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Aboriginal Affairs – Land Returns

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 8 June 2022

Tags: Land Returns, Tasmanian Aboriginals

Ms O'CONNOR - Minister, as you know, it is almost 20 years since any lands were formally returned through legislative process to the Tasmanian Aboriginal people. You have, as you mentioned, put out a consultation paper today around land rights reform. I don't know if you have seen the statement from Rebecca Digney, the manager of the Aboriginal Land Council of Tasmania, but she says that the proposed reforms in the consultation paper will undermine internationally recognised rights of the Tasmanian Aboriginal people. This is her statement:

Currently in law, there's 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 arbiters 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 the private domain.

What is your response to Ms Digney's deep concern?

Mr JAENSCH - I believe that Ms Digney has misunderstood the matters that are raised in the consultation paper regarding access to the Aboriginal Land Council electoral roll. The very strong message we have heard from a number of consultation processes is that the nature of the electoral roll and eligibility to join the roll for the Aboriginal Land Council is very limited and an adversarial process which a lot of Aboriginal people in Tasmania find excludes them from even making an application.

As I understand the act as it is right now, there is a clause which enables a person to object to somebody being listed on the electoral roll and if that objection is to be challenged it triggers a process determined by the Electoral Commissioner to determine the person's eligibility as an Aboriginal person. It has been proposed - including I think in the Warner and McCormack report - that the objection clause should be removed. I understand that there is nothing like it in similar legislation anywhere else in Australia and it is the main source of angst and conflict or that adversarial issue arising.

The interesting thing, as I understand the act, is that in the absence of the objection clause there is no other mechanism required to determine the eligibility of people from joining the electoral roll. I may be corrected on that but that is my understanding. The amendment that is proposed in our paper suggests the objection clause be removed and that an approach be adopted to determining eligibility for the roll which is consistent with the intent of the processes that the state uses for determining eligibility for government services and which are used in comparable Commonwealth processes. We are not intending that there be no requirement for people to be Aboriginal to join the roll and to be able to demonstrate that, but we are proposing to remove the objection clause because it has caused a lot of grief.

Ms O'CONNOR - Thank you, minister. I understand very well what a fraught portfolio this is and how carefully you have to tread, but it would be fair to say from reading the statement put out by the Aboriginal Land Council that you have a big problem looming in this portfolio. Ms Digney has said that the recommendations in the consultation paper fly in the face of internationally enshrined rights under the United Nations Declaration on the Rights of Indigenous People, and she says:

Inherent 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.

The Aboriginal community will contest these reforms as they are currently proposed.

As a people we are well-accustomed to fighting for our rights.

Mr JAENSCH - This is a consultation paper. It's been put out in response to issues raised through consultation over many years, with a set of proposals, for the purpose of gathering people's feedback on those proposals. So, we'll listen to the Aboriginal Land Council manager and everybody else who has something to say about the proposals that we've put forward, and take our next steps after we've worked through all of those views.

Ms O'CONNOR - Can I ask, minister -

Mr JAENSCH - Can I just add - the reason that we're proposing these changes is because many people, over many years, have told us that the Aboriginal Lands Act isn't working for them. They feel that it doesn't include them and they would prefer to work around it, rather than through it, when it comes to accessing land and being able to reconnect with land. Aboriginal Tasmanians have told us that, and we need to respond to that.

Ms O'CONNOR - We've had a process in train for a review of the mechanism for returning lands. As a matter of policy, is it the Government's position that you can return some lands to the whole community through the Aboriginal Lands Act 1995; you can return some through other mechanisms as yet undefined; you can encourage private land returns. I'm trying to understand what is the Government's actual ambition with land returns, because there's been nothing for eight years except a review of the process.

Mr JAENSCH - There have been other mechanisms by which Aboriginal people have acquired land, been gifted land, purchased land, with the assistance of the Indigenous Land and Sea Corporation (ILSC) and others. In some of those cases, that land has subsequently been declared to be Aboriginal land and added to the land that's held in trust by the Aboriginal Land Council.

