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  3. Land Rights: Recognition of First Nations Ownership

Land rights: Legal recognition of First Nations ownership

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. 

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.

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. 

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.

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).

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.

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). 

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 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.