Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Frank Brennan
On 8 December 1983, Mr Clyde Holding, Commonwealth Minister for Aboriginal Affairs tabled in the House of Representatives a proposed resolution of the Parliament which calls for special measures which must be taken for "the recognition by this Parliament of Aboriginal and Torres Strait Islander people's rights to land" and which must accord with the principle: "Aboriginal land to be held under inalienable freehold title."
Queensland's Acting Premier, Mr William Gunn, was quoted (Australian, 10 December 1983) as saying, "If the Commonwealth is spoiling for a fight with the States, it will certainly get one from Queensland on this issue." He said events had proved Australians were not in favour of Aboriginal land rights claims.
The Queensland Government has now introduced a bill to parliament to amend its deed of grant in trust legislation which was enacted in March 1982. The proposed amendment will require an Act of Parliament to vary in area or revoke the land held under deed of grant in trust.
Is this land rights? Is it inalienable freehold? What do these terms mean anyway? In 1976, the Commonwealth Parliament enacted the Aboriginal Land Rights (Northern Territory) Act 1976. The term 'land rights' does not appear anywhere in that legislation except in its title. The term 'inalienable freehold' does not appear anywhere in the Act. It was a shorthand term used by Mr Ian Viner introducing the legislation to Parliament to describe a form of title having all the attributes of freehold except that it might not be sold or given away by its owners.
In law, the Land Rights Act set up a machinery for transferring title to land to Aboriginal communities by means of 'deeds of grant' granted to 'land trusts' which act as owners of the land for the benefit of the Aboriginals concerned.' Despite the public rhetoric, Queensland is now to use a similar legal device: a deed of grant in trust' granted to trustees for the 'benefit of Aboriginal and Islander inhabitants.
Introducing the Queensland Bill to Parliament on 16 December 1983, Mr Bob Katter, Minister for Northern Development and Aboriginal and Island Affairs, said,
The bill is designed to further secure the legal tenure of the Aboriginal and Islander people who will hold in trust under a deed of grant those areas presently reserved for AboriginallIslander community purposes.
He said,
The proposals embodied in this bill will bring into the area of Aboriginal land rights a tenure not only adequate to the real long term needs of people on the Aboriginal reserves in Queensland, but a refreshingly precise and forthright method of transferring control into the hands of the local people.
Having indicated that the purpose of thee bill was to give Aborigines and islanders "a stronger legal tenure over land which they and their predecessors have occupied for many thousands of years," Mr Katter claimed that the amended Queensland proposals "are superior to any other because they give a perpetual title absolutely inalienable unless the Parliament, for some reason, wants to decide otherwise by a special Act. Nobody except the Parliament can alter the size of the area covered by the deed or take the deed away from the Aboriginal or Islander trustees."
It is necessary to translate the political rhetoric of land rights/inalienable freehold into legal reality. Having done so, one can then compare the Queensland proposals with the Commonwealth legislation. In general, there are five legal requirements for land rights/inalienable freehold:
1. Legal security of tenure.
2. Integrity of reserve boundaries.
3. Prohibition on sale, gift or surrender by trustees.
4. Ancillary rights (including timber, quarry, hunting, foraging, and mineral).
5. Trustees' control of land free from bureaucratic constraints and political interference by Government.
Aboriginal land subject to a deed of grant cannot be resumed, compulsorily acquired or forfeited under any law of the Northern Territory. It would require an act of the Commonwealth Parliament to take back any Aboriginal land in which case the Commonwealth Constitution would guarantee the payment of just compensation.
Aboriginal land subject to a deed of grant in trust cannot be resumed, acquired or forfeited except by Act of the Queensland Parliament. However, the Governor in Council is empowered upon the making of a grant to reserve from the grant "a specified area, with or without specifying the particular purpose or purposes" (s. 334D, Land Act).
If the Commonwealth Parliament were to make a law providing for the automatic transfer of any Aboriginal land resumed by a state government to an Aboriginal trust, then Aboriginal communities would be assured the most secure form of tenure possible. This buttress effect would ensure continued Aboriginal ownership of land no matter what action a state parliament or Governor in Council took. If the Commonwealth Parliament in turn revoked Aboriginal title to land, any Aboriginal community so affected would have the constitutional guarantee of receiving just compensation.
Legally, land could be made more secure only by constitutional amendment or the use of entrenchment provisions neither of which is practicable.
If the Queensland deeds of grant in trust did not include any s. 334D 'floating charges' the land would be as secure as any land could be under state law.
Boundaries of Northern Territory grants are rendered certain either by description in the Schedule to the Act or in the reports and recommendations of the Aboriginal Land Commissioner.
