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Land and Sea

Around 63% of Australia’s land mass is subject to Native Title claims or determinations, much of which may be needed for energy generation. 

First Nations landholders and communities are key rights-holders and as governments have recognised, essential to the future sustainability of Australia's clean energy and resources sector.

 

Valuing First Nations land, sea and water rights is essential to Australia’s social and economic success. This will involve growing, investing in, and maintaining strong and genuine partnerships leading to First Nations participation, benefit-sharing, equity and ownership or co-ownership of clean energy projects.

 


Legal standards and obligation

[Map of Australia with pop out boxes of legal obligations and different standards for each jurisdiction]

 

Australia-wide / national

 

Australian Capital Territory

 

New South Wales

 

Northern Territory

 

Queensland

 

South Australia

In South Australia (as of 2023), there are four main mechanisms that recognise First Peoples rights and interests in land across the state. These are through:

  1. Native Title Act 1993 (Cth) (NTA)
  2. Aboriginal Land Trust Act 2013 (SA) (ALTA)
  3. Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act)
  4. Maralinga Tjarutja Land Rights Act 1984 (SA) (MTLR Act)

The Indigenous Land and Sea Corporation (ILSC) has also assisted buy back land in South Australia in accordance with its functions.

 

Tasmania

 

Victoria

In Victoria (as of 2023), the following mechanisms exist:

  1. Aboriginal Lands Act 1970 (Vic)
  2. Aboriginal Lands Act 1991 (Vic)
  3. Aboriginal Land (Manatunga Land) Act 1992 (Vic)
  4. Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth)
  5. Traditional Owner Settlement Act 2010 (Vic) (TOS Act)

 

Western Australia

 

 


Entities that administer land rights / native title in each jurisdiction

Map of Australia with pop out boxes for each jurisdiction containing lists:

E.g. Northern Territory:

  • Northern Land Council

  • Central Land Council

  • Anindilyakwa Land Council

  • Tiwi Land Council

  • Native title claims

  • Prescribed bodies corporate 

NSW:

  • NSW Aboriginal Land Council

  • List of Local Aboriginal Land Councils

  • Native title representative bodies / native title service providers

  • Native title claims

  • Prescribed bodies corporate


Native Title Representative Bodies and Native Title Service Providers in Australia

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


Prescribed Body Corporates in Australia

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


What is the difference between native title and land rights?

Native title and land rights are both legal concepts related to First Nations land ownership and rights in Australia, but they have distinct differences:

Native Title

  • Native title refers to the recognition of First Nations Australians' rights and interests in land and waters according to their traditional laws and customs, which predate European settlement.
  • Native title is based on the common law of Australia, specifically the High Court's decision in the Mabo case (Mabo v Queensland [No 2] 1992), which recognised the existence of native title.
  • To establish native title, First Nations groups must demonstrate a continuous connection to the land and waters according to their traditional laws and customs.
  • Native title rights may include the right to access, hunt, fish, and conduct ceremonies on traditional lands, among others.
  • Native title rights can coexist with other land interests, such as pastoral leases or freehold titles, but they are subject to certain limitations, particularly if they conflict with other interests.

Land Rights

  • Land rights typically refer to statutory rights granted to First Nations Australians over certain areas of land by federal or state/territory legislation.
  • Land rights regimes vary between different Australian states and territories. For example:
    • In the Northern Territory, the Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA) allows for the granting of land rights to First Nations Australians over certain areas of Crown land in the Northern Territory.
    • In other states like Queensland, South Australia, and Western Australia, similar legislation or agreements may exist to recognise and protect First Nations land rights.
  • Land rights can involve the transfer of ownership or the granting of certain rights and interests in land, such as the right to use the land for cultural, spiritual, and economic purposes.
  • Unlike native title, which is based on customary laws and customs, land rights are typically established through legislative processes and may involve negotiations and agreements between First Nations groups and government authorities.