What's problematic has been the Aboriginal Land Act itself. It doesn't provide a clear mechanism for proposing, reviewing and deciding on additional parcels of land to be returned. At the moment, as I understand it, to work through that act you have to amend that act each time. What we're proposing instead of that - to be less cumbersome - is that we develop an instrument which is a disallowable instrument that can be proposed and can be laid on the table at both Houses of Parliament and processed -

Ms O'CONNOR - With respect, I don't believe this is driven by the clunkiness of the Aboriginal Land Act. You said you have to, I think you said, add a schedule and amend the act every time you return lands. In parliamentary terms, that is no more problematic than laying an instrument on the table. My question is - is it the Government's policy to not return any further lands through the Aboriginal Land Act? Is that where we are heading - to community ownership?

Mr JAENSCH - We want the Aboriginal Land Act to work, to work for more people, and to have mechanisms in it through which parcels of land can be proposed, assessed and returned. While we are doing this, we are also in discussion with a number of groups who have brought proposals to us for particular parcels of land that they would like to see returned - or to participate in joint management -right across the state; large and small parcels of different reserve and Crown land status types. We will continue those discussions with them while we work through this process of amending the act.

Ms O'CONNOR - I think it's just talk. That's the problem. Discussions, discussions.

Ms O'CONNOR - Minister, I want to take you to a letter that was written to the previous premier, Peter Gutwein, on 30 March last year and it was in response to a statement that the then premier made in his state of the state address where he said:

Last week I committed to receive and consider proposals for further land returns and I want to be clear, this Government is committed to taking significant steps on our path to reconciliation.

Shortly thereafter, the chair of the Aboriginal Land Council, Michael Mansell, wrote to the then premier and made a formal land claim on the lands that have since been subject to a disallowable instrument in the House last week which sets aside areas of forest that are inside the Tasmanian Wilderness World Heritage Area. The Aboriginal Land Council asked for the then premier's immediate personal consideration and response to this proposal. More than a year later the Aboriginal Land Council has not received a response from the Tasmanian Government to its respectful land claim. Do you think this is showing the necessary and appropriate respect for Aboriginal people?

Mr JAENSCH - I'm aware of the kooparoona naira proposal. I'm aware that the Premier has been written to and I think also the proposal was submitted in the context of the Future Potential Production Forest Land (FPPFL) tenure conversion or conversion to reserve process where public comment was invited as well. I believe that the Premier and others of us met with the Aboriginal Land Council of Tasmania on two or more occasions in regard to the proposal and there have been discussions.

I am not clear as to whether there has been a formal written response.

Ms O'CONNOR - There has not.

Mr JAENSCH - But there have been at least two meetings. Now, as I understand it, matters raised at those meetings include that the proposal referred to the establishment of an Aboriginal National Park of some kind which I am advised is a reserve classification, which does not exist.

Ms O'CONNOR - Oh, is that the reason that you have not responded or returned the land?

Mr JAENSCH - No. There have been meetings about this. The proposal is regarding the creation of a new form of reserve which would require legislation, as I understand it - and I can be corrected on that. The second thing is that in regard to the FPPFL, the Government was under some expectation to ensure that FPPFL land was converted to a reserve classification of one kind or another to finalise its inclusion in the Tasmanian Wilderness World Heritage Area (TWWHA) and I am sure you are familiar with the context of that.

So, there were two separate processes with different types of time lines. One was to ensure that we had that land held in the appropriate form of reserve. The second is a proposal from (indistinct) regarding the establishment of a new reserve type. The first does not preclude the second. We did not stop the FPPFL process in order to create a new reserve type. So, we have never said no.

Ms O'CONNOR - But you have never said yes and you have never acknowledged the claim formally.

Mr JAENSCH - The claim has been acknowledged in a number of meetings including with the Premier, which I think counts as a level of acknowledgement and I might just ask if Mr Jones has anything to add.

Ms O'CONNOR - I think you are just trying to buy time here.

