Aboriginal land, native title and heritage

Contributed by RebeccaHughes, Michael O'Donnell and Charlotte Deans, as amended by DanteMavec and current to January 2025

The primary pieces of legislation regarding Aboriginal rights to land are the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA"), and the Native Title Act 1993 (Cth) (NTA). These two Acts operate in relation to distinct areas of land in the Northern Territory, with very little overlap.

Other important legislation includes the Aboriginal Land Act 1978 (NT) regarding permits to enter Aboriginal land and the closure of seas within two kilometres of Aboriginal land, the grant of Aboriginal community living areas on cattle stations under the Pastoral Land Act 1992 (NT), and protection of sacred sites and other Aboriginal heritage under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth).

Traditional rights of access, hunting and fishing (for non-commercial purposes) are recognised in relation to pastoral leases under the Pastoral Land Act 1992 (NT), and in relation to the sea and rivers under the Fisheries Act 1988 (NT).

Aboriginal Land Rights (Northern Territory) Act 1976

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA") resulted from Australia's first native title case, the 1971 Gove Land Rights Case, which challenged a bauxite mine and refinery in north-east Arnhem Land (Milirrpum v Nabalco Pty Ltd [1972-73] ALR 65; (1971) 17 FLR 141). In that case, the NT Supreme Court rejected a claim for native title on the basis that it had never formed part of Australian common law but otherwise made findings including that the Yolngu clans laws and customs were recognisable as a system of law, being a 'subtle and elaborate system' which constituted 'a government of laws, and not of men'.

These findings provided the basis for a Royal Commission which in 1974 recommended land rights in the Northern Territory. The ALRA largely implements the Commission's recommendations, was introduced by the Whitlam Government in 1975, and was enacted by the Fraser Government in 1976.

The main features of the ALRA include:

• Aboriginal land is the name given by the ALRA to a form of freehold vested in Aboriginal Land Trusts. Aboriginal land can be leased, but not sold, to developers (it is ‘inalienable’). Upon enactment most existing Aboriginal reserves (eg Arnhem Land) automatically became Aboriginal land;
• a process for claims to crown land and Aboriginal owned pastoral leases (outside towns);
• a requirement that development (including mineral and petroleum exploration) can only occur on Aboriginal land, or land subject to claim, with the consent of the traditional owners and the relevant Land Council;
• the establishment of Land Councils to, among other functions, represent the interests of traditional owners of Aboriginal land, and protect sacred sites on any land;
• the provision of 30% of funds equivalent to mining royalties on Aboriginal land to traditional owners or Aboriginal persons affected by mining, with the remainder available to meet Land Councils' administrative costs or to fund projects benefiting Aboriginal people in the Northern Territory (since 2023, beneficial project funding is administered by Aboriginal Investment NT);
• Aboriginal land cannot be compulsorily acquired or forfeited under any Northern Territory law. Power to compulsorily acquire is vested in the responsible Commonwealth Minister under the Lands Acquisition Act 1989 (Cth), and during the Intervention, the Commonwealth compulsorily acquired 5 year leases over 65 Aboriginal communities under the now-repealed Northern Territory National Emergency Response Act 2007 (Cth);
• Aboriginal people’s entitlement to access Aboriginal land is determined by Aboriginal tradition, and it is an offence (with some exceptions) for other people to access the land without a permit issued by a Land Council or traditional owners (see ss 70, 70A-70H and 71 of the ALRA, and Part II of the Aboriginal Land Act 1978 (NT)); and
• Northern Territory laws apply to Aboriginal land (eg criminal law), except where not capable of operating concurrently with the ALRA (eg compulsory acquisition law).

Land claims

The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA") enables claims to unalienated or vacant crown land (outside town boundaries), or Aboriginal owned pastoral leases. Submerged crown land in bays and gulfs of the Northern Territory cannot be claimed; generally speaking, the lower water mark of the coastline represents the furthest a claim can be located seaward (Risk v Northern Territory [2002] HCA 23; (2002) 210 CLR 392; Northern Territory of Australia v Aboriginal Land Commissioner [2023] FCA 1183). Due to a sunset clause claims are only valid if lodged prior to 5 June 1997, meaning new claims cannot be lodged. Presently approximately 44% of the Northern Territory is Aboriginal land, with some claims not yet finalised.

