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Rural Leasehold Lands Strategy (RLLS) in Queensland

Traditional Owners should see their Native Title rights and interests advanced through the strategy

'Certainty' over the terms and conditions of non-exclusive lease tenures, and of Native Title rights and interests, is a critical issue for both lessees and Indigenous Traditional Owners. The Department of Natural Resources suggests that its proposed 'rolling leases' will offer a level of security approaching that of perpetual leases - that it will create de facto perpetual leases.

The manner in which the Government implements a rolling lease system and grants lease extensions has significant implications regarding the rights of Native Title claimants and may affect progress towards resolution of Native Title across the leasehold estate.

Under the proposed rolling lease scheme, if a lessee on a 'term lease' is content with a 30-year base term and complies with a Land Management Agreement they can expect their lease to roll on in perpetuity. They are under no onus to adopt enhanced conservation measures through a Conservation Agreement (CA), or to enter into an Indigenous Land Use Agreement (ILUA).

The Government proposes to use 'lease extensions' as incentives for lessees to enter into a CA or an ILUA. If a lessee opts for one or two criteria under the categories for lease extensions, such as a Conservation Agreement, they can get extensions to the base term. However, under the terms of the strategy, this need not include an ILUA. Lessees therefore can feel they have no responsibility to enter into an ILUA or to deal with Native Title and Traditional Owners in a voluntary capacity. Nor are they under any obligation to adopt conservation measures, as distinct from sustainable production measures.
Irrespective of the base term of a rolling lease, a Native Title claim and a successful determination are possible - and indeed likely in a significant portion of the leasehold estate. This simply means that pursuit of Native Title rights and interests will be through the courts instead of through negotiation and voluntary agreements. This approach, as we know, gives little certainty.

Currently, a conversion from a term to a perpetual lease would trigger Native Title procedures and would require that the Native Title rights and interests be resolved through either a Court determination or an ILUA under the Native Title Act. If 'rolling leases' - the lease extension process - gives holders of term lessees an equivalent of perpetual leases how can this not diminish Native Title or be done without proper notification and negotiation?

If the proposed new system does not create a de facto perpetual lease, then how is it offering greater tenure security to lessees or facilitating resolution of native title issues?

While the Strategy puts considerable emphasis on lessee's interests and concerns, it does very little to ensure clarification of Native Title holder's rights and interests, or to make clear how it will facilitate the development of Indigenous Land Use Agreements or other binding arrangements.

It is essential that the Government negotiate with Indigenous Traditional Owners and their representatives regarding the proposed Strategy. It must explain how it will facilitate the resolution of Native Title with respect to leasehold lands in which co-existent rights and interests apply.

The Strategy should offer adequate incentives to leaseholders to gain their cooperation in the development of agreements. Along with lessee entitlements, these agreements should ensure the rights and interests of Traditional Owner's, including access to homelands, natural resource use, cultural activities and heritage protection.

Download the current QCC-TWS-WWF policy position on... Rural leasehold land strategy (PDF 30kb)

Native title and rural leasehold lands in Queensland

Prepared by Anthony Esposito, Native Title and Protected Areas Project Coordinator
for the Queensland Conservation Council's submission to the State Government July 2002

| Introduction | Non-freehold tenures | Amended NTA | Racial discrimination | State's powers - ownership and tenure | Leasehold tenures and policy development | Statewide land management strategy |

Introduction

This paper deals with issues of native title with respect to the following 'Category 1' tenures granted under the Land Act 1998 -

~ Term Leases for pastoral, grazing or agricultural purposes

~ Perpetual Leases for grazing or agricultural purposes (including pastoral holdings, special leases and grazing homestead perpetual leases)

~ Grazing Homestead and other Freehold Leases

Changes to existing lease arrangements through diversification, conversions and upgrading along with the 'right to negotiate' and other procedural rights of traditional owners are considered here.

The issuing of lease tenures on Unallocated State Land (USL) and questions around the State's 'sovereign power' and 'proprietary interests' with respect to USL are also considered.

