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
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
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
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.
Based on material supplied by the National
Native Title Tribunal
Back to Page
1 of Native Title and Land Rights.