A Critique of Land Rights Mania, By Paul Walker
The recent New South Wales Court of Appeal decision regarding the Paddington Bowling Club has been hailed as a landmark victory for Aboriginal land rights, potentially unlocking thousands of stalled claims across the state. By ruling that an unexpired lease does not constitute "lawful use" under the Aboriginal Land Rights Act 1983 (NSW), the court has shifted the interpretation of land use from mere legal entitlement to actual physical utilisation. While this decision is celebrated by Indigenous advocates as a triumph for "justice," it raises broader questions about the trajectory of land rights movements and their implications for society. This discussion critiques the growing "land rights mania," examining its legal, social, and economic ramifications.
The Paddington Bowling Club case centred on a novel interpretation of the Aboriginal Land Rights Act 1983 (NSW), which stipulates that Crown land cannot be claimed if it is being "lawfully used." The court's ruling that a lease, without active physical use, does not meet this criterion sets a significant precedent. As NSWALC Chair Raymond Kelly noted, this could expedite approximately 30,000 pending land claims, a figure that underscores the scale of unresolved Indigenous land aspirations in New South Wales alone.
On one hand, this ruling aligns with the spirit of the Act, which seeks to redress supposed historical "dispossession" by returning land to Aboriginal communities. The decision to prioritise physical use over legal ownership appears to close a loophole that allowed leaseholders to block claims by maintaining inactive leases. However, the precedent risks oversimplifying the complex interplay between legal rights and practical land use. For instance, leaseholders who paid tens of thousands of dollars annually in rent, may argue that their financial commitment constitutes a form of "use" that should not be dismissed. This raises questions about fairness to leaseholders who, while not actively using the land, have invested in its legal stewardship.
The rhetoric surrounding the decision, as articulated by Kelly, frames it as a victory for "common sense and justice." This narrative taps into a broader societal push to address alleged historical wrongs against Indigenous peoples, a cause that carries significant moral weight in woke Leftist society. However, the characterisation of land rights advocacy as a "mania," stems from the risk of prioritising symbolic wins over practical outcomes. The transfer of the Paddington Bowling Club to the La Perouse Local Aboriginal Land Council, while celebrated by the Left, leaves open questions about the land's future use. Without clear plans for community benefit, whether through cultural, economic, or social initiatives, the victory risks being more symbolic than substantive.
Moreover, the potential for 30,000 claims to be expedited could strain relationships between Indigenous and non-Indigenous communities. The sheer volume of claims may fuel perceptions of overreach, particularly in urban areas where land is scarce and economically valuable. This could exacerbate tensions in a society already grappling with competing narratives of "reconciliation" and economic pragmatism. The challenge lies in ensuring that land rights decisions foster inclusivity rather than division, a goal that requires transparent dialogue about how claimed land will serve both Indigenous and broader community interests.
Economically, the transfer of Crown land to Aboriginal councils carries opportunity costs that merit scrutiny. Land like the Paddington Bowling Club, located in urban areas, holds significant commercial potential. It is worth asking whether these transfers maximise public benefit. For instance, if the La Perouse Local Aboriginal Land Council has no immediate plans for the site, the land may remain underutilised, mirroring the very issue that led to the court's ruling against the leaseholder.
Furthermore, the economic implications of processing 30,000 claims could be substantial. The administrative burden on government bodies, coupled with potential legal challenges from leaseholders, may divert resources from other pressing needs, such as housing or infrastructure. Aboriginal land councils must also demonstrate accountability in managing claimed land to avoid perceptions of inefficiency or favouritism. Transparent plans for land use, whether for cultural preservation, community development, or economic ventures, would strengthen the case for expedited claims and mitigate scepticism about the broader land rights movement, a scepticism that is well justified. That there should beany land rights movement from a conservative nationalist position, sees Australia on the road to the devolution of sovereignty, which is the broad agenda, which many articles at Quadrant over the years have argued.
"The chair of the New South Wales Aboriginal Land Council (NSWALC) says a decision to grant Aboriginal land rights over a disused club could pave the way for expediting around 30,000 land claims across the state.
The Paddington Bowling Club sits on Crown land and hasn't been operational since 2015, but the venue's leasee, Quarry Street Pty Ltd, has continued to pay $52,000 a year in rent.
Under NSW law, Crown land cannot be the subject of land claims if it is being lawfully utilised.
A legal case for an Aboriginal land claim therefore focused on whether land subject to a current Crown lease would be considered as being used, and how that would determine the outcome.
The court found the case invoked a "novel question" around the meaning and operation of the Aboriginal Land Rights Act 1983 (NSW).
The property had been subject to a lease lasting from 2010 until 2060, stipulating that its purpose was for community, sporting and tourism activities—none of which had been conducted in the space of a decade.
Additionally, a 2014 proposal to place a childcare centre on the site was knocked back.
In 2016, a successful claim for the land was lodged by the La Perouse Local Aboriginal Land Council, with Quarry Street Pty Ltd launching an appeal.
In 2024, the NSW Court of Appeal accepted that Quarry Street Pty Ltd was lawfully using the land and it could not therefore be claimed.
But the decision was later overturned under the premise that an unexpired lease did not equate to actual use of the land.
Indigenous advocates have heralded the finding as a win for Aboriginal land claims, asserting that the "lawful use" interpretation can be seen as defining actual physical use, rather than lease-holding on its own.
'Not Just a Small Win': Aboriginal ChairNSWALC Chair Raymond Kelly believes the finding could free up around 30,000 other applications that have sat in a queue.
"[The outcome] validates the long-standing interpretation held by our organisation, by the government and the Parliament of New South Wales that a lease alone, without actual physical use of the land, does not constitute 'lawful use' under the Aboriginal Land Rights Act 1983 (NSW)," he said in a statement.
"Do not underestimate anything. This is not just a small win on a land rights claim. This is a win for common sense and justice for Aboriginal people. It holds the line in NSW and sends a message right across the country."
Justice Jayne Jagot determined that the company holding the land had maintained the lease in order to decide what it could do with it.
The land will now be handed to the La Perouse Local Aboriginal Land Council, with future plans so far unclear."
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