Legal updates

INDIGENOUS

WHO SPEAKS FOR

COUNTRY IN NSW?
By Norman Laing and Kellyanne Stanford*

he question of who can

legitimately speak for
Country is a fundamental and
vexed issue in the context of
Aboriginal affairs in NSW, as it relates
to who has the authority to make
important decisions about traditional
land and cultural heritage.
In September 2007, after more than
20 years work, the General Assembly
of the United Nations adopted the
Declaration on the Rights of Indigenous
People (Declaration). The Declaration
is an affirmation from the international
community, which entrenches and
highlights the rights and aspirations
in international law of all Indigenous
peoples. The Australian Federal
Government formally announced
Australias official support of the
Declaration on 3 April 2009.
Included within the Declaration is the
right of Indigenous people to maintain,
control, protect and develop their
cultural heritage (art 31) as well as the
right to participate in decision-making
in matters which would affect their
rights, through representatives chosen
by themselves in accordance with their
own procedures, as well as to maintain
and develop their own decision-making
institutions (art 18).
Despite the Australian Governments
support of the Declaration, a process
has not yet been put in place to
specifically support Indigenous people
to choose their own representatives to
maintain, control, protect and develop
their cultural heritage.
In NSW, despite the Native Title Act
1993 (NSW) (NTA) and the Aboriginal
Land Rights Act 1983 (NSW) (ALR Act) a
number of complex issues arise when
Aboriginal people without a legally
recognised representative body attempt
to exercise their international right to
choose their own representatives for
the purposes of speaking for Country.
In more recent times, an overall
increase in development, resource
exploration and production in NSW
has impacted on traditional Aboriginal

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LSJ

DECEMBER 2015

Norman Laing is an
Acting Commissioner
of the NSW Land and
Environment Court.
Kellyanne Stanford is
a law student. Both are
partners of Waratah
Partners Aboriginal
Corporation.

and further impacts on the overall

consultation and approvals processes.

In NSW and elsewhere in

Australia there is no single
identifier or legal definition
for who speaks for Country.
The absence of such a legal
definition contributes to the
confusion and complexities
associated with Aboriginal
community engagement and
consultation.
The foundations have
been set to develop such a
definition but it requires both
government and Aboriginal
community action in
providing for, and the exercise
of, international rights.
land, waters and cultural heritage.
The parties involved in and affected
by such development, face significant
issues associated with complying with
legislative requirements for consultation
with Aboriginal people.
Identifying who speaks for Country
in most geographical areas of NSW is
not a simple undertaking. The process
is multifaceted and often undertaken
by proponents or their agents in a
contentious setting with Aboriginal
people often vigorously objecting to the
development or resource exploration.
In addition, many Aboriginal people are
participating in the consultation process
on the understanding that the project
will occur regardless of their objections,
and are therefore pragmatically
attempting to negotiate a cultural or
economic outcome as compensation
for the likely impacts to their cultural
heritage and Country.
Competing for these outcomes can
often result in disagreements between
community and family members and
creates an unhealthy social environment
which perpetuates lateral violence

Common within the field of Aboriginal

community consultation are various
and often confusing references to
terminology to describe the cultural
status or recognition of Aboriginal
people.
Importantly, the descriptors attached to
the acknowledgment and recognition of
Aboriginal people can have significant,
negative and positive, legal, cultural,
and financial implications for those
affected Aboriginal individuals and
their communities.
Unfortunately, whilst there is no
single legal descriptor of who speaks
for Country, and the growth and
acceptance of various terms continues
(both legal and community created),
the uncertainty surrounding who
speaks for Country continues to create
or contribute to conflict amongst
Aboriginal communities and individuals.
It is also a source of significant
confusion amongst those required to
consult with Aboriginal communities.

Terminology used to describe or

recognise Aboriginal people
The various terminologies used to
describe or refer to Indigenous people
throughout Australia include, amongst
others, Elders, Traditional Owners
and Traditional Custodians as well
as terms used in NSW legislation
including Registered Aboriginal Parties,
Aboriginal Owners, Native Title
Holders and Native Title Claimants.
Despite these various terms being found
in numerous Commonwealth, State
and Territory policy documents and
legislation, and used throughout various
legal proceedings, there is however no
single defining reference available.
Traditional Custodian
There are only three references to
the term Traditional Custodian in the
NTA with these being supported by a
less than clear definition for the term.
The term is also not clearly defined in