Claims are heard by the Aboriginal Land Commissioner (a judge of the Federal Court or the NT Supreme Court), who inquires into whether 'traditional Aboriginal owners' exist and recommends as to a grant of Aboriginal land. A positive recommendation empowers the Commonwealth Minister to facilitate a grant.

'Traditional Aboriginal owners' are defined as a local descent group of Aboriginal people who have common spiritual affiliations to a site on the land that place the group under a primary spiritual responsibility for that site and for the land, and who have a traditional right to forage on the land.

The Commissioner also reports as to the strength of traditional attachment, the number of Aboriginal people who would be advantaged by a grant of Aboriginal land, any detriment to others which may result from a grant (e.g. in relation to a railway, pipeline or access for cattle), and the cost of acquiring any interests in the land proposed for grant. In practice, the Commonwealth Minister requires any detriment to be resolved by agreement between stakeholders on reasonable terms before granting Aboriginal land.

Land may also be scheduled as Aboriginal land (ordinarily with the agreement of the NT Government), without going through the claims process, by the Commonwealth Parliament through an amendment to Schedule 1 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA"). The Commonwealth Government is not liable to pay any compensation to the NT Government regarding the grant of Crown land as freehold to Aboriginal Land Trusts.

Land Councils

There are four Land Councils, each being a statutory authority comprised of Aboriginal persons representative of the Land Council region: Central Land Council (Central Australia), Northern Land Council (the Top End), Tiwi Land Council (Bathurst and Melville Islands) and Anindilyakwa Land Council (Groote Eylandte and Bickerton Island).

The functions of a Land Council include to:

• represent, and protect, the interests of traditional owners and other beneficiaries of Aboriginal land
• assist in the protection of sacred sites, whether or not on Aboriginal land
• facilitate legal representation in land claims
• ascertain the identity of traditional Aboriginal owners of Aboriginal land
• consult with traditional owners and other beneficiaries regarding development proposals, and where satisfied that traditional owners consent execute agreements
• receive lease and royalty payments in order to distribute to or for the benefit of traditional owners and other beneficiaries
• assist Aboriginal people to engage in commercial activities.

A Land Council employs staff and may engage consultants to assist in the performance of functions. The Central and Northern Land Councils both employ over 100 staff.

Land trusts, leases and licences

An Aboriginal Land Trust (land trust) holds title for the benefit of both traditional Aboriginal owners and other Aboriginal people who have traditional rights, including rights of entry, occupation and use whether or not those rights are qualified under Aboriginal tradition. A land trust must, and can only, act as directed by the responsible Land Council.

A Land Council can only direct the grant of a lease or licence by a land trust where satisfied that the traditional owners consent. It must also be satisfied that affected communities have been consulted and the terms and conditions of the grant are reasonable. The Commonwealth Minister's consent is required for leases greater than 40 years or those that have a value greater than $5,000,000.

A lease or licence may authorise any activity other than mining, since Aboriginal land does not include rights to minerals. For further information on mining, see sections below.

The Land Councils generally have an application process for leases or licences, and prospective lessees should contact the relevant Land Council for more information.

Pre-existing government occupation or use of Aboriginal land for a community purpose may continue after the grant of that land (for example, police stations, schools and other facilities). The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA") also provides, where traditional owners consent, for the grant of 99-year head leases of communities on Aboriginal land to a government entity or community corporation which would take responsibility for the grant of development, housing and other sub-leases in the community.

