Land rights are not the same thing as native title.

As outlined in Question 4 above, native title is about recognising Indigenous peoples’ continuing connection to their land and waters in accordance with their own traditional laws and customs. Native Title is not a grant created through legislation but exists alongside Australian common law.  As such, native title pre-exists the Crown and survives colonisation where Indigenous people have maintained a continuous connection with their country and where their native title has not been extinguished by an act of government (such as the granting of freehold title).

Land rights are those granted by the government and are based on the assumption that the Crown holds legitimate title to land, which it then passes on to another party. Land rights are granted at the state or territory level, and are comparable to freehold and leasehold titles that also flow from the Crown.  For example, a land rights grant may cover Crown land or national park, traditional land, or an Aboriginal reserve, mission or cemetery.

In New South Wales, Aboriginal land rights are governed under the Land Rights Act 1983. The Act was created to compensate the Aboriginal people of NSW for past dispossession of their lands. The destruction and fragmentation of Aboriginal society in NSW had been so severe that the normal definition of traditional lands could not apply. While the law fell short of recognising the continued existence of traditional Aboriginal rights to land and resources, it nonetheless confirmed that as a result of government decisions, the amount of land set aside for Aboriginal people had been increasingly diminished without compensation. The legislation therefore created a three-tiered system of Aboriginal Land Councils state, regional and local that could claim Crown lands from the NSW State Government in accordance with the Act. The intention was to address dispossession through land-based compensation, which would subsequently create a sustainable economic base for Aboriginal people in the State.

What started out as an exciting opportunity for Aboriginal communities to become self-determining has become a complicated practice. While the 1983 Land Rights Act provides a legal right to claim land, the translation of that right into actual Aboriginal land ownership is an ongoing struggle. A resistant attitude from government with regard to individual land claims has meant that a lot of money is spent on litigation, rather than on creating a sustainable future for Aboriginal people in New South Wales.

For more information on the history of land rights in NSW, see Parbury, Nigel, Survival: a History of Aboriginal Life in New South Wales, Sydney, NSW Ministry of Aboriginal Affairs, 1986.  See also the NSW Department of Aboriginal Affairs, the NSW Aboriginal Land Council and the Metropolitan Local Aboriginal Land Council.