Whilst native title and land rights both work to recognise First Nations Peoples’ rights to the land, they differ in their operation and what they can offer.
| LAND RIGHTS | NATIVE TITLE | |
|---|---|---|
| FUNCTIONS | Under the governments (state, territory or federal) | Under common law |
| PURPOSE | Provides grants of Crown Land (mostly freehold or perpetual lease) without the need for traditional connection to be established (other than under the Aboriginal Land Rights (Northern Territory) Act 1976) | Provides a recognition of First Nations Peoples traditional and customary rights and interests of the land, also requiring a historical, unbroken and ongoing connection to the land be proven |
| CAPACITY | Can only be claimed by Aboriginal Land Councils and may only claim unused and unoccupied Crown Lands that are deemed not needed | Can be claimed by Native Title Holders under a Prescribed Body Corporate (PBC) who may make claims to a wider selection of land; vacant Crown Land, national parks, state forests, reserves etc |
| OUTCOME | A successful claim results in ownership through freehold title or leasehold to Aboriginal Land Councils | A successful claim results in rights granted, which may include access and usage rights but not the right to control access to or usage of the land |
| SIGNIFICANCE | Recognises the dispossession of First Nations Peoples and the harms caused, with land grants used as a tool of compensation and land councils act as a bridge between the state and First Nations peoples in this process | Demonstrates the invalidity of terra nullius and thus the falsehood in which the colonisation of Australia was enacted on as it forces the state to recognise the ‘forever’ connection to country that First Nations Peoples hold |
| ISSUES | Does not recognise the pre-existing connection to country that First Nations Peoples hold Significant backlog, only a small portion of land rights claims are successful, and many have been in process for over a decade Land Rights are given to Land Councils which are still connected to the state | Continuous connection to land - has to be proven even though it was purposefully broken by the same government that wants it to be proven The burden of proof is on First Nations Peoples which takes money, time and resources Native Title is not ownership - but pre-existing rights to perform activities Commercial rights are limited, with Indigenous Land Use Agreements (ILUA) often needed Can be extinguished - by freehold title and many other land leases, or overridden the rights of mining companies, pastoralists etc No Veto Power - First Nations groups can only discuss and negotiate mining projects on their lands |
