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What Land Rights legislation applies?

Land Rights refers to the struggle for legal and moral recognition of the ownership of the land and waterways that were home to the Aboriginal and Torres Strait Islander peoples of this country prior to the colonisation that occurred from 1788.

In December 1976 the federal parliament passed the Aboriginal Land Rights (Northern Territory) Act.

It was the first legislation in Australia that enabled First Nations peoples to claim land rights for Country where traditional ownership could be proven.

The legal recognition of Aboriginal land rights in the Northern Territory provided for the creation of Aboriginal land trusts to hold title to Aboriginal land. The Australian Government started purchasing privately owned land for the benefit of First Nations communities and allowed some Crown land to be made available for a claim. 

Some state governments then introduced their own land rights legislation which sets out land rights arrangements with First Nations peoples within each jurisdiction. See below to find out how land rights legislation applies in each State and Territory.

 

Australian Capital Territory

There is no territory-wide Aboriginal land rights legislation, however, land in Jervis Bay Territory was granted under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).

 

New South Wales

In New South Wales, Aboriginal peoplesʼ rights to and interests in land are recognised predominantly through the state-level Aboriginal Land Rights Act 1983 (NSW) (ALRA) and the national-level Native Title Act 1993 (Cth) (NTA). The two laws are different in their approach and recognise different and overlapping rights and interests.

The ALRA has been in force for 40 years, however, the land estate recovered has been highly limited with land claims under the ALRA slow to be processed. 

The NSW Governmentʼs recognition of Aboriginal Land Rights in NSW was a social justice package that included three key features:

  1. a land recovery mechanism for recovering limited and available Crown Land,

  2. Aboriginal Land Council network, comprised of 120 autonomous Local Aboriginal Land Councils (LALCs) who are supported by the NSW Aboriginal Land Council, and

  3. a 15-year compensation fund.

Half of the compensation fund was to be set aside in an investment account to fund the network into the future and the other half to fund Aboriginal Land Council enterprises.

The rationale for land rights in NSW was to realise Aboriginal political and economic power. Economic power was to be achieved through the Aboriginal-initiated enterprises funded from the 15-year funding stream and political power through LALCs, that have a presence in most towns and cities in NSW.

Since the enactment of the ALRA in 1983, NSW Aboriginal Land Councils (ALCs) have lodged 53,800 land claims (as of 2022)Of these, some 38,200 land claims, equivalent to 70% of land claims lodged over the last 40 years, covering approximately 1.12 million hectares of Crown land, 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 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.

LALC membership is open to all Aboriginal and Torres Strait Islander peoples based on your contemporary place of residence or cultural connection.

Since 1996, if Crown Land needed for nature conservation is of Aboriginal cultural significance, a ʻbuy-backʼ arrangement can be negotiated. This enables LALCs to obtain ownership of the land and to then lease it back to the government for use as a national park or another form of conservation reserve under a joint management arrangement. This process requires formal recognition of Aboriginal Owners – those people with a cultural association and knowledge of that landscape - to actively participate in the management and care of their Country.

Lands claimed and granted under the ALRA on or after 28 November 1994 (the date at which the Native Title (New South Wales) Act 1994 (NSW) commenced), have overlaid native title rights and interests on title. For many LALCs this complicates their ability to engage in any land dealing in relation to their land because of the potential existence of native title. 

Under s 42 of the ALRA, LALCs must obtain a determination from the Federal Court of Australia that native title does not exist in the land they own under the ALRA before they can undertake any land dealings including sell, lease or agree to an easement over that land. This requires the land owning LALC to make a non-claimant application to the Federal Court to seek a determination that native title does not exist. In the last decade LALC applications to the Federal Court have rapidly increased as land dealing activity is increasingly pursued.

The bulk of the NSW Aboriginal land estate under the ALRA was claimed after November 1994.

 

Northern Territory

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) has resulted in almost 50% of the Northern Territory terrestrial area and 85% of the coastline of the NT being returned as Aboriginal freehold land.

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

Land granted under the Land Rights Act provides Traditional Owners with a strong form of inalienable tenure, providing a high level of control over access and resource use by others.

Land holders under the Land Rights Act hold a veto right over mineral exploration and thus extraction, and similarly strong rights regarding other development on their lands. 

The NT has four Aboriginal land councils (Northern Land Council (NLC), Central Land Council (CLC), Tiwi Land Council (TLC) and the Anindilyakwa Land Council (ALC)) that represent Traditional Owners and have para-governmental land management functions under the Land Rights Act.