Blue Mud Bay Case

The Blue Mud Bay Case (Northern Territory v Arnhem Land Aboriginal Land Trust [2008] HCA 29; (2008) 236 CLR 24) was decided by the High Court in 2008. It affirmed that Aboriginal land includes the intertidal zone and tidal waters. This means that a Northern Territory fishing licence does not authorise access and that either a permit under the Aboriginal Land Act or an agreement with the Land Trust is required to access or use the area. The High Court also determined that the Northern Territory Parliament when enacting the Fisheries Act had abolished the common law public right to fish.

Since then, the NT Government, Land Councils and traditional owners of intertidal zones have negotiated agreements to provide for access to recreational and commercial fishers to some areas of tidal and intertidal Aboriginal land.

Mining and Petroleum Production on Aboriginal Land

Exploration for and production of minerals and petroleum may only occur in the Northern Territory pursuant to a tenement granted in accordance with the Mineral Titles Act 2010 (NT) and Petroleum Act 1984 (NT) respectively. The grant of an exploration tenement on Aboriginal land is only valid where that grant complies with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA").

All minerals are vested in the Northern Territory Government except for uranium and other radioactive ores, which are vested in the Commonwealth. Extractive minerals such as sand, gravel, clay and limestone that are located on Aboriginal Land are vested in the Aboriginal Land Trust.

The Northern Territory Government may only grant an exploration tenement where the Land Council and Commonwealth Minister have provided consent or where the Governor-General has, by proclamation, declared that the national interest requires the grant. At time of writing the Governor-General has never made such a proclamation.

The Land Council can only consent to the grant of an exploration tenement if it has, to the extent practicable, consulted with the traditional Aboriginal owners of the affected land and any affected Aboriginal community or group. Before providing consent to grant, the Land Council must be satisfied that the traditional Aboriginal owners understand the terms and conditions of grant and, as a group, consent to them. The Land Council must also reach agreement with the tenement applicant regarding the terms and conditions of grant and be satisfied that these terms and conditions are reasonable.

Once agreement is reached with the Land Council, the grantee party does not need further consent from the Land Council in relation to mining or the production of petroleum. However, a mining or production agreement must be negotiated, with arbitration where the terms cannot be agreed. Prior to 1987, further consent from the Land Council was also required.

Exploration licences which predate a grant of Aboriginal land are valid. However, future mining can only occur by agreement with the Land Council with arbitration if the terms cannot be agreed. Mines and mining leases which predate a grant of Aboriginal land are valid, and there is no requirement that an agreement be negotiated or arbitrated. Nevertheless, agreement making can still occur. For example, in 2011, traditional owners, the NLC and Rio Tinto entered into a landmark agreement in respect of the bauxite mine challenged in Milirrpum.

Permits to enter Aboriginal land

Under both the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA") and the Aboriginal Land Act 1978 (NT) it is an offence to enter or remain on Aboriginal land without a permit. Permits are issued by Land Councils, and may also be issued in writing by relevant traditional owners. The responsible NT Minister may issue permits to government employees requiring access.

Some (but not all) roads are excised from Aboriginal land at the time of grant. A permit is not required to travel on a road if it does not form part of a grant of Aboriginal land.

A permit is not required for entry to a lease or interest in Aboriginal land where for a purpose necessary or related to the use of that lease or interest, or for access to a lease or interest by the owner across Aboriginal land by an agreed or arbitrated route. Further, government officials, politicians and Commonwealth or Northern Territory officers do not require a permit for entry to Aboriginal land.

Native Title Act 1993

In 1992 the High Court delivered its historic judgment in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (Mabo) which overruled Milirrpum and held that the common law recognises a form of native title, subject to any extinguishment arising from legislation or executive action (e.g. a grant of freehold).

The court held that the Meriam People had rights of possession, occupation, use, and enjoyment of land 'as against the whole world' - the effect being that the Meriam People communally own their land (Brennan J in Mabo at 76).

The nature and content of native title is determined by reference to the traditional rights and interests recognised under the traditional laws and customs of an Aboriginal/Islander group, and may be comprised of exclusive possession rights (as in Mabo) or non-exclusive rights (such as to hunt, fish, or hold ceremonies).

