The Traditional Owners of this land are those who identify as
Aboriginal and Torres Strait Islander Peoples.

Sovereignty was never ceded.

ANTAR pays respect to Elders past, present, and emerging through our dedicated advocacy for First Nations Peoples’ justice and rights.

ANTAR acknowledges the responsibility of committing to a truth-telling process that promotes an honest and respectful path forward for future generations to build upon.

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Native title vs land rights

Last edited: June 2, 2024

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 RIGHTSNATIVE TITLE
FUNCTIONSUnder the governments (state, territory or federal)Under common law
PURPOSEProvides 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
CAPACITYCan only be claimed by Aboriginal Land Councils and may only claim unused and unoccupied Crown Lands that are deemed not neededCan 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
OUTCOMEA successful claim results in ownership through freehold title or leasehold to Aboriginal Land CouncilsA 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
SIGNIFICANCERecognises 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 processDemonstrates 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
ISSUESDoes 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

 

The key differences

Land rights
  • Has statutory origins, i.e. created by government actions;
  • Achieves ownership more fully as Land rights are recognised in the form of alienable freehold title, meaning exclusive possession is able to be exercised;
  • Land available to be claimed is limited, as it must be Crown land that is deemed unneeded (at present or in the future), unused and unoccupied; and
  • Does not require the title holder to have a traditional or customary connection to the land (other than under the Aboriginal Land Rights (Northern Territory) Act 1976).
Native Title
  • Has common law origins, i.e. courts recognising pre-existing rights and interests in the land;
  • Includes the controversial requirement of having to prove a traditional ongoing connection to Country;
  • Land available to be claimed is less limited, and can include vacant crown land, reserves, parks, forests, beaches, some leases, land held by government agencies or First Nations Peoples; and
  • Provides the Native Title holder with a bundle of rights and interests in respect of the land but does not result in ownership or guarantee decision-making powers. Title is usually non-exclusive.

 

RESOURCES
Factsheet
Land Back Read
Report
ANTAR Impact Report Read
Submission
Path to Treaty Bill Qld Read
Factsheet
The Woodward Royal Commission Read
More
Native Title & Land Rights
Native Title & Land Rights About native title Read More
Native Title & Land Rights Land Back Read More
Native Title & Land Rights Comprehensive Settlements Read More
Native Title & Land Rights The Timber Creek compensation case Read More