Changes to tenure in Indigenous communities

The Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 was assented to on 5 September 2014. The most significant amendments concerned the Aboriginal Land Act 1991 and the Torres Strait Islander Land Act 1991.

Grant of freehold title

From 1 January 2015, the trustee of freehold option land may apply to the chief executive under the Aboriginal Land Act or the Torres Strait Islander Land Act for a freehold title to be granted under the Land Act 1994, over available land.

Freehold option land is land in an urban area located in the Aurukun Shire Council’s area, the Mornington Shire Council’s area or in an Indigenous local government’s area and which is held by the Aurukun Shire Council, the Mornington Shire Council, an Indigenous local government, a land trust or another entity that holds land under the Aboriginal Land Act or the Torres Strait Islander Land Act, as trustee.

The trustee creates a freehold schedule identifying those parts of the freehold option land that may be available to be granted in freehold. The identified land is referred to as available land.

Available land can only be granted to an eligible person, namely an Aboriginal or a Torres Strait Islander, or their spouse or former spouse.

Before the trustee determines which land is available land and before the Minister can approve the available land, the Amendment Act requires a number of steps to be completed. Those steps include consultation by the trustee with the native title holders for the available land.

Prior to the amendments, the trustees were restricted to granting a long-term 99-year residential lease, which was intended to give the equivalent of home ownership and freehold title.

Last year, Indigenous councils began offering long-term leases to individuals and in August 2014 Ms Luella Bligh, who is a resident on Palm Island, was the first Indigenous person in Queensland to sign a 99-year residential lease over land on Palm Island.

Following the amendments, Ms Bligh could apply to convert her lease to a freehold title if the land is available land.

The amendments are to ensure that Aboriginal and Torres Strait Islander communities have the same access to freehold title as is available to others in Queensland.

Simplification of leasing framework

The leasing provisions in the Aboriginal Land Act and the Torres Strait Islander Land Act have been amended to simplify the process for the grant of a lease that is not a home- ownership lease.

Ministerial consent is only required for the grant of a town-site lease and is not required for the grant of other lease types.

Rating system to be implemented by Indigenous local governments

At present, the State does not provide valuations for rating purposes for the land in Aboriginal and Torres Strait Islander communities.

The Amendment Act amended the Land Valuation Act 2010 to confirm that the provisions of the Land Valuation Act do not apply to Indigenous local government areas until 30 June 2016.  This will allow enough time for the Indigenous local government areas to be established on the valuation roll, valued, and for appropriate rating systems to be developed in the community.

From 30 June 2016, Indigenous local governments will be able to levy general rates on land in their communities. This amendment will have implications for State government departments that have entered into leases in Indigenous communities.  Many of those leases provide for the State to pay a rates component in lieu of general rates.  Once a rating system has been implemented, the rates levied will be payable instead of a rates component.

Repeal of Aurukun and Mornington Shire Leases Act 1978

The Amendment Act has repealed the Aurukun and Mornington Shire Leases Act 1978 following the transfer of the remaining parcels of shire lease land.

Amendment to Land Act 1994 to allow public access to beaches

Due to erosion, the sand area of some beaches has migrated onto private freehold or leasehold land and the owners or lessees of those areas can prevent public access. Permitting public access may expose those owners and lessees to liability.

The Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 amended the Land Act 1994 to allow part of a lot to become a declared beach area under a regulation. Before a regulation is made, the Minister must give the owner of the lot a written notice stating the intention to declare a part of the lot as a declared beach area.

Although the declared beach area is shown on a plan of survey identified in the regulation, the declaration does not affect the location of any external boundary of the lot.

The regulation may also state conditions of use of the declared beach area such as limiting access to certain hours, vehicle access, camping, lighting of fires and prohibited activities. Subject to any conditions of use, the declared beach area is open to public use.

The State or a local government will be the manager of the declared beach area. The manager will have control of the declared beach area and will be responsible for taking reasonable and practical measures to maintain the area in a safe condition.

A person is not entitled to any compensation for deprivation of an interest in land, or loss or damage arising out of part of the lot becoming a declared beach area.

Once the area is a declared beach area, the owner of the lot and any person having an interest in the lot will not be civilly liable for an act or omission in relation to that area, except where an injury or damage is caused by an intentional or reckless act by the owner or occupier of the lot.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 11 March 2015

Author: Robyn Hill and Elene Tzimas