Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1694500090434.pdf (Australia)
Comparison of Land Rights and Native Title in NSW In NSW there are two key mechanisms by which Aboriginal peoples can have their rights recognised in land – Land Rights and Native Title.

While these systems are both about recognising and providing for Aboriginal peoples’ rights, the two systems operate under two different laws and differ in the rights they can provide.

Native title and land rights can sometimes exist in the same land.
It is important that LALCs and Native title Claimants work together to obtain the best of both schemes.

Law How did it begin?

Aim of the law Land Rights Aboriginal Land Rights Act 1983 (NSW)i (ALRA) The New South Wales Aboriginal Land Council (NSWALC) was originally established in 1977 as an independent Aboriginal organisation to advocate for the recognition of Aboriginal land rights.
Following recommendations from the 1978-1981 ‘Inquiry of the NSW Select Committee of the Legislative Assembly upon Aborigines’ the ALRA was passed by the NSW Parliament in 1983.iii The ALRA was established to return land in NSW to Aboriginal peoples through a process of lodging claims for certain Crown lands.
The ALRA establishes a network of Aboriginal Land Councils to acquire and manage land as an economic base for Aboriginal communities, as compensation for historic dispossession and in recognition of the ongoing disadvantage suffered by Aboriginal communities.

Native Title Native Title Act 1993 (Commonwealth)ii (NTA) The Mabo High Court decision in 1992 was the first time that the Australian law recognised the rights and interests Aboriginal people have in land, under a traditional system of law and custom.
The Commonwealth Parliament passed the NTA in 1993 which, among other things, provided a process for the determination of native title by the Federal Court of Australia (Federal Court).

Native title is the legal recognition of the traditional communal, group or individual rights and interests which Aboriginal people have in land and water, where Aboriginal people have continued to exercise their rights and interests in accordance with traditional law and custom pre-dating European settlement.
The preamble of the ALRA recognises that “Land is of spiritual, social, cultural, and economic importance” to Aboriginal peoples.

The NTA seeks to address past injustice by providing a process to recognise and protect native title in addition to providing processes to reach agreements or provide compensation.

Who can make claims?

Aboriginal Land Councils constituted under the ALRA can make claims.

This includes NSWALC and the network of 120 autonomous Local Aboriginal Land Councils (LALCs).
NSWALC is an independent, self- funded non-government organisation that has an elected governing council.

NSWALC has functions to acquire and manage land and protect Aboriginal culture and heritage.

LALCs have similar functions in respect to their boundary area.
The NTA also provides a process to reach agreements with the government and other parties, such as farmers and miners, to have a say about acts which affect native title and to be compensated for extinguishment of native title which occurred after 1975.

A native title claim is made on behalf of a native title claim group.

The claim group is the group of Aboriginal people that claims to hold rights and interests in land and waters in accordance with traditional laws and customs.
Nominated representatives, known as Applicants, are authorised by the claim group to make the application.

Land Rights and Native Title in NSW October 2012 Submission 012 Attachment A1 Is traditional connection required?

No.

Traditional connection to land does not need to be established for land to be granted to Aboriginal Land Councils under the ALRA.

Who are the claims lodged with?

Who are claims determined by?

The Registrar of the ALRA.


The NSW Minister administering Crown Lands Act, currently the Minister for Trade and Investment and Minister for Primary Industries, decides whether land is claimable Crown land under the ALRA – if the land is claimable Crown land, it must be granted to an Aboriginal Land Council.

Who holds the rights?

In most cases the land is held by one of the 120 autonomous Local Aboriginal Land Councils (LALCs) across NSW.
In some cases the land is held by the New South Wales Aboriginal Land Council.

Rights A successful determination of a land claim generally delivers freehold title to land which includes rights to certain minerals in the freehold land.

This freehold can be dealt with via sale, lease, etc and the owner of the freehold land (the Aboriginal Land Council) has the same rights as other freehold owners, subject to compliance with the ALRA.
LALCs can be granted lands that are to be managed as national parks or other form of reserve via a ‘lease back’ arrangement with the NSW Government, sometimes known as ‘joint management’.

Aboriginal Land Councils are also entitled to make agreements with other land owners or person in control of land to access land for hunting, fishing and gathering, and have rights to apply for access permits.
Aboriginal Land Councils also have consultation rights in relation to Aboriginal culture and heritage, and have functions to protect and promote Aboriginal culture heritage.

Yes.

Native title will only be determined to exist where Aboriginal People have established to the Federal Court that they are the Traditional Owners for the particular area claimed.
To be a Traditional Owner you must have maintained a continuing connection with the area through the acknowledgement and observance of traditional laws and customs and ongoing practice of rights and interests since before European settlement The Federal Court.

The Federal Court determines whether native title exists and whether any native title has been wholly or partially extinguished.

