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Land Rights Cannot Be Rewritten Without Us

What UNDRIP says about the present struggle facing NSW Aboriginal Land Councils


By the National Aboriginal and Torres Strait Islander Corporation – Advocacy Service (NATSIC-AS)11 August 2026


Land rights in New South Wales are again at a critical point.


The Crown Land Management Amendment (Statutory Review) Bill 2026 has been presented by the NSW Government as a collection of reforms arising from a statutory review of Crown land legislation. Yet the NSW Aboriginal Land Council (NSWALC) and Local Aboriginal Land Councils (LALCs) have warned that particular provisions could fundamentally weaken the operation of the Aboriginal Land Rights Act 1983 (NSW).


The controversy is not only about statutory wording, leases or administrative procedure. It raises a deeper human-rights question: can a government alter the practical operation of an Aboriginal land-return system without first engaging honestly, early and meaningfully with the Aboriginal peoples and institutions whose rights will be affected?


The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides a clear standard against which that question should be judged.


Land Rights Cannot Be Rewritten Without Us
Land Rights Cannot Be Rewritten Without Us

Australia endorsed UNDRIP in 2009. The Declaration is not, by itself, a directly enforceable Australian statute. Nevertheless, it is the most comprehensive international statement of the collective and individual rights of Indigenous peoples. It establishes standards concerning self-determination, participation in decision-making, equality, culture, land, resources and free, prior and informed consent.

Measured against those standards, what is happening in NSW demands close public scrutiny.

A land-rights system born from dispossession

The Aboriginal Land Rights Act 1983 (NSW) was not an ordinary land-management measure. It was enacted in recognition of the dispossession of Aboriginal peoples and the enduring social, cultural and economic consequences of that dispossession.


Under section 36 of the Act, claimable Crown land may be returned through the Aboriginal Land Council system when the statutory conditions are satisfied. Land returned to LALCs can support housing, cultural protection, community services, employment, environmental care and long-term economic independence.


Land claims are therefore not gifts from government. They are part of a legislated reparative process. They recognise that Aboriginal peoples were deprived of Country without agreement and, in many cases, without compensation.


That purpose matters. A remedial land-rights statute should be interpreted and administered consistently with the injustice it was created to address. It should not be steadily narrowed by delay, technical barriers or laws that protect governmental tenure arrangements at the expense of Aboriginal land claims.


The scale of the unfinished work is extraordinary. In March 2026, NSWALC reported that more than 43,500 Aboriginal land claims remained unresolved and that the number being determined each year was at historic lows. Every unresolved claim represents more than an administrative file. It may represent Country that cannot yet be protected, housing that cannot be built, culture that cannot be practised freely, and community wealth that cannot be developed for future generations.


What the 2026 Bill proposed

The Bill was introduced into the NSW Legislative Council on 17 March 2026. Among its many provisions, the most controversial were those capable of changing how interests in Crown land affect Aboriginal land claims.

NSWALC identified two principal concerns.

First, it warned that the proposed scheme could treat the existence of a lease or other interest as sufficient to establish lawful use, even where no genuine physical or purposeful use of the land was occurring.


Secondly, the Bill proposed powers through which previously invalid interests could be validated or varied in the public interest. NSWALC warned that retrospective validation could defeat existing Aboriginal land claims and remove accountability for interests that had not been lawfully granted.


These concerns became especially serious after the High Court’s decision in La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32. The Court considered whether Crown land was “lawfully used” merely because it was subject to a lease. By majority, the Court rejected the proposition that a lease, without purposeful activity on the land, necessarily amounted to use for the purpose of the land-claims provisions.


The case concerned the former Paddington Bowling Club site. Its importance extended well beyond one parcel of valuable Sydney land. It confirmed that the practical reality of use matters. A paper interest should not automatically defeat the remedial purpose of Aboriginal land-rights legislation.


The proposed amendments were therefore seen by many across the Land Rights Network as an attempt to alter the legal position after a High Court outcome favourable to Aboriginal land rights.


Consultation after introduction is not the same as consent before decision

NSWALC stated that the Bill was initially introduced without notification or consultation with the Aboriginal Land Rights Network. Aboriginal Land Councils mobilised, held an emergency meeting, petitioned the Government and marched on NSW Parliament.

More than 92 per cent of the NSW Land Rights Network was reported to support opposition to the Bill in its introduced form.

That collective action produced movement. The proposals were placed on hold for consultation. NSWALC later paused its participation in Closing the Gap processes while seeking acceptable amendments. An extended consultation period concluded on 31 July 2026. As at 11 August 2026, the Bill remains before the Legislative Council at the second-reading stage and has not become law.


