Primarily as a result of the Gove Land Rights case and the increasing pressure from Aboriginal communities for some form of land justice, the Whitlam Government came into power in 1972 with a policy of national Aboriginal land rights. The government chose the Commonwealth-controlled Northern Territory to establish a precedent. Although Whitlam lost office before the legislation was enacted, the Fraser Government passed a watered-down version of it. This was the first attempt by an Australian government to legally recognise the Aboriginal system of land ownership. It also established two main land councils – the Central Land Council and the Northern Land Council.
The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) vests ‘scheduled’ areas of land in Aboriginal Land Trusts. The Land Councils have statutory responsibilities and duties to:
- attempt to consult with traditional landowners and other Aborigines with an interest in the land
- conciliate disputes between Aborigines regarding land matters
- hold in trust, and distribute to Aboriginal associations, statutory payments from the Aboriginal Benefits Account to communities affected by mining operations and income received on behalf of landowners under negotiated agreements
- process applications for permits to enter Aboriginal land.
The Pastoral Land Act 1992 (NT) enables parts of pastoral leasehold areas known as ‘Community Living Areas’ to be claimed on the basis of ‘need’ and held by Aboriginal corporations. The Commonwealth also passed the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) that allows for areas of land to be vested in the ownership of the Wreck Bay Aboriginal Community Council.
State land rights
Other jurisdictions have followed with land rights legislation:
- South Australia – the Pitjantjatjara Land Rights Act 1981(SA) and Maralinga Tjarutja Land Rights Act 1984 (SA) were passed in South Australia and vested land in traditional owners. Prior to that, the Aboriginal Lands Trust Act 1966 (SA) turned reserves into perpetual leases but did not vest the land in Aboriginal communities.
- Victoria – legislation used to vest specific land in Aboriginal communities such as Framlingham, Lake Condah and Robinvale: Aboriginal Lands Act 1970 (Vic), Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 (Cth), Aboriginal Lands Act 1991 (Vic), Aboriginal Land (Manatunga Land) Act 1992 (Vic), Aboriginal Lands (Aborigines’ Advancement League) (Watt Street, Northcote) Act 1982 (Vic) and Aboriginal Land (Northcote Land) Act 1989 (Vic).
- New South Wales – passed the Aboriginal Land Rights Act 1983 (NSW). It is the most generous legislation, allowing Aboriginal people to claim Crown land that is not needed for any essential purpose. It also set up a network of local land councils and a state land council. The system received a percentage of state land tax for 15 years that has allowed it to now be self-funding.
- Queensland – vested former reserves under a special form of freehold, held in trust by community councils for their residents. Various amendments from 1982-1988 to the Land Act 1962 (Qld), introduced a limited land rights scheme on the basis of traditional/ customary affiliation: Aboriginal Land Act 1991 (Qld) and Torres Strait Islander Land Act 1991 (Qld).
- Tasmania – vested 12 areas in the ownership of a land council in trust for Aboriginal people: Aboriginal Lands Act 1995 (Tas).
- Western Australia has not passed land rights legislation.