Land Rights Cannot Be Rewritten Without Aboriginal People

Why the present struggle over NSW Aboriginal Land Councils is personal to me

By Brian AJ Newman — Employment and Human Rights Advocate

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 part of a broader reform of Crown land legislation. Yet the NSW Aboriginal Land Council (NSWALC) and Local Aboriginal Land Councils (LALCs) have warned that parts of the Bill could weaken the practical operation of the Aboriginal Land Rights Act 1983 (NSW) and adversely affect land claims.

This is not merely a technical disagreement about statutory language, leases or administrative procedure. It raises a much larger question: can a government change the rules governing the return of Aboriginal land without first engaging honestly, early and meaningfully with the Aboriginal peoples and institutions whose rights will be affected?

For me, that question is personal.

I write as a person of Wiradjuri descent and as an employment and human rights advocate whose work regularly involves people confronting powerful institutions. I have seen what happens when decisions are made about people before anyone genuinely listens to them; when consultation is treated as a box to be ticked; when an investigation begins with a preferred conclusion; and when procedural language is used to disguise an unfair outcome.

Land Rights Cannot Be Rewritten Without Aboriginal People

The circumstances facing NSW Aboriginal Land Councils are different in scale and legal character from an employment or discrimination complaint. However, the underlying human-rights principle is familiar: a person or community whose rights are at stake must be heard before the decision is effectively made—not after it.

I do not claim to speak for every Aboriginal person, every Traditional Owner or every Land Council. Communities have their own voices, histories, representative structures and differences of opinion. My purpose is to support their right to be heard, to examine the process through a human-rights lens, and to explain why the present controversy should concern all Australians.

The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) provides an important standard against which the conduct of government should be measured.

Australia endorsed UNDRIP in 2009. Although the Declaration is not itself an Australian statute, it is the most comprehensive international statement of the individual and collective rights of Indigenous peoples. It addresses self-determination, participation in decision-making, Indigenous institutions, culture, land, resources and free, prior and informed consent.

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

The Land Rights Act is a response to dispossession

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

Under section 36, Crown land satisfying the statutory conditions may be claimed and returned through the Aboriginal Land Council system. Returned land may support housing, cultural protection, community services, employment, environmental care and long-term economic independence.

Land claims are not acts of governmental generosity. They form part of a legislated system intended to provide a measure of redress for Country taken without agreement and, in many instances, without compensation.

That history matters whenever Parliament considers changing the system. A remedial law should be administered consistently with the injustice it was designed to address. Its purpose should not be eroded through delay, technical barriers, retrospectively validated interests or rules that allow governmental arrangements on paper to prevail over the substance of Aboriginal land rights.

In March 2026, NSWALC reported that more than 43,500 Aboriginal land claims remained unresolved and that determinations were occurring at historically low levels.

That figure should disturb us. Each claim is more than a file in an administrative queue. It may represent Country that cannot yet be protected, housing that cannot be built, culture that cannot be freely practised and community wealth that cannot be developed for future generations.

Delay is not neutral. The longer a claim remains unresolved, the greater the risk that the land, its condition and the opportunities connected with it will change. Justice delayed in land rights can become land justice denied.

What has caused the present controversy?

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

NSWALC identified two central concerns.

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

Secondly, the Bill proposed powers by 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.

Those concerns became especially significant following 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, it rejected the proposition that the lease alone, without purposeful activity on the land, necessarily amounted to use for the purpose of the land-claim provisions.

The dispute concerned the former Paddington Bowling Club site, but the principle extended beyond that parcel of land. The judgment confirmed the importance of practical reality. A paper interest should not automatically defeat the remedial operation of Aboriginal land-rights legislation.

It is therefore understandable that many across the Land Rights Network regarded the proposed amendments as an attempt to change the legal position following a High Court decision favourable to Aboriginal land rights.

If the Government disputes that characterisation, the answer is not to dismiss community concern. It is to disclose the intended and foreseeable effect of every relevant provision, publish the supporting analysis and address the concerns directly.