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Native title and non-freehold tenures

The High Court's judgement in the Wik Peoples v the State of Queensland and the Howard Government's 1998 amendments to the Native Title Act 1993 are the main defining elements in the interplay between native title and rural leasehold tenures. Many issues affecting policy meet in this interplay: sovereign power, racial discrimination, traditional ownership, land title, use and access rights, pastoral productivity and primary production, natural resource management, and cultural heritage and environment protection.

The advent of native title in Australia highlighted the fact that the governance, control, allocation, alienation, use and management of land and water had been developed on a principle that was fundamentally false. That is, the principle of terra nullius - that the land belonged to no one. This founding conception could not be reconciled with the custom-law within indigenous peoples' clan estates, or with the Australian common law system and values of justice.

The recognition of common law native title did not alter the general basis of land tenure. But it does require changes to the way land is administered in future. It requires future action by Governments and others with an interest in land and water to be based on a priori consideration of native title and where it is extant, an accommodation of the rights and interests of indigenous traditional owners.

This accommodation hinges on the attributes of native title recognised by the common law and the extent to which statutory law gives effect to or circumscribes those rights and interests.

The essence of the Wik decision is the principle of coexistence - that native title continues to exist on tenures, such as pastoral leases, that are not freehold or other exclusive possession tenures. Native title therefore is present along with the state's legal power in controlling land allocation and the entitlements of leaseholders and other interested parties. With respect to these tenures, any dealings in land and water must comply with Federal and State Native Title laws. The Department of Natural Resources' Guide to Land Tenure in Queensland states the following -

"Non-freehold land is land under the control of the State of Queensland but which may be subject to a lease, permit or licence, reserved for a community purpose, dedicated as a road or subject to no tenure at all. The provisions of the Commonwealth and State Native Title Acts must be satisfied before any dealings under the Land Act can be undertaken in relation to non-freehold land."

Following the High Court decision in Mabo and Others v Queensland in 1992, a Commonwealth statutory framework for native title - the Native Title Act 1993 - was put in place by the then Labor Government. This was accompanied by State-based supporting legislation.

This legislative framework attempted to give effect to the recognition and protection afforded native title by the common law and to "further advance the process of reconciliation among all Australians". It was intended, for the purposes of paragraph 4 of Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination and the Racial Discrimination Act 1975, as "a special measure for the advancement and protection of Aboriginal peoples and Torres Strait Islanders".

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Working with the amended Native Title Act 1993

In 1998, in direct response to the High Court's decision in The Wik Peoples v The State of Queensland & Ors, and consistent with the Liberal-National parties' general opposition to the Native Title Act 1993 (NTA), a series of amendments were developed by the Coalition Government. The amendments to the NTA raised critical legal and moral issues, some of which await further determinations in the Courts to clarify and resolve. These amendments were accompanied by significant political controversy and stand contested. Unlike the original Act, the amendments do not have support of indigenous interests.

Certain of these amendments have a direct bearing on the leasehold estate in rural Queensland. In fact, in large measure, the amendments to the NTA were developed according to the Commonwealth Government's Ten Point Plan - a political compact with various pastoral and rural lobbies, particularly in Queensland.

There are five general procedural principles in the NTA relevant to lease land transactions and dealings. These are -

~ That dealing with native title land is subject to the 'freehold standard' - that is, native title embodies valuable property and use rights and should be treated equally with comparable rights, such as freehold

~ That there is a right of traditional owners to negotiate on matters affecting their native title

~ That impairment or extinguishment of native title by valid Government acts must carry a clear and plain intention

~ That any impairment or extinguishment of native title must not be racially discriminatory

~ That where impairment or extinguishment occurs, compensation on just terms is payable

How these transactions occur depends on the status accorded native title. There appear to be two opposing conceptions that require further legal articulation to resolve. One argument is that native title is a 'possessory title', the other that native title is a 'bundle of rights' predicated on physical connection and use only and not equating to ownership.

It is our position that native title is possessory title with various dependent rights and interests flowing from this traditional ownership. As these are indivisible, an action adversely affecting either proprietary title or use rights has an adverse affect on the other.

