Land tenure

What is land tenure?

Land tenure is the manner in which a party holds or occupies an area of land. It is a way of identifying who has the right to use and occupy land in accordance with the different types of ownership.

History of land tenure in Australia

Land tenure is the name of the particular legal regime under which land is owned. It can be defined as the manner in which a party holds or occupies an area of land.

The general principles of land ownership are detailed in 'common law' and have long been established in the Courts of Australia. It is important to note, however, that the extent of ownership has changed significantly in interpretation over the last century, with many details now incorporated into federal, State and Territory legislation.

Land tenure can also be referred to as the relationship between people and land. It is a way of identifying who has the right to use and occupy land in accordance with the different types of ownership. The Office of Northern Australia has useful information about land tenure and the opportunities and challenges for investment in northern Australia. Australia's systems of land tenure reflect the balance between both investor and community confidence across a range of important areas including:

  • the financial security in economic development and property markets
  • social stability through rights protection, housing and employment
  • development planning and economic growth strategy
  • natural resource, environmental and cultural management and sustainability.

Land holding in Australia

Land is generally referred to in two overarching categories:

  1. Freehold land (including forms of freehold land tenure that are held by traditional owner groups including Aboriginal and Torres Strait Islander land)
  2. Non-freehold land or Crown land, which may either be leased or licensed.

General investor considerations

  • Generally, mineral and petroleum resources occurring on land will continue to belong to the Crown, irrelevant of the land tenure type. The acquisition of rights to minerals stems from separate legislative frameworks in the form of minerals, petroleum and mining rights in each State. In respect to Aboriginal freehold land in the Northern Territory, traditional Aboriginal owners generally have the right to refuse land access and use proposals, including for mineral and petroleum exploration.
  • Native title can be held exclusively or alongside some of the other types of land tenure. Investors must follow the statutory process set out in the Native Title Act 1993 that protects the rights of native title holders and their interests in the land. Notwithstanding, native title is extinguished on freehold land or where a valid grant has been made by government.
  • Sacred sites are given protection under federal and various State laws on all land tenure types in Australia.
  • Given the expansive lands in northern Australia, there can be overlapping tenure issues. For example, a mining or petroleum lease could overlap a range of tenures across Crown land, pastoral leases, freehold land and native title. The rights of the underlying tenure must be respected and appropriate access arrangements negotiated.