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Sutherland, Johanna --- "Queensland Land Rights: A Derogation from Poor Standards Elsewhere?" [1991] AboriginalLawB 52; (1991) 1(52) Aboriginal Law Bulletin 16


Queensland Land Rights:

A Derogation from Poor Standards Elsewhere?

by Johanna Sutherland

Labor’s land rights in Queensland have been bitterly received by those who emphasise the lack of proper consultation and deficiencies in the Aboriginal Land Act 1991 (the Qld Act) and the Torres Strait Islander Land Act 1991. Some Aboriginal organisations have resurrected pleas for national legislation, and claim they will boycott procedures under the Acts. Others, despite concerns, welcome the legislation as a positive first step.

So to what extent has the Qld Government derogated from the land rights standards in other Australian States and Territories, and is the legislation in any respects better than elsewhere?

At least the Queensland Government has succeeded in passing land claims legislation where other state governments (WA, Tas, Vic) have failed. Although it has not met the breadth of the federal Aboriginal Land Rights (Northern Territory) Act 1976 (hereafter the ALR (NT) Act), the political and geographical context in Queensland is very different and that Act is regarded by many as the highwater mark. Also, more land is claimable and transferable than in NSW, the only state with directly comparable legislation, but that in itself is not a major achievement.

Land Available for Claim, Grant and Transfer

Just as under the land rights Acts in the NRT, NSW, SA and under the recently failed Tasmanian Bill, the Qld Act returns some land to indigenous ownership without a formal claims procedure. This applied primarily to Deed of Grant in Trust (DOGIT) lands, and the Arukun and Mornington Island Shire Lease lands. Urban reserves are transferred under the Acts.

Under the Qld Act claims will be available on the basis of traditional affiliation, historical association and cultural viability. This is better than under the ALR (NT) Act, where claims are limited to ‘traditional ownership’ and the proof process is cumbersome and quite rigid.[1]

Only land which is free from all other interests is claimable under the Qld Act. Before any land can be claimed it must be ‘transferred land’ or gazetted by the Governor-in-Council. The nature of claimable land is narrower than in the NT where the pre-condition of executive gazettal does not apply. Section 36(1) of the Aboriginal Land Rights Act 1983 NSW (ALR Act (NSW)) is similarly narrow, although different. The beds and banks of watercourses and lakes within the external boundaries of claimable land can be claimed provided they do not run between privately owned properties.

The vast majority- -of land in Qld is excluded from claim. This includes: city and township land (as elsewhere); public purpose land and land held under various reserves, leases or licences under the Land Act 1962; State Forest and Timber Reserves under the Forestry Act 1959[2]; roads and land subject to a special mining Act (such as the Bauxite mining lease land at Weipa); and sea waters and sea beds.

In Qld, pastoral properties are not claimable and there is not provision for the conversion of pastoral leasehold to freehold title. Nor are pastoral excisions or claims to stock routes available, despite recent advances on these in the NT.[3] (See article by Robert Blowes in this issues [1991] AboriginalLB 48; 2(52)pg4.) The Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1989 (NT) allows for pastoral excisions for Aboriginal living areas, however the Central Aboriginal Land Council expressed concern over its effectiveness in its 1989-1990 annual report. The WA Government also has a program facilitating the excision of community living areas from pastoral properties but little has been transferred. Of 143 application between 1983 and 1990 only 42 were ‘land tenure secured’[4]. In Qld, a stock route will only be claimable if it is revoked by the Government and the land gazetted as available vacant Crown land. In NSW stock routes are claimable under special procedures but some concern has been expressed as frustrated Land Councils have submitted ambit claims over stock routes, thereby exacerbating whirte land owners’ anxieties and bureaucratic delays.[5]

The Qld Act enables about 20,000 sq.km of vacant Crown land (1.16% of the State), once gazetted, to be added to the 34 000 sq. km of land currently held by Aborigines. The total available land for claim is about 2.24% of the State[6]. This is significantly less in percentage terms than is now held by Aboriginal people in the NT, SA and WA.

