Land tenure

This page is a work in progress. We want to explain the complexity of land tenure arrangements in the Territory, and propose reforms. What counts as part of the ‘Aboriginal estate’? What distinguishes a remote community from a township? What reforms are needed to make it easier for Aboriginal people to build houses on their own land?

Aboriginal Territorians won land rights in 1976

Since the Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 (ALRA), land tenure arrangements in the Northern Territory are unique. The ALRA is legal recognition of the Aboriginal system of land custody, and enables groups to win freehold title to their traditional lands (if and only if those lands are vacant Crown lands). Former reserves became Aboriginal lands overnight. Over time, about half of all land in the Northern Territory returned to Aboriginal hands.

Land that is subject to the ALRA is inalienable. In other words it cannot be bought, sold or transferred. It can only be leased.

Land rights ≠ building rights

Aboriginal people wanting to build on Aboriginal land – even their own ancestral land – must apply, through the land council, for a lease under section 19 of the ALRA. It takes a long time because all of the traditional owners must agree. For traditional owners wanting to build a home, the process is strange. It’s your land yet you need permission to build; and if your application succeeds, you must enter a lease with the land trust whose job it is to represent you and your mob.

Section 19 leases are also used to gain government investment in infrastructure for essential services.

If the lease is for more than 40 years, the Commonwealth Minister for Indigenous Affairs must also approve.

Homelands housing is even harder

ALRA strengthened the homelands movement. Once people had successfully reclaimed land, they could settle on it and begin to build infrastructure. But even beyond the requisite lease (see above), there are obstacles to building housing on homelands:

• As well as a s.19 lease and money to build, you need to ensure access to supplies of water and power, and a way to dispose of waste, including sewage. If the homeland has those systems in place, they may be at capacity.
• Given how stretched homelands service providers tend to be, it will likely be reluctant to add your dwelling to its roster for services, maintenance and repairs – unless or until the NT Government has recognised and agreed to fund your dwelling.

AHNT is working with land councils and both governments to consider ways Aboriginal people could be empowered to build housing on their ancestral lands without lengthy delays and with no erosion of land rights. Alternative governance models such as community land trusts may indicate a way forward.

Townships and township leasing

In 2006, the Australian Government amended the ALRA to include section 19A, which created the ‘township lease’ – like a section 19 lease but over an entire community.

By default the lessor is the (Commonwealth) Executive Director of Township Leasing (EDTL). In 2017 an alternative ‘community entity model’ (CEM) became available, which allowed an Aboriginal corporation to hold the township lease. A community may enter into a township lease under the default model and later change to a CEM.

Under a township lease, the head lessee (either the EDTL or the Aboriginal corporation) grants subleases to tenants and each party has clear responsibilities. For example, tenants must pay a commercial rent. Community residents can apply to buy or build a new house in the township through a long-term sublease, and they can use that sublease to obtain a loan. Subleases are transferrable to someone else – unlike with a s.19 lease, where if you want to transfer your lease, you must return to the land council.

The EDTL can also sublease to the NT Government so that the NT Government can provide housing, infrastructure and essential services. They have done this in communities on the Tiwi Islands, the Groote archipelago and in Mutijulu (though the latter is subject to a land trust).

Remote communities

Most remote communities are on land held under ALRA.

Around 71 remote communities – 65 on the mainland and 6 island communities – are eligible to enter into a township lease.

Since the Intervention in 2007, remote communities all exist under a lease between the Northern Territory and Commonwealth governments. That means it’s easier to invest in housing in remote communities; but it also means that land rights have been compromised.

Town camps

In Alice Springs, title for each of the 17 town camps is held by a housing association under a perpetual lease (either a special-purpose lease under the Special Purposes Leases Act (NT) 1953 or a Crown lease under the Crown Lands Act (NT) 1992.

In December 2009, the EDTL signed subleases for 1with housing associations as

[What’s the tenure arrangement for the other 17 town camps in the NT?]

Community living areas

Of the 100+ community living areas (CLAs) in the NT, 12 have housing leases. It’s the NT Government that administers CLAs and grants housing leases.

Image credit: Detail from a map of the Borroloola land claim, National Archives of Australia: E1477, LC1/36, p2