On Land Rights Act land, Traditional Owners will be able to trigger ‘right of consent’ provisions which alongside well-resourced land councils with a critical mass of expertise (and expert strategic and commercial advice), should facilitate equitable
agreement making.

 

Queensland 

Aound 6.23 million hectares of land in Queensland is owned by First Nations groups as a special tenure called freehold Aboriginal land or freehold Torres Strait Islander land.

This tenure is created when it is granted or the land is transferred under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) (known collectively as the Indigenous Land Acts).

This land is held on trust for the First Nations group by:

  • bodies corporate registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act) – where there has been a determination under the Native Title Act 1993 (Cth) that native title exists, this will be the prescribed body corporate for the determination
  • land trusts established under the Indigenous Land Acts (this structure is no longer used for new land grants, but existing land trusts continue to function), or
  • two Shire Councils: Mornington and Aurukun Shire Councils.

Aboriginal Deed of Grant in Trust (DOGIT) land is State land, usually former Aboriginal reserves and missions, that has been granted in fee simple in trust to an Aboriginal group under the Land Act 1962 (Qld) (now repealed) or the Land Act 1994 (Qld). The trustees of Aboriginal DOGIT land are Aboriginal Shire Councils which are, in most cases, the local government authority.

In the 1980s, the Queensland Government granted 15 DOGITs: Cherbourg, Doomadgee, Hopevale, Injinoo, Kowanyama, Lockhart River, Mapoon, Napranum, New Mapoon, Palm Island, Pormpuraaw, Umagico, Woorabinda, Wujal Wujal and Yarrabah.  

 

South Australia

In South Australia, First Nations rights and interests in land are recognised at the state level through three different statutory land rights laws.

South Australia was the first state to transfer control of land reserved for First Nations people.

The Aboriginal Lands Trust Act (1966) (ALTA 1966) as passed in 1966 acknowledged Aboriginal peopleʼs distinct connection to land and waters and sought to recompense Aboriginal people for the losses they had suffered because of European settlement.

To administer and manage Aboriginal Lands Trust land, the ALTA 1966 established a body corporate, the Aboriginal Lands Trust (ALT), with perpetual succession and powers to ʻreceive, accept, hold, acquire by means of agreement, or exchange, possess and to dispose of property of any kindʼ (ALT 1996, Part 1, 5(2)) for the Aboriginal people of Adelaide. The ALT had three key purposes:

  1. to ensure that Aboriginal people held title to existing Aboriginal former missions and reserves, where many lived;
  2. to receive statutory royalties arising from mineral exploitation and to use these funds to acquire further land; and
  3. to receive and disburse funds for the purpose of developing lands.

Since 2013 the ALT has had autonomy to make decisions about the use of ALT lands, particularly regarding the granting of leases and sub-leases.

The ALT is required to consult with Traditional Owners and residents on ALT lands before decisions are made under the Act that may affect them.

The Trust is governed by a ʻskills-basedʼ Board of 8 Aboriginal people. Board members are appointed by the Minister based on their knowledge of SA Aboriginal life and culture, as well as relevant professional experience. 

The ALT presently holds title to 65 properties, covering more than 500,000 hectares of land in SA. The land estate consists of freehold land, transferred Crown land, and properties which have been donated, purchased or otherwise acquired. Land use across the ALT estate includes agricultural, residential and conservation. Some properties owned by the ALT are leased back to Aboriginal communities. Aboriginal communities that lease ALT lands include Davenport, Gerard, Koonibba, Nipapanha, Point Pearce, Raukkan, Umoona and Yalata.

Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)

The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) established the incorporated body Anangu Pitjantjatjara Yankunytjatjara (APY), a member-based organisation for all Pitjantjatjara, Yankunytjatjara and Ngaanyatjarra traditional owners.

The APY Act saw the return of approximately 103,000 km2 of arid former-reserve land in the far northwest corner of South Australia, to Traditional Owners who hold inalienable freehold title. The main communities on the Lands include: Indulkana, Mimili, Kaltjiti, Pukatja, Amata, Pipalyatjara, and Watarru. There are several homelands as well, the larger ones being Kalka, Kanpi, Nyapari and Yunyarinyi.

A separate land rights regime exists for APY lands that recognises Anangu Pitjantjatjara ownership and control of their traditional lands. A meeting in January 1977 at Amata, Pitjantjatjara adopted the principle that they did not want the title to their lands to be held by the ALT and wanted freehold title over their former missions and reserves.

