Valuing First Nations land, sea and water rights is essential to Australia’s social and economic success.
First Nations peoples have the right to participate in decision-making in matters which affect their rights in land and sea country.
Proponents growing and investing in early engagement and Free, Prior and Informed Consent (FPIC) leading to genuine First Nations equity and benefit-sharing partnerships are meeting both domestic ambition and international obligations.
First Nations rights and interests in land and sea are recognised through a number of legal obligations and standards in Australia’s states and territories.
Commonwealth legislation related to statutory land rights schemes and cultural heritage protection legislation Australia-wide includes the Native Title Act 1993 (Cth), the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Racial Discrimination Act 1975 (Cth), the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the Underwater Cultural Heritage Act 2018 (Cth), among others.
Significant for proponents, the Environment Protection and Biodiversity Conservation Act (EPBC Act) and the offshore energy regime with mandatory consultation requirements create a “legal standard and obligation” to negotiate.
Additionally, Traditional Owners with native title rights and interests under the Native Title Act can legally consent or veto clean energy developments depending on whether they voluntarily enter an Indigenous Land Use Agreement (ILUA).
Click on each State and Territory in the map below to see the statutory land rights schemes and cultural heritage standards for each jurisdiction.
Australia-wide
Australian Capital Territory
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia
Land Rights, which were fought for by First Nations for many many years, is the legal recognition of First Nations ownership of lands and waters.
Land rights are statutory rights granted to First Nations through legislation or agreements. It can include the transfer of ownership of land, or the granting of certain rights and interests in land, such as the right to use land for cultural, spiritual and economic purposes.
What’s the difference between Land Rights and Native Title?
Whereas Land Rights schemes in Australia are rights created by governments (that is, governments have passed laws to recognise certain rights and processes to enable land to be granted and/or claimed) and usually include a grant of freehold land or perpetual lease title, or a process to claim land through an Act of Parliament, Native Title recognises, under Australian common law, that First Nations peoples have pre-existing rights and interests to areas of land and sea. The nature of these rights and interests will depend on a range of factors, including the traditional laws and customs of the native title group, and the potential impact of previous grants of tenure.
Land rights legislation or agreements exist in Australian states and territories.
Australian Capital Territory
There is no territory-wide Aboriginal land rights legislation in the ACT.
First Nations claims to land and waters are managed through the return of land or through collaborative management processes.
A portion of the Jervis Bay Territory was granted as inalienable freehold title under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) to the Wreck Bay Aboriginal Community.
New South Wales
The Aboriginal Land Rights Act 1983 (NSW) (ALRA) applies.
A proponent must usually seek consent from the claimant Aboriginal Land Council for proposed works or activity if land has a claim lodged over it or if the land claim has been finalised and the land granted.
ALRA allows for the return of some Crown land as freehold title to Aboriginal land councils, allowing for economic development opportunities that land ownership brings. This can be done through the lodgement of a claim, or through negotiating an Aboriginal Land Agreement with the government which allow for the flexible negotiation of multiple land claims. For example, the Orange Aboriginal Land Agreement returned land to the Orange Local Aboriginal Land Council in 2021.
Under ALRA, NSW Aboriginal Land Councils have lodged over 53,000 land claims with over 38,000 still to be determined (as of 2022), with a total of 4,826 land claims granted or part granted (as of June 2024).
Lands claimed and granted under ALRA on or after 28 November 1994 (when the Native Title (New South Wales) Act 1994 (NSW) commenced) have overlaid native title rights and interests.
Northern Territory
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) applies.
Almost 50% of the land and 85% of the coastline has been returned as freehold land.
Land granted under the Act, commonly known as ‘Aboriginal Land’, provides Traditional Owners with a strong form of inalienable tenure. Significantly, Traditional Owners have a powerful ‘veto’ right over proposals and developments on Aboriginal Land.
Four Aboriginal land councils were established under the Act, including the Central Land Council, Northern Land Council, Tiwi Land Council, and the Anindilyakwa Land Council.
The Northern Territory Aboriginal Sacred Sites Act (1989) creates an effective ‘right to negotiate’ on non-ALRA land.
Queensland
The Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld) apply.
