Land rights and native title in the states and territories

3.19       Although the Native Title Act is Commonwealth legislation that operates across all state and territory jurisdictions, the way in which the native title process operates in each state and territory is affected by the history of the jurisdiction’s land rights arrangements. In some jurisdictions, titles to extensive areas of traditional lands were granted before the Native Title Act commenced. This section briefly outlines the way each jurisdiction has dealt with the question of Aboriginal and Torres Strait Islander peoples’ rights to land.

New South Wales

3.20       Under the Aboriginal Land Rights Act 1983 (NSW) (ALRA), certain Crown land can be claimed by Aboriginal Land Councils (ALCs) on behalf of Aboriginal people. The ALRA also established the Statutory Investment Fund. For 15 years, from 1984 until 1998, an amount equivalent to 7.5% of NSW Land Tax (on non-residential land) was paid to the NSW Aboriginal Land Council as compensation for land lost by the Aboriginal people of NSW. This fund is used for both administration and land purchase, and the NSW Aboriginal Land Council and the land council network has been self supporting since 1998.[23]

3.21       If an ALC wishes to sell land, it must get a determination under the Native Title Act that native title does not exist in the area.[24] There have been 43 non-claimant determinations that native title does not exist in NSW, most brought by ALCs, and 36 of which were unopposed.[25] Because most of the state is subject to extinguishing tenures,[26] there are not extensive areas where native title might be recognised. There have been five positive determinations, including the first determination of native title under the Native Title Act, Buck v New South Wales (Dunghutti People).[27] There are 21 registered claims.[28]


3.22       Under the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld), land that has been reserved for Aboriginal people could be transferred to Aboriginal people as trustees to hold the land for the benefit of Aboriginal and Torres Strait Islander people. The Acts also made provision for claims over specified areas of land to be heard by a Land Tribunal which could make recommendations to the Minister. According to the Queensland Government, 4.5 million hectares of land have been transferred under these Acts.[29]

3.23       The Queensland Government considers that ‘native title is arguably at its most complex in Queensland’, because of the history of removals of traditional owners from their lands and the decentralised nature of development in that state.[30]

3.24       Despite this complexity, there have been more than 100 determinations that native title exists in Queensland, including 97 by consent.[31] On 1 April 2015, there were a further 63 registered applications, with further applications under preparation.[32]

South Australia

3.25       In 1966, South Australia was the first state to transfer control of land reserved for Aboriginal people to a body controlled by Aboriginal people: the Aboriginal Lands Trust.[33] Land rights were also acknowledged in the Pitjantjatjara Land Rights Act 1981 (SA) and the Maralinga Tjarutja Land Rights Act 1984 (SA).

3.26       There have only been two contested native title hearings in South Australia, and since 2004, the State has had a policy of ‘resolving claims by consent wherever possible’.[34] There have been 22 consent determinations that native title exists and on 1 April 2015 there were a further 15 registered claims.[35]

3.27       As in most jurisdictions, overlapping claims have been a significant issue in South Australia. In around 2005 ‘a combined effort by South Australian Native Title Services and the National Native Title Tribunal managed to resolve almost all overlaps that then existed between claims, meaning attention could be focussed on settlements’.[36] However, in recent years there have been more overlapping claims and more intra-Indigenous disputes.[37]


3.28       The Aboriginal Lands Act 1995 (Tas) did not establish a claims process, but vested 12 areas, listed in the schedule, in the Aboriginal Land Council of Tasmania to be held on trust for the benefit of Aboriginal people.

3.29       There have been no determinations of native title in Tasmania and at 1 April 2015 there were no registered claims.[38]


3.30       There was no claims procedure for land rights in Victoria before the Native Title Act, but land was transferred on an ad hoc basis under six separate Acts.[39] The Traditional Owner Settlement Act 2010 (Vic) (TOSA) provided for ‘a recognition and settlement agreement between the State and a traditional owner group entity for an area of public land’.[40] TOSA is discussed further below.

3.31       The Victorian Department of Justice reported that ‘the claimable Crown land estate comprises roughly one third of the State’s land area’, and ‘native title has been settled over approximately 40% of that area, by way of a positive or negative native title determination and/or a Traditional Owner Settlement Act settlement’.[41] There have been four determinations that native title exists in Victoria, and three that it does not exist.[42] At 1 April 2015 there were two registered claims in Victoria.[43]

Western Australia

3.32       The Aborigines Act 1889 (WA) empowered the Governor to reserve Crown lands for Aboriginal people. By 1947, 15 million hectares had been set aside.[44] The Aboriginal Lands Trust now holds 27 million hectares of reserved land, but title remains in the Crown. It is intended that ‘the control and management or ownership of all the land held by the Trust will be handed back to Aboriginal people’.[45] There was no provision for land claims in Western Australia before the Native Title Act.

3.33       The Western Australian Government reports that ‘the impact of the Native Title Act, including native title claims, determinations, future acts, and compensation liabilities is greater in Western Australia than any other jurisdiction in Australia’.[46] There have been 45 determinations that native title exists in at least part of the determination area, including 34 consent determinations.[47] The Western Australian Government has recently concluded a settlement with the Noongar people that will result in the withdrawal of six native title claims.[48]

3.34       At 1 April 2015, there were 77 registered claims in Western Australia[49] and research is currently being undertaken with the purpose of lodging native title claims in the future.[50]

Australian Capital Territory

3.35       The Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) vested land in the Jervis Bay area in the Wreck Bay Aboriginal Community Council.

3.36       There have been six native title claims made in the Australian Capital Territory, but no determinations, and at 1 April 2015 there were no registered claims.[51]

3.37       In 2001, the ACT Government and the Ngunnawal People entered into a joint management agreement regarding Namadgi National Park, known as the Agreement Between the Australian Capital Territory and ACT Native Title Claim Groups.[52]

Northern Territory

3.38       Approximately 47% of land in the Northern Territory is Aboriginal freehold under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). Pastoral leases cover 45% of the Territory, and a further five percent of the Territory is also available for claim under the Native Title Act.[53]

3.39       There have been 75 determinations of native title in the Northern Territory, 66 by consent, and at 1 April 2015 there were 97 registered claims.[54]

3.40       The Northern Territory Government has indicated that, ‘having litigated a number of test cases to clarify the operation of various provisions of the Native Title Act’, it now seeks to achieve negotiated resolutions of native title claims.[55] The Territory has set out Minimum Connection Material Requirements for Consent Determinations which streamline the resolution of claims.