The boundaries of Queensland grants will be discoverable only when the deeds are drawn up. On 23 November 1982, Mr Tomkins in a Ministerial Statement told Parliament: "It is confirmed that the deeds of grant in trust will be based principally upon the existing Aboriginal reserve commurites." In that statement certain discrepancies in land areas were admitted. The boundaries of the following community reserves require clarification:
i. Cherbourg
Is the special lease of the State Forest which is over three-quarters of the `reserve' to be included in the deed of grant?
ii. Doomadgee
It the Old Doomadgee reserve at Bayley Point to be included in Doomadgee's deed of grant?
iii. Palm Islands
Are Curacoa, Esk, Falcon, Eclipse, Brisk and Havannah Islands which are part of R.216 to be included in the deed of grant?
iv. Wujal Wujal
Is the Wujal Wujal community to be limited to its existing 114.5 ha. (0.4 ha. per head)?
v. Northern Peninsula Area
Which communities are to have deeds of grant over which areas of the 10 separately gazetted reserves in this area?
vi. Weipa
Is the 354,438 ha. which was degazetted from the Weipa reserve in 1958 to be included wholly or in part in the deed of grant in trust? Since 1978, Comalco has reported that it has reduced its S.B.M.L. from 2,650 sq. miles to 1,000 sq. miles. At least 1,000 sq. miles of the land surrendered was gazetted as Aboriginal reserve prior to 1958. If this land is not to be included in the Weipa deed of grant, the Weipa community will have only 0.2 ha. per head as compared with the Edward River community with 1,131.5 ha. per head.
The discrepancies in land area for Cherbourg and Weipa South reserves in DAIA Annual Reports should be noted:
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1981-82
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1982-3
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Cherbourg
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12,735.064ha.
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3,123.9ha.
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Weipa South
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354,828.685ha.
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124.2
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There is still uncertainty about the future of country reserves (including Foleyvale, Duaringa, Sorrel Hills, Zamia Creek, Yallambee, Orana Park and Mossman Gorge) and the uninhabited Torres Strait islands. Mr Katter made no reference to them when introducing the new amendments.
Roads over which the public has a right of way are excluded from deeds of grant. Though not excised, land occupied by the Crown at fhe time title is vested in a land trust may continue to be occupied by the crown for as long as the crown requires the land. During such time any buildings on such land are deemed to be the property of the crown. Rent is payable only if the crown is using the land for the purpose which is not a community purpose.
Aerodromes, land strips, ports, roads, stock routes, bridges and railways may be excluded from deeds of grant. Improvements, the property of the crown, except Aboriginal housing, may be excluded from deeds of grant along with land about and on which these improvements are located. Thus, bakeries, sawmills, council chambers, tc., need not be included in deeds of grant; but they may be.
A land trust is empowered to lease land to individuals. It may not mortgage its lands. With ministerial consent and at the direction of a land council, it may surrender the whole of its estate or interest to the crown. Otherwise, land cannot be alientated by a land trust.
Trustees of a deed of grant in trust may lease land to individuals. With approval from the Governor in Council, trustees may raise funds for improvements by mortgaging land. If there be default, the mortgagee is entitled to sell the land. Having the power to mortgage land, the trustees may alientate the land by default. With approval of the Governor in Council, trustees may surrender land to the crown. Otherwise land cannot be alienated by trustees. Lessees of land may enter into mortgages with the consent of the Minister and trustees.
As holders of estates in fee simple, land trusts own timber and quarry products on lands included in their deeds of grant. Though the Northern Territory has power to make laws for the protection or conservation of wild-life such laws must provide for the right of Aboriginals to utilise wildlife resources. Also Aborigines have unqualified fishing rights 'in accordance with Aboriginal tradition' in waters within 2 km. of Aboriginal land.
Though the crown may maintain ownership of crown forests on lands subject to deeds of grant, the crown must pay rent for the land.
The right to minerals is specifically excluded from deeds of grant. Mining interests can no longer be granted in relation to Aboriginal land unless both the Minister and land council agree or in the absence of consent when the Gov error-General has declared that the national interest requires the issue of such a grant. The Governor-General's proclamation is subject to parliamentary disallowance. A land council may negotiate payments for the granting of permission for the creation of mining interests. Aborigines are entitled to payments equal to the value of royalties acquired by the crown for mining on Aboriginal land.
As yet, no provision has been made to provide Aborigines with timber, quarry, hunting, foraging or fishing rights on land subject to deeds grant in trust. These matters may be covered in Service legislation which will replace the Aborigines Act 1971 and Torres Strait Islanders' Act 1971 which are due to expire on 31 May 1984 unless they be reproclaimed. The Aboriginal Advisory Council Working Party has already recommended "a provision enabling the trustees to authorise the gathering, digging, and removal of forest products and quarry materials for the purpose of improving the area held in trust." It has also recommended: "No restriction of fishing or hunting for local consumption by Aborigines -who live in the Deed of Grant in Trust Area."
Trustees have no right to minerals in land subject to a deed of grant in trust. No mining tenement or authority to prospect may be granted to any person without the approval of the Governor in Council. The mining warden's court has no function to play in these determinations. There is no provision for trustees negotiating agreements for miningg nor for receipt of royalty equivalents.