At common law, when native title is extinguished by executive or legislative action, it is permanently brought to an end and no compensation is payable. However, the High Court held that, after the commencement of the Racial Discrimination Act 1975 (Cth), most acts which purported to extinguish native title were unlawful and invalid.

The Mabo decision constituted a revolution in Australian property law. The Commonwealth Government’s response to the Mabo decision was to enact the Native Title Act 1993 (Cth) (NTA). The NTA was significantly amended in 1998. A central purpose of the NTA was to validate all grants made prior to 1994 that were invalid because of the existence of native title. The 1998 amendments responded to the 1996 Wik case by extending the validation regime to cover grants which were invalid due to the incorrect assumption that pastoral leases totally extinguish native title.

The NTA also contained provisions to limit the extinguishment of native title after 1994, by providing that most grants after that date will suppress, rather than extinguish, native title rights. These grants are called 'future acts' in the legislation. Development proponents and governments are required by the NTA to treat native title holders as approximately equivalent to freehold owners of land, and proponents and governments are required to notify, consult with, and sometimes make agreements with native title holders, before governments may grant new interests in land. For mining and most compulsory acquisitions, there is provision for a ‘right to negotiate’ an agreement, with mediation and arbitration by the National Native Title Tribunal if agreement cannot be reached. The NTA also contains a process for voluntary development agreements, known as Indigenous Land Use Agreements.

Subsequent key decisions of the High Court include:

• In Wik Peoples v Queensland (1996) 187 CLR 1 the High Court held that non-exclusive native title may coexist with pastoral leases, since leases of this kind do not grant exclusive possession. Likewise non-exclusive native title may coexist with mining leases (Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1). In each case the exercise of native title rights must yield to the exercise of rights under the lease.
• In Commonwealth v Yarmirr [2002] HCA 56; (2001) 208 CLR 1 the High Court held that native title may exist in the seas. The native title is subject to public rights of fishing and navigation, and thus is non-exclusive.
• In Yanner v Eaton [1999] HCA 53; (1999) 201 CLR 351 the High Court held that a native title right to hunt crocodiles for subsistence purposes provided a defence to a charge of killing a crocodile without a permit. The native title right had not been extinguished by Queensland conservation laws despite a declaration that such fauna were 'the property of the Crown'.
• In Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422 the High Court held that while traditional laws and customs may undergo significant adaptation over time, a substantial interruption in the acknowledgement and observance of those laws and customs will mean that native title ceases to exist. The native title cannot subsequently be revived, since only rights grounded in laws and customs which predate sovereignty are recognised by the common law.
• In Leo Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth of Australia [2013] HCA 33, the High Court found that native title rights and interests could include the right to take resources for any purpose. This was the first recognition that activities like fishing for commercial purposes could be permitted by native title rights. However, State and Territory fishing regulations, including the need for a licence or permit, still apply to the exercise of such a right.
• In Western Australia v Brown [2014] HCA 8, the High Court unanimously found that the rights under two mineral leases (granted pre-1975) were not inconsistent with the claimed native title rights and interests and hence native title was not extinguished. The case confirmed that inconsistency (and hence extinguishment) is determined by examining the nature and content of the two sets of rights at the time of grant, not by the manner in which either right is exercised. Brown also had the effect of overturning aspects of the De Rose decision (De Rose v South Australia (No 2) [2005] FCFCA 110) by finding that native title is not extinguished by improvements on pastoral leases.
• In Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1, the High Court made its first award of compensation for the extinguishment of native title rights. The Court gave guidance as to the principles for valuation of native title rights, including that there will generally be three components of the loss for which compensation is awarded. The first component is the economic value of the rights, calculated as a fraction of the freehold value of the land as at the date that native title was extinguished. The second is an award of interest on the first component. The third component, cultural loss, addresses the sense of loss of connection to country suffered by the claimants.

