The NSW Government’s new Crown Land Management Act 2016 came into force on 14 November. This new Act repealed the Crown Lands Act 1989 and a number of other Acts such as the Trustees of Schools of Arts Enabling Act 1902, the Western Lands Act 1901, the Hay Irrigation Act 1902 and the Orange Show Ground Act 1897, as well as the regulations and by-laws made under these Acts. The mainstream media failed to cover any of these fundamental changes.
One Act slated for repeal was the Commons Management Act 1989, legislation with roots going right back to the first commons established by Governor King on 11 August 1804 and the historic Epitome of the Existing Laws respecting Commons drawn-up by Judge Advocate Richard Atkins in Sydney in January 1805. This was the first ‘charter’ of common rights created in Australia, linking the new commons here with the customs and practices of their ancient predecessors and with a future in which local people – commoners – would share and manage resources for their mutual benefit as communities. Wherever they came from, however they arrived, their shared interests as local commoners were what mattered. About half the first trustees appointed in 1805 were ex-convicts.
Following determined representations by the community in St Albans and the commoners of St Alban’s Common to all State MPs in all parties, all references to commons and the Commons Act were removed from the Bill by parliament.
One effect of the new Crown Lands legislation is to abolish or otherwise fundamentally change existing community bodies managing various Crown reserves. This includes many boards and trustees. In their place, the Minister may appoint a ‘land manager’, which could be a local council, a ministerial corporation, the head of a government agency or the existing reserve trust or board, among others, at the Minister’s discretion. The Minister may sell, lease, exchange, transfer or otherwise dispose of such Crown land.
Another effect of the new Act is that many old and historic local community-based institutions have been abolished or transformed. About 700 local reserves are (or were) controlled by local trusts. For example, the 119-year old Orange Showground Trust will be replaced by Orange City Council as Orange Showground Land Manager. On the other hand, five reserve trusts are designated ‘special reserve trusts’ and appear to be exempt from the new Act, such as the 150-year old succession of trustees for Wagga Wagga Racecourse Reserve, and the 133-year old succession of trustees for the Hawkesbury Racecourse Trust, as well as all Crown cemetery trusts. Apart from these few, the whole concept of local community trusteeship has been discarded in favour of management processes subject to the Minister.
The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from the goose.
Folk rhyme, 18th century
The quick action of the St Albans Commoners means that all commoners still retain control of their commons. St Albans Common is one of the ‘old commons’, established in 1824, under the control of the trustees chosen by the commoners. It is the oldest common still continually managed by its commoners as trustees, formalised in an 1853 Deed. At 163-years old, the commoner’s Trust is older than any other form of self-governance in NSW and Australia, older than the parliament (160 years) which almost abolished it without a second thought, older than any local council, and equal in age to the Supreme Court of NSW. Only the Governor and the Crown itself predate the St Albans Commoners as continuing historic institutions in New South Wales. Commons and their trustees are just as significant to our shared heritage.
A politician realizes the significance of a common. ‘St Albans Common’, Windsor & Richmond Gazette, 26 January 1917, page 8
However, the late change in the Bill does not mean commons are safe. They will be considered again in 2017 when further amendments to the Act will be made. The abolition of Commons Trusts has only been ‘deferred’ (Second Reading speech, Hon Niall Blair MLC, 8 November, and Kevin Andrews MLA for Tamworth, 9 November), so all commoners, whatever their common, need to remain alert. In the debate, Clayton Barr MLA for Cessnock noted that the ‘deferral’ only occurred because commoners
“…came bearing arms against the changes … they were repulsed … they took up arms – their pens and keyboards – they were successful and should be congratulated for dragging the Government to agree to an amendment … at the eleventh hour”
(Legislative Assembly, Second Reading Debate, 9 November).
It is clear from reading the debates that the Commoners of St Albans played a key role in saving the commons (see, for example, speech by David Shoebridge MLC, 8 November). The commoners continued a very long tradition of upholding their rights, and their actions today recall those of the commoners of the Field of Mars Common and Ham Common in the 1860s and 70s and many other commoners over the years who fought valiantly, but often unsuccessfully, against enclosure and privatisation of their commons. Eternal vigilance is the real price of commonage.
Commoners have a long history of fighting to defend their commons. ‘Field of Mars Common’, Sydney Morning Herald, 4 April 1862, page 5
Are you a trustee or member of a reserve trust? Are you aware of the impacts of the new Crown lands legislation on you, the Crown reserve that you steward, or your local community? Has your reserve, its trust or its board been in existence for many years? Do you know its history? Is it embedded in the traditions of your community? Do you know where its records and archives are (the new Crown land managers are specifically not ‘government agencies’, and so will not be subject to the State Records Act 1998)? Do you know if it is being abolished? Is your reserve listed on your local council’s LEP or the State Heritage Register as a heritage item? Are you a commoner worried about the future of your common and commonage rights? Do you know if you are a commoner of your local common? Do you know where your common is (or perhaps, used to be)?
Commons are a part of our shared histories as communities, and they are also part of our present and future. Commons were the first places where people had to work out how to live together in a new place, how to share resources so that all could benefit, and how to care for and look after a sustainable local environment that could support them all now and into succeeding generations. Some succeeded, some didn’t, but that is part of our ‘common history’ from which we can learn so much about communal endeavour and ways for people to live and work together. Conservation of historic institutions such as commoners and their trustees goes hand-in-hand with the conservation of environments and natural resources. The ‘tragedy of the commons’ is never inevitable.
Commoners were not always successful in keeping their commons out of the clutches of the enclosers and privatisers. ‘Sydney Common Estate’, Evening News (Sydney), 17 October 1881, page 3
The new Act has only just been passed, and the fate of the ‘deferred’ commons and the ‘special reserve trusts’ has yet to be decided by your parliamentarians. Instead of waiting to see what might happen, you can begin making inquiries now with your local council, Lands Office or State MPs. Ask your MPs which way their vote was cast on this legislation, what they said in the debates, and which way they will vote for commons in the future. Remind them to keep you informed of what they will do when commons next come before parliament. Let them know you’ll be watching. Don’t let them forget that historic, learned ways of local stewardship of local environments are central to continuing community traditions, living local economies and healthy local communities. They must not be quietly stolen away.
Sometimes, a politician had to admit that a common was important, even if a public servant had to be the whipping boy. Windsor & Richmond Gazette, 23 February 1917, page 4
Some Useful Resources
Some useful words:
- Common: land over which rights of common may be exercised without personally owning the land.
- Commonage: generic term for rights of common, such as grazing, wood gathering, camping, mushrooming, collecting clay and fishing.
- Commoner: a person with rights of common, usually defined by residence near a common.
- Tragedy of the commons: an economic theory claiming commoners only act in their self-interest and will inevitably destroy their shared resources, but which ignores the reality of commoners managing their shared resources prudently and cooperatively without any need for enclosure or privatisation.
Commons management in action, by the trustees elected by the commoners. Windsor & Richmond Gazette, 12 September 1908, page 16