Skip Ribbon Commands
Skip to main content

Indigenous Australians and Land in New South Wales

Indigenous Australians and Land in New South Wales

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 09/2004 by Talina Drabsch
The right of Indigenous peoples to access land they traditionally occupied and, in some cases, continue to occupy, has for many years sparked a debate that has produced a passionate response across the political spectrum. It is now some time since the initial phase of land rights legislation and native title law emerged in Australia. It is over twenty years since the Aboriginal Land Rights Act 1983 (NSW) was enacted. More than twelve years have passed since the landmark decision of Mabo, in which the High Court overturned the belief that Australia was terra nullius at the time of colonisation and recognised the existence of native title in Australia. The Native Title Act 1993 (Cth) has applied for more than a decade and it is six years since the controversial amendments were made to the Native Title Act. Various decisions in the courts in recent years have sought to clarify native title law. This paper accordingly provides an overview of the current status of the relationship between Indigenous Australians and land in New South Wales, as expressed in legislation and in recent decisions of the High Court.

Section 2 (pp 2-10) outlines some of the avenues by which Indigenous Australians are able to access land in ways other Australians cannot. The main avenues include native title, land rights, and a land acquisition scheme. However, this section also explores the arguments based on possessory title and fiduciary duty that have been advanced in the courts on behalf of Indigenous parties.

The Native Title Act 1993 (Cth) is the primary statute regarding native title law in Australia. Section 3 (pp 11-38) examines some recent decisions of the High Court that have clarified various provisions of the Act. This section notes how the Court has defined native title rights and interests, including those that exist over water. It also looks at the circumstances in which native title is deemed extinguished. The 1998 amendments altered the future acts provisions of the Native Title Act. One such change was the introduction of Indigenous Land Use Agreements. The growth in the negotiation of Indigenous Land Use Agreements is explored, with particular attention given to the Arakwal Agreement (concerning land near Byron Bay in New South Wales) as an example of the form the negotiation process may take. This section notes the determinations of native title that have been made in relation to land in New South Wales. It also highlights some aspects of the Act viewed by various commentators as problematic.

The Native Title (New South Wales) Act 1994 (NSW) represented the first legislative response of the NSW Parliament to the decision of Mabo and the introduction of the Native Title Act 1993 (Cth). A brief overview of the Native Title (New South Wales) Act is included in section 4 (p 39).

Section 5 (pp 40-48) examines the Aboriginal Land Rights Act 1983 (NSW) in its current form. It summarises the land claims process and some of the difficulties that may be encountered by claimants. Details of the structure of Local Aboriginal Land Councils, Regional Aboriginal Land Councils and the NSW Aboriginal Land Council are included. The impact of numerous corruption and mismanagement allegations that have been levelled at the land councils and the subsequent investigations by the Independent Commission Against Corruption is noted. This section also attempts to measure some of the achievements of the Act.

Indigenous Australians in New South Wales can also access land under the National Parks and Wildlife Act 1974 (NSW). An overview of the relevant provisions is included in section 6 (pp 49-51). An Aboriginal Cultural Heritage Advisory Committee is established by the Act. The Act enables certain Aboriginal areas to be reserved, as well as acknowledging the cultural significance of particular parcels of land in New South Wales to Indigenous persons.