Aboriginal and Torres Strait Islander land
Why was it created?
The Land Rights Act is federal legislation and established the first legislative regime in Australia to legally recognise Aboriginal land ownership in the Northern Territory. It was a significant and fundamental piece of social justice legislation, consistent with a broader social reform agenda at that time in Australia's history.
Other States have also legislated to reinstate ownership of some Crown lands and reserves to Aboriginal and Torres Strait Islander peoples.
What does title mean?
The various State laws effectively confer collective title to or for the benefit of traditional owners. These forms of land tenure are not the same as native title because they often include a range of ownership rights that create commercial value and enable the traditional owners to pursue economic development opportunities. Native title rights by contrast comprise a bundle of residual rights related to traditional affiliations that have continued without extinguishment for the last two centuries since European settlement.
Darwin to Alice Rail Link
A 1,420km (880 mile) rail line between Alice Springs and Darwin in Australia's Northern Territory was completed on 17 September 2003 connecting the centre of Australia to a deep-water port of Darwin creating a freight gateway to Asia and the rest of the world. The railway line passes through the regions of two land councils, crosses 27 pastoral leases (about 80% of the land), 11 Aboriginal Land Trust areas (held under the provisions of the Land Rights Act), and a number of stock routes and areas of vacant Crown land, much of this being under claim. In order to build the railway the Territory Government successfully secured title to a 100 metre wide railway corridor and access to a 400 metre wide construction corridor together with fill from the construction corridor and rock from selected quarries outside the construction corridor. Examples of this land access agreement, as well as other examples, can be found on the Agreements, Treaties and Negotiated Settlements database (ATNS).
Aboriginal freehold in the Northern Territory
The main purpose of the Land Rights Act is to reinstate ownership of traditional Aboriginal land in the Northern Territory to Aboriginal people.
The Land Rights Act provides for the grant of inalienable freehold title for Aboriginal land. Inalienable freehold title means that the land cannot be bought, acquired or mortgaged. Notwithstanding, certain interests that are granted, such as leases, can be mortgaged or used as collateral for a loan.
Once granted, Aboriginal land cannot be resumed, compulsorily acquired or forfeited under any law of the Northern Territory.
Nearly 50% of the land in the Territory is held under this title, representing a significant potential asset base for economic development. Approximately 85% of the coastline is Aboriginal land, extending to the low water mark, and the Land Rights Act provides rights to control access to resources in the intertidal zone. Many traditional owners have expressed a desire to be involved in and benefit from development on their land, provided it is compatible with their aspirations for social, cultural and environmental sustainability.
Who owns Aboriginal freehold in the Northern Territory?
The grant of Aboriginal freehold is made to an Aboriginal land trust to be held for the benefit of traditional owners who are entitled by Aboriginal tradition to the use or occupation of the land. The land trust is a body corporate established in accordance with the provisions of the Land Rights Act. The trust must not exercise any functions in relation to land, except in accordance with the direction of the relevant land council for the area in which the land is situated.
The land councils have important functions in relation to Aboriginal land, but under the Land Rights Act are required to ensure that they act on the advice and with the consent of the traditional owners so that primary control over Aboriginal land lies with the traditional owners.
The Land Rights Act defines a special category of land termed a sacred site as a site of significance according to Aboriginal tradition. Section 69 of that Act prohibits a person from entering a sacred site. Additional protections exist under the Northern Territory Sacred Sites Act 1989.
Development on Aboriginal freehold land in the Northern Territory
Exploration, mining and other land development activities on Aboriginal land are common place across the Northern Territory and are undertaken through negotiations with traditional owners groups facilitated by land councils. Land use payments, including rent, generally form part of the negotiation process. Other monetary and non-financial benefits may also be negotiated. The Land Rights Act prescribes how land councils and Aboriginal land trusts in the Northern Territory may grant access and usage rights on Aboriginal land, including resource exploration activities. In some circumstances, the consent of the Australian Government's Minister for Indigenous Affairs and/or a Minister of the Northern Territory is also required for the grant of those rights. Land use income payable for activities on Aboriginal land is received and distributed by land councils in accordance with the instructions of the relevant traditional owner groups and the provisions of the Land Rights Act.
An equivalent to the amount of royalties paid to the Northern Territory and the Australian Government for mining activity on Aboriginal land is drawn from consolidated revenue by the Australian Government and used for the benefit of Aboriginal and Torres Strait Islander people in the Northern Territory. These royalty equivalents are directed to the Aboriginals Benefit Account (ABA) and the funds are to be used for certain prescribed purposes, including: payments to the land councils to help meet operational costs; and distribution to incorporated Aboriginal associations (royalty associations) in order to benefit those Aboriginal people who are affected by mining operations on their traditional lands. For more information about engaging with land councils and traditional owners, refer to the engagement guide on this website.