When land is granted or transferred under these Acts, the land is owned as inalienable freehold title - which means it can’t be sold - by an Aboriginal and/or Torres Strait Islander corporation, including a Registered Native Title Body Corporate, or an existing Land Trust established under the Acts.
See a map of land trusts and other entities holding Aboriginal and Torres Island land under the Aboriginal Land Act 1991 and Torres Strait Islander Land Act 1991.
Aboriginal Deed of Grant in Trust (DOGIT) land is state land granted in fee simple in trust to First Nations under the Land Act 1994 (Qld). Licences, permits to occupy, and trust land are not suitable for renewable energy projects under the Land Act 1994.
Approximately 18,000 km2 (from a total state land area of 1.85m km2) is held under Deeds of Grant in Trust granted under (what is now) the Land Act 1994 (Qld).
South Australia
First Nations rights and interests in land are recognised through three different land rights laws.
The Aboriginal Lands Trust Act (1966) (ALTA 1966) established the Aboriginal Lands Trust (ALT) to administer and manage land held in the trust. The Aboriginal Lands Trust must consult with Traditional Owners and residents on Aboriginal Lands Trust lands before decisions are made about land use that may affect them, with Traditional Owners having a right to ‘veto’ proposals and developments on land.
The Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) (APY Act) returned land to Traditional Owners who hold inalienable freehold title. The Act established Anangu Pitjantjatjara Yankunytjatjara (APY), a member-based incorporated body for Pitjantjatjara, Yankunytjatjara and Ngaanyatjarra Traditional Owners.
The Maralinga Tjarutja Land Rights Act 1984 (SA) handed back a significant portion of the Maralinga Prohibited Area as freehold land to the Pitjantjatjara people. The Act established Maralinga Tjarutja to protect the interests of Traditional Owners in relation to the use and control of their lands, and to negotiate access to lands.
Tasmania
The Tasmanian Aboriginal Lands Act 1995 (Tas) (ALA) transfers land of significance to the Aboriginal Land Council of Tasmania.
The Aboriginal Land Council of Tasmania manages and controls that land, and can lease areas according to provisions of the Land Titles Act 1980 (Tas).
Victoria
Land is handed back through the Aboriginal Lands Act 1970 (Vic), Aboriginal Lands Act 1991 (Vic), and the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth).
The Traditional Owner Settlement Act 2010 (Vic) (TOS Act) recognises Traditional Owners for a particular area (via Recognition and Settlement agreements) together with other negotiated benefits, and underpinned by the registration of an Indigenous Land Use Agreement (ILUA).
Land that is under the Settlement Act is subject to procedures under a Land Use Activity Agreement that is similar to but different from native title future acts and may have specific provisions of relevance.
Western Australia
Western Australia has no dedicated Aboriginal land or land rights legislation.
The Aboriginal Communities Act 1979 (WA) creates a regime of ʻcommunity landsʼ declared by the State (and includes most First Nations communities).
Under 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 Aboriginal Affairs Planning Authority Act 1972 (AAPAA Act) (AAPAA). AAPAA established the Aboriginal Lands Trust (ALT) to use and manage land held by it in line with the wishes of First Nations people.
The Aboriginal Lands Trust estate covers some 22 million hectares of land in Western Australia, which is 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.
Native title is recognition under Australian law that native title holders continue to hold rights and interests in land and waters.
Native title was first recognised in Australian law in 1992 via Mabo v Queensland (No 2) (1992) 175 CLR 1 (Mabo). Mabo overturned the idea that Australia was terra nullius (meaning land belonging to no one).
The Native Title Act 1993 (Cth) was passed in 1993. It established a process for claiming and recognising First Nations native title.
As of January 2025, nearly 60% of Australia is covered by native title determinations with a further 9% of land being subject to a registered native title claim.
A native title determination recognises a collection of native title rights. Those rights may include the right to access, hunt, fish, camp, use water, conduct meetings and ceremonies, exclude others, and protect cultural sites on traditional lands, among others.
Native title determinations can specify:
It is necessary for proponents to follow Native Title Act processes if there is a native title determination or a registered native title claim over land.
However, First Nations expect proponents to do much more than follow the Act.
Proponents should proceed with renewable energy projects only with the Free, Prior and Informed Consent (FPIC) of relevant Traditional Owners. Where native title is relevant, FPIC requires an Indigenous Land Use Agreement (ILUA).