While both native title and land rights relate to First Nations land ownership and rights in Australia, native title is a recognition of traditional rights under common law, whereas land rights are statutory rights granted through legislation or agreements.


Has the project area got a Native Title claim or determination over it?

If there is a registered native title claim over land, it is necessary to follow the Native Title Act 1993 (Cth) processes, whether or not native title is ultimately found to exist.

 

Australia-wide

Get the map

This map of Australia shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), Section 31 Agreements, and Representative Aboriginal/Torres Strait Island Body (RATSIB) Areas (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

 

 

 

New South Wales

In New South Wales (as of 2023), since the enactment of the state-level Aboriginal Land Rights Act 1983 (NSW) (ALRA) in 1983, NSW Aboriginal Land Councils (ALCs) have lodged 53,800 land claims. Of these, 38,200 land claims (equivalent to 70% of land claims lodged over the last 40 years) await determination by the relevant NSW Government department in 2022.

In terms of land recovery, a fraction of 1% of NSW has been repossessed by local Aboriginal Land Councils (LALCs). LALC land includes land claims, former missions and reserves along with privately purchased and bequeathed properties. The estate is mostly held in freehold title, and some is of high social, cultural, conservation, economic and biodiversity significance.

As much as 80% of the ALC estate is zoned conservation.

The ALRA enables land to be transferred back to member-based LALCs as freehold land.

Get the map

This map of New South Wales shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), and Section 31 Agreements (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

Northern Territory

In the Northern Territory (as of 2023), approximately 50% of the terrestrial area and 85% of the coastline is Aboriginal freehold land held under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act).

There have also been a number of determinations of native title, and native title rights and interests exist over an additional 25% of the Northern Territory.

A further 3.9% of the Northern Territory is covered by registered native title claims.

Land rights and native title rights and interests could extend over 80% of the Northern Territory when the claims process is completed.

Get the map

This map of the Northern Territory shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), and Section 31 Agreements (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

 

 

 

 

 

 

Queensland

In Queensland (as of 2023), Native title has been determined to exist across large areas (approximately one third of the state), and around 6.23 million hectares is owned by First Nations groups as freehold Aboriginal land or freehold Torres Strait Islander land under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld).

A further 45 native title determination applications remain pending over substantial areas of Queensland.

Get the map

This map of Queensland shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), and Section 31 Agreements (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

 

 

 

South Australia

In South Australia (as of 2023), native title has been determined to exist in 55.8% of land, while a further 22.6% is subject to one of the statutory land rights regimes or through land buybacks facilitated by the Indigenous Land and Sea Corporation (ILSC).

The Aboriginal Lands Trust (ALT) presently holds title to 65 properties, covering more than 500,000 hectares of land in South Australia. The land estate consists of freehold land, transferred Crown land, and properties which have been donated, purchased or otherwise acquired.

Get the map

This map of the South Australia shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), and Section 31 Agreements (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

 

 

 

Tasmania and Victoria

In Tasmania (as of 2023), there is no land deemed as First Nations land. (correct???)

In Victoria (as of 2023), the total Aboriginal land estate is approximately 18,759 km2. Most land where rights and interests have been acknowledged via Native Title Agreements or Recognition and Settlement Agreements under the Traditional Owner Settlement Act 2010 (Vic) (TOS Act) have pre-existing management regimes, such as National Parks, State Reserves and/or land use limited by cultural heritage regulations such as that acquired under the various Aboriginal Land Acts. Subsequently, there is limited land held by First Nations in Victoria that can be developed for commercial purposes.

Get the map

This map of the Tasmania and Victoria shows Native Title Determinations, Determined Outcomes, Indigenous Land Use Agreements, Applications (RNTC and Schedule), and Section 31 Agreements (as of February 2024).

You can access an interactive version of this map via the National Native Title Tribunal which developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing a geospatial view of the Registers and databases, and overlays of administrative regions, non-freehold land parcels and resources tenure.