Who holds title in the Northern Territory
Title to inalienable Aboriginal freehold land granted under the Land Rights Act is held by Aboriginal land trusts established under the Act. There are currently 151 Aboriginal land trusts and they are administered by the relevant land council in whose region they are located. Further information is available at:
Aboriginal and Torres Strait Islander land in Queensland
Aboriginal and Torres Strait Islander freehold land makes up 5% or 59,489km2 of northern Queensland. In Queensland, both Aboriginal freehold and Torres Strait Islander freehold exist and are governed by the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991 respectively.
Aboriginal and Torres Strait Islander freehold land is inalienable- being land that cannot be sold or transferred, however there is still the opportunity for leases to be granted. The land is held in trust by either a land trust established under those Acts, or a corporation under the Corporation (Aboriginal and Torres Strait Islander) Act 2006 (known as a CATSIA body). A Registered Native Title Body Corporate (RNTBC), as a CATSIA body, can be trustee of this land. The trustees can grant leases of up to 99 year terms for any purpose, including specific home ownership leases.
In Queensland, there is a third type of Aboriginal and Torres Strait Islander land tenure. Aboriginal and Torres Strait Islander communities in remote and regional Queensland are generally located on a land tenure type called an Aboriginal Deed of Grant in Trust (DOGIT). Some exceptions to this are Mer (Murray) Island, which is Torres Strait Islander freehold and Aurukun, which is Aboriginal freehold land. Aboriginal and Torres Strait Islander local governments hold trusteeship of the DOGITs. Land tenure under a DOGIT is held in collective title, not individual titles. The land is held in trust for future generations and cannot be sold. DOGITs are in the process of converting to either Aboriginal freehold or Torres Strait Islander freehold.
From 1 January 2015, Queensland Trustees of community held land may be able to convert parts of the collective title to freehold title. This option is only available to 'urban' or 'future urban' classified lands within 34 communities in the State, namely:
- Aurukun, Badu, Bamaga, Boigu, Cherbourg, Darnley, Dauan, Doomadgee, Hammond Island, Hope Vale, Injinoo, Kowanyama, Kubin, Lockhart River, Mabuaig, Mapoon, Masig, Mer, Mornington Island, Napranum, New Mapoon, Palm Island, Pormpuraaw, Poruma, Saibai, Seisia, St Pauls, Ugar, Umagico, Warraber, Woorabinda, Wujal Wujal, Yam and Yarrabah.
Freehold land cannot be granted where native title continues. Where native title has not been previously extinguished, the consent of the native title holders to the grant of freehold and the surrender of their native title is required. Land outside of urban towns will continue to be communally held in trust. The conversion to freehold is a process run by the trustees of the land. The trustee will consult with the relevant community and native title holders to decide whether to offer freehold land and how and where it will be made available.
If the land is granted freehold title, the new owner will have the same opportunities as other freehold title holders, including leasing, selling or mortgaging.
Information on the freehold option for Aboriginal and Torres Strait Islander communities is available on the Queensland Government website
Land held by the Aboriginal Lands Trust in Western Australia
The Western Australian Aboriginal Lands Trust (ALT) is constituted under section 20 of the Aboriginal Affairs Planning Authority Act 1972. The ALT is a significant landholder with responsibility for approximately 24 million hectares or 10% of the State's land mass. This land comprises different tenures including, reserves, leases and freehold properties. A significant proportion of this land comprises reserves that have management orders with the ALT (generally having the power to lease), with their purposes mostly being for "the use and benefit of Aboriginal inhabitants". Many of Western Australia's regional and remote Aboriginal communities are located on the ALT estate, accommodating approximately 12,000 people. The ALT is seeking to divest much of the estate back to Aboriginal people through land tenure reform processes. Tenure reform will support improved land use planning, private land ownership, regularised service delivery, home ownership opportunities and economic development initiatives such as joint venture arrangements for the management of Aboriginal pastoral leases.
There are 44 Aboriginal Lands Trust (ALT) reserves in the Kimberley and Pilbara that are subject to proclamation under Part III of the Aboriginal Affairs Planning Authority Act 1972. It is an offence to enter or remain within the boundaries of a proclaimed reserve unless a person has an entry permit issued by the Western Australian Minister for Aboriginal Affairs. The requirement to obtain a mining entry permit for proclaimed reserves is in addition to the requirement to obtain 'consent to mine' from the Minister for Mines and Petroleum.