In the NT, in 1989, 453 123 sq.km or 33% of NT land was held by Aborigines under freehold title, 2% under leasehold,[7] and a further 14% was under claim[8]; in SA, 183 649 sq.km or 18.7% of land was held freehold. In WA, 35 sq.km was held freehold and 305 485 sq.km was held leasehold[9] (or 12.1%); in Victoria 32 sq.km was held freehold; in NSW, 507 sq.km (or 0.06% )[10] was held freehold and in Tas: 2 sq.km was held freehold[11].

National Parks

The Qld Act allows for claims to be made over gazetted National Park land and apparently over World Heritage listed lands, so that areas of traditional or historic ownership, such as the Qld Wet Tropical Rainforests, Fraser Island, Archer Bend and Stradbroke Island should be claimable.

However, unless excisions of living areas and usufructuary rights are allowed under the proposed Qld Nature Conservation legislation, national parks will be another form of dispossession of traditional owners and will prioritise conservation and tourism values[12]. In the case of Archer Bend, if national park status is retained, local Aborigines would have lost for good their hopes to run cattle in the area. Grievances will also continue if governments do not consult adequately before World Heritage Listing of properties takes place[13].

In NSW, Aborigines cannot claim land held under the National Parks and Wildlife Act 1974, although it is understood that limited direct grants may be made over parks such as Mootwingee, Lake Mungo National Park and Mt Yarrowyck Nature Reserve.[14]

The Qld Government has adopted the Aboriginal lease-back model for national park management which sees Aboriginal title made subject to a perpetual leasehold in favour of the Crown, with Aboriginal owners involved in park management in association with National Parks and Wildlife staff.

However, it is unclear whether the Government intends to allow majority Aboriginal membership on management boards as in federal parks in the NT. The Qld Act merely provides for Aboriginal representation on the management boards. Unlike in the NT, the Qld Act provides that the Crown is not liable to pay rent to traditional Aboriginal owners for leased land.

The Qld Government has stated that equivalent provisions to those in the Community Services (Aborigines) Act 1984, the Community Services (Torres Strait Islander) Act 1984, and the Local Government (Aboriginal Lands) Act will be included in its proposed Nature Conservation legislation[15]. These Acts allow the hunting and gathering of native flora and fauna, for personal and family sustenance, by reserve residents. Those traditional rights would be restricted where the conservation of a species was threatened or to uphold landholder rights.

It is as yet unclear whether Aboriginal people will have access to non-traditional lands and to hunting on private lands, (as in NSW in certain circumstances). The rights and restrictions under the Fisheries Act and sea closures in areas adjacent to Aboriginal lands for traditional fishing , if included, are yet to be seen in the new draft legislation.

Land Councils

No role is envisaged for Aboriginal land councils in Qld. In NSW and the NT land councils' statutory functions include consultation and negotiation for traditional owners regarding land claims, land management and mining, sacred site protection, investment and program administration. They have proven an effective communication channel with Government and have been successful in challenging attempts to restrict Aboriginal rights or interests.[16] However, there have been accusations of bullying, nepotism and financial mismanagement in some large land councils.

Initially, two land councils were established under the ALR (NT) Act, (Tiwi broke away as a third, and there is now a fourth) and although they see their role as representative and effective, as did the Royal Commission into Aboriginal Deaths in Custody (RCIADIC)[17], opponents condemn the extent of their powers. The recent Industry Commission report recommended a reconsideration of the sources of NT land council funding so that more of the royalty equivalents now used for land council administration can be directed to traditional Aboriginal owners of mined land.[18]

In 1990, the NSW Government clarified the functions of the three tiers of Aboriginal land councils (NSW, Regional and Local Land Councils) and tightened ethical and financial accountability requirements and procedures under the ALR Act (NSW)[19].

