Land rights legislation

Australia does not have a national land rights scheme. Instead, each state and territory has its own legislation which sets out land rights arrangements with Aboriginal and Torres Strait Islander peoples within their jurisdiction. 

In some jurisdictions, these land rights laws were in place before the introduction of the Native Title Act 1993 (Cth) (the NTA).  

State and territory legislation

The interaction between native title processes and land rights laws varies by state or territory. Resources on land rights are grouped by jurisdiction below.

Australian Capital Territory +

There is no territory-wide Aboriginal land rights legislation, however, land in Jervis Bay Territory was granted under the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth).

More information on land rights in the Australian Capital Territory:

New South Wales +

The Aboriginal Land Rights Act 1983 (NSW) (ALRA) establishes Aboriginal Land Councils to acquire and manage lands, and to perform other functions.

The New South Wales Aboriginal Land Council’s publication on land rights success stories explains that the ALRA intended to enable claims for Crown land and ‘to go some way to redress the injustices of dispossession'. Aboriginal Land Agreements under the ALRA can settle multiple land claims at the same time and may also include financial payments or land transfers.

A successful determination of a land claim generally delivers freehold title and rights to the Aboriginal Land Council, allowing for economic development opportunities. The ALRA also provides for joint Aboriginal Land Council management arrangements with governments over areas such as national parks or reserves (such as those under the National Parks and Wildlife Act 1974 (NSW)).

On 1 July 2015, the NSW Government inserted s 36AA into the ALRA which introduced Aboriginal Land Agreements (ALAs), in addition to the existing land claim mechanism under this legislation. ALAs allow for the strategic and flexible settlement of multiple land claims.

In 2016, the NSW Government and the NSW Aboriginal Land Council agreed on a Negotiation Framework to ensure ALAs are negotiated fairly and equitably, and to maximise the likely success of negotiations.

This Framework aims to:

  • speed up the processing of land claims;
  • provide more sustainable social, cultural and economic outcomes for Local Aboriginal Land Councils and Aboriginal communities from the return of land; and
  • provide greater certainty to all parties over Crown land.

As of November 2020, a Land Negotiation Program was underway in (Sydney) Northern Beaches, Tamworth and Tweed Local Government Areas. Smaller, separate negotiations were taking place at Eden, Brewarrina, the Central Coast and Griffith.

ALAs negotiated through this program aim to ‘enable local aboriginal land councils to realise the economic opportunity land ownership brings, as well as provide a comprehensive settlement of social, cultural, financial and environmental issues’ (State of New South Wales, Aboriginal Affairs NSW 2020).

More information on land rights in New South Wales:

Northern Territory +

The Aboriginal Land Rights Act (Northern Territory) 1976 (Cth) (ALRA) became law following years of Aboriginal activism calling for recognition of land rights and the subsequent recommendations of the Woodward Royal Commission. The ALRA established Australia’s first legislative claim process for Traditional Owners and also established the Aboriginal Benefits Account.

As of 2015, AIATSIS reported approximately 50% of land and 85% of the coastline in the Northern Territory is now Aboriginal land granted under the ALRA. The Aboriginal Land Commissioner’s 2019 annual report noted that a total of 249 land claims have been made under the ALRA. However, due to ALRA amendments, after June 1997, no claims have been lodged.

The Northern Land Council reports that the ALRA ‘continues to be a strong foundation on which to build social, cultural and economic growth for Traditional Owners’.

More information on land rights in the Northern Territory:

  • The Northern Land Council consults with traditional landowners and other Aboriginal peoples with an interest in affected land. It is also the representative body for the northern region of the Northern Territory under the NTA.
  • The Central Land Council represents Aboriginal people in Central Australia and supports them to manage their land, make the most of the opportunities the land offers and promote their rights. It is also the representative body for the southern half of the Northern Territory under the NTA.
  • The Anindilyakwa Land Council is the peak representative body for Traditional Owners of the Groote Archipelago.
  • The Tiwi Islands Land Council directs and administers the Tiwi Aboriginal Land Trust. It represents all Tiwi people in the protection of land, sea and environment, while at the same time supporting sustainable economic development.
  • The Aboriginal Land Commissioner has reporting functions under the ALRA, including inquiries into traditional land claims in the Northern Territory.
  • Read more in the AIATSIS Native Title Information Handbook for the Northern Territory.

Queensland +

The Aboriginal Land Act 1991 (Qld) (ALA) and the Torres Strait Islander Land Act 1991 (Qld) (TSILA) recognise the spiritual, social, cultural and economic importance of land to Aboriginal and Torres Strait Islander people, and include in the aims to rectify past injustices. The Acts provide for the transfer of existing reserve lands (deed of grants in trust, or DOGIT lands), as well as some leases, to trustees. Claims could only be made within 15 years (by the end of 2006) of the Acts coming into operation.

As of June 2019, the Aboriginal Land Tribunal reported that there are no active claims under these Acts.

Subsequent legislation, including the Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014 (Qld), enabled freehold title in the township areas on DOGIT lands. The Cape York Tenure Resolution Program, supported by legislation including the Cape York Peninsula Heritage Act 2007 (Qld) supports ownership and management of some lands in the Cape York Peninsula.

Under the Program, land owned and acquired by the State is converted to Aboriginal freehold land. Nature refuges and jointly managed national parks are created in areas with high conservation significance. The Program aims to create economic development opportunities for Aboriginal people, provide environmental benefits, and contribute to the resolution of native title claims. These transfers are in addition to the transfers made under the ALA and the TSILA.