If all the parties to a native title claim agree, they can ask the Federal Court to make a determination by consent.
In that case, there does not need to be a full Court hearing.

Traditional Owners who have been recognised as native title holders by the Federal Court of Australia.

Native Title holders are required to form a corporation, called a Prescribed Body Corporate (PBC), to represent them as a group and to manage their native title rights and interests.

A successful native title determination provides legal recognition of the traditional rights and interests Aboriginal people have in relation to land and water.
Native Title is a property right, and may include rights to: access and camp on an area, visit and protect important places, hunt, fish and gather food and bush medicine, and in some cases, the right to possess, occupy, use and enjoy the area.

A native title claim can also be successfully resolved through the negotiation of an agreement, such as an Indigenous Land Use Agreement (ILUA) or a Section 31 Deed.
Agreements such as these are legally binding and may include rights in relation to employment, economic development, freehold land transfer and compensation.

Where a native title claim has not yet been determined, but has passed the registration test applied by the National Native Title Tribunal, native title parties are entitled to certain “procedural rights”, including the right to be notified and to negotiate about certain activities such as mining, mineral exploration and some developments.
Land Rights and Native Title in NSW October 2012 Submission 012 Attachment A2 What areas of land may be granted?

Crown land that is not lawfully used or occupied, not needed or likely to be needed for residential purposes or an essential public purposes and is not the subject of a registered native title claim or determination can be granted.iv Land that is privately owned cannot be granted.

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

How many claims have been successful in NSW?


As at 7 August 2012, approximately 36,000 Aboriginal Land Claims have been lodged since 1983 however almost 26,000 of these are yet to be determined.

2,473 successful land claims have been granted.

Can the land be sold or otherwise dealt with?

More information Land rights land can be dealt with (ie sold, leased, subdivided etc) just like any other parcel of freehold land.
Any dealing with land (ie a sale, lease, mortgage etc) by a LALC requires NSWALC approval.

In some cases a dealing may also require a native title determination from the Federal Court before the land dealing can proceed.

NSW Aboriginal Land Council Phone: 02 9689 4444 (Legal and Land Rights Unit or Policy and Research Unit) Website: www.alc.org.au NSWALC has developed a series of Land Claims Fact Sheets and resources available on the NSWALC website.
Local Aboriginal Land Councils: Visit the ‘Land Councils’ page of the NSWALC website to find out about your Local Aboriginal Land Council.

Registrar of the ALRA Phone: 02 9562 6327 Email: adminofficer@oralra.nsw.gov.au Website: www.oralra.nsw.gov.au Native Title can be recognised in Vacant Crown land, National Parks, State Forests, Crown reserves, some types of non-exclusive leases, land covered by permissive occupancies & licences, inland waters and the sea.
With some minor exceptions, land that is privately owned cannot be subject to native title rights and interests because the exclusive interest in land extinguishes native title.

In NSW to date two successful native title determinations have been made that native title exists and nine ILUAs have been registered.

A number of s31 Deeds in relation to exploration, mining and development have also been reached.

There are currently 27 native title applications which are yet to be determined in NSW.
If a PBC has consulted with native title holders and obtained their consent, a PBC can enter agreements to surrender, affect or otherwise deal with native title rights and interests, including on commercial terms.

NTSCORP Limited Phone: 02 9310 3188 Freecall: 1800 111 844 Email: ntscorp@ntscorp.com.au Website: www.ntscorp.com.au NTSCORP is the native title service provider for NSW and the ACT.

NTSCORP has produced a range of Fact Sheets on native title available on their website.
National Native Title Tribunal Telephone: (02) 9227 4000 Freecall: 1800 640 501 Email: nswenquiries@nntt.gov.au Website: www.nntt.gov.au This document has been prepared by the New South Wales Aboriginal Land Council (NSWALC) for Local Aboriginal Land Councils (LALCs) and Aboriginal communities in NSW.

NSWALC acknowledges the assistance of NTSCORP Limited (NTSCORP) in the development of this Fact Sheet.
Please Note: While all care has been taken in the preparation of this document, the advice it contains should not be seen as a substitute for independent consideration of the issues and/or legal advice on this subject.

This document is current as of October 2012. i The Aboriginal Land Rights Act 1983 (NSW) can be accessed on the NSW Legislation website at: www.legislation.nsw.gov.au under ‘Browse’ then ‘A’.
ii The Native Title Act (Cth) can be accessed on the ComLaw website at: http://www.comlaw.gov.au/Details/C2012C00273 iii The NSWALC website provides a detailed history of the land rights movement in NSW: http://www.alc.org.au/about- nswalc/our-history.aspx iv Section 36 of the Aboriginal Land Rights Act outlines the criteria for claimable Crown land.

Land Rights and Native Title in NSW October 2012 Submission 012 Attachment A3