This was apparently because some councils saw their income as 'compensation' and disbursable at will rather than according to the statutory criteria, and problems arose from a lack of training in accounting and accountability procedures.[20]

Form of Title

Under the Qld legislation Aboriginal Land Trusts will acquire communal inalienable estates in fee simple where the land is claimed on the basis of tradition or historic association. Land claimed on the basis of need will only be conferred as leasehold. This is better than the situation in WA, Victoria and NSW.

In the NT, federal legislation vests inalienable freehold title in Aboriginal Land Trusts for benefit of traditional owners. Under the Aboriginal Lands Trust Act 1966 (SA) the Aboriginal Lands Trust holds land acquired in trust for Aboriginal people and it has purchased other land with its own funds. Most of the trust landholdings are leased to local incorporated Aboriginal communities under 99 year leases[21] but the SA Government is considering the recommendations of a review committee to convert leaseholds to freehold title[22]. The Pitjantjatjara and Maralinga lands are held under freehold title.

In WA, 99 year leases are granted to Aboriginal communities over land held by the Aboriginal Land Trust under the Aboriginal Affairs Planning Act 1972[23]. Under a Federal-State Aboriginal Communities Development Program housing and essential services are to be provided to the new grantees of long-term leases[24].

The retention of communal title to Aboriginal lands may avoid some of the problems found in Victoria. The land at Framlingham and Lake Tyers was vested in corporations which had transferable shares divided amongst the families resident on, or connected with, the land. There are now battles over who has a right to shares and say in the corporations, and the rights over the land these imply[25].

The 1990 amendments to the ALR Act (NSW) prevent the conversion of leasehold land to freehold where it had been bought by an Aboriginal land council. Aboriginal land can now be sold or mortgaged if 80% of the membership of a local land council agrees that the land is not of cultural significance.[26]

Land Available for Purchase

Although the Qld Government has been criticised for not guaranteeing a land acquisition fund as. recommended by the RCIADIC, the Minister for Family Services and Aboriginal and Islander Affairs, Anne Warner, did put an urgency motion to the State ALP Conference that the Government acquire land for Aboriginal people using existing Departmental powers of acquisition, financed out of budget funds allocated for community development and heritage protection. There was no allocation this budget because the legislation is unlikely to become fully effective till long into the budget year, and funds are now allocated to set up the infrastructure to make the Act workable.

Although the Aboriginal and Torres Strait Islander Commission (ATSIC) has a nation-wide land acquisition function, New South Wales is the only 'state' to have a statutory acquisition fund for Aboriginal land. Much of that fund is, however, also used to meet the administrative expenses of land councils. The NSW Government will pay the equivalent of 7.5% of Land Tax revenue to the NSW Aboriginal Land Council till 1998. That conferred about $34.6m on the NSW Aboriginal Land Council in 1988 and $29.9m in 1989.[27] Half of the annual appropriations and investment interest is required to be paid into a statutory investment fund until the end of December 1998. The RCIADIC described the ability of the Land Councils to acquire land as 'a substantial success, causing a real transfer of assets to Aboriginal people'.[28] The investment account is estimated to generate about. $88m for current investment and to hold between $400 and $500m as an investment base[29].

In the NT, some royalties income has been used to purchase land on the open market. The Victorian Government has made some former Government property and money available[30].

Because of the high market for land in Qld, especially around Cairns and the Cold Coast, a Land Tax scheme would have been a major reform.

Mineral Resource Implications

Transferred and claimable land in Qld will be subject to mineral and petroleum reservations to the Crown. In circumstances of 'vital State interest'- evidenced by a Declaration by the Governor-in-Council - the land may also be subject to Crown reservations over forest products or quarry material.

The state retains title to minerals on land claimed by Aborigines and existing mining leases will remain in force. In NSW land vested in or transferred to Aborigines, not subject to prior mineral interests, included mineral or other resources except gold, silver, coal and petroleum The Aboriginal Lands Bill 1991 (Tas) also proposed vesting rights to mining outside reserve lands in an Aboriginal Land Council which was incorporated under the federal Aboriginal Councils and Associations Act. The Crown was to retain rights to oil, helium, atomic and geothermal substances. The Industry Commission recently recommended that governments consider the transferral of mineral rights on Aboriginal land to traditional owners.[31]

The Qld legislation is better than in WA where the Aboriginal Lands Trust and Aboriginal Affairs Planning Authority have very limited powers to restrict mining activity on Aboriginal land[32]. It is also better than that in the NT. There, if traditional owners consent to exploration they are also consenting to mining consistent with the exploration proposal. If traditional owners oppose Exploration Licence applications, no further application can be made for 5 years except if the Land Council or Minister intervenes.