Efforts beyond this to achieve more comprehensive regional agreements between the Queensland government and Traditional Owners have been unsuccessful (Graeme Neate 2009). In a submission to the Australian Law Reform Commission, the Queensland South Native Title Services has called for an alternative settlement framework similar to that in Victoria, through the Traditional Owner Settlement Act 2010 (Vic).

More information on land rights in Queensland:

South Australia +

In 1966, South Australia was the first state to transfer control of land to a body controlled by Aboriginal people under the Aboriginal Lands Trust Act 1966 (SA) (ALT).

There are areas in South Australia which are covered by the land rights legislation, including:

The ALT does not diminish native title rights or interests and as of 2020, according to the South Australian Department of the Premier and Cabinet:

'Most of the land held by the ALT is former mission land or land reserved for the benefit of Aboriginal people. Other land was former pastoral lease or other crown land. Because of the history of this land, and the removal of Aboriginal people from their traditional lands to missions and reserves, the interests of the ALT, residents and native title holders are not the same, and are held by different people. How these different rights and interests are acknowledged and managed in the future is a very important matter for discussion and negotiation within the Aboriginal community.'

Land under the ALT is acquired, held and managed by the Aboriginal Lands Trust. Lands under the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA) are held by the Anangu Pitjantjatjara Yankunytjatjara (APY) Executive Board. The APY Executive Board reports that freehold title to more than 103,000 square kilometres has been granted under this Act.

Lands under the Maralinga Tjarutja Land Rights Act 1984 (SA) are administered by Maralinga Tjarutja Council. Freehold title of approximately 81,373 square kilometres has been granted under this Act.

The Buthera Agreement was signed in 2018 between the State of South Australia and the Narungga Nation Aboriginal Corporation (NNAC). This agreement provides support for the NNAC to increase economic development and collaborate with government agencies on Guuranda (Yorke Peninsula) in policy areas such as Justice, Education and Health.

The Buthera Agreement resulted from treaty discussions held between different Aboriginal nations and the State Government between 2016 and 2017. However, treaty negotiations stopped after the Marshall Liberal government was elected in 2018.

Read more about the Buthera Agreement.

For more information on land rights in South Australia:

Tasmania +

There is no Aboriginal land rights legislative regime in Tasmania. Under the Aboriginal Lands Act 1995 (Tas), grants of land parcels of historic or cultural significance ‘to promote reconciliation with the Tasmanian Aboriginal community’ may be made and vested in the Aboriginal Land Council of Tasmania.

More information on land rights in Tasmania:

Victoria +

Over 2006 - 2010 Victorian Traditional Owners developed and negotiated an alternative approach to the native title processes under the Native Title Act 1993 (Cth). The outcome of the negotiations, the Traditional Owner Settlement Act 2010 (Vic) (TOSA), aims to settle native title claims out of court and address land justice.

According to the Steering Committee for the Development of a Victorian Native Title Settlement Framework:

'A key object in developing the Framework [and its outcome, the TOSA] is to ensure a streamlined and expedited approach to settling native title claims through interest based negotiations which are equitable in outcomes and meet the aspirations of both Traditional Owners and the State.'

The Steering Committee also observed native title processes in Victoria were considered ‘too cumbersome, complex, costly and litigious and [were delivering] only ad hoc and limited outcomes’.

TOSA allows the Victorian Government to recognise Traditional Owners and certain rights in Crown land. A ‘Settlement Package’ under TOSA may include a range of agreements that may include the grant of freehold title, joint management of land, permitted land and resource use, funding arrangements and the resolution of native title issues.

However, as the Department of Justice and Community Safety explains, if Traditional Owners enter into settlement under TOSA, they must withdraw any existing native title claims and not make any future native title claims.

Read our summaries for some of the comprehensive settlements reached under TOSA.

For more information on land rights in Victoria:

Western Australia +

Reserved lands are held by the Aboriginal Lands Trust (ALT), which holds the land title for many of Western Australia's remote Aboriginal communities. As of June 2019, the Aboriginal Affairs Planning Authority (AAPA) reported that the Aboriginal Lands Trust was responsible for approximately 24 million hectares, or 9.65% of the State's land mass. This ALT estate included 155 regional and remote Aboriginal communities and 28 town-based reserves.

The ALT and AAPA act as landholders and issue leases to First Nations people and organisations under s 41 of the Aboriginal Affairs Planning Authority Act 1972 (WA) (AAPAA). This process provides a legally binding agreement for leaseholders ‘to exercise rights and interests over the land in addition to rights associated with Native Title’ (Government of Western Australia, 2017).

Under s 41 of the Land Administration Act 1977 (WA) (LAA) the Minister for Lands, assisted by the Department of Planning, Land and Heritage (DPLH) may set aside Crown land as reserve for a particular purpose in the public interest. Reserve tenure (a lease) is then granted under the AAPAA.

The DPLH states that any Aboriginal person can apply for a lease on an ALT reserve. Other parties (such as Government agencies) can also apply for a lease where they can demonstrate that it is for the use and benefit for Aboriginal people.

Two landmark agreements — the Noongar and Yamatji Settlements — have been reached between Traditional Owners and the Western Australian Government. These settlements resolve all native title claims over the southwest and mid-west regions of the State, recognising the Traditional Owners of the lands through different mechanisms.

Read more about these two comprehensive settlements in Western Australia.

More information on land rights in Western Australia:

The ATNS team acknowledges the Traditional Owners of Country throughout Australia and their continuing connection to land, culture and Ancestors.

We pay our respects to Elders past and present.