What is an Aboriginal land claim?
Aboriginal land councils can lodge Aboriginal land claims for ownership of some Crown land. Crown Lands facilitates the return of land to Aboriginal land councils by assessing land claims and, if a claim is successful, transferring land.
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 NSW Department of Planning and Environment, 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, 161 KB)
How tenure-holders could be affected by Aboriginal land claims
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 of Planning and Environment) 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.
The Claim process
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.
Aboriginal land claims are assessed against the criteria contained in section 36(1) of the Aboriginal Land Rights Act 1983 which states that:
‘claimable Crown lands means lands vested in Her Majesty that, when a claim is made for the lands under this Division:
- are able to be lawfully sold or leased, or are reserved or dedicated for any purpose under the Crown Lands Consolidation Act 1913 or the Western Lands Act 1901
- are not lawfully used or occupied
- do not comprise lands which, in the opinion of a Crown Lands Minister, are needed or are likely to be needed as residential lands
- are not needed, nor likely to be needed, for an essential public purpose
- do not comprise lands that are subject to an application for determination of native title (other than a non-claimant application that is an unopposed application) that has been registered in accordance with the Commonwealth Native Title Act, and
- do not comprise lands that are the subject of an approved determination of native title (within the meaning of the Commonwealth Native Title Act) (other than an approved determination that no native title exists in the lands).
During the assessment of an Aboriginal land claim, the department identifies and gathers relevant information about the land. 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.
The department will seek information from relevant agencies (including local government and infrastructure providers), land managers and tenure (lease or licence) holders to support the assessment of the claim.
This is a legal, non-discretionary process, which is completed in accordance with the criteria. If the land is found to be claimable against the criteria, the Minister for Crown Lands must grant the claim.
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.
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.
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.