In retaining the right for Aboriginal landowners to object to exploration and mining applications, apart from the provision enabling the veto to be overturned by the Governor-in-Council, the Qld Government appears to be following the Stewart Inquiry findings that: attempts to expedite negotiations over mining have failed; the parties should decide whether consent should be conjunctive or disjunctive; and that insisting that consent to exploration is also consent to mining is an unnecessary complication.[33]

In SA, Pitjantjatjara and Maralinga communities can veto exploration or mining activity subject to independent arbitration[34]. Royalties from mining on Aboriginal Lands Trust Land are paid to the Aboriginal Lands Trust. Pitjantjatjara and Maralinga Tjarutja communities have partial access to royalty equivalents from any permitted mining activity on their lands. Two-thirds of the royalty amount is payable to Aboriginal interests and a third is paid into State revenue.

Under the Qld Act Aboriginal landowners are entitled to a percentage equivalent of royalties payable under the Mineral Resources Act 1989 or the Petroleum Act 1923, which should be applied for Aboriginal benefit and particularly for those disadvantaged by mining on their land. Another royalty equivalent is also to be applied by the Crown for the benefit of Qld Aborigines. The royalty formula is not .yet known but the Government has avoided the NT royalty situation where about 30% has been available for communities directly affected by mining, 40% for Land Council administration and 30% for incorporated Aboriginal community groups[35]. Somewhat like the situation in SA (where Aboriginal landholders can negotiate additional compensation for adverse social or religious impact from mining), in Qld under the Mineral Resources Act Amendment Act 1990, Aboriginal social, economic and cultural interests may be compensated as determined by the Wardens Court, and compensation is no longer limited to the rectification of actual damage.

Conclusions

The Act has some positive features. At least now there is the possibility of land claims over vacant Crown land. WA, Tasmania and SA have no statutory land claim procedures. The provisions of the Mineral Resources Act 1989 (Qld) which give DOGIT landowners the power to withhold consent to exploration or mining, but enable the Governor-in-Council to override that consent, seem set to continue. The Government also proposes to grant Aboriginal mineral royalty equivalents, which is good, depending on the royalty formula developed. The mining consent provisions are acceptable but it is still too soon to assess royalties, hunting, gathering, fishing and foraging rights and national park claims and management.

But the Government has been overly conservative in its approach to land rights and has excluded too much land from claim. The Act can also be criticised for requiring that land be gazetted before it can be claimed, so that the the total land claimable is much less than in the NT. A tax-based Land Acquisition Fund would also have been a major reform, as would have been the statutory recognition of Aboriginal land councils.

It provides little for the majority of Qld Aborigines who live in urban areas, although the real extent of claimable coastal Crown land, not far from provincial centres is not yet known. In short, some of the acrimony surrounding this legislation may be well-founded.

*Thanks to Deal Das, Rowan Silva and Peter Poynton for conributions.


[1] 1. Royal Commission into Aboriginal Deaths in Custody (RCIADIC), National Report, Volt, ALPS, Canberra, 1991, p.485; ALR (NT) Act ss.3, 50.

[2] State forests and timber reserves are not claimable in NSW: M. Wilkie, Aboriginal Land Rights in NSW, Alternative Publishing Co-op, 1995, p.61; ALR Act 1983 NSW s.36(1).

[3] G. Neate, Aboriginal Land Rights Law in the Northern N.T, Vol.1, Alternative Publishing Co-operative Ltd, Sydney, 1989, p.105. See also Re Toohey; Ex parte Mending Station Pty Ltd [1982] HCA 69; (1982) 44 ALR 63; AIR (NT) Amendment Acts 1987,1989.

