Justice Delayed is Justice Denied: Indigenous Land Rights

There are over 37,000 indigenous land rights claims in NSW awaiting determination by the government, including the first claim lodged under the NSW Land Rights Act[1] (“the Act”) in 1983, according to documents revealed by The Guardian earlier this month.

In 2016, there were again almost 30,000 outstanding land claims piled up. Of those, 197 were more than 16 years old, 520 were more than 11 years old, and 15,000 were more than 6 years old. In the four years, that pile has grown by 7000.

The Chief Executive of the NSW Aboriginal Land council noted that at the current rate of processing, it would take the NSW government 100 years to deal with the 37,000 claims outstanding (you didn’t misread that – 100 years).

The Act was established for the purposes of providing land to Aboriginal people in NSW, and vesting land in representative Aboriginal Land Councils. Under the Act, each claim goes to the Minister for Aboriginal Affairs for final approval.

So, what’s with the delay? According to the Chief Executive, at the bureaucratic level there has been “institutional racism, deliberate obstacles”.

Institutional or systemic racism refers to practices, policies or processes, systemically embedded in the structure of society, which maintain and reproduce avoidable and unfair inequalities across ethnic/racial groups.

It is worth considering that the Act does not give the Minister a time frame in which to finalise claims. This is in contrast to the course of general legal proceedings, which have specific time limits and deadlines each step of the way, to ensure that litigation proceeds as efficiently as possible.

Another factor leading to delay may be that the department is under-resourced. Whilst hearing an appeal for an indigenous land claim in 2018, Justice Pain of the Land and Environment court stated:

“…on any measure the delays in finalisation of some land claims are excessive… A practical and responsible consequence of meeting legislative obligations is that departmental resources are dedicated to achieving them…”

This is not to even start on the “deliberate obstacles”.

Whatever the reason for the backlog, the practical effect is that the Indigenous people in our own backyard are being deprived of substantive justice. Land which could be used for cultural, social and economic benefit is effectively frozen in time. Older claims risk the degradation of supporting evidence. The applicant, after years of waiting, may be forced to give up their claim or move on. The applicant might pass away. So long as the resources are not available to implement the purposes of the Act, it remains futile.

This nothing new, unfortunately, for indigenous people. Eddie Mabo first made a claim for his traditional land in 1982. To refresh your memory, the landmark Mabo decision[2] overturned the doctrine of Terra nullius, upon which British claims to possession of Australia were based. The Court also held that native title existed for all indigenous people of Australia, prior to the establishment of the British Colony.

That decision was in 1992. By the time the High Court handed judgment down, Eddie Mabo had passed away.

These are both shameful example of the legal maxim, justice delayed is justice denied.

Let’s draw a comparison here… When COVID-19 emerged in Australia in March this year, and thousands of “ordinary” Australians were left suddenly without income, the government very swiftly implemented emergency legislation and regulations to protect the population (for example JobKeeper, and a moratorium on residential evictions). Not only that, within weeks, the government moved to increase departmental resourcing to implement the legislation (for instance, employment of hundreds of new staff to work the phone lines at Centrelink, so your handout can actually be processed). Imagine if you were told it would be a matter of years before your JobKeeper claim was processed, and you were to receive the benefit… it is almost unimaginable.

No, aging outstanding Indigenous Land Rights claims are not global pandemic. But the NSW government has failed, since 1983, to implement an effective system the advance the rights of our First Nations People, in circumstances it should so easily be able to do so.

We can protest until the cows come home. Of course, awareness is a great thing (such as that raised by the Black Lives Matter movement of this year). We must acknowledge, however, that there are systematic and entrenched processes and attitudes in place, which prevent our indigenous people from realisation of equality.

[1] Aboriginal Land Rights Act 1983 (NSW), available at https://www.legislation.nsw.gov.au/#/view/act/1983/42

[2] Mabo & Ors v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1, accessible at http://classic.austlii.edu.au/au/cases/cth/HCA/175clr1.html

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Justice Delayed is Justice Denied: Indigenous Land Rights