Land rights legislation in Australia
Indigenous peoples in Australia have long fought for land rights. It has been the focal point of resistance against the impacts of colonisation and remains at the centre of Indigenous peoples claims against the state. The belated emergence of statutory land rights in Australia was a response to earlier decisions of the Australian courts which rejected the notion that Indigenous peoples had rights over lands that could be recognised by Australian law. (Milirrpum v Nabalco (1971) 17 FLR 141; see also Cooper v Stuart (1889) 14 App Cas 286)
The federal government first introduced legislation in the Northern Territory, The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which established mechanisms for the allocation of land and a claims process, by which Indigenous peoples could prove their connection to land made available for claim. A successful claim gives traditional owners unalienable freehold title and substantial control over development on their lands, including access to minerals royalties equivalents. The Northern Territory legislation was followed by specific legislation in South Australia granting land rights to the Pitjantjatjara peoples.
Attempts to introduce national land rights have failed, but most state governments have passed some form of land rights legislation. Many of these regimes make limited areas available for claim and often require that in return for the grant of land rights, the land must be immediately leased back to the state, often in perpetuity, for uses such as national parks. Kakadu and Uluru National Parks are leased back to the Northern Territory in this way.
The benefit of statutory land rights is in juxtaposition to the significance of native title. Native title is a recognition of Indigenous peoples law which predates the assertion of sovereignty and has survived to be enforceable. But because it does not come from the Australian legal system, native title is vulnerable to the rights and interests granted by the new sovereign. The Australian legal system in this regard asserts its own superiority in the way it recognises native title. Grants made under statutory land rights regimes are Crown grants which emerge from the Australian legal system, which gives greater recognition to its own titles. Therefore, land rights are not vulnerable to extinguishment in the same way as native title. The limitations of land rights are their dependence upon the terms and conditions and the areas determined by government. Native title on the other hand may have much broader application and takes the form determined by Aboriginal law and custom.
In the end, it is for Indigenous peoples to determine which system of recognition best serves their needs. However, the two regimes need not be exclusive. Native title is not extinguished by the granting of titles under land rights legislation, as was confirmed in the Warra peoples determination. Nor is it extinguished by the dedication of lands as national parks. Justice Brennan specifically mentioned both land rights legislation and national parks as being consistent with the enjoyment of native title rights. (Mabo v Queensland {no.2] (1992) 175 CLR 1, at pp. 64, 70) The determination of native title may, in some instances provide Indigenous peoples with greater rights than those recognised in state land rights legislation. For Indigenous peoples, for example in the Northern Territory, however, a determination of native title cannot take away the strong procedural rights granted under the Aboriginal Land Rights (Northern Territory) Act.
The federal government first introduced legislation in the Northern Territory, The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which established mechanisms for the allocation of land and a claims process, by which Indigenous peoples could prove their connection to land made available for claim. A successful claim gives traditional owners unalienable freehold title and substantial control over development on their lands, including access to minerals royalties equivalents. The Northern Territory legislation was followed by specific legislation in South Australia granting land rights to the Pitjantjatjara peoples.
Attempts to introduce national land rights have failed, but most state governments have passed some form of land rights legislation. Many of these regimes make limited areas available for claim and often require that in return for the grant of land rights, the land must be immediately leased back to the state, often in perpetuity, for uses such as national parks. Kakadu and Uluru National Parks are leased back to the Northern Territory in this way.
The benefit of statutory land rights is in juxtaposition to the significance of native title. Native title is a recognition of Indigenous peoples law which predates the assertion of sovereignty and has survived to be enforceable. But because it does not come from the Australian legal system, native title is vulnerable to the rights and interests granted by the new sovereign. The Australian legal system in this regard asserts its own superiority in the way it recognises native title. Grants made under statutory land rights regimes are Crown grants which emerge from the Australian legal system, which gives greater recognition to its own titles. Therefore, land rights are not vulnerable to extinguishment in the same way as native title. The limitations of land rights are their dependence upon the terms and conditions and the areas determined by government. Native title on the other hand may have much broader application and takes the form determined by Aboriginal law and custom.
In the end, it is for Indigenous peoples to determine which system of recognition best serves their needs. However, the two regimes need not be exclusive. Native title is not extinguished by the granting of titles under land rights legislation, as was confirmed in the Warra peoples determination. Nor is it extinguished by the dedication of lands as national parks. Justice Brennan specifically mentioned both land rights legislation and national parks as being consistent with the enjoyment of native title rights. (Mabo v Queensland {no.2] (1992) 175 CLR 1, at pp. 64, 70) The determination of native title may, in some instances provide Indigenous peoples with greater rights than those recognised in state land rights legislation. For Indigenous peoples, for example in the Northern Territory, however, a determination of native title cannot take away the strong procedural rights granted under the Aboriginal Land Rights (Northern Territory) Act.
Keywords: Aboriginal Land Rights Act (Northern Territory)(1976), Australian Court Case, Brennan, Justice Gerard, Cooper V Stuart, Kakadu National Park, land rights, Mabo v Queensland No.2, Milirrpum v Nabalco Pty Ltd, 1971 , native title, Northern Territory, Pitjantjatjara, recognition, reconciliation, resistance, South Australia, Uluru National Park, 1976-
Author: Strelein, Lisa