[4] Commissioner Dodson, Regional Report of Inquiry into Underlying Issues in Western Australia, RCIADIC, Vol.1, AGPS, Canberra 1991,pp.330-331.

[5] Commissioner Wootten, RCIADIC, Regional Report by the Inquiry in New South Wales, Victoria and Tasmania, ALPS, Canberra, 1991, p.426; ALRA 1983 NSW s37.

[6] F. Brennan S.J. The Queensland Aboriginal Land Act 1991', Aboriginal Law Bulletin, Vol. 2, No.50, P.11.

[7] RCIADIC, National Report, Vol.2, op.cit., p.484.

[8] S. Sargent 'Land Councils continue to flex muscles', Financial Review, October 25,1988, p51.

[9] RCIADIC, National Report, Volt, op.cit., p.493-4.

[10] Industry Commission, Report No.7: Mining and Minerals Processing in Australia, Vol.1, AGPS, Canberra, 1991, p24.

[11] RCIADIC, National Report, Vol.2, op.cit., p.483.

[12] J. Wright 'Wilderness and Wasteland', Island, No.42, 1990, pp.3-7.

[13] F. Brennan SJ, 'Reconciling the Unreconciled: Accommodating the Irreconcilable, Paper presented to the National Dispute Resolution Conference, Brisbane, 18-19 February, 1991, pp.13-18.

[14] B. Woodley, National Parks Given to Aborigines', The Australian, April 30,1991, p5.

[15] . Queensland National Parks and Wildlife Service Legislation Working Group and Queensland Department of Environment and Heritage, Proposal for Queensland Nature Conservation Legislation, Summary Paper for Discussion: Getting Our Act(s) Together, July 1991.

[16] NSW Aboriginal Land Council v The Minister Administering the Aboriginal Land Rights Act 1983 (As Amended) & Anor. See Aboriginal Law Bulletin, Volt, No.32, June 1988, p.4.

[17] RCIADIC, National Report, Volt, op. cit., p.485.

[18] Industry Commission, Vol. 1. op. cit., pp.22-23

[19] The Minister can dissolve the Regional or local Aboriginal Land Council if requested by them or the NSW Aboriginal Land Council is satisfied that either has ceased to function: s.58A ALRA 1983 (NSW)

[20] RCIADIC, Wootten Report op alt, pp.422-424.

[21] D. Dunstan, Aboriginal Community Government, Adelaide, July, 1989, para 2.4.

[22] RCIADIC National Report, Vol. 2, op. cit., p.492

[23] ibid, p.493.

[24] Industry Commission, Vol. 3, op. cit.,p. 91.

[25] Dunstan, op alt, para 532

[26] amongst other requirements: ALRA 1983 (NSW) ss 40-40D; RCIADIC, National Report, Vol. 2, op. alt, p.487.

[27] Section 29A ALRA 1983 (NSW)

[28] Wootten, op. cit., p.427.

[29] RCIADIC National Report, Vol.2, op. alt, p. 486.

[30] 'Land Acquisitions since 1975 by Aboriginal Land Fund Commission (ALFC - 1975), the Aboriginal Development Commission (ADC - 1980) and ATSIC, Land Management Branch minutes, May 1991.

[31] Industry Commission, Vol.1, op.cit., p24.

[32] M Barker, 'Aborigines, Natural Resources and the law', University of Western Australia Law Review, Vol.15, Nos. 3 & 4, pp245-292 at p263-264.

[33] Industry Commission, Report No. 7: Mining and Minerals Processing in Australia, Vol3: Issues in Detail, AGPS, Canberra, 1991, p.63.

[34] ATSIC Appendix, op cit, P.4.

[35] RCIADIC National report, Vol 2, op.cit., p.48. See also ALRA 1983 (NSW) s.46: royalties are payable to the NSW Land Council, Local Land Councils and a special Mining Royalties Account.


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