From 1 January 2015 Indigenous communities can transform
land from community control to freehold ownership – if
embraced, this could lead to greater native title certainty for the
proponents of projects in the specified areas of remote and
The Aboriginal and Torres Strait Islander Land (Providing
Freehold) and Other Legislation Amendment Act 2014 (Qld) was
assented to on 5 September 2014. If the new mechanism is
implemented by Indigenous communities, it will have significant
consequences on how Indigenous people are able to hold land and
this will have flow-on effects for native title in the areas of
Queensland where the Act applies.
When does the act come into force?
The majority of the amendments, including amendments to the
Aboriginal Land Act 1991 (Qld) and the Torres Strait Islander Land
Act 1991 (Qld) commence on 1 January 2015, with other amendments
commencing on a day fixed by proclamation.
The freehold transformation
The Act creates a mechanism to allow for Indigenous councils to
transfer land that is currently held on trust within designated
Aboriginal and Torres Strait Islander communities to individual
The Act maintains the position in the Bill, that the creation of
freehold title would be entirely optional. As previously indicated,
the current trustees of "freehold option land" within
each of the 34 Indigenous council areas would be required to
consult with their communities to decide whether to take up the
option to transform the land into freehold title. Where the
response is positive, the trustees would then request the Minister
to approve the granting of freehold title in respect of such
freehold option land to specified individuals. Available land would
be allocated by auction, ballot or tender.
The impact on native title
Before freehold title could be granted over any freehold option
land, any native title rights and interests in relation to the land
would need to be voluntarily surrendered (or otherwise
extinguished). In practical terms, this means that relevant native
title parties will first need to enter into an Indigenous Land Use
Agreement (ILUA) that implements the surrender to the State of all
native title rights and interests over the relevant land.
Given that the Bill has been largely untouched in its passage
through Parliament, the possible issues still remain the same as
previously discussed. As the State will not be funding the costs
associated with the surrender of native title rights and interests
(which is necessary before the freehold option can be taken up),
Indigenous communities are likely to have to bear their own costs
in preparing and registering the ILUA through which the native
title rights and interests would be surrendered. There will be no
separate compensation payable for the surrender of native title
rights and interests.
The reforms are intended to allow Indigenous people to gain the
same benefits from such land as other citizens can from ordinary
For project proponents, the changes could result in greater
native title certainty in the areas of Queensland covered by the
Act, because native title rights and interests need to be
surrendered before freehold title can be granted. This means that
in these areas, project proponents will not need to negotiate and
pay compensation to Indigenous groups through a future act
validation process (such as the "right to negotiate")
that they would otherwise need to for the grant of interests such
as mining and petroleum leases. However, mining and petroleum
companies will need to deal with the new Indigenous freeholders as
they would with any other persons who hold such an interest.
To freehold or not to freehold
Despite the reforms, practical changes will only occur if
Indigenous communities decide that the freehold option is
beneficial to them. We will wait with interest to see the
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
There has been a range of recent legal developments that affect privacy, child abuse claims and workers compensation.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).