Ideas@TheCentre
Right idea, wrong approach
The Queensland government has the right idea: Aboriginal people living on Indigenous land should have the same opportunities for private homeownership as all other Australians. Unfortunately, in proposing to make Indigenous land freehold, it has not taken into account concerns that land will slip away from Aboriginal control.
As Noel Pearson pointed out in The Australian recently, the Queensland government’s proposal is ‘naive’ and unlikely to succeed. According to the Queensland government’s discussion paper, to make Indigenous land freehold, native title would have to be extinguished under an Indigenous land use agreement (ILUA). This is unlikely to appeal to many Aboriginal people living in these townships and communities.
Although existing Aboriginal DOGIT (Deed-of-Grant-in-Trust) land should be replaced by freehold title to provide more long-term security, this should be communal freehold as per the Aboriginal Land Rights (Northern Territory) Act 1976 as that would not require native title to be extinguished.
There should also be provision for communities to grant 99-year subleases to give security of title for private homeownership and private businesses. To prevent alienation of their land, communities could have covenants over the 99-year leases to prevent sale, inheritance and other transfers to non-Aboriginal or non-residents of their community. This would be a serious concern for communities like Yarrabah, an Indigenous community 30 minutes from Cairns, which could risk losing its land to development if it was made freehold.
Freehold title could potentially lead to greater prosperity on Indigenous land but it arguably is too soon to go down this path. Perhaps the reason why the Newman government is focusing on freehold title is the existing legislation for 99-year leases on DOGIT land has proved to be unworkable and not led to private homeownership.
The Queensland Aboriginal and Torres Strait Islander Land Amendment Act 2008 permits trustees of Aboriginal DOGIT land to issue 99-year residential leases. Although trustees are given licence to lease all or part of the DOGIT land, trustees must not mortgage the land without ministerial approval. Applicants for a lease are also required to make an upfront payment for the value of the land as determined by the Queensland government.
Before a 99-year lease can be issued, the Queensland government has to value the land and any dwellings on that land. If there is no house on the land, the leaseholder is required to build a house within eight years of the lease being granted. If there is public housing on the land, the lease cannot be issued until the housing chief executive has agreed to the lease and has had the dwelling valued.
These bureaucratic processes have made acquiring individual title and private homeownership on DOGIT land unnecessarily difficult. If the DOGIT land was converted to freehold communal land, communities themselves could decide what conditions to place on 99-year leases, and whether a purchase price for the lease of the land to cover service costs is necessary.
Sara Hudson is a Research Fellow at The Centre for Independent Studies.
