Land Tenure, Customs Of

Land Rights

From the early nineteenth century, some lands in Australia had been set aside as aboriginal reserves. Some reserves were small and government officials designed them to accommodate and protect people in particular areas that were otherwise open to white settlement. Other reserves were much larger, mainly in arid regions or in areas adjoining the coasts in the tropical north of the country. The traditional owners were able to live much as they had always done until recent times. Some lands leased to settlers for grazing cattle or sheep were subject to requirements for continued access by aboriginal peoples for traditional purposes.

In the 1960s, a substantial political movement for recognition of “aboriginal land rights” grew out of the struggles of particular peoples, such as the campaigns of the Gurindji and the Yolgnu in the Northern Territory (NT). The latter brought legal action in the Territory Supreme Court but were unsuccessful (Milirrpum v. Nabalco Pty Ltd [1971] 17 FLR 141). In the aftermath, however, the commonwealth government commissioned an inquiry on how best to recognize aboriginal land rights in the NT. (Over one quarter of the population of the NT is aboriginal, and in nonurban areas they constitute some two thirds of the population.)

The outcome was the enactment of the Aboriginal Land Rights (Northern Territory) Act, 1976 (Commonwealth, Cth). The Act directly vested some lands, mainly existing reserves, in the ownership of land trusts representing the traditional owners and other aboriginal people with interests in the land. It also provided for a claims process to “claimable Crown land.” If the claimants were able to satisfy the aboriginal land commissioner that the land was theirs under their laws and customs, the commissioner could recommend that it vest in them under Australian law. The title conferred on land trusts was inalienable fee simple. The people had substantial power to control resource development on their lands. They were supported by two major (and two smaller) aboriginal land councils. Aboriginal people now own nearly half the land in the NT.

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