 

 

 

 

 

Western Australia

 

 

 

 

Where to look? National Native Title Tribunal

Registers: Register of Native Title Claims - Applications and Determinations

See it on a map: The National Native Title Tribunal have developed Native Title Vision, a free online visualisation, mapping and query tool which allows you to explore native title, providing:

  • a geospatial view of the Registers and databases
  • overlays of administrative regions, non-freehold land parcels and resources tenure.

 


 

What Land Rights legislation applies?

Where to look? Land Rights Legislation

Each state and territory in Australia has its own legislation which sets out land rights arrangements with First Nations peoples within their jurisdiction.

Registered Native Title Bodies Corporates (RNTBCs), also sometimes called Prescribed Bodies Corporates (PBCs) represent Australia’s First Nations traditional owner groups. 

There are more than 250 PBCs in Australia.

A PBC is the first point of contact for proponents, government and other parties wanting to undertake activities on native title land.

The PBC acts as a bridge for traditional owners to deal with the legal system, and ensures certainty for government and other parties by providing a legal entity through which they can conduct business with traditional owners.

Some of the areas a PBC might be required to deal with in relation to Commonwealth, state and territory legislation may relate to:

  • land and water management (ranger groups are also able to deliver environmental services for a fee)
  • tenure issues
  • biodiversity and environmental protection
  • cultural heritage
  • land use planning.

Native title holders may decide they also wish their PBC to engage in a broader range of activities such as social and economic development for their communities.

Where to look: Find a PBC

Maps: Registered Native Title Body Corporates (RNTBC), also known as Prescribed Body Corporates (PBC)

 

When is a PBC set up? 

PBCs hold native title rights in the name of a group of traditional owners living within a determined geographic area on Australian territory. Their role is to support native title owners.

When a native title determination is made, the native title claim group can either create a new PBC, or nominate an existing corporation to manage and protect their native title rights and interests as per the Native Title Act 1993 (Cth). (If an existing corporation is nominated, it must comply with the provisions of the Native Title Act 1993 (Cth) and already be incorporated under the CATSI Act.)

If a PBC is created, it must registered with the National Native Title Tribunal. When a PBC is officially registered, it becomes a Registered Native Title Body Corporate (RNTBC).

The National Native Title Tribunal Register records whether a PBC holds native title rights as a trustee or agent for traditional owners. There are some minor differences between trustee and agent PBCs, and traditional owners may choose the model that best suits their needs.

In the rare event a PBC is not nominated by native title holders, the Native Title Act allows for the Indigenous Land and Sea Corporation (ILSC) to be appointed by the Federal Court to operate as a default agent PBC for an initial five-year period or until such time native title holders are ready to establish a PBC.

 

What are the rules governing a PBC?

Legally, a PBC must meet obligations set by the First Nations native title holders, and the organisation may hold these as a trustee or agent for traditional owners.

PBCs must incorporate under the Corporations (Aboriginal and Torres Strait Islander Act) 2006 (CATSI Act)

Like other CATSI Act corporations they must also look after their members and have general meetings and provide general and financial reports.

Unlike other CATSI Act corporations, PBCs must also look after the rights and interests of common law holders, whether or not they are a member of the RNTBC or live in a different place from where the RNTBC is based.

PBCs are also regulated by the Native Title Act 1993 (Cth), the legal requirements under Commonwealth, state or territory laws that govern the area where the members are located, and PBC regulations which make sure consultation takes place with First Nations peoples and that their views are considered.

A PBC holds native title either as a trust or as an agent for all the individual Traditional Owners. Traditional Owners must decide whether the PBC will:

  • hold the native title in trust for the TOs (known as a ‘trustee PBC’) or
  • manage the native title as an agent for the TOs who own the native title (known as an ‘agent PBC’) (Native Title Act, s. 56).

Given the requirements of the PBC Regulations, the outcome is the same — the PBC has a duty to manage the native title on behalf of the Traditional Owners, including consulting them about key decisions. It is entirely up to each group to decide whether to have a trustee or agent PBC.