Consultation must occur before the course is settled

NSWALC stated that the Bill was initially introduced without notification or consultation with the Aboriginal Land Rights Network. Aboriginal Land Councils responded collectively: they convened an emergency meeting, petitioned the Government, spoke publicly 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 forced movement. The contentious 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. It has not become law.

That distinction is important. The feared changes should not be described as if they have already taken effect. But the fact that consultation eventually occurred does not erase the sequence of events.

Consultation after a Bill has been introduced is not equivalent to participation before the policy has been designed. UNDRIP does not envisage governments deciding upon a course behind closed doors, placing it before Parliament and seeking Aboriginal input only after organised resistance.

This is where my professional interest strongly intersects with my personal concern. In advocacy work, I often encounter processes in which an institution says a person was “consulted” because they were invited to respond after an allegation, recommendation or proposed outcome had already hardened into an institutional position. Genuine procedural fairness requires an open mind. The affected person must receive the substance of what is proposed, the material relied upon and a real opportunity to influence the outcome.

The same principle assumes even greater importance when legislation may affect the collective land rights of Aboriginal peoples.

“Prior” must mean before the State has settled upon its course. “Informed” requires complete, accurate and accessible information about the proposal and its foreseeable consequences. “Free” requires participation without coercion, manipulation, artificial urgency or an implication that silence amounts to agreement. “Consent” requires a good-faith process directed towards agreement—not a meeting held to legitimise a substantially predetermined result.

What UNDRIP requires us to confront

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 Aboriginal communities in NSW, land is fundamental to those rights. A LALC’s capacity to provide housing, protect cultural places, establish enterprises, create employment or care for Country depends upon secure access to land and meaningful authority over its use.

When government action reduces the land capable of being returned, it also limits the practical capacity of Aboriginal communities to determine their 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 not simply another collection of stakeholders. It comprises Aboriginal institutions established to represent and serve Aboriginal members and communities. Engagement with those institutions is not a favour bestowed by government.

Participation must also reach the local level. NSWALC has an essential representative role, but consultation with a peak body should not be treated as an automatic substitute for hearing directly from affected LALCs, Traditional Owners, Elders, members, young people and communities connected with particular Country.

Being heard means more than being allowed to speak. It means that the decision-maker listens, records the concern, addresses the evidence and explains how the contribution affected the final decision.

Free, prior and informed consent — Article 19

Article 19 calls upon States to 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.

The principle should not be reduced to slogans about whether Indigenous peoples possess an absolute veto over every government decision. That framing distracts from the real obligation: consultation must be early, informed, properly resourced, culturally appropriate and undertaken with the genuine objective of achieving agreement.

Introducing the Bill without first consulting the Land Rights Network was difficult to reconcile with that standard. The later consultation offered an opportunity to repair the process, but its legitimacy will be judged by what happens next. Did Aboriginal concerns materially change the Bill? Were objectionable provisions withdrawn or substantially amended? Were enforceable safeguards included? Were affected communities given reasons where their positions were not accepted?

The answer cannot simply be that consultation occurred. The quality and consequences of the consultation matter.

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, with due recognition given to Indigenous laws, traditions and land-tenure systems.

A system burdened by more than 43,500 unresolved claims cannot be accepted as delivering timely land justice. Nor can a process be regarded as fair and transparent if government may create, preserve or retrospectively validate interests that defeat claims without narrow limits, independent scrutiny, public reasons and meaningful Aboriginal participation.

Development and public interest — 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 calls for consultation and cooperation in good faith to obtain free and informed consent before projects affecting those lands or resources are approved.

Governments frequently frame disputes over Crown land as a contest between Aboriginal land rights and the broader “public interest”. That framing can be profoundly misleading.

Aboriginal housing, cultural protection, ranger programs, employment, environmental rehabilitation and community-controlled economic development are themselves matters of public interest. The expression must not become a convenient device through which governmental or commercial priorities are elevated while Aboriginal interests are treated as secondary.

