Finnane QC, M. J. --- "Aboriginal Land Entitlement - An answer to the article by Mr K. O'Keefe" [1986] AboriginalLawB 47; (1986) 1(21) Aboriginal Law Bulletin 11

• Aboriginal Land Entitlement
• An Answer To The Article By Mr K. O'keefe From Mr M. J. Finnane, Qc.

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Aboriginal Land Entitlement

An answer to the article by Mr K. O'Keefe from Mr M. J. Finnane, QC.

See previous article: [1986] AboriginalLB 46; 1(21)pg9

The principle that lies behind land ownership In Australia is that all land is vested in the Crown.

The Crown may grant land to persons to be held according to the terms of the grant.

In New South Wales the most common form of Crown Grant has been an estate in fee simple with reservations to the Crown of the right to minerals such as coal, gold, silver and other precious metals.

The person with land held in fee simple, other than under the NSW Land Rights Act, can sell it, lease it or use it himself. If the Crown wants it back to build a school or road or some other public purpose it must pay the owner compensation. In the case of land held by an Aboriginal Land Council, resumption must be by an Act of Parliament.

They, the owner has no absolute title to the land, since it can be resumed and he does not own the minerals in the land.

Under the Crown Lands Consolidation Act, provision is made for leases of Crown land for varying periods and for various purposes. Provision is also made as Mr O'Keefe has said, for perpetual leases of land.

The consequence of land being held under perpetual leasehold is that the holder of the lease is subject to some supervision in the use of the land. In practice, very little interference is caused to the landowner by Lands Department Officers. Even where there are quite flagrant breaches of lease conditions, Lands Department officers attempt to deal with the problem by negotiation rather than litigation. It is certainly true that proceedings to forfeit any Crown lease are quite rare and the lessee can always go to Court about the matter.

Thus, as a practical matter it is uncertain that a Western Lands lease would be forfeited. Nevertheless, because the land is held on lease and not fee simple the possibility of action to forfeit it cannot be entirely dismissed.

Furthermore, if a conservative government took office, it could well amend the Crown Lands Consolidation Act, the Western Lands Act and the Aboriginal Lands Act. A government antagonistic to Aborigines could well adopt policies to take forfeiture action for breaches of conditions.

Judicial review of the Minister's decision is provided for In legislation which tan always be changed.

Provision could be made that if a Minister certified a lease to have been forfeited that certificate would be unable to be challenged in a Court. (See Aboriginal Lands Act sec 36(8) for an example of such a certificate).

However beyond these practical problems, attention ought to be given to the 'sovereignty issue' on which claims to Aboriginal land are based.

Aborigines claim that before British colonisation, they belonged to the land over which their tribes exercised domain. They used all the resources on this land but in such a way as to conserve It. Erosion on Western Lands was caused by British sheep and cattle rather than Aboriginal land use practice.

Their title to this land as a matter of justice must be as near as possible that which their forebears had; a sovereignty over the land and all the minerals in it.

At the very least, they are entitled to a fee simple title to their land. Perhaps this does not accord with the policy behind the Western Lands Act; but sovereignty is hardly recognised by a grant of a lease to which conditions are attached for the purpose of preserving fragile land.

One question that arises in my mind is whether the decision to grant land in the Western Division to Lands Councils by way of lease was motivated by the fear that if land grants in fee simple were made to Aborigines claims would be made that all holders of Western Lands teases would be entitled to convert to fee simple titles.

Perhaps Lands Councils should give consedition to adopting. Land management policies of land in the Western Division that would meet the requirements of the Lands Department and yet permit the Government to make the grants in fee simple, confident that the land would be properly conserved.