The PBC legal structure also relies on agreements that compensate native title owners when matters are brought to the Federal Court. Land usage agreements provide guidelines for dealing with future native title acts and cases. Issues usually relate to land and water management, biodiversity and environmental protection, tenure issues, cultural heritage, and land use planning.

 

How are PBCs structured?

PBC members choose their own directors, and get access to copies of all meeting minutes, financial information, and auditor reports. They can invite other native title holders to join the PBC.

PBC directors communicate with any affected native title holders on issues impacting or proposed for their land. 

PBCs are required under the Native Title Act to consult with and obtain consent from traditional owners in regards to any decisions that surrender or affect native title rights and interests.

For certain types of native title decisions there are options for PBCs to work with common law holders — through standing instructions and alternative consultation processes. For example, common law holders can give their PBC standing instructions about decisions to enter into:

  • an Indigenous Land Use Agreement (ILUA) or
  • section 31 agreement under the Native Title Act when the PBC itself is the beneficiary or only grantee party (i.e. the body who has applied to the government for the grant of a mining tenement such as exploration licences and mining leases). 

To help figure out which consultation and consent process to use, the PBC Regulations categorise the types of native title decisions to be made as high level or low level.

High level native title decisions are defined in the regulations as decisions to:

  • Surrender native title rights and interests
  • Enter into an Indigenous Land Use Agreement (ILUA) or s 31 agreement
  • Allow people who are not common law native title holders to join the PBC
  • Include a consultation process(es) in the PBC’s rule book

Low level native title decisions are defined as any other decision that affects native title rights and interests (other than a decision to make a compensation application).

The PBC Regulations require a PBC to produce evidence that native title holders were consulted and provided consent in regards to native title decisions.

 

Are PBCs ready to negotiate?

Most PBCs are significantly under-resourced with over 70% relying on government ‘Basic Support funding’ of around $50,000 - $80,000 per PBC per annum. This funding is limited to basic administration and compliance to help meet corporate and operational obligations. 

Many PBCs face challenges including a lack of skills or expert knowledge. Making sure all of the different laws governing PBCs are followed can be confusing for directors, their members and common law holders.

PBCs across Australia are being approached on multiple fronts by project proponents: wind (including offshore) and solar projects, transmission infrastructure, energy storage, green hydrogen facilities, and critical minerals mining.

Daunting for anyone, First Nations must be readily equipped to deal strategically and effectively with the opportunities and risks of potential projects. 

Companies and governments must invest in PBCs capacity prior to any negotiation to ensure a level playing field.



 

Where to look? Find a NTRB / NTSP

Map: NTRBs and NTSPs around Australia


Native title recognises the traditional rights and interests to land and waters of First Nations people.

There are 14 native title representative bodies (NTRBs) and native title service providers (NTSPs) to assist native title claimants and holders. 

Native Title Representative Bodies are recognised under section 203AD and funded under section 203FE of the Native Title Act.

Native Title Service Providers are funded under section 203FE of the Native Title Act and perform the same functions as a NTRB in areas where there is no NTRB. 

The Native Title Representative Body (NTRB) for the area in which a future act or proposed Indigenous Land Use Agreement (ILUA) is located has a statutory function under s. 203BB of the Native Title Act to provide facilitation and assistance to PBCs in relation to future acts and ILUAs (and other agreements in relation to native title). The NTRB may be able to offer facilitation and assistance in relation to these matters as part of the general services to native title groups at no cost. Sometimes NTRBs will seek to recover some costs or fees from the person wanting to do the future act.

Increasingly, NTRBs are under pressure through their funding agreements with the Australian Government to undertake work in relation to PBCs on a fee-for-service basis. Because NTRBs operate on a not-for-profit basis, it is possible that a NTRB is able to offer services relating to future acts and ILUAs for PBCs at a rate lower than that available on the open market.



