crown Lands but never answered. The matters were passed up the food chain, again with no written advice from the department. We received phone calls proffering unsubstantiated informal advice but repeated promises of written advice never eventuated. And when the Board’s term came to an end on 8 August the Board was still none the wiser.
Representations were made to Minister Kamper, responsible for Crown Lands, who failed to respond in a timely manner. When he did respond he deferred to material from his department and gave out-of-date advice reflecting poorly, in my view, on ministerial responsibility and competence of his department.
On Monday 30 October 2023, a letter came from the Executive Director, Aboriginal Land Strategy, Crown Lands thanking me for my ‘…correspondence to the Hon Kevin Anderson, MP, Minister for Lands and Property, about potential conflict and legal liabilities from exercising non-exclusive Native Title rights in Dirawong Reserve. The Minister has asked that I respond to you on his behalf’. No reference was made to the date of my correspondence.
The term of the Hon Kevin Anderson’s term as minister came to an end on 28 March, seven months ago. He is no longer minister yet the Department of Planning and Environment (DPE) responded on his behalf.
While such a ‘mistake’ might be easily dismissed by those who made it, what I see as such a profound error cannot be ignored about a matter potentially involving people’s lives. This is a letter on behalf of a minister responsible for 42 per cent of the state’s land mass, Crown Land. The public should expect the minister and his minions to get it right.
The letter makes it clear that ‘native title rights and interests do prevail over certain laws in the state including by-laws under the Crown Land Management Act 2016’ but yet again, as in the past, fails to tell us particulars. And it indicates that ‘it is the Department’s preference to enter into an Indigenous Land Use Agreement (ILUA) negotiation to mitigate potential risk’ but makes it clear that such negotiation ‘does not involve any CLM [Crown Land Manager]’.
In other words, the Crown Land Managers for the Dirawong are left out of negotiation even though the Dirawong was established by the community nearly forty years ago by both Aboriginal and non-Aboriginal representatives who negotiated the saving of the Reserve from greedy land developers, environmental destruction, and loss of Aboriginal cultural heritage. And it was those community-based land managers who made positive representation at native title negotiations prior to the Native Title Determination in December 2013, yet that critical community involvement is so easily dismissed. And in my view the community is being poorly treated.
The letter ends by telling us DPE ‘will clearly outline activities native title holders can lawfully practise on the reserve, and the by-laws the general public will have to abide by’ when the new board of the Dirawong is appointed. But as for all previous advice the words are long on rhetoric and short on the kind of concrete legal advice we’ve been seeking to which the public should be entitled.
For many years The Dirawong was listed as State Significant. That status was lost by the stroke of an administrative pen from DPE when new economic criteria were imposed. This removed any community ‘say’ from this important piece of Crown Land estate so carefully protected by the community for decades. All this begs the questions: why is the community being shut out? Why the secrecy? Why no ILUA after ten years? Would you want to take up a role as a board member not knowing what you are up for? Cui bono?
Dr Richard Gates was a three-term former Board Member, Dirawong Reserve near Evans Head.
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