Customary rights and interests flow from possessory title. They are contingent rights. While contingent rights and interests may be impaired or inconsistent with and yield to other rights and interests conferred by the Crown, the underlying title is not extinguished. Much native title has been declared extinguished by 'validated' past acts. But future acts of extinguishment require a clear and plain intention by Government and involve a grant of an inconsistent interest. They must not involve inequality or discrimination on the basis of race. The freehold test guarantees a right of traditional owners to negotiate and be compensated for loss, impairment or extinguishment. Where inconsistent rights and interests cease to have effect then the native title rights and interests can be revived.

The pending determination of the High Court in the appeal of Ben Ward & Ors v State of Western Australia & Ors - the Miriuwung and Gajerrong case - is expected to clarify this.
The amended NTA, pre-empting resolution of the matter, takes a narrow 'bundle of rights' approach and in our view is a partial, unfairly limiting and discriminatory framework. In the interests of land justice, the Queensland Government should take a more considered public policy position.

While the Queensland Government must work within the present legal constraints of the NTA it can still develop a system predicated on a correct and complete reading of native title - a situation that requires an elaborated legal and moral process to arrive at a proper conclusion. As there is considerable time available before the issue of lease expirations becomes critical we recommend such an approach be established, for the following reasons -

~ That the legal evolution of native title is vitally important to a proper settlement of matters of land justice and it is unwise and unfair to act presumptively or in reaction merely to interest group pressures

~ That the manner in which 'intermediate period acts' were carried out prior to the Wik decision, and then 'validated', highlights the risks and unfairness associated with ignoring native title procedures, including exposing the public interest to costs of compensation, perpetuated social divisions, charges of racial discrimination and adverse international judgement

~ That genuine certainty in matters of tenure and economic development must be achieved on the basis of substantial agreement between traditional owners, the State and other parties - matters made harder by the proscriptive intent of the amended NTA

~ That the fiduciary responsibility inherent in the State's relationship with indigenous people requires the State to ensure that indigenous title, rights and interests are protected

~ That a cooperative, negotiated approach over time offers the possibility of a more considered, just and creative response to changes flowing from the recognition of native title

~ That to continue to act using what are regarded as racially discriminatory provisions of the amended NTA would be to transgress internationally accepted human rights principles
It is therefore recommended that a properly enfranchising and resourced agreement building process take place over the next four years.

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Racial discrimination and the Native Title Act

The Commonwealth Government's adoption in 1998 of amendments to the NTA introduced restrictions and exceptions to the right to negotiate and reduced the protection afforded to Indigenous peoples' property and cultural rights in comparison to the rights of non-Indigenous people. The Committee for the Elimination of Racial Discrimination (CERD) has criticised these amendments for their breaches of human rights treaties and conventions to which Australia is a party. Several of the amendments are considered racially discriminatory.
The Native Title Report 2001, prepared by the Aboriginal and Torres Strait Islander Social Justice Commissioner, as required by section 41C(1)(a) of the Human Rights and Equal Opportunity Commission Act 1986, states -

"The amended NTA now sets the framework within which states and territories administer native title within their borders. States and Territories are bound by the NTA even though parts of the NTA breach the international human rights norms. However, while the framework set up by the NTA is discriminatory State and Territory governments retain considerable power (within the constraints of the NTA) to effect native title outcomes in ways that either reduce or entrench this discrimination. As a matter of law, as well as principle, States and Territories should exercise their powers under the NTA, where possible, consistently with relevant international human rights norms."

The 'primary production' provisions of the amended NTA are one of the matters cited by CERD as racially discriminatory. Under the guise of 'certainty', the extension of broad-acre pastoral and agricultural entitlements by use of the Tax Act's primary production definitions, to the detriment and without the consent of native title-holders, will create a new legacy of racial discrimination, de facto extinguishment and protracted legal and political contests.
The preamble to the NTA states -

"Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title. However, where appropriate, the native title should not be extinguished but revive after a validated act ceases to have effect."