The consultation was necessary, but the sequence cannot be ignored.

UNDRIP does not contemplate governments developing measures behind closed doors, introducing them into Parliament, and consulting Indigenous peoples only after organised resistance. Consultation should occur early enough to influence whether a proposal proceeds, what problem it seeks to solve and how its provisions are designed.


“Prior” means before the State has settled upon its course. “Informed” means that communities receive complete, accessible and accurate information about the proposal and its foreseeable consequences. “Free” means participation without coercion, manipulation, artificial urgency or the threat that silence will be treated as agreement.

“Consent” requires a genuine process directed towards agreement—not a meeting held merely to validate a decision already substantially made.

UNDRIP and the rights engaged

Several provisions of UNDRIP speak directly to the present controversy.


Self-determination: Articles 3 and 4

Article 3 recognises the right of Indigenous peoples to self-determination, including the right to pursue their economic, social and cultural development. Article 4 recognises autonomy or self-government in matters relating to internal and local affairs.


For NSW Aboriginal communities, land is fundamental to each of these objectives. A LALC cannot develop housing, establish enterprises, protect cultural places or care for Country without secure access to land and meaningful control over its use.


When government action restricts the land potentially available for return, it also restricts the practical capacity of Aboriginal communities to determine their own future.


Indigenous institutions and participation: Articles 5 and 18

Article 5 protects the right of Indigenous peoples to maintain and strengthen their distinct political, legal, economic, social and cultural institutions. Article 18 recognises their right to participate in decisions affecting their rights through representatives chosen by themselves and in accordance with their own procedures.


The NSW Land Rights Network is made up of Aboriginal institutions created to represent and serve Aboriginal members and communities. Engagement with those institutions is not a favour. Nor should LALCs be treated as ordinary interest groups invited to comment after a proposal is announced.


Participation must respect the representative structures through which Aboriginal people choose to speak. It must also reach the local level. NSWALC’s participation is essential, but it cannot automatically substitute for listening to individual LALCs,


Traditional Owners, Elders, members, young people and communities whose particular claims and Country may be affected.


Free, prior and informed consent: Article 19

Article 19 provides that States must consult and cooperate in good faith with Indigenous peoples, through their representative institutions, to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.


This does not mean that every policy disagreement can be reduced to a simplistic claim of an absolute veto. It does mean that consultation must be more than notice, information-sharing or a deadline for written submissions. The process must be undertaken in good faith and with the genuine objective of obtaining agreement.


Introducing the Bill without first consulting the Land Rights Network was difficult to reconcile with that standard. The subsequent consultation created an opportunity to repair the process, but its legitimacy will ultimately be judged by the outcome: whether the concerns expressed by Aboriginal peoples produce substantial amendments, enforceable safeguards or withdrawal of the objectionable provisions.


Rights to lands, territories and resources: Articles 25, 26 and 27

Article 25 recognises the distinctive spiritual relationship Indigenous peoples maintain with their traditionally owned or occupied lands and their responsibilities to future generations. Article 26 recognises rights to lands, territories and resources traditionally owned, occupied or used. Article 27 calls for a fair, independent, impartial, open and transparent process to recognise and adjudicate Indigenous land rights, giving due recognition to Indigenous laws, traditions and land-tenure systems.


The NSW land-claims system must be evaluated against these principles. A backlog exceeding 43,500 claims is not consistent with timely and effective land justice. Nor is a process fair and transparent if government can create, preserve or retrospectively validate interests that defeat claims without rigorous safeguards, public reasons and meaningful Aboriginal participation.


Justice delayed in land rights can become land justice denied. While a claim remains unresolved, land may deteriorate, opportunities may be lost, community needs may intensify, and the practical value of eventual return may diminish.


Development affecting land: Article 32

Article 32 recognises the right of Indigenous peoples to determine priorities and strategies for the development or use of their lands and resources. It also requires States to consult and cooperate in good faith to obtain free and informed consent before approving projects affecting those lands or resources.


This principle is particularly relevant where Crown land may be used for housing, commercial development, public infrastructure, conservation or community facilities. Governments often describe competing uses as a conflict between Aboriginal land rights and the broader public interest. That framing is misleading.


Aboriginal housing, cultural protection, ranger programs, employment and community-controlled development are themselves matters of profound public interest. “Public interest” must not become a phrase through which Aboriginal interests are routinely treated as secondary to interests recognised by the State.


Redress and implementation: Articles 28 and 38

Article 28 recognises a right to redress for lands and resources taken, used or damaged without free, prior and informed consent. Article 38 calls upon States, in consultation and cooperation with Indigenous peoples, to take appropriate measures—including legislative measures—to achieve the Declaration’s ends.


