Contemporary issue: land rights of Indigenous peoples: HSC Legal Studies

What this dot point is asking

Land rights is the second contemporary issue that must be studied in the Indigenous Peoples option. You must identify and investigate the issue and evaluate the effectiveness of legal and non-legal responses.

Land rights questions are common. In 2023 NESA asked "To what extent do legal processes recognise rights to land and natural resources for Indigenous Peoples?" Its feedback rewarded comparative judgements about a range of legal processes (courts, legislation and UN processes), recognition of constraints such as funding, state sovereignty and political will, and evidence from different parts of the world. It asked students to explain how UNDRIP and ILO Convention 169 affect recognition. This page covers land; closely related rights to resources are on the natural resources page.

The answer

Identifying the issue

For Indigenous peoples, land is not just property: it is the source of law, spirituality, identity, kinship and economy. Colonising states claimed Indigenous lands through the doctrine of discovery and, in Australia, terra nullius, and then granted them to settlers. The issue today is how far the law recognises Indigenous ownership that existed before colonisation, returns land, protects it from further loss, and compensates for what cannot be returned.

International standards

• UNDRIP recognises the right to maintain spiritual relationships with traditional lands (art 25), the right to own, use, develop and control lands traditionally owned or occupied (art 26), a process for recognising those rights (art 27), redress for lands taken without free, prior and informed consent (art 28), and consent before projects affecting their lands (art 32). It is not binding.
• ILO Convention 169 requires states to recognise ownership and possession of traditionally occupied lands, to identify and protect them (art 14) and to consult before exploiting resources (art 15). It binds only its 24 parties, mostly in Latin America; Australia is not one.

Australia: statutory land rights

After the Yolŋu people lost Milirrpum v Nabalco (1971), in which Blackburn J held that Australian law did not recognise communal native title, the Woodward Royal Commission recommended legislation. The Fraser Government passed the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) under the territories power. It grants inalienable freehold title to land trusts, managed through land councils, and traditional owners can refuse consent to mining exploration on their land, subject to a national interest override. About half of the Northern Territory is now Aboriginal land. States followed with their own schemes, such as the Pitjantjatjara Land Rights Act 1981 (SA) and the Aboriginal Land Rights Act 1983 (NSW), which created Local Aboriginal Land Councils that can claim unused Crown land, as partial compensation for dispossession. Statutory land rights do not require claimants to prove continuous connection, but they depend on Parliament and are limited to available Crown land.

Australia: native title

Mabo v Queensland (No 2) (1992). On 3 June 1992 the High Court (6 to 1) held that the common law of Australia recognises native title, rejecting terra nullius. Eddie Koiki Mabo and the other Meriam plaintiffs established that the Meriam people held title to Mer (Murray Island) under their traditional laws and customs. Native title survives where connection has been maintained and it has not been extinguished by a valid act of government inconsistent with it, such as a grant of freehold.

The Native Title Act 1993 (Cth). Parliament created a national system:

• Definition (s 223): rights and interests possessed under traditional laws and customs, by which the claimants have a connection with the land or waters, recognised by the common law.
• Process: claims are lodged in the Federal Court; the National Native Title Tribunal mediates and keeps registers.
• Future acts: registered claimants and native title holders have procedural rights, including a right to negotiate over mining, but no veto.
• Agreements: Indigenous Land Use Agreements allow negotiated outcomes.
• Compensation for acts that extinguish or impair native title.

Wik Peoples v Queensland (1996) held that native title could coexist with pastoral leases, with the lease prevailing in a conflict. The Howard Government's response, the Native Title Amendment Act 1998, validated past grants, confirmed extinguishment by many tenures and restricted the right to negotiate; Deputy Prime Minister Tim Fischer promised "bucketloads of extinguishment".

Proving connection

In Members of the Yorta Yorta Aboriginal Community v Victoria (2002), the claim failed because the High Court held the claimants had to show that the traditional laws and customs had continued substantially uninterrupted since British sovereignty; the trial judge had found that "the tide of history" had washed away their connection. The case shows how the very dispossession native title is meant to address can defeat it. Victoria responded with the Traditional Owner Settlement Act 2010 (Vic), which allows negotiated settlements without proving native title.

The content of native title

Western Australia v Ward (2002) held that native title is a "bundle of rights" that can be partly extinguished, and that there is no native title right to minerals or petroleum where the Crown has vested ownership in itself.

Compensation

In Northern Territory v Griffiths (2019) (Timber Creek), the High Court awarded about $2.5 million, including about $1.3 million for cultural and spiritual loss, the first assessment of native title compensation. In Commonwealth v Yunupingu [2025] HCA 6 (12 March 2025), the High Court held that native title is property and that its extinguishment by the Commonwealth in the Northern Territory, including before the Native Title Act, attracted the constitutional guarantee of just terms, clearing the way for the Gumatj clan's compensation claim over the Gove Peninsula and potentially many others.

