Nettheim, Garth --- "Freehold in Queensland" [1987] AboriginalLawB 11; (1987) 1(25) Aboriginal Law Bulletin 4

• Freehold In Queensland

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Freehold in Queensland

by Garth Nettheim

(This story is drawn from an opinion provided by Greg McIntyre, solicitor,

of Cairns)

Mr Bob Katter, Queensland's Minister for Northern Development and Aboriginal and Islander Affairs, says that he was embarrassed by the fact that Cabinet proposals on freehold were made public before they had been discussed with the Aboriginal Co-ordinating Council. (See [1987] AboriginalLB 2; 1(24)pg4). He says that it was not intended that the proposal would be pursued without the approval of the ACC which represents Aboriginal communities.

Under Queensland laws as amended in recent years Aboriginal land Torres Strait Island) community councils may be given Deeds of Grant in Trust to the land of the community. These lands were previously designated as reserves, though many smaller reserves have not been brought under the new arrangements.

According to Mr Katter the form of tenure given to councils under Deeds of Grant in Trust is freehold tenure. The form of the grant specifies that it is in fee simple, at least since 1982 amendments to the Land Regulations. The interplay of the Queensland Land Act and the Mining Act, and various amendments, is complex but, according to Cairns lawyer, Greg McIntyre, it is arguable that the grants to Aboriginal and Islander Councils are to be regarded as' private land' for the purposes of the Mining Act. This, in itself, would not give the Councils any ownership of minerals, any veto on mining, or any right to royalties. Councils may. however, have a right to compensation for mining damage. The Crown retains rights to forest products and quarry materials in Trust Areas, though communities have some rights to use timber within the area.

The current proposals are directed not at the interests which Councils themselves hold but at the interests which they may give.

Currently, Councils may agree to surrender parts of the land to the Government so that they may grant Crown Leases to 'qualified persons', i.e., persons who are members of the community and deemed by the Council to be residents. If this happens, the Crown lease area is no longer land held by the Council under their Deed of Grant in Trust, and neither the Council nor the 'qualified person' would have any right to compensation for mining damage. Councils may be reluctant to grant application for leases under this legislation.

They may be more inclined to utilise an alternative power under the Land Act to lease land, for up to 75 years. which would remain under Council ownership. The mining compensation and timber selling rights would continue to exist under the Council's own fee simple title.

The Queensland Government's proposal is to change the legislation so that applicants to the Council for land would get a fee simple title instead of the Crown Lease currently available. This would give those individuals rights to mining compensation and to sell timber. Such titles would also be perpetual, whereas the present law permits perpetual lease only in respect of land areas of one hectare or less.

Would they be alienable? At present, Crown Leases from Trust areas may be given only to a 'qualified person' and may be disposed of only to another 'qualified person'. If forfeited, such leases are returned to the Trustees as Trust area land. Similar restrictions could be placed on Council grants of freehold.

At present, a Council has the power to decide whether an applicant for a lease is a 'qualified person', subject to a right of appeal to an Appeal Tribunal. Mr Katter has suggested an additional safeguard against alienation to non-community interests, namely, a form of community referendum on the requisition of 12 community members which could be used to overturn a decision of the Council or Appeal Tribunal.

It is understood that the Aboriginal Co-ordinating Council is considering the government's proposals with some degree of wariness, in light of the history of individualisation of indigenous land holdings in several parts of the world.