Aboriginal Land Rights

 
Aboriginal land claims are different from Native Title applications.

Matters pertaining to Aboriginal land claims arise from NSW legislation, namely the Aboriginal Land Rights Act 1983 (NSW) (Aboriginal Land Rights Act).

In NSW, land rights are granted in the form of freehold estate where the Minister administering the Crown Land Management Act 2016 (Crown Land Act) finds that the land is claimable land for the purposes of the Aboriginal Land Rights Act. The Aboriginal Land Rights Act establishes a process and conditions for Aboriginal Land Councils to claim land in NSW.

Essentially claimable Crown lands are lands vested in Her Majesty that:

  • are able to be lawfully sold or leased, or are reserved or dedicated for any purpose, under the Crown Land Act;
  • are not lawfully used or occupied;
  • do not comprise lands which, in the opinion of the 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 the subject of an application for a determination of native title that has been registered in accordance with the Native Title Act; and,
  • do not comprise lands that are the subject of an approved determination of native title, other than an approved determination that no native title exists in the lands.

The Minister does not have any discretion when determining Aboriginal land claims and land is claimable under conditions that have been modified by the Courts since the commencement of the Aboriginal Land Rights Act. If a land claim is lodged over Crown land that meets the conditions above the Minister is required to grant the claim.

Disputes over claimable Crown land are administered by the Land and Environment Court.

Aboriginal land claims are time dependant. That is, they are determined according to the conditions and status of the land at the date of the lodgement of the claim. Thus, any number of claims can be lodged over a single parcel of land at differing times. For many parcels in NSW there are multiple claims. At present there are over 26,000 claims yet to be determined by the Minister.

On 1 July 2015 the Aboriginal Land Rights Act was amended to allow the Minister and Aboriginal Land Council(s) to enter into Aboriginal Land Agreements with a view to, among other things, allow parcels under claim to be ‘determined’ by negotiation rather than on a parcel by parcel basis.

How Landsas can help – Land Claims

 
When a land claim is lodged over a parcel of Crown land the Minister and the controlling authority, currently the Department of Industry – Crown lands and Water, are limited in their dealings with the land. Most land dealings are only able to be undertaken after the land claim has been determined.

Landsas can provide certainty to its clients in relation to land claims in a contracted period allowing them to make informed decisions. We have the knowledge and expertise to assist the Minister in hastening the administrative processes required to determine claims.

Local Government

 
Specifically, Landsas works with Councils to:
 

  • assess whether land is likely to be claimable Crown land under the Aboriginal Land Rights Act.
  • determine whether a parcel of land is affected by a land claim;
  • assess the likely chances of success of an existing land claim;
  • respond to State Government referencing by acquiring, compiling and developing evidence to assist the Minister in determining a land claim ;
  • represent Council in developing an Aboriginal Land Agreement with the State Government and Land Councils

Local Aboriginal Land Councils

 
Landsas can work with Land Councils:
 

  • assess whether land is likely to be claimable Crown land under the Aboriginal Land Rights Act and whether it will be beneficial to the land council.
  • represent the Land Council in developing an Aboriginal Land Agreement with the State Government

At Landsas we believe that knowledge and experience matter. Our experience provides unique insights into the challenges that our clients are facing. Our knowledge gives us the capability to analyse complex issues and develop innovative, practical solutions that we see through to implementation.

Vanessa Field is one of the State’s preeminent experts in relation to property law in general and Native Title in particular. Having spent 10 years as the principal lawyer managing Native Title and land claim issues for the State she has advised the Attorney General, other Ministers and the Executive of various government departments on all aspects of native title law and policy.

Kel O’Keefe is a solicitor and former Corporate Counsel of the NSW Department of Lands. Kel has extensive knowledge of and experience in commercial negotiations for the use of Crown land and other government land and also has a thorough knowledge of evaluation, negotiation and resolution processes for Aboriginal Land Rights Act and Native Title claims.

Craig Barnes has been a senior executive and operational manager of Crown land for over 20 years and has extensive experience in public land management and administration, Native Title and negotiation with the public and private sector. Craig has led the assessment of aboriginal land claims on behalf of the NSW Government and was responsible for the re-engineering of the claim assessment process. He has prepared successful responses to aboriginal land claims, on behalf of local governments, in relation to lawful use and occupation and essential public requirement evidence.