Negotiated settlements

The South West Native Title Settlement with the Noongar people of Western Australia, which commenced in February 2021, exchanged the resolution of native title claims for land, a long-term trust fund and governance arrangements; it is described as the largest native title settlement in Australian history.

Outcomes

The Productivity Commission's July 2026 Closing the Gap report found that Target 15A (land subject to Aboriginal and Torres Strait Islander people's legal rights or interests) and Target 15B (sea country) were both on track, among the few targets that were.

Land rights around the world

Canada

Section 35 of the Constitution Act 1982 protects Aboriginal title. Calder (1973) recognised that Aboriginal title existed before colonisation; Delgamuukw (1997) accepted oral histories as evidence; Tsilhqot'in Nation v British Columbia (2014) made the first declaration of Aboriginal title over about 1,750 square kilometres; and in Cowichan Tribes v Canada (7 August 2025), after the longest trial in Canadian history, the BC Supreme Court recognised Aboriginal title over land in Richmond, including land held in fee simple, a first. British Columbia announced an appeal, and the decision has caused concern among private landowners, showing the political limits of judicial recognition.

Aotearoa New Zealand

The Waitangi Tribunal (1975, with jurisdiction back to 1840 from 1985) investigates Crown breaches of the Treaty of Waitangi, and the Crown negotiates settlements with iwi, such as the Ngāi Tahu Claims Settlement Act 1998. Some settlements recognise land and rivers as legal persons: Te Urewera Act 2014 and the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017. Settlements provide only a fraction of what was lost, and most Tribunal recommendations do not bind the Crown.

Norway

The Finnmark Act 2005 transferred about 95 per cent of the land in Finnmark from the state to the Finnmark Estate, governed jointly by the Sámi Parliament and the county, with a commission to identify existing rights.

Brazil

The 1988 Constitution (art 231) recognises Indigenous peoples' original rights to the lands they traditionally occupy and requires the state to demarcate them. Landowners argued for a "marco temporal" limiting claims to land occupied on 5 October 1988, which would exclude peoples expelled before then. The Supreme Federal Court rejected it in September 2023; Congress passed Law 14.701/2023 to reinstate it; and in December 2025 the Court declared its key provisions unconstitutional and recognised the state's unjustified delay in demarcating Indigenous lands.

Regional courts

The Inter-American Court held in Awas Tingni v Nicaragua (2001) that the right to property protects communal Indigenous land, and in Saramaka v Suriname (2007) that concessions on Saramaka land required participation and benefit-sharing. In Africa, Endorois v Kenya (African Commission, 2010) and the Ogiek case (African Court, 2017; reparations 2022) found evictions violated Indigenous peoples' rights. The Caribbean Court of Justice recognised Maya customary land tenure in Belize (2015). Implementation of these decisions has been slow.

Non-legal responses

• Indigenous-led organisations such as land councils (the Northern Land Council, the Central Land Council, the NSW Aboriginal Land Council) and native title representative bodies run claims and manage land.
• Ranger programs and Indigenous Protected Areas (voluntarily dedicated by traditional owners) combine land management with culture and employment.
• Advocacy and media: the Gurindji walk-off at Wave Hill (1966) and the Aboriginal Tent Embassy (1972) created pressure for land rights; in Aotearoa, occupations such as Ihumātao and hīkoi have kept land issues in public view.
• Reconciliation and "land back" movements internationally, and some voluntary returns of land by churches and private owners.

Evaluating the responses

Judgement. Legal processes now recognise Indigenous land rights widely but conditionally. Compared with 50 years ago, when Milirrpum denied that native title existed, the change is profound: courts in Australia, Canada, Brazil and the regional human rights systems recognise prior ownership, and compensation is now real. But recognition depends on proof, extinguishment rules and political will: native title gives way to other interests, rarely includes a veto, and legislatures can narrow court victories (the 1998 amendments; Brazil's 2023 law). The most effective responses combine legal recognition with Indigenous control and resources, as in the Northern Territory's land rights regime and negotiated settlements.

In one sentence

Legal processes, from the NT land rights Act, Mabo and the Native Title Act to Tsilhqot'in, Cowichan, Finnmark, Aotearoa's settlements and Brazil's rejection of the marco temporal, now recognise Indigenous peoples' rights to land widely, but that recognition is conditional on proof and survival from extinguishment, rarely includes control over development, and can be narrowed by legislatures, so justice in land rights remains partial.

Try this

Q1. Outline the significance of Mabo v Queensland (No 2). (4 marks)

• What the marker wants. Terra nullius rejected; native title recognised; the conditions; the Native Title Act.

Q2. Explain ONE limitation of the native title system, with reference to a case. (5 marks)

• What the marker wants. For example proof of continuous connection (Yorta Yorta) or extinguishment (Wik and the 1998 amendments).

Q3. Compare the recognition of Indigenous land rights in Australia with ONE other country. (10 marks)

• What the marker wants. Accurate law and cases from both (for example Canada's s 35, Tsilhqot'in and Cowichan), similarities, differences and a judgement.