Whilst Native Title enacts ILUA, proponents should still make agreements with Traditional Owners.
A future act is something proposed to be done on land or waters that may cause impact to or affect native title rights and interests.
The Native Title Act 1993 (Cth) provides a framework for how interests in land or waters that affect native title (and are accordingly future acts) can be validly granted.
The Act sets out procedures that must be taken when people, government and companies want to do things on Country that affect native title. It also sets out approvals pathways that need to be followed depending on the type of future act. Native title holders (and registered claimants) have procedural rights, for instance, the right to comment or the right to negotiate.
Alternatively, the parties can reach an Indigenous Land Use Agreement (ILUA) which is a voluntary agreement.
These processes provide opportunities for native title parties to conclude agreements with proponents covering a range of matters, including economic and financial participation in a project, cultural heritage, and environmental protection.
Renewable energy projects should proceed only with the Free Prior and Informed Consent (FPIC) of relevant Traditional Owners. Where native title is relevant FPIC requires an Indigenous Land Use Agreement (ILUA).
An ILUA is a voluntary agreement about the use and management of an area of land or water made between native title parties and proponents under the Native Title Act 1992 (Cth).
An ILUA can be negotiated over areas where native title has been determined to exist, or has yet to be determined. They can be part of a native title determination, or settled separately from a native title claim.
An ILUA can be effective for ensuring First Nations rights and interests have been recognised, and consent enabled, even in areas where no native title claim or determination has been made.
ILUAs are also the only mechanism under the Native Title Act that come close to enabling FPIC.
Native title parties may want equity provisions and certain benefits in exchange for entering into an ILUA. They may include agreement on benefit-sharing arrangements, compensation for the loss or impairment of native title rights and interests, creating a protocol for dealing with First Nations cultural heritage matters, access to land and water, employment and training opportunities, and future activities on land or water, among other things.
ILUAs will likely be different each time they’re negotiated. It depends upon who's negotiating, the activities being considered, and the unique land/water areas being considered.
When registered, ILUAs operate as a contract and bind all parties to the terms of the agreement.
The particular benefit of an ILUA is the ability to authorise a range of separate future acts combined in a single project in a single authorisation process.
Proponents have a responsibility to respect and protect First Nations cultural heritage.
Committing to protect, reinforce and embed the preservation of cultural heritage into the planning, construction and operation of clean energy projects will build trusting relationships and enhance a project’s social licence.
It’s also a statutory requirement: before large-scale projects can be established, proponents must ensure their projects don’t have an adverse effect on cultural heritage.
First Nations cultural heritage tells the story of 65,000 years of living culture and history in Australia.
Cultural heritage is not static and not just tangible and historic. There are thousands of places of cultural importance including landscapes, water resources, carvings, rock art, tools, buildings, architecture, monuments, industrial structures, technology, buried deposits, archeological sites, artefacts and resources, and a continuous rich history of music and dance, stories, language, performance, digital heritage, customary practices, rituals and ceremonies. Cultural heritage includes these tangible and intangible assets and the need to ensure their protection for present and future generations.
The well documented destruction of 46,000 year old caves at Western Australia’s Juukan Gorge by Rio Tinto has increased the emphasis placed on the protection and preservation of both tangible and intangible First Nations cultural heritage in Australia, as current legislative standards are not sufficient.
Whether or not native title exists, processes required for the protection of cultural heritage can exist on an area, regardless of the land/sea tenure.
Proponents are advised to go a step beyond and develop robust and legally binding agreements with impacted First Nations enabling Free, Prior and Informed Consent (FPIC) processes to ensure cultural heritage is protected and safeguarded across the project lifecycle.
The First Nations Heritage Protection Alliance has produced two guides to assist proponents in engaging with First Nations in a way that protects and respects cultural heritage and enables the right to FPIC. This is an opportunity for the private sector to go beyond legislative standards and actively contribute to First Nations cultural heritage in Australia. The Alliance have also produced a Self–Assessment Tool for Businesses for businesses ‘to identify opportunities to strengthen their capacity to work alongside First Nations peoples in the protection and celebration of First Nations cultural heritage; and uphold the human rights of First Nations people, including the right to Free, Prior, and Informed Consent.’