TRACKER, April 2011: There is still much confusion in public debate about the differences between the native title regimes and claims under the Aboriginal Land Rights Act in NSW and other State-based land rights regimes. This has been the subject of considerable discussion in recent years. Some of the best material on the subject was contained in a Background Paper issued by the then Department of Aboriginal Affairs during the 1990’s. This is an edited text of that material.
How They Differ
There are major differences between the Aboriginal Land rights Act and native title legislation.
Native Title is a pre-existing enforceable right.
The ability to successfully claim native title depends on being able to establish continuing rights derived from traditional ownership or custodianship. Claimants must establish that their connection to an area of land was, and continues to be, recognised under traditional law and custom.
They must also establish that those traditional rights have not been extinguished by a government granting inconsistent rights to someone else.
In contrast, the Aboriginal Land Rights Act enables land to be returned to Aboriginal people as a matter of redress, or compensation, for past dispossession and loss of traditional rights.
In New South Wales the impact of colonisation on Aboriginal people has been more significant, in some respects, than in other parts of the country.
Through various government policies, many people no longer live on their traditional lands and some have difficulty in now identifying precisely where their traditional lands once lay, and the nature of the laws and customs which applied to custodianship of their lands.
It was for these reasons , the 1980 Keane Report into Aboriginal Land Rights in NSW recommended that Aboriginal people be entitled to claim land on a range of grounds, including needs and long association, as alternatives to traditional rights.
The Aboriginal Land Rights Act went further in recognising the disadvantage experienced by many NSW Aboriginal people in establishing traditional rights over specific land areas.
The legislation provides that vacant crown land may be claimed by the Local Aboriginal Land Council of the area, without any requirements to define a specific need or association with that piece of crown land.
Similarly, membership of LALC’s is primarily based on residence rather than traditional association with an area, and LALC activities focus on the local residential Aboriginal community.
In many cases, members of the local community are also the traditional owners of the area, but in contrast to native title, rights under the Aboriginal Land Rights Act do not depend upon traditional connection to the land.
Reconciling the two regimes
Within some local Aboriginal communities, tension has arisen between people asserting rights under the native title regime and those asserting rights under the Aboriginal Land Rights Act.
The immediate causes of conflict include overlapping land claims under the two regimes, and disputes over who is entitled to assert native title in a particular area.
LALC members and native title claimants may also have differing views regarding use of land.
To take these differences to their most extreme, priorities for land use under the Aboriginal Land Rights Act are perceived to be economic development and social benefits such as housing, whereas native title is seen as primarily concerned with traditional practices and cultural heritage.
These, however, are simplified generalisations.
While the Aboriginal Land Rights Act and native title legislation are of different character and origin, the aspirations of Land Council members and native title claimants are not necessarily as polarised as community conflict might suggest.
For instance, LALCs have always been involved in heritage protection and other cultural projects. And many native title claimants include economic and social development among their goals: for example, aiming to establish profitable enterprises on their traditional lands, or negotiating employment and shares in industrial projects occurring on their lands.
Reconciling the Aboriginal Land rights Act and native title regimes should not always have to amount to compromise or waiver of rights, by either party.
Potentially, the differences between the two schemes, and the very existence of options, may operate to the advantage of Aboriginal people in New South Wales.
In some situations, it may be more profitable to pursue a claim under the Native Title Act. than under the Aboriginal Land Rights Act.
This may be the case where native title rights reach a broader geographical area than the vacant crown land available under the Aboriginal Land Rights Act.
Conversely, in circumstances where a native title claim may have a limited outcome (or no outcome) due to the extinguishment of traditional rights, a claim under the Aboriginal Land Rights Act might be appropriate.
Having recourse to both regimes, over various areas of land, may provide maximum gain for Aboriginal communities.
The strength of the Native Title Act in upholding cultural heritage and customary rights, for instance, and its ‘right to negotiate’ provisions, might be strategically employed in conjunction with the economic development opportunities and freehold title gained under the Aboriginal Land Rights Act.
There have already been instances of successful mediation, negotiation and joint planning between LALCs and native title holders.