Native Title and Freeholding Land

The Law
The Native Title Act 1993 (NT Act) prescribes that all land within Australia is subject to Native Title rights except for that land where Native Title has been extinguished.

Conversion to Freehold
Department of Natural Resources and Mines (DNRM) requires Landowners wishing to convert leasehold land to freehold, to first address the question of Native Title prior to conversion.

Following application to freehold, DNRM necessitates research into the tenure history of the land. Should it be found that the land had never been held in exclusive possession, the applicant / landholder will be requested to negotiate with the Native Title peoples to enter in to a freeholding Indigenous Land Use Agreement (ILUA).

Landholder must pay monetary or other compensation as agreed in the ILUA to the Native Title peoples for the extinguishment of their Native Title rights on the land. With the Native Title rights extinguished, DNRM will progress the freehold application with a view to granting the conversion.

There is no requirement for the Native Title peoples to enter into negotiations for a freeholding ILUA and there are no monetary or other constraints on what may be required to satisfy the requirement of compensation for a freeholding ILUA.

Native Title cannot be:

• extinguished contrary to the NT Act; and
• re- enlivened once extinguished.

Case 1
Emanate acted for a client where a number of individual lots of land were sought to be converted to freehold. DNRM made an offer to grant a freehold interest in the land, subject to extinguishment of Native Title.

DNRM made a determination the Native Title may exist on the land as they could not locate any information to the contrary. Accordingly, the freeholding conversion was conditional upon a freeholding ILUA being negotiated and agreed between the parties and the State of Queensland.

Through meticulous research, Emanate obtained and considered documents dating back to 1882. A Queensland Government Gazette published in 1882 provided that some to the lots in question were leased under section 70 of the Crown Land Alienation Act of 1876.

The NT Act provides that certain leases and various historical Land Acts delivered exclusive possession to the holder of the tenure at the time of the grant of the lease.

The lots were currently Unallocated State Land (USL) which does not provide exclusive possession, however detailed investigation provided that in 1882 the land was held in exclusive possession and as such Native Title was extinguished.

Even though the current tenure did not provide extinguishment of Native Title, a previous tenure of the land did extinguish Native Title and it could not be re-enlivened by a subsequent tenure.

DNRM reversed their original decision and agreed Native Title had been extinguished contrary to what research they had undertaken.

Case 2
Emanate acts for a client in a similar situation. The client holds a number of large Pastoral Holdings over which a Native Title claim has been filed in the Federal Court. Application has been made for freehold conversion and DNRM have made offer of grant of freehold subject to the question of Native Title being resolved.

Research was undertaken for original grants of tenure for the land. DNRM delivered information only back to 1951. Further investigation by Emanate has uncovered:

• registration of cattle fire brands from 1883;
• the land was originally held as an Occupational Licence prior to 1900 and was sold to the Queensland Government on or about July 1917.

The Queensland Government operated an aggregation of twenty six (26) pastoral grazing enterprises through to 1930. The land was then sold as a Pastoral Holdings at low rental to encourage prospective pastoralists to purchase at time when funding was scarce in the rural industry.

Research and investigations are continuing to locate the tenure under which the land was held by the State of Queensland.

Should research uncover that the Queensland Government held the land in freehold tenure then Native Title would be extinguished.

Your Land
It is important to recognise when making application to DNRM for a freehold conversion, that should  DNRM determine Native Title is not extinguished, not to be discouraged.

Emanate is readily able to assist in undertaking the application process and detailed research necessary to ensure that ‘no stone is left unturned’ in determining whether a previous historical tenure may have extinguished Native Title to enable an effective freehold conversion application and determination.

Should Emanate be successful in uncovering a previous exclusive possession act, the issue of Native Title no longer impedes the path to freehold conversion.

Should any landholders wish to discuss the process required for conversion to freehold, Emanate is available to assist at your convenience.