The Aboriginal Land Rights Act is one of the most important legislative mechanisms of redress available to Aboriginal people in NSW. The proper direction of reform should therefore be to strengthen land return, improve claim determination and expand Aboriginal control—not to create new ways for claimable land to be insulated from return.


Governance must empower communities, not become another form of control

The 2026 statutory review of the Aboriginal Land Rights Act is also underway. NSWALC has invited LALCs to identify reforms that would accelerate land return, strengthen governance and support economic, cultural and community development.


Strong governance is essential. Aboriginal organisations should be transparent, accountable to members, procedurally fair and responsible in the management of community assets. Members must be able to ask questions, inspect appropriate records, participate in meetings, vote freely and challenge improper decisions without intimidation or retaliation.


However, governance reform must not be used as a pretext for excessive external control. There is a profound difference between community accountability and bureaucratic paternalism.


UNDRIP requires governments to respect Indigenous institutions and self-determination. That means reforms should build the capacity of LALCs to govern well, resolve disputes fairly and remain accountable to their members. They should not transfer effective control away from communities, silence dissenting members, or make Aboriginal organisations answerable upward to government while becoming less answerable downward to their own people.


The same standards should apply to all levels of the Land Rights Network. Office-holders, boards, staff, advisers and external administrators exercise responsibilities over assets held for Aboriginal communities and future generations. Cultural authority, elected office or professional status must never be treated as immunity from scrutiny. At the same time, allegations should be assessed through fair, independent and evidence-based processes—not factional rumour, lateral hostility or politically convenient intervention.


Self-determination and accountability are not competing principles. Properly understood, accountability to Aboriginal members is part of self-determination.


What a rights-respecting process should now require

The NSW Government has an opportunity to reset its approach. At a minimum, the present Bill and the broader 2026 review should proceed on the following basis:

  1. No weakening of existing land claims. Amendments should not retrospectively extinguish, defeat or diminish claims already lodged.

  2. No lease-on-paper rule. A lease, licence or administrative instrument should not defeat a claim unless there is genuine, lawful and continuing use relevant to the statutory test.

  3. Independent safeguards on validation powers. Any power to validate an invalid interest must be narrow, reviewable, transparent and incapable of being used to defeat Aboriginal land rights.

  4. Full disclosure of impact. The Government should publish modelling showing how each proposed amendment may affect pending and future claims, including regional and LALC-level impacts.

  5. Direct participation by affected communities. Consultation must include NSWALC, every affected LALC and the Aboriginal people connected with the relevant Country—not only selected peak bodies or technical advisers.

  6. Adequate time and resources. Communities must have access to independent technical and advocacy support so that participation is informed rather than merely formal.

  7. Clear treatment of disagreement. Government should publish what Aboriginal representatives proposed, what was accepted or rejected, and detailed reasons for any departure.

  8. A funded plan to eliminate the claims backlog. More than 43,500 unresolved claims require enforceable targets, transparent reporting and sufficient staffing—not another generation of delay.

  9. UNDRIP-based assessment. Every reform should be accompanied by a public statement explaining its consistency with Articles 3, 18, 19, 26, 27, 28, 32 and 38 of UNDRIP.

  10. Member-centred governance reform. Changes to the Land Council system must strengthen participation, procedural fairness, transparency and local control.


Land rights are human rights

The current struggle in NSW shows why UNDRIP matters.


Governments may speak of reconciliation, Closing the Gap and partnership. Those commitments are tested when Aboriginal rights collide with administrative convenience, valuable land, local political pressure or a court decision the State did not expect.


The true measure of partnership is not whether Aboriginal people are invited into the room after a Bill has been introduced. It is whether their institutions are respected before decisions are made; whether their concerns can change the outcome; whether Country is returned without unreasonable delay; and whether governments accept that Aboriginal people are rights-holders, not merely stakeholders.


The collective resistance of NSW Aboriginal Land Councils has already demonstrated the strength of the Land Rights Network. The Bill was not allowed to pass unnoticed. Communities organised, spoke publicly and forced consultation.


But a pause is not protection, and consultation is not success unless it produces change.

The way forward must be guided by a simple principle: laws affecting Aboriginal land rights must not be designed for Aboriginal people, imposed upon Aboriginal people or repaired only after Aboriginal protest. They must be developed with Aboriginal peoples, through their own representative institutions, in good faith and with the objective of securing their free, prior and informed consent.


Anything less risks repeating the very pattern of dispossession that land-rights legislation was supposed to remedy.


References


This article is general advocacy and public-policy commentary. It is not legal advice.

 
 
 

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