Pearson, Noel --- "The Deed of Grant in Trust and Hope Vale Aboriginal Community, North Queensland" [1989] AboriginalLawB 29; (1989) 1(38) Aboriginal Law Bulletin 12

The Deed of Grant in Trust and Hope Vale Aboriginal Community, North Queensland

by Noel Pearson

An 1891 Royal Commission into Native Land declared the following in relation to the individualisation of title to Maori land:

The alienation of native land under this law took its very worst and its most disastrous tendency ... The right to occupy and cultivate possessed by their fathers became in their hands an estate that could be sold. The strength which lies in union was taken from them The authority of their leaders was destroyed. They were surrounded by temptation.[1]

In some important ways recent Aboriginal land legislation in Queensland, is repeating the Maori experience in New Zealand, in that the thrust of the legislation is assimilationist and has economic development as its primary and over-riding objective. As the New Zealand experience has shown, these objectives can give rise to the destruction of the indigenous view of and relationship to land, and ultimately could lead to the alienation of lands from the people.

As has been heralded by Nettheim[2] and Brennan[3] the Queensland government has, in a series of enactments since 1982, produced legislation granting title to land to the former Aboriginal reserve communities in an instrument called a Deed of Grant Trust (DOGIT). This is a communal land grant which is held in trust by the Community. Council. Furthermore the Aborigines and Torres Strait Islanders (Landholding) Act 1985 allowed the Community Council to approve leases to qualified individuals. It is with the problems of the DOGIT and with the leaseholds pursuant to the Landholding Act, that this article is concerned.

Background

On Monday October 24, 1988, a public meeting was held at Hope Vale, 50 km northeast of Cooktown on eastern Cape York Peninsula. The meeting expressed concerns to the Deputy Under Secretary of the Department of Community Services (DCS), Mr David Brown, about the present title to Hope Vale Community land, including the right to mortgage and alienate parts of the land.

Hopevale is one of 14 'Trust Areas' on mainland Queensland governed by the Community Services (Aborigines) Act 1984-86. It was the first community to accept the DOGIT on July 27 1986, which was handed to the community by the then Premier, Bjelke Peterson, on the occasion of the former mission's centenary celebrations. The Deed granted title to 110 000 ha of land which was previously Aboriginal Reserve Land held by the Under Secretary as trustee, to the Community Council to act as trustees of the land for the benefit of the residents.

The process of consultation between the Aboriginal communities and the Queensland Government regarding the form of tenure in the years preceding the grant of the land, was virtually non-existent and did not demonstrate goodwill on behalf of Government[4]. No Commission of Inquiry into Aboriginal land was conducted in Queensland. A Working Party was elected by the Aboriginal Advisory Council (AAC) in 1982 for the purpose of discussing land proposals and reporting back to the AAC. It was denied funds to conduct its inaugural meeting by the then Minister, Tomkins. It soon disbanded as a result of the Government's negative attitude towards consultation with Aboriginal people and what they were seeking with their cry for land rights.

Like other communities, members of the Hope Vale Community were generally kept in the dark about the proposals. There was only meagre consultation and, without appropriate legal advice, many of the issues were not understood by community leaders and members. These issues were still unresolved in the minds of the community at the time of the handover in July 1986.

Problems with DOGIT

Father Frank Brennan SJ came to Hope Vale in the week following the handover and advised as to the legal implications of the Deed. This was the first time the community received advice as to what was contained in the Deed and what was not. The community expressed surprise and disappointment in the Deed, and the Community Council wrote to the Minister, Katter to outline the community's concerns about the DOGIT. These concerns were:

The community does not possess rights to forestry and quarry products on their land. This right was specifically taken away from Aboriginal landowners by amendments to the Land Regulations in 1985 and the Forestry Act in 1982.

• The community does not possess the right to deny access to persons licensed by the Conservator of Forests for the getting and selling of forest materials.
• The community does not possess rights to minerals and petroleum on or below the surface of the land.
• The community does not have the right to deny or even to negotiate access to persons searching for and working any mineral or petroleum deposits on its land.
• Public roads have been declared for most of the major roads through the Trust Area, including roads to the coast. They deny the community control over tourist access to the area, exposing community property to theft and damage, and the environment to destruction. As well there is intrusion on the community's traditional use of the area and its resources.
• The Crown has reserved 272 ha of land within the Trust Area for 'public purposes', which according to the Land Act covers a wide range of matters including ports, aerodromes, camping places, and pasturage reserves, amongst others.

