Land rights and native title in NSW
Land rights and native title are the two key mechanisms by which Aboriginal peoples can have their rights recognised in land in NSW. 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 is about the recognition of rights and interests in land whereas land rights is about granting interests in land. Applications for determination of native title are made under the Commonwealth Native Title Act 1993 and native title determinations are made in the Federal Court of Australia.
A native title determination recognises Aboriginal people's rights and interests that have been held by Aboriginal people in accordance with traditional law and custom.
Where native title claimants are able to prove that they have maintained traditional laws and cultural connections to that land, and that their traditional land title has survived all that has happened to that land since colonisation, their rights as native title holders can be recognised. These rights can range from the right to access land for cultural purposes through to the right to manage and control that land. The Native Title Act also gives native title holders and registered native tile claimants the right to negotiate regarding certain activities, including the grant of mining rights and some forms of title, on the land the subject of their claim.
The Aboriginal Land Rights Act 1983 is NSW legislation. The Act provides for the the granting of land to Aboriginal Land Councils as compensation to Aboriginal people for past dispossession. Under the Aboriginal Land Rights Act 1983 (NSW) Aboriginal Land Councils can make claims to Crown lands that are unused and unneeded.
Land Councils must manage lands granted to them lands for the benefit of all Aboriginal people in their community. This does not mean that they have to keep or manage all of the land. Aboriginal Land Councils are generally granted land in freehold title, which means the land can be bought and sold like other freehold land, subject to the restrictions in the Aboriginal Land Rights Act.
Land claims are made to the state government and must be processed by the Minister in accordance with the Act. There is a large backlog of claims still sitting with the State Government. Some of these claims are more than 10 years old.
The Crown lands review
The Crown Land Estate represents approximately 42% of the NSW landmass, with 580,000 individual parcels of land. Crown Lands, particularly Travelling Stock Routes, are also home to a significant number of Aboriginal culture and heritage sites.
In 2012 the NSW Government announced a review into Crown lands management in NSW. Throughout the review process very limited detail has been provided publicly regarding the conduct and the scope of the review and implications for Aboriginal land rights and native title. ANTaR NSW is calling for a commitment from the NSW Government to ensure the compensatory and remedial intent of the Aboriginal Land Rights Act and native title will not be undermined by the review process or in new Crown lands laws.
Aboriginal peoples interests in Crown land must be embedded in proposals relating to Crown land management and ownership and culturally appropriate best practice land management must be embedded in any new proposals relating to how Crown land is owned and managed.