Mr JAENSCH - Well I am trying to answer your question.

Ms O'CONNOR - Well the question was why wasn't there an answer from the premier so that is not a question that Mr Jacobi can answer. It is a matter of policy, which is not up to Mr Jacobi, it is about the Government's policy. As I understand it, there was a request from the Aboriginal Land Council that there be a hold put on the tenure changes for the allocated crown land that sits inside the Tasmanian Wilderness World Heritage Area. A respectful request that there be a hold on that.

It is now six years since UNESCO, the World Heritage Committee, said please update the tenure on those areas of forest inside the extended boundary of the Tasmanian Wilderness World Heritage Area. The question that is being asked by Aboriginal community leaders and the Aboriginal Land Council is why did the Government - you had already taken six years to table this instrument, the proclamation, you have had a respectful request from Aboriginal people not to upgrade the tenures, which was ignored in the same way that the letter from the Aboriginal Land Council was ignored.

Are you, hand on heart, prepared to say that there is enough respect here for the Aboriginal Land Council and other Aboriginal community leaders who just asked government, first of all to return the lands and secondly to press pause on the tenure changes?

Mr JAENSCH - Thank you Ms O'Connor. You will pass on your own judgment on what you think is respectful and it is not and I do not think it changes anything for me to try to express respect. I believe that there has been a response, there has been a number of responses to the proposal regarding the kooparoona naira proposal.

Ms O'CONNOR - There has been no formal response.

Mr JAENSCH - There have been meetings, there has been information sought in briefings from the department on the specifics of the proposal -

Ms O'CONNOR - Ultimately you showed them the hand. That is what happened, you showed them the hand.

Mr JAENSCH - You are asking me what happened, now you are telling me what happened. You are aware also of our obligations to UNESCO in regard to the TWWHA -

Ms O'CONNOR - She sat on it for six years.

Mr JAENSCH - As it has been explained to me, the process for a signing of reserve status for those parcels of land to meet our obligations to UNESCO doesn't affect in any way our ability to consider -

Ms O'CONNOR - Consider? It sounds so mean-spirited.

Mr JAENSCH - the future transfer or reclassification of the land parcel in question. I will ask Mr Jacobi if he has anything to add to that.

Mr JACOBI - The only thing I will add is that Louise Wilson and I met with the Aboriginal Land Council of Tasmania several months ago -

Ms O'CONNOR - Yes, I know.

Mr JACOBI - We met with Rebecca Digney. We had a long conversation with Rebecca about all the conversion proposed tenures across the kooparoona niara Great Western Tiers proposal. Rebecca subsequently and respectfully wrote to the department asking for it all to be put on hold and for the tenure conversions not to proceed until such time as there was clarity around the conversion of this land as an Aboriginal protected area.

I did respond to her writing officially asking for that. I wote back and said that we felt it was important to meet the World Heritage obligations to convert this tenure to a protected area class. I reiterated, as I did in the meeting with her, that it did not preclude any future dual-naming or conversion to an Aboriginal protected area.

One of the most important things we did discuss - and this is not only with Aboriginal Land Council of Tasmania, this is also with Hank Horton's mob and other mobs - is that the types of activities that Aboriginal people may wish to conduct on that land in the kooparoona niara Great Western Tiers is not afforded well under the current reserve class of national park. It would better to create a dedicated tenure called Aboriginal Protected Area or Aboriginal National Park which facilitates the types of activities that Aboriginal people would probably want to do - to take materials, to take resources, to use resources to camp, to light fires and do a range of different things that a national park class prevents.

It does actually facilitate this properly, does require a change to the Nature Conservation Act.

Ms O'CONNOR - But a choice was made not to respond.