 

 

 

Where to look? 


A future act is something that is intended to be done on or with land (or waters) in such a way as to cause impact to native title rights and interests. It doesn't apply to the native title claimants or native title holders.

Most of the tenements and licences required in the extractive industry (whether on- or offshore) are future acts.

The Native Title Act 1993 (Cth) regulates ‘future acts’ or future act activities affecting native title. 

Native title holders affected by a proposed future act may or may not have ‘procedural rights' under the Native Title Act. 

Future act procedures are based on the principle that in general, acts affecting native title will be valid only if they can also be done on freehold land.

These procedures also recognise that, in some cases, future acts should only be done after every reasonable effort has been made to secure the agreement of the native title holders.

Future act procedures provide certainty to land users by making sure that future dealings with land are valid and enforceable, even if they inconsistent with native title rights and interests.



Right to negotiate

The right to negotiate includes the right:

  • to lodge an objection
  • for objectors to be consulted
  • to be heard by an independent person, and
  • to seek compensation for loss or impairment of native title rights and interests.

The right to negotiate applies to the following kinds of future acts:

  • creating a ‘right to mine’ (e.g. the grant of a mining or exploration tenement)
  • varying a ‘right to mine’ to increase the footprint
  • acquiring native title rights and interests for development, unless the purpose is to:
    • create an interest in the land for the Government party; or
    • set up an infrastructure facility.

The parties who must participate in negotiations are:

  • the Government party (i.e. the Commonwealth, State or Territory government proposing to do the act)
  • any grantee parties (i.e. any person who has requested or applied for the act)
  • any native title parties (i.e. any native title claimant or PBC registered at the relevant time).

Where the right to negotiate applies, the National Native Title Tribunal can assist the parties to reach agreement through mediation.

If the parties are unable to reach agreement within 6 months, any of them may apply to the Tribunal for a determination. The Tribunal must take all reasonable steps to make a determination within a further 6 months. The Tribunal’s determination may include conditions, but cannot impose any conditions based on profit sharing.




 

 

 

Where to look? PBC website

Native title holders can claim compensation for activities where there has been full or partial extinguishment, or impairment, diminishing or damage to their native title rights and interests under the Native Title Act 1993 (Cth) s 51(1).

Activities may be classified as past acts, intermediate acts or future acts.

Past Acts

Acts before 1 January 1994 

Intermediate Acts

Acts occurring between 1 January 1994 and 23 December 1996

Future Acts

Proposals to do work on land or have plans for the land that may affect native title rights and interests, such as mining or granting pastoral leases

Compensation is payable for economic loss and cultural loss, calculated separately. A claim for compensation is made in the Federal Court.

The PBC legal structure relies on agreements that compensate native title owners when matters are brought to the Federal Court. Land usage agreements provide guidelines for dealing with future native title acts and cases. 

 

 

 

Where to look? National Native Title Tribunal

What is an Indigenous Land Use Agreement (ILUA)?

An ILUA is a voluntary agreement between native title parties and other people or bodies about the use and management of areas of land and/or waters.

An ILUA can be made over areas where:

  • native title has been determined to exist in at least part of the area
  • a native title claim has been made
  • no native title claim has been m​ade.

There are two types of ILUAs: Prescribed Body Corporates and/or Area Agreements.

ILUA Prescribed Body Corporate Agreements:

ILUA Area Agreements:

Where can I find ILUAs that have already been agreed to? Register of Indigenous Land Use Agreements

While registered, ILUAs bind all native title holders to the terms of the agreement. ILUAs also operate as a contract between the parties. If you have a question about a particular ILUA or would like a copy of the ILUA, please contact the parties to the agreement identified on the Register extract for the ILUA.

Register an ILUA: How to apply for registration of an ILUA

 

 

 


Additional resources:

  1. NNTT mapping resources - particularly a description of Native Title Vision
  2. Map of local Aboriginal land councils in NSW - link