Indigenous land rights in Australia
This article needs to be updated.September 2019)(
Indigenous land rights in Australia, also known as Aboriginal land rights in Australia, relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, and the term may also include the struggle for those rights. Connection to the land and waters is vital in Australian Aboriginal culture and to that of Torres Strait Islander people, and there has been a long battle to gain legal and moral recognition of ownership of the lands and waters occupied by the many peoples prior to colonisation of Australia starting in 1788, and the annexation of the Torres Strait Islands by the colony of Queensland in the 1870s.
As of 2020[update], Aboriginal and Torres Strait Islander peoples’ rights and interests in land are formally recognised over around 40 per cent of Australia’s land mass.
Description and distinctions
There are fundamental differences between land rights and native title. Land rights are rights created by the Australian, state or territory governments. Land rights usually comprise of a grant of freehold or perpetual lease title to Indigenous Australians. By contrast, native title arises as a result of the recognition, under Australian common law, of pre-existing Indigenous rights and interests according to traditional laws and customs. Native title is not a grant or right created by governments.
Native title in Australia includes rights and interests relating to land and waters held by Indigenous people under traditional laws and customs, and recognised in accordance with the Native Title Act 1993 (Cth). Although this is federal legislation and therefore applicable to the whole of Australia, the way in which the processes for native title operate in each state and territory is dependent on the history of the land rights arrangements of the particular state or territory. In some jurisdictions, titles to large areas of traditional lands were granted before the Act commenced.
The Native Title Act was passed after the High Court of Australia' decision in Mabo and others v. Queensland (No. 2), the test case in claiming land rights through the court system, which recognised for the first time that Indigenous people had rights to their land governed by their own laws and customs pre-dating colonisation by thousands of years. It recognised the dispossession of their lands, and in particular that their laws included land title (native title), and that Indigenous land rights which had not been extinguished by subsequent Crown grants continued to exist.
Different types of land rights laws exist in Australia, allowing for the renewed ownership of land to Indigenous Australians under various conditions. Land rights schemes are in place in the Northern Territory, Queensland (including the Torres Strait Islands), New South Wales, South Australia, Victoria and Tasmania. The land titles may recognise traditional interest in the land and protect those interests by giving Aboriginal people legal ownership of that land. Also, according to the National Native Title Tribunal: "A successful land rights claim usually results in a special grant of freehold title or perpetual lease. A title document for the land is issued. The title is normally held by a community or an organisation, not by individuals. There are usually some restrictions on selling, and dealing with, land that has been granted in a land rights claim. Normally, the land will be passed down to future generations in a way that recognises the community’s traditional connection to that country".
Indigenous land rights relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, and the term is also used to describe the struggle for those rights.
As of 2020[update], Aboriginal and Torres Strait Islander peoples’ rights and interests in land are formally recognised over around 40 per cent of Australia’s land mass. The recognition of Indigenous rights in land and waters is fundamental to the process of reconciliation.
The Letters Patent establishing the Province of South Australia of 1836, which were issued during the period of British colonisation of South Australia, included recognition of the rights of the Aboriginal peoples of South Australia – the first ever recognition of Aboriginal rights on the continent – but the promise was never kept.
During the late 19th and early 20th centuries, the movement of Aboriginal peoples in Australia was controlled by colony- and later state-based laws, such as the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 in Queensland. This often meant that they were confined to living on Aboriginal reserves or mission stations, where they had no rights to land ownership.
The struggle for land rights
The passing of Aboriginal land rights legislation in Australia in the late 20th century was preceded by a number of important Aboriginal protests. The modern land rights movement started with the 1963 Yolngu Bark Petition, when Yolngu people from the remote settlement of Yirrkala, in north-east Arnhem Land, petitioned the federal government to have their land and rights given back. The 1966 Wave Hill Walk-Off, or Gurundji Strike, started with a protest about working conditions, but grew into a lands right issue, with the people claiming rights to the land which was then a cattle station owned by a large British company, Vesteys. The strike lasted for eight years.
In 1961, at the Native Welfare Conference, a meeting of federal and state ministers responsible for Aboriginal welfare, agreed on a policy of assimilation. The measures included the removal of discriminatory legislation and restrictive practices, welfare measures, education and training to assist the involvement of Aboriginal people in the economy, and the education of non-Indigenous Australians about Aboriginal culture and history. It brought about a more widespread awareness by non-Indigenous people to social justice for Aboriginal and Torres Strait Islander people. South Australian Premier Sir Thomas Playford argued for integration rather than assimilation of Aboriginal people, and others questioned the concept of assimilation, with its paternalistic attitude.
The Aboriginal Lands Trust Act 1966 (SA) established the South Australian Aboriginal Lands Trust (ALT). This was the first major recognition of Aboriginal land rights by any Australian government, and predated the 1967 Referendum. It allowed for parcels of Aboriginal land previously held by the SA Government, to be handed to the Aboriginal Lands Trust of SA under the Act. The Trust was governed by a Board composed solely of Aboriginal people.
1970s activism and legislation
In the 1970s, Indigenous Australians became more politically active, and a powerful movement for the recognition of Indigenous land rights emerged. Also during this decade, the federal government started buying privately-owned land in order to benefit Indigenous communities, and also to create Crown land which would be available for claim.