INDIGENOUS

any NSW legislation and has limited

appearances in other jurisdictions land
rights legislative regimes. In NSW, the
Constitution Act 1902 provides for the
recognition of Aboriginal people as
the States first people and nations
(s 2(1)) and then refers to Aboriginal
people as the traditional custodians
and occupants of the land in NSW
(s 2(2)). However this recognition is
but a broad overarching symbolic
recognition and, as indicated within
the provision, such recognition does
not create any legal rights or effects
in its application or interpretation, in
fact, such references and especially
in the absence of legislative clarity
and certainty perpetuates the already
existing confusion regarding who
speaks for Country in NSW.
Traditional Owner
In NSW the term traditional owner
simply does not exist under statute,
despite the term itself being commonly
used in native title litigation, as well as
associated or concurrent processes
such as mediation, negotiation and
settlement proceedings. It also
continues to be used in the context of
broader community consultation and
engagement with both program and
policy development by governments
and those in the mining and
construction sector.
Registered Aboriginal Party
The NSW Aboriginal cultural heritage
consultation requirements for
proponents 2010 as well as the
National Parks and Wildlife Regulations
(Consultation Requirements) (cl
80C), outline a legislative process for
consulting Aboriginal people when
undertaking a development or resource
exploration project that may impact
Aboriginal cultural heritage (Country).
A Registered Aboriginal Party as defined
under the Consultation Requirements
includes:
Native title holders or registered
native title claimants in accordance
with the NTA 1993 (Cth) and NTA
1994 (NSW); and/or
Aboriginal owners in accordance with
the ALR Act; and/or
Aboriginal people with traditional
association and knowledge, cultural
responsibilities and the trust and
permission of their community to
speak about Country and cultural
heritage.

Whilst the first two categories of the

definition provide a legal framework to
assist with identification of Aboriginal
Owners and Native Title groups, the
third criteria is regarded by the NSW
Government, proponents and the
Aboriginal community as extremely
problematic and challenging. The
Consultation Requirements clearly
state that disputes about who speaks
for Country are to be resolved by the
Aboriginal community.
Native Title holders and claimants
in New South Wales
NSW has a number of Aboriginal
individuals or groups that are either
registered native title claimants, native
title holders or parties to registered
Indigenous Land Use Agreements under
the NTA. Each of these legal terms
provides different entitlements and
rights, which must be recognised in
consultation processes associated
with Country.
A person whose name appears on the
Register of Native Title Claims does
not have primacy to speak for Country
in NSW. Only a person or community
collective that has a determination that
provides for exclusive possession in
relation to land and waters in NSW
is provided with primacy to speak
for Country.
Aboriginal Owners in New South Wales
Section 171(2) of the ALR Act defines
the term Aboriginal Owners. Aboriginal
Owners are those Aboriginal persons
whose names are entered on the
Register of Aboriginal Owners as a result
of those persons cultural association
with particular lands in NSW. Aboriginal
owners can speak for Country on that
particular land in NSW.
Section 85A of the National Parks and
Wildlife Act 1974 (NPWA) also refers to
Aboriginal Owners in relation to the
transfer of Aboriginal objects (cultural
materials) with Part 4A of the NPWA
referring to Aboriginal Owners in the
context of hand back, ownership and
leasing arrangements of National Parks
in NSW.
The Consultation Requirements only
provide primacy to Aboriginal Owners
during consultation processes that
occur on the National Park to which
they are registered.

to National Parks where development

and resource exploration projects were
unlikely to occur. However, in 2015,
the NSW Government announced
that the Aboriginal Owner registration
process would be trialled for the first
time in an area that was not specially a
National Park. The project is occurring
in the Upper Hunter in NSW, an area
well known for lengthy and complex
Aboriginal consultation processes
associated with development and
resource exploration projects.
It is unclear if the NSW Government is
trialling this registration process in order
to assist with the review of legislation
regarding management of Aboriginal
cultural heritage that has been
underway since 2010. The history of
dispossession of the Aboriginal people
in NSW has resulted in the fracturing of
traditional tribal and language groups.
So too has the absence of standalone
legislation that reflects the international
rights and aspirations of, and for,
Aboriginal people. However, with the
use of the existing legislative and policy
foundations that have already been
enacted, stand alone legislation could
result in a single unifying definition for
who truly speaks for Country.
*Norman Laing is a descendant of the
Dunghutti people. Kellyanne Stanford
is a descendant of the Yuin people.

[There are] significant

issues associated
with complying with
legislative requirements
for consultation with
Aboriginal people.
Identifying who speaks
for Country in most
geographical areas of
NSW is not a simple
undertaking.

In 2010, at the time that the

Consultation Requirements were
developed, the Aboriginal Owner
registration process had been limited

DECEMBER 2015

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