The NSW Auditor General has slammed the Department of Planning and Environment over its handling of Aboriginal Land claims, uncovering a massive backlog of 38,000 unresolved claims, which will take around 22 years to clear at the current rate.

The delays rob Aboriginal communities of Country and perpetuate injustice, while also creating headaches around the ownership, use and development of Crown lands, stakeholders say.

The latest NSW Audit Office report comes just weeks after a separate investigation slammed the DPE over the slow pace of dangerous cladding removal on apartment blocks, raising serious questions about under-resourcing in the department.

In NSW, under the 1983 Aboriginal Land Rights Act, the state’s 120 Local Aboriginal Land councils can legally make a claim on Crown lands that were stolen during white colonisation.

If a claim meets the criteria set out in the law, the LAL councils representing the Traditional Owners is legally entitled to have ownership of the Crown lands returned as freehold title.

The claims are lodged with the Registrar of the Aboriginal Land Rights Act, supported by Aboriginal Affairs NSW in the Department of Premier and Cabinet. The intention of the Act is that they are then assessed in a timely manner by staff in the DPE.

The state’s Land and Environment Court has found that LAL councils have a legal right to have their land claims examined in a reasonable time.

The problem, the Audit Office’s report found, is that the departments don’t have enough resources to do their job in a timely way.

As a result, there is now a backlog of more than 38,000 outstanding claims, covering about 1.12 million hectares of Crown land. More than 60 per cent of these claims have been lodged with the Registrar and have been awaiting determination for more than five years.

Meanwhile, just 207 claims were granted by DPE during the six months to December 2021, meaning it will take decades to clear the backlog at the current pace.

Deeper problems uncovered

Alongside the massive number of outstanding claims, the Audit Office has unearthed a host of major problems with how the state government handles land claims.

The database used by DPC and the Register to track land claims has not been upgraded, or even been fully validated, since the 1990s.

The DPC and DPE also don’t have proper processes in place to make sure the Act is followed, risks are managed, assessments are prioritised, or to check that claims are looked at in a timely manner. 

While a number of past reviews since about 2014 have highlighted problems with the way land claims are managed, the departments have not made progress in implementing their recommendations. 

Governments failing First Nations people

NSW Aboriginal Land Council chairperson Danny Chapman told The Fifth Estate that successive state governments have failed Traditional Owners.

“The ALRA was designed to provide some compensation for the ongoing effects of Aboriginal dispossession, but governments’ lack of strategy, planning and true partnerships sees us in this place. The report’s findings reinforce long-standing concerns that NSWALC and the Land Rights network have consistently raised over more than a decade,” Mr Chapman said.

“The NSW government must implement transformative measures to effect real change, accelerate the return of lands to LAL councils and actively support the activation of lands. 

“And these measures must be designed and delivered in partnership with NSWALC and Aboriginal Land councils, in line with Closing the Gap commitments.”

State government “full of platitudes”, but few actions

The NSW shadow minister for Aboriginal affairs and Treaty, David Harris, told The Fifth Estate the huge backlog leaves the status of Crown land in limbo, robbing both Aboriginal communities and the state of potential benefits.

“This government has been told continuously since 2014 that there was a serious lack of resourcing and commitment from relevant departments in resolving outstanding Aboriginal land claims,” Mr Harris said.

“The NSW Liberal government has been full of platitudes when it comes to recognising Aboriginal Land Rights. But it is seriously lacking in actions to address the systemic problems … we hope that this Audit Report might actually be a way forward to fix this very broken and under resourced system.”

The Greens’ spokesperson for First Nations Justice Sue Higginson toldThe Fifth Estate the report is shocking, but unsurprising.

“The state based Aboriginal land claim system has been in place for decades, so it is shocking that the two largest and most powerful state government agencies have no proper processes and have allocated no resources to ensure claims are determined in accordance with the law,” Ms Higginson said.

“The severe neglect of this important land claim legal regime by this Coalition government is an indictment. The Premier and the Minister for Aboriginal Affairs need to lift their act immediately, apologise to First Nations people and respond to the Auditor-General’s report by committing to implementing each of the recommendations as a matter of priority.“

The Fifth Estate requested comment from the NSW Minister for Aboriginal Affairs Ben Franklin, but did not receive a response before publication.

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