Amendments to the Aboriginal Land Rights Act 1983 (NSW) – Project and transactional implications

The Aboriginal Land Rights Act 1983 (NSW) (Land Rights Act) has been recently amended to include a framework for reaching agreements with Aboriginal Land Councils. The new framework and capacity to reach Aboriginal Land Agreements (ALAs) is important for project development and transactional due diligence.

ALAs are formal agreements between an Aboriginal Land Council, the Crown Lands Minister and potentially any other third party (after invitation and approval by the parties). The agreement may provide for the exchange, transfer or lease of land to an Aboriginal Land Council, or an undertaking by an Aboriginal Land Council not to lodge a claim, or to withdraw a claim, in relation to specified land (see section 36AA). The parties may also choose to include any other matter in the agreement. Negotiations may commence at any time with notice in writing.

Land subject to an unresolved claim under the Land Rights Act can cause delay and uncertainty in relation to access to Crown land. Until now there has been no formal agreement process in the Land Rights Act to manage this. The new framework provides greater certainty and should therefore assist project proponents in securing access to claimed land (or land potentially subject to a claim in the future). It is possible ALAs will become more commonplace, especially considering there are some 20,000 plus undetermined claims.

Finally, and from a transactional perspective, the due diligence process can now, if warranted, include a search of the newly established register of ALAs to determine whether there is an agreement registered for any Crown land covered by a project.

Please contact William Oxby, Partner, Brisbane +61 7 3258 6469, if you require additional information or your usual Herbert Smith Freehills contact.