Whenever “public interest” is relied upon, the questions should be direct: Who defined that interest? Who was heard? Who receives the benefit? Who bears the loss? What alternatives were examined? Why should an Aboriginal land claim carry the burden of a governmental failure to lawfully manage Crown land?

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. Reform should strengthen land return, accelerate lawful determinations and expand Aboriginal control. It should not create new means by which potentially claimable land is insulated from return.

My concern also extends to governance within the system

The controversy arises while the statutory review of the Aboriginal Land Rights Act is also underway. That broader review includes questions about land return, governance and the economic, cultural and community development functions of LALCs.

I believe strongly in Aboriginal community-controlled institutions. I also believe that self-determination requires genuine accountability to the people those institutions exist to serve.

These are not contradictory positions.

Strong governance requires transparency, procedural fairness, responsible management of community assets and meaningful member participation. Members should be able to ask questions, inspect records to which they are properly entitled, attend and participate in meetings, vote freely and raise credible concerns without intimidation, exclusion or retaliation.

Witnesses and complainants must be heard and treated seriously. Allegations should be examined by people who are independent, appropriately skilled and free from conflicts of interest. Those accused must also receive a fair process, including sufficient particulars, access to relevant material and a genuine opportunity to respond. Findings should be evidence-based, proportionate and accompanied by reasons.

These principles are central to my work as an advocate. They are equally important when disputes occur inside community organisations, because poorly handled disputes can divide families, deter members from participating and weaken confidence in institutions that are vital to self-determination.

However, governance concerns must never be used as a pretext for paternalistic government control. There is an enormous difference between accountability to Aboriginal members and control imposed upon Aboriginal organisations by an external bureaucracy.

Reform should improve the capacity of LALCs to resolve disputes fairly, manage assets responsibly and remain accountable downward to members. It should not transfer effective control away from communities, silence dissent or make Aboriginal institutions increasingly answerable to government while becoming less responsive to their own people.

No office-holder, board member, employee, adviser, administrator or external authority should be beyond scrutiny. Equally, no person should be condemned through factional allegation, lateral hostility or a process designed to deliver a convenient result. Self-determination includes the right of Aboriginal communities to institutions that are both empowered and fair.

What should happen now?

The NSW Government still has an opportunity to reset its approach. In my view, the Bill and the broader review should proceed on at least the following basis:

1. Existing claims must be protected. No amendment should retrospectively extinguish, defeat or diminish a land claim already lodged.

2. A paper interest must not be enough. A lease, licence or administrative instrument should not defeat a claim unless the relevant statutory test is satisfied by genuine, lawful and continuing use.

3. Validation powers must be narrowly confined. Any power to validate an invalid interest should be exceptional, transparent, independently reviewable and incapable of being used as a backdoor means of defeating Aboriginal land rights.

4. The Government must disclose the likely impact. It should publish detailed modelling of how each proposed amendment may affect pending and future claims, including regional and LALC-level consequences.

5. Affected communities must participate directly. Consultation should include NSWALC, affected LALCs and Aboriginal people connected with the relevant Country—not only selected peak bodies, consultants or technical advisers.

6. Participation must be properly resourced. Communities require adequate time and access to independent technical and advocacy assistance so that their participation is informed and effective.

7. Disagreement must be answered transparently. The Government should publish the positions advanced by Aboriginal representatives, identify what was accepted or rejected and give detailed reasons for any departure.

8. The claims backlog needs a funded solution. More than 43,500 unresolved claims require enforceable targets, transparent reporting, sufficient staffing and public accountability.

9. Every proposal should be assessed against UNDRIP. The Government should publish a statement explaining the consistency of each reform with Articles 3, 18, 19, 26, 27, 28, 32 and 38.

10. Governance reform must be member-centred. Changes should strengthen participation, procedural fairness, transparency and local control rather than expand paternalistic intervention.