The Aboriginal Advisory Council Working Party has sought:
i. The issue of a permit by, the trustees as a condition precedent to any mining or mining exploration.
ii. The ability of the trustees to require that applicant mining interests must negotiate with them terms and conditions favourable to the local people and economy including profit sharing and preferential employment clauses.
iii. Reference to an arbitrator in the event of disputes.
Presently, the Director of DATA as trustee of reserves or the Minister is empowered to enter into an agreement providing for a share in profits of mining ventures on aboriginal land.
Members of land trusts are appointed by the Minister on nomination by a land council or Aboriginal council. Members are appointed for a maximum term of three years but are eligible for reappointment. A land trust cannot exercise its functions except in accordance with directions given by a land council. A land trust is not empowered to accept any moneys. Money transactions must go through a land council. A land council may request the Minister to remove a member of a land trust if it be of the opinion that he has failed properly to perform his duties.
Members of land councils are chosen by local Aborigines. Land councils are bodies corporate.
It is proposed that community councils elected by local communities will be trustees of deeds of grant in trust. Elections are held every three years. At least one Aboriginal community has expressed a desire that the trustees be separate from the community council. If a vacancy occurs, the Governor in Council may remove any trustee if it is of the opinion that it is in the public interests to do so.
No determination has been made about trusteeship of country reserves and uninhabited islands.
A land trust may grant a lease or licence in respect of land only at the direction of the relevant land council. Leases for residential purposes by Aborigines or employees of Aborigines, their Councils or Association may be granted for whatever period is agreed. Land required for Aboriginal businesses or community purposes may be leased for up to 10 years. A land trust may grant a lease of up to 5 years to the Commonwealth, the Northern-Territory or an Authority for any public purpose or to a mission for any mission purpose. Leases of any greater duration or for any other purpose require ministerial consent as well as a direction from the relevant land council. The Minister has no power to terminate leases or licences.
All leases must be approved by the Minister for Lands who "may, in his absolute discretion, refuse to approve" any lease proposal. Unless the Minister otherwise determines, the trustees must charge the highest annual rent which can reasonably be obtained. The Minister may cancel any lease if he considers it desirable in the public interests to do so. He is also empowered to rescind a trustee's termination of lease if he is satisfied that the trustee was not entitled to terminate the lease. With ministerial approval, the trustees may grant leases of up to 75 years.
The trustees may not allow a person to occupy land for more than a month without ministerial consent unless the person is occupying an improvement on the land under a tenancy arrangement. Any person whose lease is terminated is not entitled to compensation for improvements made and may be removed by the police.
There is no power to mortgage Aboriginal land. A land trust is not impowered to accept moneys due and owing to it or to give a valid discharge for such moneys. All payments must go through a land council which is required to keep proper accounts and records. The Minister may conduct an audit at any time. The Minister must be provided with an annual report of a land council's financial affairs. Also the Minister must be provided with an annual estimate of expenditure. A land council may borrow up to 10% of its annual estimate expenditure if it obtains approval from the Treasurer. Any extraordinary payments by a land council must be approved by the Minister. A land council requires ministerial consent to enter a contract worth more than $50,000.
As noted, the Governor in Council may approve mortgages by trustees for the raising of funds to effect permanent improvements to land. The trustees are empowered to receive moneys; all receipts must be applied solely for the purposes of the trust unless the Minister otherwise determines. The trustees must keep proper books and accounts and must keep such books and accounts as the Minister directs. The books must be open and available for inspection or audit by the Minister at all times.
Land trusts and land councils have no power to make by-laws. Land councils are empowered to use their best endeavours by way of conciliation for the settlement or prevention of disputes relating to land.
With the approval of the Governor in Council, trustees may make by-laws for the protection of the land and for the regulation of the use and enjoyment of land.
In comparing existing Commonwealth legislation and Queensland's proposed legislation, no evaluation is offered of how legislation is actually administered. It will be appreciated that a complex legal framework is required to provide a basis for self-determination/land rights/inalienable freehold for Aboriginal communities. Insofar as the Commonwealth's Land Rights Act 1976 is seen to be adequate or ideal, the Queensland proposal can be evaluated.
It is my opinion that the Queensland proposal for Deeds of Grant in Trust should substantially fulfil legal requirements 1 and 3 for inalienable freehold (but with power to mortgage). By the time the deeds are issued, condition 2 should be fulfilled provided there is sparing use of the floating charge provision (s. 334D) and provided that buildings such as bakeries, sawmills and council chambers are included. Complementary Commonwealth legislation could ensure the greatest possible security of tenure.
As indicated, condition 4 will not be fulfilled unless ancillary rights are accorded in Services legislation. The fulfilment of condition 5 would require some modification to provisions which presently permit ministerial control over all leases and ministerial power to replace trustees at will.
Unlike the Commonwealth legislation, the Queensland proposal makes no provision for land claims by those Aborigines and Torres Strait Islanders not resident on community reserves (at least two-thirds of the state's Aborigines and Torres Strait Islanders). It will be appreciated that no conclusive evaluation can be given of the Queensland proposals until draft deeds are published and Services legislation is enacted.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1984/2.html