Despite this acknowledgment remaining in the amended Act, the Prime Minister stated to pastoralists in Longreach -

"…Under the guarantees that will be contained in this [amended] legislation, the right to negotiate, that stupid property right… that native title right will be completely abolished and removed for all time in relation to the activities of pastoralists carrying on not only strictly defined pastoral activities, but also the full extent of primary production activities which you can possibly imagine."

The intent and effect of this amendment is manifestly unjust and counter to the stated purpose of the NTA. As a matter of policy approach, the environment groups "do not support and will not be allied to extinguishment or impairment of native title as a means of achieving the objectives of nature conservation and biodiversity protection or meeting the interests of the wider community..."

In the present circumstances we consider that NTA Indigenous Land Use Agreement (ILUA) provisions should be placed at the centre of a legal strategy to limit the adverse effects of the NTA. This will also enable a better approach to tenure resolution, land management and productivity issues, and ecological and cultural maintenance.

We regard the Queensland Government's 'diversification' policy guidelines as potentially giving effect to the racially discriminatory 'primary production' provisions of the NTA. The guidelines are to "facilitate diversification by lessees of Land Act leases issued for pastoral, grazing or agricultural purposes into other activities in a manner which is complementary to, and not interfering with, the main purpose of the lease, while maintaining ecological sustainability". While there is qualified acceptance that this may be a useful policy instrument to ensure ecological and economic viability in some rural lease lands, the guidelines do not adequately recognise or address native title or the right to negotiate.

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The State's powers and issues of ownership and tenure

While native title did not change the tenure system it clarified certain assumptions about the State's powers, it's relationship to land and tenure allocation and constructs of 'property'. A major point is that sovereign power does not equate with full beneficial, or absolute, ownership. In the Mabo decision, Justice Brennan stated -

"It is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants… If the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognised by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land. Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant…
The common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown."

Similar reasoning is employed in a little remarked upon aspect of the High Court's judgement in Yanner v Eaton -

"Property is used in the law in various senses to describe a range of legal and equitable estates and interests, corporeal and incorporeal. Distinct corporeal and incorporeal property rights in relation to the one object may exist concurrently and be held by different parties. Ownership may be divorced from possession… Property need not necessarily be susceptible of transfer… Hohfeld identified the term "property" as a striking example of the inherent ambiguity and looseness in legal terminology. The risk of confusion is increased when, without further definition, statutory or constitutional rights and liabilities are so expressed as to turn upon the existence of "property". The content of the term then becomes a question of statutory or constitutional interpretation…"

A central principle to be derived from these decisions is that the State does not of-right 'own' land, resources, fauna and flora, but has sovereign power to determine how and by whom these are used and what proprietorial interests it confers upon itself and others. Unlike all other titles in Australia, native title does not owe its existence to the Crown. The Crown, having asserted sovereignty, now has a special responsibility to indigenous traditional owners - "those antecedent rights and interests… constitute a burden on the radical title of the Crown". A full right to negotiate is, taken from this view, a concomitant of this special responsibility and recognition of the uniqueness of native title.

In the history of colonisation and the development of State power in Australia, and until the recognition of native title, the creation of property interests occurred without treaty, consent or 'just terms' compensation with indigenous traditional owners - that is, without negotiation. Native title at law now places constraints on the power of the State with respect to how it deals with land and water. The State must comply with requirements of the Native Title Act, the Racial Discrimination Act and other legal instruments and conventions. The State does not only have powers with respect to control of land, but responsibilities. Native title needs to be addressed at the earliest stages of planning for the future of the leasehold estate.

There is a hierarchy of values in the State's tenure decisions that prefers freehold, albeit coupled with regulation. The norms of freehold tenure mean that regulation is seen (as with vegetation clearing and water allocation restrictions on ecological grounds) as a withdrawing of rights and title, carrying with it a demand for compensation. In the State's tenure allocation decisions the State must correct certain cultural and economic assumptions about the primacy and inevitability of freehold tenure and the upgrading of licenses into a class of property rights on a par with this.

Such freehold norms also disallow recognition of native title as possessory title, owing in part to its communal and spiritual characteristics, and Governments have therefore not acted according to the freehold test when it comes to dealing with native title lands. The State should now reform tenure arrangements for compatibility with native title as an antecedent possessory claim and undertake broader education on the nature of and customs associated with various forms of title.