Why I will continue to speak about this

My interest in these matters is not abstract.

My Aboriginal heritage is part of who I am. So too is my professional commitment to helping people be heard when decisions are being made by institutions with far greater power and resources. I have no interest in replacing the voices of Land Council members or Traditional Owners. I do have an interest in supporting their right to speak for themselves—and in challenging processes that appear to listen only after resistance makes silence politically impossible.

Governments regularly speak of reconciliation, Closing the Gap, partnership and respect. Those promises are tested when Aboriginal rights collide with administrative convenience, valuable land, commercial pressure, local politics or a judicial outcome the State did not expect.

The real measure of partnership is not whether Aboriginal representatives are eventually invited into a room. It is whether their institutions are respected before decisions are made; whether their contribution can alter the result; whether Country is returned without unreasonable delay; and whether Aboriginal peoples are treated as rights-holders rather than one stakeholder among many.

The response of NSW Aboriginal Land Councils has already demonstrated the strength of collective advocacy. The Bill did not pass unnoticed. Communities organised, raised their voices and forced consultation.

But a pause is not protection. Consultation is not success unless it leads to genuine change.

The guiding principle should be simple: laws affecting Aboriginal land rights must not be designed for Aboriginal people, imposed upon Aboriginal people and reconsidered only after Aboriginal protest. They must be developed with Aboriginal peoples, through their chosen representative institutions, in good faith and with the objective of securing their free, prior and informed consent.

Anything less risks reproducing the same pattern of control and dispossession that land-rights legislation was enacted to remedy.

References

• United Nations, United Nations Declaration on the Rights of Indigenous Peoples (2007), particularly arts 3–5, 18–19, 25–28, 32 and 38: https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf

• Australian Human Rights Commission, UN Declaration on the Rights of Indigenous Peoples: https://humanrights.gov.au/resource-hub/by-resource-type/publications/aboriginal-and-torres-strait-islander-peoples/guides/un-declaration-on-the-rights-of-indigenous-peoples

• Aboriginal Land Rights Act 1983 (NSW), particularly ss 3 and 36: https://legislation.nsw.gov.au/view/html/inforce/current/act-1983-042

• Parliament of New South Wales, Crown Land Management Amendment (Statutory Review) Bill 2026—Bill details and status: https://www.parliament.nsw.gov.au/parliamentary-business/bills/bill-details?billId=18878

• NSW Aboriginal Land Council, Crown Land Management Amendment Bill—Explained & What LALCs Need to Know (22 March 2026): https://alc.org.au/newsroom/network-messages/crown-land-management-amendment-bill-explained-what-lalcs-need-to-know/

• NSW Aboriginal Land Council, Crown Lands: Update on Consultations with NSW (5 August 2026): https://alc.org.au/newsroom/network-messages/network-message-crown-lands-update-on-consultations-with-nsw/

• NSW Aboriginal Land Council, NSW Aboriginal Land Rights Act 2026 Review—Consultation Discussion Paper for LALCs (2026): https://alc.org.au/wp-content/uploads/2026/01/NSW-ABORIGINAL-LAND-RIGHTS-ACT-2026-REVIEW.pdf

• National Indigenous Times, “We will not be a political pawn”—Majority of Aboriginal Land Councils unite against NSW Land Rights Bill (7 May 2026): https://nit.com.au/07-05-2026/24122/we-will-not-be-a-political-pawn-majority-of-aboriginal-land-councils-unite-against-nsw-land-rights-bill

• La Perouse Local Aboriginal Land Council v Quarry Street Pty Ltd [2025] HCA 32: https://www.hcourt.gov.au/cases-and-judgments/judgments/judgments-1998-current/la-perouse-local-aboriginal-land-council-v-quarry-street-pty-ltd

Brian AJ Newman is an employment and human rights advocate. This article is public-interest advocacy and commentary. It does not constitute legal advice.