These concerns have received no answers from the Queensland Government since 1986, although limited rights to forest and quarry products were granted by virtue of amendments to the Community Services Act in 1986. However this did not include the right to sell or otherwise dispose for gain any forest or quarry products (s77(2)).

New Concerns

The meeting in October 1988 at Hope Vale renewed calls for these problems with the DOGIT to be answered by Government. Furthermore the meeting addressed tentative proposals to grant an alienable freehold title to those community residents who could acquire special leases to land pursuant to the Landholding Act[5]. Like the preceding Community Services Act, the 1985 Act was enacted without any substantial reference to the Aboriginal people, and Frank Brennan expressed the following opinion at the time:

... that such a legislative initiative is to be made without Parliament having the benefit of the views of the Co-ordinating Councils and other Aboriginal groups is regrettable in that local considerations and concerns may have been overlooked by mem hers of Parliament and others who, at short notice, attempt to assess the suit ability of provisions which have not been attempted anywhere else in Australia[6]

While the Landholding Act and its provisions for individual ownership of land have received little public criticism from the Aboriginal community, there was and still is considerable disquiet within the communities. The Act has disregarded the traditional associations of community members to land within the Trust Area. Although Councils are required to take account of the 'social development of the trust area' and 'the interest of the community in the use to be made of the land' (s6(3)), the thrust of the Act has been to grant land for the purpose of economic development. In response to a statement from a prominent Aboriginal representative to the Aboriginal Co-ordinating Council that land should be given for traditional purposes, the Minister made the following statement, which reflects the zealous developmental attitude of the Government towards Aboriginal land:

If you want to have it all as recreational - then go ahead but don't expect me to be looking after you and paying for your recreational area. God has given this land to you, and you have a responsibility to use it ... we have to press ahead with this program whether we like it or not or we think we are ready for it or not...[7]

The provisions relating to forfeiture upon non-occupation (s22) and non-utilisation (s23) are offensive and clearly show that Government has once again imposed its own Eurocentric ideas about land use upon Aboriginal people.

The Act enables the Council to grant to 'qualified persons' a perpetual lease for an area up to 1 ha, and a special lease for any greater area, which in the opinion of the Minister, is appropriate to the use to be made of the land (s9). 'Qualified person' is defined as an Aboriginal or other person who is authorised under the Community Services Act to be in the Trust Area and who is in the opinion of the Council, a resident. A qualified person includes a body corporate. It is therefore competent for non-Aboriginal people or corporations to obtain leases providing that they are granted residency status by the Council.

Alienating Aboriginal Land?

The proposal to grant Aboriginal landowners freehold title was first raised by the Queensland Government in February 1987, and there was a unanimous rejection by Queensland Aborigines of any proposal which would allow land to be alienated. The proposal was for amendments to the Landholding Act which would allow leasehold lands to be replaced with an alienable freehold title.[8] This was rejected by Aboriginal people at the time, and this rejection was reiterated at the Hope Vale meeting.

The problem of alienability is a vexed one, especially in a community where Aboriginal people are eager to undertake economic development projects which require substantial finance. The Landholding Act (s 18) enables leaseholders to mortgage their interest in land and this power is exercisable without the need for Council or Ministerial approval. However s19 restricts the power of the mortgagee to taking possession for a period up to 12 months by which time he must dispose of it to another qualified person. This restriction on the right of disposal has meant that lending institutions are unwilling to grant finance to leaseholders on the security of their land.

At a meeting with the Under Secretary in December 1988 the Community Council was informed that the Government was currently considering proposals which would enable leaseholders to mortgage their interest in the land, and the mortgagee would be entitled to dispose of the land to other qualified persons as well as non-qualified persons. The new owner would then be entitled to take possession of the land for the duration of the lease after which time it is assumed the land reverts to the DOGIT. Whilst this would mean that banks would be more willing to afford finance, the thought of non-resident persons and corporations having occupation of lands for 20-30 years is an anathema to the community. Furthermore the Council was informed that the definition of 'qualified person' is being reviewed to allow corporate joint-venturers to have a joint interest in the lease. In the usual mode of the Queensland Government these proposals are being developed without reference to the people affected by them.

Bypassing the Trustees of DOGIT

Taking regard of the problems and uncertainty surrounding the granting of leases (the lease is not a sub-lease under s.344 of the Land Act), the Community Council has delayed the processing of leases, whilst allowing community members to occupy and develop the individual blocks of land which have been approved to them. There are numerous unanswered policy questions relating to succession (should non-Aboriginal spouses succeed to a lease?), security of tenure for the lessee (should lessees be subject to the whims of Community Council in relation to the renewal of their leases?), protection of improvements for the lessee, the desirability of present legislative provisions for mortgage, and the absence of rights to compensation for damage from mining[9]; which need to be sorted out before Council moves to process individual titles to leases.