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Leasehold tenures and policy development

The Queensland Government released the Managing State Rural Leasehold Land discussion paper as an initial step towards developing a strategy for managing leasehold tenures. Spurring on this review is the fact that over the next 20 years almost half of the pastoral holdings in Queensland will be up for renewal.

The discussion paper states -

"Only a small number of pastoral holdings are expiring from now until 2006. Therefore, prior to the commencement of the period of accelerated activity, a significant opportunity exists to develop a strategy covering pastoral holdings and other rural leases".

This strategic development is another chapter in the history of state land use and allocation, constituting a major long-term opportunity to review and reform the public tenure and environmental management systems of the State.

Holmes, in Pastoral Lease Tenures as Policy Instruments, has documented six phases in the evolution of lease tenures as policy instruments, as set out below in Table 1 -

Table 1 - PASTORAL LEASE TENURES AS POLICY INSTRUMENTS

From Holmes, J.H. 'Pastoral lease tenures as policy instruments' in Environment History and Policy: Australian Explorations. (Ed. S. Dovers) Oxford U.P.

Our recommended approach is one of adopting the general policy orientations described in phases 5 and 6, recognising all the powers, rights and interests associated with state control, native title and lease tenures, and bringing them into a cooperative dialogue. The broad aim is to secure the agreement of traditional owners, leaseholders, the State and interested parties to strategies for coexistence and land management in the future.

In addition, certain historical and cultural assumptions about the nature and purpose of the tenure system should be replaced by several countervailing principles, that is -

~ That native title is an established feature of the tenure system and wherever it survives carries an obligation on the State to negotiate in good faith with traditional owners over tenure allocation and such things as land use, conservation and management, and resource extraction

~ That there is no supremacy of freehold tenure or as-of-right tenure upgrades for leaseholders

~ That 'sustainability' requires that landscape-wide ecological principles of management take primacy over and govern natural resource extraction and utilisation

~ That authorities issued for native vegetation clearing and water extraction do not imply, and should not be converted into, inviolable private property rights creating a compensable interest

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A Statewide land management strategy

There is a need for effective and fair strategies to resolve environmental protection, land title and natural resource use issues. If there is to be genuine certainty then there must be policy renewal around the complex interaction of native title, leaseholds and ecology. Some of the features of an emergent model that could be adapted and applied to this strategy include -

~ There should be landscape, bio-regional and ecosystem planning scales in a matrix of biodiversity conservation and hydro-ecology

~ Traditional ownership boundaries and 'caring for country' principles should form a major part of the natural and cultural heritage assessments and ongoing management

~ There should be a tenure resolution process to enable reform of tenure boundaries so that the full suite of native title, pastoral and environmental rights and interests are included and adapted to meet the needs of a cooperative land management system

~ There should be landscape-wide environmental values and sustainability criteria. These should be used to shape the design of the protected area estate and the locations, activities and technologies for pastoral and rural economic development. These values and criteria should also be used in the development of alternative economic strategies to achieve sustainability

~ There should be governance based on mutual recognition of powers, rights and responsibilities, coexisting tenures, cooperative management regimes and the role of the State in 'building reconciliation'. Institutional reform is required to enable this

The State's role in managing rural leasehold tenures involves developing a system that recognises the underpinning native title, the contingent use and production rights of both traditional owners and leaseholders, and the ecological principles of sustainable land management. To address these three key features, the tenure system needs to enter upon a new era, giving rise to a comprehensive framework for land management and correcting certain historical anomalies.

The new regime should be a statewide land management strategy encompassing -

~ Native title framework agreements and indigenous land use agreements, developed with traditional owners and their agencies through cooperative partnership models

~ Strategies for protection of biodiversity and natural and cultural heritage based on landscape-wide integrity of ecological values and processes

~ Macro- to micro-scale ecological sustainability models for rural production and natural resource management, developed through extension services to leaseholders and native title holders, and coupled with public expenditure on transitional costs, incentives and offsets, and payments for the maintenance of ecological services

Ó Anthony Esposito

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