Understanding Aboriginal land claims
The Aboriginal Land Rights Act 1983 (NSW) recognises the spiritual, social, cultural, and economic importance of land to Aboriginal people.
The Aboriginal Land Rights Act 1983 establishes a network of Aboriginal Land Councils. These Aboriginal Land Councils can lodge Aboriginal land claims over Crown land. Crown Lands facilitates the return of eligible land to Aboriginal Land Councils by assessing land claims and, if a claim is successful, transferring the land subject to the claim to the Land Council.
Eligibility criteria
For land to be claimable, it must:
- be Crown land that can be lawfully sold or leased
- not be lawfully used or occupied
- not be needed for an essential public purpose
- not be subject to a registered native title application or determination.
Steps to assess a claim
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Claim lodgement
The Office of the Registrar – Aboriginal Land Rights Acts 1983 (NSW) is the statutory authority responsible for registering and maintaining the Register of claims.
An Aboriginal Land Council lodges a claim with Office of the Registrar. The Registrar will refer registered claims to the Aboriginal Land Claim Assessment Team for assessment and determination by the Minister responsible for administering the Crown Land Management Act.
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Assessment
The claim will be assessed by the Aboriginal Land Claim Assessment Team (ALCAT) within Crown Lands. They will investigate the claim according to the criteria in section 36 of the Aboriginal Land Rights Act 1983.
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Referral to relevant authorities
The claim will be referred to relevant authorities, such as the National Parks and Wildlife Service (NPWS), Local Government, Crown Land Managers and affected tenure (lease or licence) holders, to gather information to assist in the assessment of the claim.
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Evaluation of information
The information collected through the referral process will be evaluated against the assessment criteria. The date an Aboriginal land claim is lodged is critical, and any assessment will generally only be able to consider information and activities relevant to that date.
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Recommendation to Minister
A recommendation will be made to the Minister on whether the land is claimable.
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Determination
The Minister will make a decision on whether the land is claimable. If the land is found to be claimable, the claim must be granted.
This is a legal, non-discretionary process, which is completed in accordance with the criteria. No other agencies or stakeholders have the power to grant or refuse a land claim.
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Post determination
Once the determination decision is made, the department will inform all relevant stakeholders in writing.
When claims are granted, the department arranges the transfer of land in freehold title to the relevant Aboriginal Land Council. This includes conducting any necessary survey work, preparing transfer documents, lodging them with NSW Land Registry Services and providing confirmation of the title transfer to the Aboriginal Land Council.Once land is transferred as freehold, the land is still subject to local and state planning requirements and other regulations
The Aboriginal Land Rights Act 1983 allows appeal rights to claimant Aboriginal Land Councils where Aboriginal land claims are refused. The NSW Land and Environment Court rules allow the Aboriginal Land Council to lodge an appeal within a 4-month period from the date of the decision.
Important considerations
- The lodgement of a claim creates an inchoate (not fully realised) interest in the land.
- The NSW Government will generally not authorise any dealings on land subject to an undetermined ALC which would impact the ALC outcomes. I.e. activities that would prevent land from being transferred to the claimant Land Council in the event the land is found to be claimable or will impact on the physical condition of the land. Proponents will be encouraged to seek support from the claimant Land Council.
- The full extent of the interest is not known until the claim is assessed and determined.
Definition of terms relating to Aboriginal land claims
Over time, courts have provided guidance on the definitions of terms surrounding the Aboriginal Land Rights Act 1983 (NSW) and the assessment of Aboriginal land claims.
Lawful use and/or occupation
Lawful: The term lawful means the activity being conducted on the claimed land at the date of claim was being conducted with the appropriate authority to do so. For instance, if the activity required the approval of the reserve trust, then that approval had been granted.
Lawful use: Lawful use of claimed lands occurs when the use is to more than a notional degree. The level required to demonstrate the use is more than notional will depend on the purpose for which the land is reserved. For example, a reserve for public recreation would be expected to have a higher level of use than a reserve for tree plantation. The use of the land needs to be consistent with the reserve purpose; for a purpose that is in furtherance of or ancillary to the reserve purpose; or an authorised secondary interest. The use needs to be actual, not just contemplated or intended.
Lawful occupation: Lawful occupation encompasses legal possession, conduct amounting to actual possession and some degree of permanence. It involves an element of control, of preventing or being able to prevent the intrusion of strangers. Continuous physical presence on every part of the land is not required; however, some physical occupancy is required. Mere activities of maintenance in isolation are insufficient.
Needed or likely to be needed for an essential public purpose
Needed: Needed means required or wanted. Where lands are needed for an essential public purpose, a manifestation of political will is required to establish need. Where lands are likely to be needed for an essential public purpose, the question is whether it is likely that there will in the future be a government requirement; and if this is addressed by considering a trajectory, then the trajectory needs to be towards a requirement at the appropriate government level at the specified time in the future.
Likely: There is a high probability of something occurring. It is not a remote chance, there is a real chance. A high evidentiary standard must be reached to prove a likely need for an essential public purpose due to the beneficial nature of the legislation.
Essential public purposes: Essential public purposes are those that are required and created by the government, or purposes of the administration of the government. To be essential, the purpose must be indispensable, or at least material and important. The use of the word essential sets a high standard. Public purposes may be served by private interests. Purposes carried out under statutory authority or requirement, for example, the Local Government Act 1993 (shire councils), can be public purposes.