Maralinga Tjarutja Land Rights Act 1984 (SA)

The passing of the Maralinga Tjarutja Land Rights Act in 1984 resulted in the handing back of a significant portion of the Maralinga Prohibited Area as freehold land to the Pitjantjatjara people.

This step followed ongoing petitioning and occupation by the Pitjantjatjara people on their land.

Maralinga Tjarutja is established under the Maralinga Tjarutja Land Rights Act 1984 (SA). As with the APY Act, the statutory functions of the Maralinga Tjarutja are to ascertain and enact the wishes and opinions of Traditional Owners in relation to the use and control of their lands; and to protect the interests of Traditional Owners in relation to land and negotiate access to lands.

 

Tasmania

In Tasmania the Government passed the Tasmanian Aboriginal Lands Act 1995 (Tas) (ALA) in 1995 that made provision for the transfer of land of significance through a submission process to Aboriginal Tasmanians to manage and control through the Aboriginal Land Council of Tasmania (ALCT) to be held in trust in perpetuity.

Under the Act, the Aboriginal Land Council of Tasmania is able to lease areas of land provided that a lease extending beyond three years meets the provisions of the Land Titles Act 1980 (Tas). The land vested in the Council in perpetuity unusually includes mineral rights - except for oil, atomic and geothermal substances.

As of 2021, there were 15 areas vested to the Aboriginal Land Council of Tasmania.

The Indigenous Land and Sea Corporation (ILSC) has overseen the ʻhand-backʼ of several properties to various Tasmanian Traditional Owner Groups.

 

Victoria

Discrete areas of land have been returned to Aboriginal people in Victoria under the Aboriginal Lands Act 1970 (Vic), Aboriginal Lands Act 1991 (Vic), Aboriginal Land (Manatunga Land) Act 1992 (Vic) (repealed) and Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth) (at the request of the Victoria Government).

The Traditional Owner Settlement Act 2010 (Vic) (TOS Act) emphasises a series of Recognition and Settlement agreements drawn between Aboriginal people and the state relating to land transfer agreement, land use activity agreement, natural resources agreement and funding agreements.

By entering into an agreement with the Victorian Government under the TOS Act, Traditional Owners agree to withdraw any native title claims and suspend any future claims. Under the TOS Act, there is no requirement to recognise or extinguish native title. Instead, the TOS Act enables the Stateʼs recognition of a group of people as the Traditional Owners for a particular area, together with other negotiated benefits. A recognition and settlement agreement under the TOS Act is underpinned by the registration of an Indigenous Land Use Agreement (ILUA) on the Register of Indigenous Land Use Agreements. In addition, some areas of land have also been returned through buybacks by the Indigenous Land and Sea Corporation (ISLC).

 

Western Australia

Western Australia has no dedicated Aboriginal land or land rights legislation.

The First Nations estate largely comprises of the Aboriginal Lands Trust (ALT) and native title (although the two tenure types are not mutually exclusive; native title is regularly recognised to exist over the ALT estate).

The ALT is a statutory body corporate created under the Aboriginal Affairs Planning Authority Act 1972 (AAPAA Act) (AAPAA). Its functions include:

  • using and managing land held by it in accordance with the wishes of the First Nations people living on the land (so far as that can be determined and is practicable)
  • negotiating and entering into financial arrangements, contracts, and undertake projects on the land it holds (either directly or in partnership with other entities)
  • any other functions delegated to it by the WA Planning Authority.

Under s 41 of the Land Administration Act 1977 (WA) (LAA) the Minister may set aside Crown land as reserve for a particular purpose in the public interest. Reserve tenure (a lease) is then granted under the AAPAA.

Nearly 220,000km2 of land within WA is held within the ALT estate, constituting about 8.7% of the State.

The ALT manages 301 parcels of land including 243 Crown reserves, 47 Freehold, 6 general purpose leases and 5 pastoral leases. There are over 290 existing leasing arrangements which constitute approximately 13 million hectares (or 54%) of the ALT estate.

The ALT estate also includes 81 ALT reserves under Part 3 of the AAPAA that have special protections including the need for non-Aboriginal people to obtain permits to enter the reserve and the need for consent of the ALT before any leases or other interests are granted.

In addition to native title and ALT land, the Aboriginal Communities Act 1979 (WA) creates a regime of ʻcommunity landsʼ which are declared by the State (and include most First Nations communities in the State). Community councils have the power to make by-laws in relation to the community lands regarding access, use of community lands, building safety, and regulation of conduct.