In 1971, Justice Richard Blackburn of the Supreme Court of the Northern Territory ruled against the Yolngu in Milirrpum v Nabalco Pty Ltd (the "Gove land rights case") under the principle of terra nullius, when they sought native title rights over the Gove Peninsula. However, Justice Blackburn did acknowledge the claimants' ritual and economic use of the land and that they had an established system of law "a subtle and highly elaborate" system of laws (Madayin). In this way, this was the first significant legal case for Aboriginal land rights in Australia.
In the wake of Milirrpum, the Aboriginal Land Rights Commission (also known as the "Woodward Royal Commission") was established in the Northern Territory in 1973. This Royal Commission, chaired by Justice Woodward, made a number of recommendations in favour of recognising Aboriginal Land Rights. Taking up many of these recommendations, the Whitlam government introduced an Aboriginal Land Rights Bill to Parliament; however, this lapsed upon the dismissal of the government in 1975. The succeeding conservative government, led by Malcolm Fraser, reintroduced a Bill, though not of the same content, and it was signed by the Governor-General of Australia on 16 December 1976.
The Aboriginal Land Rights Act 1976 established the basis upon which Aboriginal people in the Northern Territory could claim rights to land based on traditional occupation. The statute, the first of the Aboriginal land rights acts, was significant in that it allowed a claim of title if claimants could provide evidence of their traditional association with land. Four Land Councils were established in the Northern Territory under this law.
The Aboriginal Land Rights Act 1976 established a procedure that transferred almost 50 per cent of land in the Northern Territory (around 600 000 km2) to collective Aboriginal ownership. Following this, some states introduced their own land rights legislation; however, there were significant limitations on the returned lands, or that available for claim.
1980s South Australia
In 1981 South Australian Premier David Tonkin returned 102,650 square kilometres (39,630 sq mi) of land (10.2% of the state's land area) to the Pitjantjara/Yankunytjatjara people, as the APY lands. The land rights legislation was introduced by Premier Don Dunstan in November 1978, several months prior to his resignation from Parliament. An amended bill, following extensive consultation, was passed by the Tonkin Liberal Government, as the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981.
In 1984 Premier John Bannon's Labor Government passed the Maralinga Tjarutja Land Rights Act 1984 to return lands to the Pitjantjara people in the remote western area of the state. The legislation was proclaimed in January 1985 and was followed by a ceremony in the desert attended by Maralinga Tjarutja leader Archie Barton, John Bannon and Aboriginal Affairs Minister Greg Crafter.
1995: Aboriginal Land Corporation
In 1995 the Aboriginal Land Corporation was established by the Federal Government to assist Aboriginal Australians to acquire land and manage Aboriginal held land sustainably and in a manner that provides cultural, social, economic and environmental benefits for themselves and future generations. The corporation is funded by an annual payment from the investment returns of the Australian Government's Aboriginal and Torres Strait Islander Land Account.
Indigenous land tenure by state and territory
The Aboriginal Land Rights (Northern Territory) Act 1976 (see above) provides the basis upon which Aboriginal Australian people in the Northern Territory can claim rights to land based on traditional occupation. The freehold land cannot be sold or transferred, but it can be leased.
In Queensland, the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 provide for Aboriginal Torres Strait Islander freehold respectively. Aboriginal and Torres Strait Islander freehold land occupies 5%, or 59,489 square kilometres (22,969 sq mi) of northern Queensland. A Registered Native Title Body Corporate (RNTBC) can be trustee of this land, who can grant leases of up to 99 years for any purpose.
A third type of land tenure, mainly held by Aboriginal and Torres Strait Islander communities in remote and regional Queensland, is the Deed of Grant in Trust (DOGIT). These were established primarily to administer former Aboriginal reserves and missions. They came about through legislation passed by the Queensland Government in 1984. Aboriginal and Torres Strait Islander local governments hold trusteeship of the DOGITs, and land tenure under this type of tenure is held in collective title, held in trust for future generations. From 1 January 2015, some trustees, namely those classified as "urban" or "future urban") are able to convert parts of the collective title to either Aboriginal freehold or Torres Strait Islander freehold title.
In the 2013 Review of the Aboriginal Lands Trust Act 1966, the powers of the Trust were reviewed and changed to modernise the Trust and the Aboriginal Lands Trust of South Australia Act 2013 (SA) was passed.
The Aboriginal Lands Trust (ALT) of Western Australia was established by the Aboriginal Affairs Planning Authority Act 1972. This body holds about 24,000,000 hectares (59,000,000 acres), or 10% of the State's land. There are different types of tenures held by different parts of this land, including reserves, leases and freehold property. There are many remote communities on this land, inhabited by about 12,000 people. Land reform is ongoing, to use the land in a way which benefits the Aboriginal people.
- Aboriginal land rights legislation in Australia
- Aboriginal land rights
- Aboriginal reserves
- Australian Aboriginal Sovereignty
- Indigenous treaties in Australia
- Native title in Australia
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His Honour quotes Kirby in Fejo, who dismissed an argument that the Letters Patent Proviso provides any protection for the rights of Aboriginal People to the occupation or enjoyment of their lands.– refers to Fejo v Northern Territory (1998) 195 CLR 96. (This case is based on s 61 Native Title Act 1993 (Cth).)