Native title and land rights both recognise the traditional rights of Aboriginal and Torres Strait Islander peoples’ to land. However, they are legally very different. One (native title) is based on traditional indigenous ownership of land and waters, while the other (land rights) is a legislative response by parliaments to those traditional rights.
From the mid 1970s the Australia Federal and State governments began to legislate to return certain Crown (Government) land to indigenous communities and to allow claims to to other Crown land. The 1976 Aboriginal Land Rights Act, which applies to the Northern Territory, is the best known example. These actions were based on the perceived need of indigenous people to have access to, or ownership of, their country.
Separately from these special legislative schemes, the High Court in its Mabo decision recognised for the first time in common law the rights of indigenous owners to their lands. In 1993 the Australian Federal Government introduced legislation to respond to the Mabo decision.
<>This legislation, the Native Title Act 1993, set up mechanisms for “native title claims” by indigenous people who assert that their traditional rights have not been extinguished, and also to validate retrospectively the land titles of the occupiers that may have been called into question by the decision.
In a land rights claim, Indigenous Australians seek a grant of title to land from the Commonwealth, State or Territory governments. A grant of land may recognise traditional Aboriginal and Torres Strait Islander interests in land, and protect those interests by giving indigenous people legal ownership of that land. Land may be granted to people who have historical links to an area or who need land.
In some parts of Australia, it is also possible for indigenous people to apply for compensation if appropriate land is not claimable. All land rights claims must meet a set of conditions in order to be accepted.
Different types of land rights laws in Australia allow for the grant of land to Indigenous Australians under various conditions. A successful land rights claim usually results in a special grant of freehold title or perpetual lease. A title document of the land is issued. The title is normally held by a community or an organisation, not by individuals.
There are usually some special restrictions on selling, and dealing with, land that has been granted in a land rights claim. Normally, the land will be passed down to future generations, in a way that recognises the community’s traditional connection to that country.