Ms O'CONNOR - Minister, the whole process of returning lands and therefore cultural, social and economic justice to Aboriginal people has stalled terribly; it has been put completely on hold while your Government has undergone this review of land returns in Tasmania. There are no barriers to returning land to the Aboriginal Land Council as an ongoing process. It doesn't preclude you from taking other steps to return lands to other groups of Aboriginal people. My advice is that there were three letters sent by the Aboriginal Land Council to government, asking for the return of kooparoona niara, the land within the TWWHA, as a kooparoona niara national park. Minister, will your Government commit to establishing a national park status, an Indigenous protected area status, so that we don't have the kind of challenges that Mr Jacobi was talking about before, for cultural practices on protected land?

Mr JAENSCH - What Mr Jacobi provided you with in his last answer was that to accommodate that request, you would need a different class of reserve.

Ms O'CONNOR - I understand that; my question is will you do it?

Mr JAENSCH - We haven't rejected that all. There has been considerable work and discussion on that. It's not something that we can just say yes to because we don't have the mechanism in place to do that yet.

Ms O'CONNOR - You've had eight years.

Mr JAENSCH - It has to be developed. Certainly, that is one of several discussions that people have brought to us for different types and tenures of land for different purposes that they wish to be involved with, either in joint management or in transfer and ownership as Aboriginal land. You also suggested at the outset of your question why don't we transfer land to the Aboriginal Land Council for some people and do it through other mechanisms for other people. If that is an acknowledgement that the Aboriginal Lands Act in Tasmania does not serve the interests of Aboriginal people generally, then that's why we have to fix it.

Ms O'CONNOR - I think it doesn't serve the interests of all Aboriginal people and it hasn't served the interests of any Aboriginal people since 2005 at the last land returns.

Mr JAENSCH - But as state legislation for Aboriginal people, shouldn't it serve all?

Ms O'CONNOR - Shouldn't it be used by government while you can and you have the authority over unallocated crown land to return some land to Aboriginal people? I think the difficulty that some Aboriginal community members have is that there has just been no action on land returns for the entire duration of your party's time in government.

Mr JAENSCH - No, there has been one.

Ms O'CONNOR - Okay, this is not just about people bringing claims or proposals to you; this is the Aboriginal Land Council of Tasmania that has submitted a formal claim over unallocated crown land within the TWWHA. What I'm hearing now is that there has been no work on establishing a new tenure for the return of protected lands to Aboriginal people. You're not making any commitment to work up that tenure, so we will probably having the exact same conversation a year from now. When is this work going to happen? The excuses, the delays.

Mr JAENSCH - I think that Mr Jacobi has given you an answer which will give you some appreciation of the fact that we cannot say yes and enact a change to a tenure type that doesn't exist, that has to be created under legislation. There has been an investigation of what that would involve. We have a proposal that has been brought forward. Others have brought proposals relating to the same parcel of land, as you should know -

Ms O'CONNOR - It's a formal claim by the Aboriginal Land Council, representing some 4500 Aboriginal people.

Mr JAENSCH - It's a proposal.

I think you've had your answer on how, immediately, we are able to just switch that on and deliver that parcel.

Ms O'CONNOR - You've had eight years.

Mr JAENSCH - The other thing is -

Ms O'CONNOR - Which parcel?

Mr JAENSCH - The kooparoona niara as an Aboriginal national park.

Ms O'CONNOR - You haven't delivered anything.

Mr JAENSCH - Clearly, there has been enough interest in that for the Government to investigate it and take advice, and we will continue to. The proponents haven't been told to go away -

Ms O'CONNOR - They just haven't received a response.

Mr JAENSCH - They've had a series of meetings with both elected and senior managers - people in relevant parts of Government.

Ms O'CONNOR - Given that there have been three respectful attempts by the Aboriginal Land Council, in correspondence, to have these unallocated crown lands returned - a very small portion of their Country - will there be a response to the ALCT correspondence which contains a formal claim in writing? That would be respectful.

Will there be a response in writing or are you going to keep ignoring their letters?

Mr JAENSCH - I am happy, on behalf of the Government, to undertake that we will write to the Aboriginal Land Council and explain our position, acknowledge their proposal and outline that we are open to continuing to work with them.

Ms O'CONNOR - That will just sound like more lip service to them, unfortunately.