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O'Keefe, Kelvin --- "Western Land Titles" [ 1986] AboriginalLawB 46 ; (1986) 1(21) Aboriginal Law Bulletin 9

Western Land Titles

by Kevin O’Keefe

Some of the amendments to the NSW Aboriginal Land Rights Act, 1983 passed in May this year have generated antagonism amongst the Aboriginal community, especially in the western areas of NSW.

The following article was submitted by Mr R. E. Wilson, the Secretary of the Department of Lands, on behalf of its author, Mr Kelvin O'Keefe, a legal officer in that department. Mr Wilson did so because, 1 believe that Mr O'Keefe's paper can remedy misunderstanding and contribute to a more rational debate about land management in the Western Lands Division of NSW of which the issue of Aboriginal land entitlement is one of many parts.' Mr O'Keefe writes:

Aboriginal Land Entitlement:
Perpetual leasehold and fee simple titles - a comparison

In May 1986 the NSW Parliament passed legislation amending the Aboriginal Land Rights Act, 1983. In particular S.36(9A) provides that where claims over vacant Crown land in the Western Division are granted, title shall issue byway of perpetual lease in respect of broad acreage.

This paper discusses the difference between a Leasehold title transferred to an Aboriginal Land Council pursuant to S.36(9A) of the Aboriginal Land Rights Act, 1983 as distinct from a Fee Simple Title transferred pursuant to 536(9) of the Act.

The origins of Fee Simple Title are feudal in nature. The definition contained in Dr Helmore's text. The Law of Real Properly in New South Wales (p.6l) is apt- 'A fee simple is the greatest estate a man may have in land. The right of alienation i.e. unrestricted ability to dispose of the land is the most characteristic incident of a fee simple.'

The origins of leases spring from the law of contract and should be distinguished from the Fee Simple Estate which sprang from the law relating to feudal land holding.

Gradually, the law recognised that leases created interest in land. Leaseholds were not recognised as freehold interests or even real property but were categorised as chattels or personal property.

Leaseholds in time acquired the status of interests or estates in land, and long terms became common. There is no legal limit to the length of term (in certain cases, long leases may be converted to fee simple). Leases may be inherited in the same unrestricted form as fee simple estates.

At Common law a lease has three distinguishing features:

(i) There must be certainty as to the subject matter.
(ii) There must be a definite point of commencement in time.
(iii) The period must be definite. Thus, at Common taw, a lease in perpetuity is void.

The application of the Common Law in relation to both leases and fee simple titles, as briefly sketched above, has been greatly altered' by successive acts of the NSW Parliament.

In particular, S.40 of the Aboriginal Land Rights Act, 1983 denies Aboriginal Land council proprietors the historically most fundamental privilege attached to fee simple title the right of alienation: Again, S.23(1(a) of the Western Lands Act, 1901 empowers the Minister for Lands to grant leases in perpetuity over Western Division Lands.

Thus in comparing fee simple and leasehold interests as granted under the Aboriginal Land Rights Act it should be kept in mind that the interests so granted have been greatly altered by statute from their Common law counterparts. This fact perhaps goes some way towards explaining the confusion surrounding the introduction of the perpetual leasehold title provision into the Aboriginal Land Right Act. It has never been the intention of the Department of Lands in pressing for the introduction of the leasehold provision to affect the security of tenure enjoyed by Aboriginal Land Council Proprietors.

The reasons behind the decision to introduce the leasehold provision may be summarised as follows:

(a) The Western Division comprising some 40% of the State's area is generally recognised to be a very fragile land resource owing to Its and and semi add nature.
(b) The effective management of this fragile resource has required the adoption of some special measures. One longstanding measure has been to ensure that most of the broadaxe lands within the Western Division remain vested in the Crown with title being held by leasehold tenure only-commonly a lease in perpetuity.

The purposes of the leasehold measure has been:

(i) to ensure that enforceable land use conditions are contained in the lease and that Officers of the Western Lands Commission may enter leased lands at reasonable Intervals to ensure conditions are compiled with. Whilst land use conditions attach to fee simple grants, their existence and enforcement revolves around legislation which is unconnected to the actual land tenure. Such an arrangement proves satisfactory in the more closely settled areas of the State where specialist government agencies and shire councils employ adequate staff to oversee such arrangements. In the sparsely populated Western Division, the presence of such agencies is minimal or non existent. The Western Lands Commission fills the gap. Attaching land use conditions as incidents of tenure provides a reasonably simple and effective overseeing mechanism.
(ii) To provide properties of a sufficient size to be economically worked and thus give effect to the Government's 'Home maintenance policy' - a policy designed to promote income security.

The Minister for Natural Resources saw it as essential that the. role of the Western Lands Commission as 'Land Use Guardian' be preserved whether it be in relation to broadacre lands held by Aboriginal Land Councils or other persons. This was the sole motivating factor behind the introduction of perpetual leasehold title as a means of satisfying claims.

Much has been made of the power of the Minister to forfeit Western Lands Leases. The following facts should be borne in mind:

(1) There has been one instance of forfeiture of a Western Lands lease in the 85 year history of the Commission. That forfeiture is currently the subject of litigation.
(2) No exclusionary clause in the Western Lands Act or any other act restricts or ousts judicial review of a Minister's decision to forfeit a lease, including a lease issued in satisfaction of a grant pursuant to the Aboriginal Land Rights Act
(3) A Crown Lands Minister cannot cancel a lease granted under S.3d(9A) to an Aboriginal Land Council without first consulting the Minister for Aboriginal Affairs.
(4) The power of a Crown Lands Minister to withdraw areas of land from such a lease Is circumscribed by 5.42 of the Aboriginal Land Rights Act.

Thus, it is fair to conclude that there is no realistic difference between the security of tenure enjoyed by an Aboriginal Land Council under a perpetual lease vis-a-vis the same Council holding fee simple title.

It cannot be overemphasised that the motivation behind the inclusion of leasehold titles as a mechanism to satisfy claims stemmed from the need to reconcile the Crown Lands Minister's responsibilty to safeguard a fragile land environment with his duties under the Aboriginal Land Rights Act to grant claims over 'claimable Crown lands'.

In this context it is particularly appropriate to quote from a paper entitled 'Land Rights and Land Use: A View from the Sidelines' presented at the 23rd Australian Legal Convention by the Hon. Mr Justice Woodward OBE (see 59 ALJ at 420). His Honour was the Royal Commissioner who inquired into the appropriate ways and means for granting Aboriginal Land Rights in the Northern Territory:

This thought leads me to another vital issue. the nature of the title Aboriginals should have to their land. In my 1974 report I recommended communal, inalienable freehold title. I still think, for reasons which I then gave, that Aboriginal title must be communal and inalienable. and that freehold title is highly desirable for symbolic reasons and for the certainty of rights thus granted. However, it seems to me that this is a claim which could be regarded as negotiable where its achievement seems difficult. It must be remembered that 'ownership' is a word of variable meaning, used to described a bundle of rights. Even by making land inalienable, one of the main rights of normal freehold ownership is removed; it may be possible to adjust the bundle in other ways which do not affect the reality of Aboriginal control. It is security of tenure - protection against arbitrary cancellation of rights - which is most important. Not the name attached to the bundle of rights which give that security.

Total land area (sq km)* granted to Aboriginals: State, Australia, 1982 (a) to 1985 (c)

* includes freehold, leasehold, reserves and missions

(a) As at June.

(b) As at October

(c) As at April.

Source: Department of Aboriginal Affairs

See “an answer to the article by Mr K. O'Keefe from Mr M. J. Finnane, QC.”: [1986] AboriginalLB 47; 1(21)pg11