The High Court's resolution of major legal issues, the NTA's emphasis on agreed outcomes, and the strength of Aboriginal law and custom in the Territory, means that there have been many negotiated settlements regarding both claims and development proposals (for example, the Alice Springs to Darwin Railway). Nationally, there have been consent determinations that native title exists without the necessity for a court hearing in every mainland State. In the Northern Territory, there have been close to 120 such determinations by consent at the time of writing.

Recognition of native title

Native title rights are rights which, by definition, must have existed before the assertion of British sovereignty over Australia, and have had a continuous existence ever since. British sovereignty was asserted over the area which now comprises the Northern Territory in two stages, first in 1788 and the remainder in 1828. This assertion of sovereignty cannot be challenged in Australian courts: Coe v Commonwealth of Australia [1979] HCA 68; (1979) 24 ALR 118.

If the requirements for native title have been met by an Aboriginal group, they hold native title rights and have always done so. In practice, however, it will usually be necessary for a group of native title holders to obtain a determination of native title from the Federal Court, through the processes set out in the NTA, before they can effectively assert their native title rights. One important exception relates to criminal defences, including that provided by s 211 of the NTA, which is discussed further below.

The process of claiming native title is prescribed in the NTA. Claims need to be authorised by the group(s) making the claim, and are then assessed for registration. Registration entitles the claimants to notification and consultation for any future acts in the claim’s area.

The NTA set up a system of native title representative bodies to facilitate legal representation regarding native title claims, development agreements, and related functions. The Central and Northern Land Councils are the native title representative bodies for the Northern Territory. Aboriginal people wishing to make a native title claim can seek assistance from the relevant Land Council.

The definitive statement of an Aboriginal group’s native title rights is a determination of native title. A determination is an order of the Federal Court or High Court, that sets out:

1. Whether native title exists (and in what areas)
2. Who holds the native title
3. What the native title rights are
4. How the native title rights relate to non-native title rights and interests held in the same area (for example, pastoral leases and mineral titles)
5. The Aboriginal Corporation which is responsible for assisting native title holders to exercise their rights. This corporation is the registered native title body corporate, and is often referred to as a prescribed body corporate or PBC. It exercises the native title holders’ statutory rights in relation to future acts, subject to the consent of the native title holders.

The Court’s orders in a native title determination are binding on everyone, including the native title holders, the Northern Territory, and any other interest holder in the land. All determinations of native title are kept on a register by the National Native Title Tribunal. The Register of Native Title Claims can be accessed online, and the Tribunal also provides a web-based mapping tool called Native Title Vision.

Once a native title determination is made (and any appeals have concluded), no other native title claims can be made over the area of the determination. Native title determinations can only be varied in very limited circumstances set out in s 13 of the NTA. An individual native title holder does not have standing to apply for a variation; the only bodies with that standing are the registered native title body corporate, the Territory, the Commonwealth, and the National Native Title Tribunal.

Rights of native title holders to access and use their traditional land and waters

The rights which native title holders possess will be set out in the relevant determination of native title. Native title rights are usually required to be exercised in accordance with Aboriginal traditional law and custom, and the exercise of rights must usually yield to the rights of other interest holders such as pastoralists and mineral explorers.

Generally, native title rights will be described as rights to carry out specified non-exclusive activities such as hunting, gathering resources, and caring for sacred sites.

Native title holders may also have concurrent rights to access and use land through Territory legislation. Section 38 of the Pastoral Land Act 1992 (NT) provides that every pastoral lease is subject to a reservation in favour of Aboriginal people who (among other things) are entitled by Aboriginal tradition to use or occupy the pastoral lease. The reservation allows those people to be on the lease area, take and use natural water, and hunt and gather for ceremonial purposes. It is an offence to interfere with the full and free exercise of the reservation. The reservation does not apply within two kilometres of a homestead.

Additionally, section 46 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) allows Aboriginal people to have access to sacred sites in accordance with Aboriginal tradition.

In some areas, native title rights will be exclusive. Non-native title holders are required to obtain permission before accessing areas of exclusive native title. Exclusive native title is rare, but due to provisions of the NTA (ss 47 and 47A-C) it has been recognised around some NT towns and on Aboriginal-owned pastoral leases. A native title determination will clearly state whether native title rights are exclusive or non-exclusive.

