Leasehold Lands Strategy (RLLS) in Queensland
Owners should see their Native Title rights and interests advanced
through the strategy
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.
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.
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).
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
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.
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?
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?
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.
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.
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.
current QCC-TWS-WWF policy position on... Rural
leasehold land strategy (PDF 30kb)
title and rural leasehold lands in Queensland
by Anthony Esposito, Native Title and Protected Areas Project Coordinator
for the Queensland Conservation Council's submission to the State
Government July 2002
tenures | Amended NTA |
State's powers - ownership and tenure
Leasehold tenures and policy development
Statewide land management strategy |
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
Grazing Homestead and other Freehold Leases
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.
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.
title and non-freehold tenures
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.
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.
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.
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.
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 -
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."
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.
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".
with the amended Native Title Act 1993
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
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.
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
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.
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.
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.
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.
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
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
discrimination and the Native Title Act
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 -
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."
'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 -
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."
this acknowledgment remaining in the amended Act, the Prime Minister
stated to pastoralists in Longreach -
the guarantees that will be contained in this [amended] legislation,
the right to negotiate, that stupid property right
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
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..."
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.
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.
State's powers and issues of ownership and tenure
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
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
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."
reasoning is employed in a little remarked upon aspect of the High
Court's judgement in Yanner v Eaton -
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
need not necessarily be susceptible of transfer
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
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
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.
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.
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.
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.
tenures and policy development
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.
discussion paper states -
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".
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.
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 -
1 - PASTORAL LEASE TENURES AS POLICY INSTRUMENTS
Holmes, J.H. 'Pastoral lease tenures as policy instruments' in Environment
History and Policy: Australian Explorations. (Ed. S. Dovers) Oxford
role of lease tenures
the pastoral frontier
temporary low-cost access for pioneer pastoralists while preserving
future options on land allocation
1861 - 1884
the land' - settlement
free selection of small holdings under specified conditions
to 'bona-fide' settlers
1884 - 1950s
the sequential, managed subdivision of pastoral runs into
family-sized small holdings
1950s to 1970s
vacuum and clientelism
with the system and responding to lessees' concerns about
tenure upgrading, reduced rentals and other concessions
1980s to 1996
existence values and multiple use
role in range lands monitoring sustainable use, preservation
of bio-diversity and providing controlled public access -
limited role in re-structuring non-viable holdings
of native title claims and of the practicalities of coexistent
titles - as well as ongoing involvement with issues emerging
in phase 5, which further expand the circumstances requiring
coexistence between pastoralists and other interests
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.
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
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
Statewide land management strategy
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
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.
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
Strategies for protection of biodiversity and natural and cultural
heritage based on landscape-wide integrity of ecological values
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