In order to overcome Council reluctance to process leases the Government has made various attempts to force the issue, including the perpetuation of the position of Executive Officer of Aboriginal Councils[10], who is an employee of the DCS, who has specific instruction to expedite the processing of leases; and the possibility of legislative change which could allow individuals to obtain title through an appeals process which would by-pass the trustees of the DOGIT. This pressure on the Council is despite the fact that many of the problems identified with leases, allow Council to make a legitimate determination that is disadvantageous to the social and economic development of the area to proceed with them (see s6(3) Landholding Act). At a recent meeting between the Minister, Katter, and officials from the DCS and the Department of Lands, the Minister proposed the abolition of the Appeals Tribunal set up under s30 of the Landholding Act, and its replacement with an appeal to the Lands Commissioner.[11] The present tribunal provides an appeals mechanism for the persons aggrieved by a determination of an application for a lease by a Council (s7). The tribunal has never been used and all disputed claims to land in the community have been handled by mediation and discussion with Council. The Minister's proposal to abolish the Tribunal, which is constituted by a majority of local Justices of the Peace (s30(1)(c)), would remove community control over the determination of appeals against a Council decision. The appeal to the Lands Commissioner would mean that the Government's aim to grant leases despite the objection of the trustees, would be sustained. It is understood that the Minster's proposal was not welcomed by representatives of the DCS and the Department of Lands.

The Community's View

The current review of the Community Services Act being undertaken by the Aboriginal Co-ordinating Council pursuant to s53(2) of the Act provides and opportunity for Queensland Aboriginal communities to make representations to the Government for the outstanding problems of the DOGIT to be addressed. The community would concur with the Opposition Spokesperson on Aboriginal Affairs, Ms Warner, who stated during the debate on the Land Act (Aboriginal and Islander Land Grants) Bill in 1984:

When will the Queensland Government stop playing games with legal tricks and semantic distinctions between deeds of grant in trust and real land rights? Real land rights, which is the only acceptable reparation that white society could make, would include five basic principles: inalienable freehold title, protection of sacred sites, veto provisions over mining on Aboriginal land, equivalent royalties and compensation for lost land.[12]

With respect to leaseholds the community has submitted that the onus lies with Government, both State and Federal, to provide development funding which does not demand the alienation of community lands. The Aboriginal Development Commission (ADC) has been called upon to provide loans for development without demanding an interest in the land. The community is considering alienation proposals for default on non-repayment of loans which are restricted to disposal to other community residents. The Council would need financial security with which to guarantee loans, thus ensuring that banks are repaid, and the Council would retain the right to alienate and dispose to another resident. Whilst the community develops its own ideas about the right to transfer or mortgage trust lands, the Government proceeds with proposals that are potentially dangerous for Aboriginal communities in Queensland.

[1] Quoted in Peter McHugh, Fragmentation of Maori Land Legal Research Foundation, Auckland, 1980. p6.

[2] Garth Nettheim, Queensland's New Legislation - Letting Go?, Aboriginal Law Bulletin [1984] AboriginalLB 14; 1(11)pg10

[3] Frank Brennan, Queensland Land Rights: A Comparison of Deeds of Grant in Trust (Amended) with Aboriginal Land Rights (NT) Act 1976, Aboriginal Law Bulletin [1984] AboriginalLB 2; 1(10)pg4

[4] See Frank Brennan Right Reasons for Aboriginal Land Rights Annual Conference of Religious Education, Brisbane, 2 May 1984.

[5] See Gregory McIntyre Deeds of Grant in Trust and Freehold Title Advice to Aboriginal Co-ordinating Council, Cairns.

[6] See Frank Brennan The Aborigines and Torres Strait Islanders (Landholding Act) 1985 Consultation Document, No 10.

[7] Minutes, Aboriginal Co-ordinating Council, Kowanyama Meeting, November 1988, p26.

[8] Op Cit, McIntyre p2: "What was intended was to grant freehold titles in lieu of the leases they can apply for under the Landholding Act."

[9] ibid, p7

[10] It should be noted that the position of Executive officer should have disappeared after three years from the commencement of the Act, but it has not: see s23 Community Services Act.

[11] Notification of meeting by representatives of Aboriginal Co-ordinating Council.

[12]Queen sland Parliamentary Debates, Hansard, 2 February 1984, p1334.