NTSCORP is located on the lands of the Gadigal people. We pay our respects to Elders past and present and extend that respect to all Traditional Owners across NSW and the ACT.

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What are land
rights in NSW?

Land rights and native title are two distinct legal frameworks that recognise Aboriginal peoples’ ongoing connection to Country. Understanding how they work helps communities know what rights may apply.

In NSW, there are two different systems by which Aboriginal people can have their rights in land recognised – the system under the Aboriginal Land Rights Act 1983 (NSW) (Aboriginal Land Rights Act) and that under the Native Title Act 1993 (Cth) (Native Title Act).

While both these Acts aim to provide recognition of Aboriginal land rights, the rights and interests which can be recognised under each Act differ in several ways.

Land rights under the Aboriginal Land Rights Act

The Aboriginal Land Rights Act provides a mechanism for compensating the Aboriginal people of NSW for the loss of their land. Under this Act, Aboriginal Land Councils can make land claims to the Registrar of the Aboriginal Land Rights Act for certain Crown lands. Land claims are determined by the Minister administering the NSW Crown Lands Act, who must decide whether the land is ‘claimable land’ under the Aboriginal Land Rights Act.

If the Minister decides certain land is ‘claimable land,’ it must be granted to an Aboriginal Land Council. This is granted in the form of freehold title to the land. This means that the Aboriginal Land Council is the owner of the freehold land and will have the same rights as other freehold landowners, subject to rules in the Aboriginal Land Rights Act.

For more information about land rights under the Aboriginal Land Rights Act, visit the NSW Aboriginal Land Council website here.

Native title rights and interests

Native title rights and interests are specific rights and interests in land and waters which can be recognised by the Federal Court. To be recognised by the Federal Court, the rights and interests must have been held in an ongoing way and in accordance with an acknowledged and observed system of traditional law and custom since before the British asserted sovereignty over Australia.

Some examples of native title rights and interests which have been recognised by the courts include:

  • the right to access
  • the right to camp
  • the right to hunt or fish
  • the right to gather and use resources, and
  • the right to visit and protect sites of significance.

Native title comes in two forms: exclusive possession and non-exclusive possession. Exclusive native title means native title holders have the right to control or prevent access by other land users. Unlike land rights under the Aboriginal Land Rights Act however, exclusive native title rights do not amount to full legal ownership of land or waters, and they cannot be sold. Non-exclusive possession means that native title rights co-exist with the rights of other land users, and native title holders do not have a right to control access to the area.

Native title claims which are successfully settled by agreement instead of through the courts, such as with an Indigenous Land Use Agreement, can also include other rights and benefits such as the grant of freehold land and in some cases compensation.