Native title and criminal defences

Section 211 of the NTA overrides Commonwealth, State and Territory laws regulating hunting, fishing, gathering and cultural or spiritual activities of native title holders. Where the following conditions apply, native title holders are free to carry out those activities:

1. The native title holders are exercising or enjoying native title rights when carrying out the activity;
2. The activity is being carried out for the purpose of satisfying their personal, domestic or non-commercial communal needs;
3. The activity is restricted or prohibited to persons who do not hold a licence, permit or other instrument; and
4. Under the relevant legislation, licences can be granted to non-Aboriginal people, and for purposes wider than research, environmental protection, public health or public safety purposes.

There is a divergence in the authorities as to who bears the burden of proof when s 211 is invoked to defend against a criminal offence (such as fisheries offences involving taking undersized fish or exceeding bag limits). The most recent authority is Moriarty v Nye [2024] NSWCCA 116, which discusses the earlier decisions and disagrees with the South Australian Court of Appeal, concluding that the legal burden of proof falls on the party seeking to show that s 211 does not apply.

Whatever the onus of proof that is applied, it should be noted that the absence of a native title determination, or even a current native title claim, has not prevented the s 211 defence being relied upon.

Detailed evidence about the laws and customs of the relevant Aboriginal group is very important to demonstrating that activities were undertaken in enjoyment of native title rights and interests. Aboriginal people, and their legal representatives, seeking to rely on this defence, should strongly consider seeking assistance from the relevant Land Council.

Native title holders, and people assisting them to exercise their rights, may also be excused from criminal responsibility when acting on an honest claim of right (s 30(2) of the NT Criminal Code). Mueller v Vigilante [2007] WASC 259; 177 A Crim R 506 contains useful discussion of how an honest claim of right can apply in this context.

Indigenous Heritage Protection

In addition to the general protection which derives from grants or determinations under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("ALRA") and Native Title Act 1993 (Cth) (NTA), Aboriginal heritage may be protected under specific Commonwealth and Northern Territory legislation.

The Northern Territory Aboriginal Sacred Sites Act 1989 (NT) established the Aboriginal Areas Protection Authority which maintains a register of sites which are sacred to Aboriginal people. Sacred sites are protected whether or not they have been registered by the Authority. It is an offence to enter, remain on, or desecrate a sacred site (regardless of whether registered), with maximum penalties of a $74,000 fine (400 penalty units) or 2 years imprisonment for an individual and a $370,000 fine (2,000 penalty units) for a corporation. The Act contains a process whereby the Authority may issue a certificate authorising development where satisfied that it can proceed without damage or interference to a sacred site, or where an agreement has been reached with Aboriginal custodians. A certificate cannot authorise desecration of a sacred site. The Minister may override any refusal by the Authority to grant a certificate, a power which has been very rarely exercised.

The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) applies where NT laws (or State laws) or actions under those laws, in the opinion of the responsible Commonwealth Minister (currently the Minister for the Environment and Water), have not adequately protected sites and objects of particular significance to Aboriginal people under Aboriginal tradition. The Commonwealth Minister by declaration may protect such sites or objects. In 1992 a declaration protected sites on the Todd River north of Alice Springs, thus preventing the construction of a dam.

Aboriginal, and Macassan, archaeological places and objects (excluding sacred sites) are protected under the Heritage Act 2011 (NT). See the relevant chapter of this Handbook for more information.

Formerly, Aboriginal sites could be nominated for inclusion on the Register of the National Estate under the Australian Heritage Commission Act 1975 (Cth) (repealed). However, the Register was closed in 2007, and the protection of heritage places for which the Australian Government is responsible continues under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).

The export of Aboriginal heritage is controlled by the Protection of Movable Cultural Heritage Act 1986 (Cth) and provides that certain Aboriginal and Torres Strait Islander objects cannot be exported.