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Indigenous Law Bulletin

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Murphy, Kevin --- "A Growing Interest " [1997] IndigLawB 102; (1997) 4(7) Indigenous Law Bulletin 17

A Growing Interest...

By Kevin Murphy

Since November 1994, the Aboriginal and Torres Strait Islander Land Acts Branch (ATSILAB), of the Land Services Program, Department of Natural Resources (Queensland), has been responsible for the administration of the Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land Act 1991 (Qld). ATSILAB consults on behalf of the Minister for the purpose of land transfers and funds land claims.

In all there are approximately 40 islands in the Torres Strait that are transferable under the Torres Strait Islander Land Act 1991 (Qld) (‘the TSI Land Act’). To date, only one island, Maur (Rennel) Island, has been transferred under the the TSI Land Act, in 1995.[1]

Until recent times, the TSI Land Act has not received much support from organisations or individuals in the Torres Strait, due at least in part to the negative perceptions which many Torres Strait Islanders have of their historical relationship with the Queensland Government. In 1995 and 1996, when I made a number of field trips to the Torres Strait to provide information about the TSI Land Act, Islanders appeared to be much more interested in the Native Title Act 1993 (Cth) (‘the NTA’).

However, following a native title workshop at Darnley Island in November 1996, where Torres Strait Islanders were made aware of the different rights attaching to native title under the NTA and freehold title under the TSI Land Act (‘title owners’ being registered with the Queensland Titles Office), they became interested in the TSI Land Act’s ability to provide an inalienable freehold title, which means that they cannot sell the land, but they can grant other interests in the land, such as licences and leases. Other benefits of the TSI Land Act include the requirements for the indigenous owners’ consent for mining, and statutory provision for sharing royalties with the indigenous owners.

As a result, there are at present eight Torres Strait islands either in the process of transfer, or which are the subject of preliminary transfer negotiations. Initial transfers of land are focussing on the uninhabited islands, because these are likely to be the simplest and most achievable transfers. Issues associated with Local Government jurisdiction have arisen in respect of five of these islands. At present, the Torres Shire Council is the local government body for any islands in the Strait which are not included in an Island Council DOGIT (Deed of Grant in Trust) area.[2] However, Islanders are seeking to have their customary lands come within the jurisdiction of the local Island Council where a particular Council is constituted by customary owners.

Whilst native title rights which arise from indigenous customs or traditions are recognised by the common law and regulated by native title legislation, a freehold grant under the TSI Land Act provides other rights over land which are not available generally through the common law or native title legislation.

Because of this, there is a growing interest in the TSI Land Act which may result in most of the land in the Torres Strait becoming inalienable freehold in the future.

[1] In contrast, under the Aboriginal Land Act 1991 (Qld), 154,000 ha of land has been transferred, approximately 700,000 ha of land is undergoing the transfer process and approximately 2.7 million ha of land has been claimed.

[2] Deeds of Grant in Trust are freehold grants of land made under the Land Act 1994 (Qld) to grantees who hold the land granted on trust for the residents or inhabitants of the land. The grantees are corporations charged with local government functions over the granted land. The members of these corporations are voted in by the residents or inhabitants in local government elections.

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