Land Rights and Native Title – For lawyers
Published on July 17, 2013 by Matthew Rafferty
A column in Tracker magazine written by Chris Munro commented that a German back-packer would know the difference between land rights and native title, “whereas most Australian Lawyers wouldn’t have a clue what you were talking about.”
This article set out some of the basic concepts… for the lawyers.
History and Concept
Both Land Rights and Native Title address issues relating to land and Aboriginal people; however Land Rights and Native Title are different concepts with different histories, different legislation and different outcomes.
Land Rights
Land Rights in Australia began in the Northern Territory and spread throughout all states and territories of Australia. The NSW Aboriginal Lands Rights Act commenced in 1983. It was the result of many years of campaigning for compensation to be paid to Aboriginal people for dispossessing them from their land. The compensation is freehold title to unused crown land.
The current NSW Land Rights Act is vastly different from when it was first passed, however the central concept is similar: unused land can be given back to Aboriginal people as compensation for dispossessing them from their land. It is the only compensation offered.
Native Title
Native Title was first recognised in Australia by the Mabo judgement delivered in the High Court in 1992. Unlike the Land Rights concept, Mabo claimed that he, and others, had not been dispossessed from his land. He did not want other unused land as compensation for being dispossessed from his land – he wanted an acknowledgement and recognition that the land was his. He proved that he had possession of his land, and practised traditional law in relation to maintenance, use, and inheritance of land. The High Court found that in spite of the state of Queensland having annexed the Murray Islands through legislation, Mabo and others on Murray Island were unaffected by that legislation, and had title to that land.
In 1993, the Federal Government passed the Native Title Act and established the Native Title Tribunal to assist with Native Title claims.
Jurisdiction
Land Rights
Land Rights are State law. In NSW, Land Rights fall under the Aboriginal Land Rights Act 1983 (NSW). The various state Acts are different, with different processes, rights and outcomes.
In NSW, Land Rights claims are made to the Registrar of the Aboriginal Land Rights Act 1983. The claim is assessed by various state government bodies. Ultimately, the Minister for Lands will determine the claim. Land Rights determinations may be appealed in the Land and Environment Court. The vast majority of Land Rights claims that need to be appealed in the Land and Environment Court are determined in the claimant’s favour.
Native Title
Native Title is Federal law, under the Native Title Act 1993 (Cth).
Native Title claims are made in the Federal Court. The claim is transferred to the Native Title Tribunal, which assesses whether the claimant has meet the requirements for Native Title. The Tribunal then registers the claim, gives public notice of the claim and reports the claim to the Federal Court. un until 2012, the Native Title Tribunal also conducted mediation of the claim between claimant and anyone opposed to the claim – this function has been removed to the Federal Court. The Federal Court also determines the claim. The Federal Court can determine who it will hear in relation to the claim. Parties often include the State, the Commonwealth, farmers, and mining companies.
Claims
Land Rights
A Land Rights claim is made by a Local Aboriginal Land Council.
A Local Aboriginal Land Council is a statutory body corporate under the Aboriginal Land Rights Act 1983 (NSW). They are responsible for managing land for the benefit of the Aboriginal people residing or connected to the land. There are 119 Local Aboriginal Land Councils in NSW, covering the whole state. Members of each Local Aboriginal Land Council are Aboriginal people living within that Council’s boundaries, or having a connection with the land within that council’s boundaries. The members vote for council members, who are responsible for the administration and management of the land.
Land is claimable under Land Rights laws if at the date of the claim it is:
- crown land able to be lawfully sold or leased, or reserved or dedicated, under the Crown Lands Act 1989;
- not lawfully used or occupied;
- not needed or likely to be needed as residential land;
- not needed or likely to be needed for an essential public purpose; and
- not subject to native title (or an undetermined native title application).
Since 1983, over 35,000 Land Rights claims have been lodged in NSW. About 9,000 have been determined, (about 2,500 in favour of the claimant) and about 25,000 await determination.
Native Title
Native Title claims may be made by individuals or Native Title Corporations (bodies incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 that are registered on the National Native Title Register).
A Native Title claim is a claim for recognition that Native Title has not been extinguished over a parcel of land. Native Title has been extinguished if the traditional owners of the land have been prevented from occupying and using their land. Once recognised, Native Title cannot be extinguished other than in accordance with the Native Title Act – which requires agreement by the Native Title holders.
Native Title claims are not restricted to (and are not usually) claims for possession of land. They are frequently claims for the right to continue to use the land (or water) for hunting or fishing according to tradition. Native title rights and interests may include rights to:
- live on the land;
- access the land for traditional purposes, like camping or for ceremonies;
- visit and protect important places and sites;
- hunt, fish and gather food or resources like water, wood and ochre; or
- teach law and custom on country.
To be successful, a claim needs to show that Native Title has not been extinguished. A claimant bears the burden of proof.
After a successful claim
Land Rights
A successful Land Rights claim results in the freehold of the land being transferred to the Local Aboriginal Land Council. The Local Aboriginal Land Council then manages the land in accordance with the Aboriginal Lands Rights Act.
A Local Aboriginal Land Council cannot deal with its land (including transferring it, leasing it, or undertaking any development that requires a DA) unless there has been a determination by the Federal Court that the land is not subject to Native Title. All titles to land granted to Aboriginal Land Councils since 1994 (the passing of the Native Title Act) contain a notation that the land is subject to Native Title until a court determines otherwise.
This creates a potential area of conflict between Native Title claimants and Aboriginal Land Councils. This conflict is frequently recognised in recent cases (eg, Jerrinja Local Aboriginal Land Council v A-G NSW or Gandangarra Local Aboriginal Land Council v A-G NSW).
This conflict between Land Rights and Native Title has been reviewed as part of the 2012 Aboriginal Land Rights Ac Review. The Review acknowledges that this is a complex issue and has recommended urgent debate and resolution.
In most cases, a Local Aboriginal Land Council also needs the approval of the NSW Aboriginal Land Council before it can deal with land.
Local Aboriginal Land Councils are amongst the largest private land owners in the state.
Native Title
A successful Native Title claim results is recognition of the particular rights/ interests/ or uses claimed. Once Native Title has been recognised as existing in relation to a parcel of land, governments, companies, or individuals cannot act inconsistently with that Native Title.
Native title cannot be bought or sold. It can be transferred by traditional law or custom, or surrendered to government, which can then pay compensation to the native title holders in the same way as it does when acquiring rights to other property.
