Aboriginal land claims

Aboriginal land councils can make Aboriginal land claims for the return of parcels of Crown land to their ownership under the Aboriginal Land Rights Act 1983.

Crown Lands acknowledges Aboriginal people as the traditional owners and custodians of the lands now known as NSW. Following European settlement, colonial and then successive state governments asserted ownership over the land. They proceeded to survey and allocate land, and to record and guarantee tenures. This created freehold property rights for settlers.

The remainder of the land became Crown land, held in public trust. At the same time, infrastructure was progressively installed on Crown land. This included community halls, Crown roads, showgrounds, sports fields, and parks, which remain integral to community life in NSW.

In 1983, the NSW Government introduced the Aboriginal Land Rights Act. This recognised the effects of past government decisions, as the amount of land set aside for Aboriginal people had been progressively reduced without compensation. The Parliament of NSW created a system of Aboriginal land rights to compensate Aboriginal communities for the loss of their land by allowing for the return of some Crown land to Aboriginal ownership. This system continues to the present day.

The role of the Aboriginal Land Claim Assessment Team (ALCAT), in the Crown Lands branch of the department is to facilitate the return of land to Aboriginal owners and to partner with Aboriginal landowners in realising benefits from this land through the assessment process.

Returning lands to Aboriginal land councils happens in response to Aboriginal land claims. If a land claim is successful, the land is transferred to the Aboriginal land council in freehold.

Definition of terms relating to Aboriginal land claims (PDF, 85 KB).

The Aboriginal Land Rights Act 1983 provides that the New South Wales Aboriginal Land Council and local Aboriginal land councils have a legal right to make claim(s) to Crown land.

Aboriginal land councils lodge claims with the Registrar of the Aboriginal Land Rights Act 1983, who is responsible for maintaining a register of Aboriginal land claims. In turn, these claims are forwarded to the department for assessment and determination.

When an Aboriginal land council lodges a claim, this creates an inchoate (unformed) interest in the land. Until the minister administering the Crown Lands Management Act 2016 determines the claim and this interest has been defined, the Crown Lands branch of the department is restricted in its ability to deal with the land or consent to an activity that alters the physical condition of the land. Where land is subject to an undetermined Aboriginal land claim, it cannot be sold until the claim is determined and cannot be leased or licensed, in most cases, without the consent of the claimant Aboriginal land council.

Once the Minister for Crown Lands has determined the outcome of the claim, the department will inform relevant stakeholders in writing. Records are then updated accordingly.

The lodgement of an Aboriginal land claim by an Aboriginal land council creates what is known as an inchoate (unformed) interest in the land. The full extent of this interest is not known until the claim is assessed and a determination is made by the relevant Minister.

The NSW Government (through the department) will generally not authorise any dealing in land subject to a claim that will: prevent the land being transferred to a claimant Aboriginal land council in the event it is found to be claimable; or impact on the physical condition of the land.

To ensure these conditions are met, the proponent must usually seek consent from the claimant Aboriginal land council for the proposed works or activity before any landowner’s consent can be provided. During the assessment of an Aboriginal land claim, the department identifies and gathers relevant information about the land at the date of lodgement.

We will generally seek information from relevant agencies (including local government and infrastructure providers) and tenure (lease or licence) holders to understand if the land subject to claim is lawfully used or occupied or is needed or likely to be needed for an essential public purpose.

Download the Information for Crown land tenants about Aboriginal land claims fact sheet (PDF, 390 KB).

When claims are granted, the department arranges the transfer of land in freehold title to the relevant Aboriginal land council. This includes preparing transfer documents, lodging them with NSW Land Registry Services and posting the certificate of title.

Once land is transferred as freehold it is up to land councils what they do with it, however the land is still subject to local and state planning requirements and other regulations.

The ownership of land can support economic, social, cultural or environmental outcomes for Aboriginal communities.

In certain circumstances, land may require a survey before the transfer can be completed. In these circumstances, the department will facilitate this process.

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 four-month period from the date of the decision.

A successful land claim by Biraban Local Aboriginal Land Council in September 2022 saw a block of land big enough for 3 houses in Awaba, Lake Macquarie, returned to the local Aboriginal community.

The 2,000 m2 lot on the corner of Gosford and Ourimbah streets is 500 metres from Awaba railway station. This undeveloped block of land adjoins houses in the middle of Awaba and is close to bushland.

Biraban Local Aboriginal Land Council plans to develop the land for either housing or aged care for the Awaba Aboriginal community. There is also the option to build a community centre on the site.

Following a successful land claim in 2007, 10.6 hectares of land was returned to Worimi Local Aboriginal Land Council. 

Since then, the LALC have created an award-winning tourism venture: Sand Dune Adventures. 

Tourism Australia named it an Indigenous Tourism Champion, with its profits poured back into the local Aboriginal community, funding employment, housing, education, health and elders’ programs.

The former Orange police station was transferred to Orange LALC in April 2021. 

After extensive renovations, it is now the Orange LALC office, offering many programs and wraparound services, becoming a positive asset for the Orange community. 

More than 34 hectares of Crown land at Lake Macquarie was transferred to the local Aboriginal community in June 2022 after the NSW Government granted land claims by Biraban Local Aboriginal Land Council. The approved claims were over 5 separate areas of land:

• 19.09 hectares at the corner of Awaba and Terrigal streets, a large bushland lot near the centre of Morisset featuring Melaleuca Creek and access to Moira Park Road
• 12.75 hectares at Wangi Road, south of the industrial estate along Dorrington Road
• 1.38 hectares at Freemans Drive at the corner of Mandalong Road
• 0.93 hectares comprising 11 adjacent lots between Baddeley Street and Sydney Street, off Wilton Road, near Awaba Station
• 0.54 hectares near Awaba Station in an area between Wilton Road and Olney Street.

Biraban Local Aboriginal Land Council plans to work with Lake Macquarie City Council to determine the needs of the wider community before formulating plans for the land.

Two former government properties are being used to support community housing following successful Aboriginal land claims at Cobar and Lightning Ridge in November 2021.

The 2 properties were used for government staff accommodation but are now homes for Aboriginal families, helping address the demand for residential accommodation in western NSW.

The properties in Cobar and Lightning Ridge each comprise a 3-bedroom house on approximately 1,000 m2 of land and were transferred to the control of the respective Aboriginal land council for the areas.