Understanding Land Rights and Native Title

Accessing and managing lands or Country is of critical importance to Aboriginal peoples.

In NSW there are two key mechanisms by which Aboriginal peoples can have their rights in land formally recognised – Land Rights and Native Title. Both systems formally recognise and provide for Aboriginal peoples’ rights, but the two systems operate under different laws and differ in the rights they can provide.

Native title and land rights can sometimes exist on the same land.

Use the table below as a guide from the NSW Aboriginal Land Council:

Land Rights Native Title
What is it? The Aboriginal Land Rights Act provides for the return of certain Crown lands to Aboriginal peoples as compensation for dispossession and the resulting ongoing disadvantage suffered by Aboriginal peoples. The recognition of the traditional and customary rights and interests Aboriginal peoples have in lands.
How long has it been around? A non-statutory NSW Aboriginal Land Council was established in 1977 as an Aboriginal lobby on land rights. The Aboriginal Land Rights Act (ALRA)[i] was passed by the NSW Parliament in 1983. Native title was first recognised by the courts in the 1992 Mabo decision. Legislation then followed with the Commonwealth passing the Native Title Act (NTA) in 1993 and the NSW Parliament passing the Native Title (New South Wales) Act in 1994.
Is traditional connection required? Traditional connection does not need to be established for a land claim to be granted. The ALRA also contains provisions for culturally significant lands to be returned to people with a connection to the place. Native title will only be determined to exist where Aboriginal people have established to the Federal Court that they have maintained a continuing connection with an area through an acknowledgement of traditional laws and customs.
Who can make a claim? Aboriginal Land Councils constituted under the ALRA. A native title claim group’s nominated representatives, known as ‘the Applicant’. The word Applicant is used even though this will usually be a group of people, not an individual.
What land can successfully be claimed? Crown lands that are not lawfully being used or occupied, not needed or likely to be needed for residential or essential public purposes and not the subject of a registered native title claim or determination. Vacant Crown land, National Parks, State Forests, Crown Reserves, some types of non-exclusive leases, land covered by permissive occupancies and licenses, inland waters and the sea.
Does it mean ownership? Yes, generally freehold title to land is granted, though sometimes land may be held in leasehold. In some cases it can mean rights akin to full ownership. More often, native title is recognised to co-exist alongside other rights and interests in the same area. This can mean access and usage rights are legally recognised, including for camping, hunting, fishing and other cultural activities.
Who holds the rights? Aboriginal Land Councils constituted under the ALRA. The native title holders or a Prescribed Body Corporate (PBC) holds the title in trust or as an agent
How many claims in NSW? Since 1983, there have been approximately 36,000 land claims lodged, with approximately 2,500 of these successfully granted. However, there are still approximately 26,000 to be determined. There have been four determinations that native title exists in NSW and nine Indigenous Land Use Agreements (ILUAs) registered. A number of other section 31 deeds have been reached. There are currently 24 claimant applications and 6 non-claimant applications in NSW yet to be determined. There are 232 determinations nationally that native title exists.