Comparative legislation

The differences between land rights and native title can be drawn out from the comparison of NSW land rights legislation with national native title legislation:

Aboriginal Land Rights Act 1983 (NSW)

Native Title Act 1993 (Cth)

Applied only to Aboriginal people resident in New South Wales.

Applies to traditional owners across Australia.

A claim triggers a decision from the government about whether it will succeed.

A claim triggers legal proceedings through the National Native Title Tribunal and then the Federal Court but many claims are settled with negotiations.

Claims are for :

  • Crown land not needed for an essential purpose
  • no need to prove traditional association to the land
  • no previous tenure of the lands.

Claims based on:

  • native title rights and interests – traditional ownership
  • traditional laws, customs and practices and association with the land.

Lands are granted in freehold.

Land given in the form that the native title still exists so could be in anything from freehold to a licence.

Land is held by Local Aboriginal Land Councils – boundaries aren’t consistent with traditional boundaries.

A native title group can only claim rights and interests in traditional boundaries.

Any Aboriginal person living in the LALC boundary is entitled to be a member and to benefit from LALC services.

Only Indigenous people who have a traditional connection with the land can be a member of the claim group.

One of the key differences with the above two schemes is that the land councils in the land rights system can use their land any way they like. They can use it for cultural purposes, they can use it for community purposes (eg for social housing, or a community centre), they can sell the land and keep the money, or they can develop the land in partnership with a third party. It provides greater options for potential economic development than native title tenure.