Q&As

In conversation with Stephen Wright on Aboriginal Land Rights Act

Wednesday September 27, 2017

Stephen Wright 1

Stephen Wright is currently the Chief Operation Officer at the Deerubbin Local Aboriginal Land Council (DLALC), one of the largest private landowners in Western Sydney. He is a graduate in politics and law from Macquarie University and was the Registrar of the Aboriginal Land Rights Act for 18 years before commencing his new role in early 2017. Prior to holding office as the Registrar of the ALRA he worked for the New South Wales Aboriginal Land Council prosecuting the cause of land rights under the Aboriginal Land Rights Act 1983. Stephen has more than 20 years experience as a mediator and conciliator

He joined Sintija Dobrotinsek of Legalwise Seminars to discuss issues about Aboriginal Land Rights law.

You can find the full Q&A below.

What are some of the key trends and developments in Aboriginal Land Rights law having an impact right now?

Foremost in my mind are the challenges around; planning law reform, Aboriginal cultural heritage law reform and the continuing developments in the relationship between land title under the Aboriginal Land Rights Act (ALRA) and Native Title rights and interests. Planning law reform is critical, the NSW planning system must recognise the particular characteristics of land title under the ALRA both to ensure that the legal characteristics of Aboriginal Land Council (ALC) land are appreciated by practitioners and consent authorities are properly informed about how to deal with ALCs as land owners and developers. Aboriginal cultural heritage law reform is currently a hot topic in NSW, with the NSW government announcing its intention to create ‘stand-alone’ Aboriginal cultural heritage legislation. This law reform process will create both opportunities and great challenges for ALCs in what has been a fraught arena of law and policy for some time. The legal relationship between title under the ALRA and Native Title rights and interests remains very dynamic. No other state or territory must understand and appreciate this relationship. In my view this relationship is a unique jurisprudence with no direct precedents. Unsettled law may be interesting, however it makes for difficult challenges and uncertain risk for both ALCs and Native Title holders.

What’s a common mistake you see people make related to agreement making process?

The most common mistake I have encountered in the agreement making process in relation to Aboriginal Land Rights has been the lack of commitment and understanding of parties about the importance of establishing a good and complete process before considering the substantive issues to be negotiated. This has been most obvious in Crown parties who tend to view agreement making as ‘consultation’ unless drawn to a negotiation model. I have found that applying the process models common to alternative dispute resolution to be the most effective way to ensure proper process is established to support and allow agreement making about land rights to succeed.

Is there a particular opportunity in this area for property lawyers and practitioners who are not dealing with land rights every day, that you think may be of particular significance?

There are great opportunities for property lawyers and other practitioners to bring their expertise in relation to Anglo-Australian land law to bear on land rights agreement making. Increasingly outcomes for ALCs will involve more complex legal arrangements in relation to their land holdings that can only benefit from skilled advice in relation to the available legal structures and remedies that are available for any substantial land owner. Often Aboriginal Land Rights law is pigeon-holed as a public law matter, it is increasingly a commercial private law matter.

What’s a common misunderstanding some people have related to land rights issues?

Interestingly, one of the most common misunderstanding I have encountered is that ALCs do not consider all possible uses of their landholdings, as any private landholder would. Matters of Aboriginal cultural significance and looking after country are very much in ALCs minds, however this does not preclude them from a vision of their land including ways to improve their members socio-economic wellbeing by normal commercial means.

What’s one tip you can recommend in terms of processes you should have in place to deal with Land Councils?

For practitioners; someone within your firm who has more than a cursory understanding of the Aboriginal Land Rights Act and the jurisprudence surrounding it and the intention to take the necessary time to understand an ALC as a client.

How does the Aboriginal Land Rights Act impact conveyancers?

Directly! The requirements for the approval of ‘land dealings’ in the ALRA are matters that must be accounted for to ensure lawful conveyance of land.

Are there any planning considerations issues coming in the future that you think practitioners should keep on their radar?

ALCs will increasingly be active players in the planning space; making planning proposals, development applications and responding to applications for development consent. The Aboriginal cultural heritage law reform proposals will be a critical issue for planning law and policy in NSW. An active political conversation in relation to expressing ALC land ownership in a NSW ‘State Environmental Policy’ is also likely.

What do you hope to learn or gain by attending this Conference?

I think the conference will be a great opportunity to be updated with current issues in Aboriginal Land Rights law and policy and to develop the emerging conversation about the place of ALCs in the property markets within NSW. The conference is being convened at a time when significant change is afoot for Aboriginal Land Rights law as ALCs transition from a long and very successful ‘acquisition’ phase in relation to land rights and move to use their hard-won land assets to improve the lives of their members.

You can hear more from Stephen who is speaking at the Use of Indigenous Land: The Legal Issues seminar, being held on Tuesday 14 November at Primus Hotel Sydney.

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