Neate, Graham --- "Torres Strait Islander Land Act 1991" [1997] IndigLawB 101; (1997) 4(7) Indigenous Law Bulletin 13

Torres Strait Islander Land Act 1991

By Graeme Neate

In 1991 the Queensland Parliament enacted legislation to provide for the transfer, or claim and grant, of certain categories of land to Aboriginal people and Torres Strait Islanders.[1]

The scheme of the Torres Strait Islander Land Act 1991 (Qld) (‘the TSI Land Act’) is the same as that of the Aboriginal Land Act 1991 (Qld) (‘the Aboriginal Land Act’). Both Acts commenced to operate on the same date and many of the provisions are in identical or substantially the same terms.

Transfers of land without a land claim

The TSI Land Act provides for the grant of freehold title to certain areas of land described as ‘transferable land’, without the need for a land claim to be made.[2] In summary, transferable land includes:

• land which (at 12 June 1991) was granted in trust under the Land Act 1962 (Qld) for the benefit of Torres Strait Islander inhabitants or for the purpose of a Torres Strait Islander reserve;
• land which (at 12 June 1991) was reserved and set apart for a Torres Strait Islander reserve or for the benefit of Torres Strait Islander inhabitants, and certain other land reserved and set apart under the Land Act 1962;
• available Crown land declared by regulation to be transferable land.[3]

Transferred land is granted in fee simple to grantees who hold the land as trustees for the benefit of Torres Strait Islanders. The fee simple title is subject to any other interests in the land including native title interests.[4] As at September 1997 one area of land in the Torres Strait had been transferred. In September 1996 the Rennel (Mauar) Island Torres Strait Islander Land Trust was incorporated to hold title to about 46.9 hectares of land,[5]and the deed was delivered on 5 September 1996. The land has been declared by regulation to be not claimable.[6]

Land which might be claimed

A Torres Strait Islander or a group of Torres Strait Islanders may make claims to:

• areas of transferred land (other than those declared to be not claimable); and
• available Crown land which the Governor in Council declares by regulation to be claimable land. Available Crown land is land in which no person other than the Crown has an interest.[7]
• The land must be within the Torres Strait area. That area is defined in the TSI Land Act to be:
• the area the boundaries of which are described in Annex 9 of the Torres Strait Treaty; and
• any other area that the Governor in Council, by order in council, declares is included in the Torres Strait area.[8]

The area described in Annex 9 includes islands north of latitude 10°–28°S. It does not include Thursday Island, Horn Island or Prince of Wales Island. Those areas could be included but, to date, there has been no declaration to include any additional area in the Torres Strait area.

What is currently happening with land claims

To date no land has been declared to be claimable land. If land is made available for claim, land claims may be made on one or more of the following grounds:

• the claimants have a customary affiliation with the land claimed;
• the claimants have an historical association with the land claimed;
• the grant of the land would assist in restoring, maintaining or enhancing the economic or cultural viability of the claimant group.[9]

Land claims are made to the Land Claims Registrar, who is the Director–General of the Department of Natural Resources or his delegate. If the Land Claims Registrar is satisfied that a claim appears to be duly made in accordance with the requirements of the TSI Land Act, the Registrar must refer the claim to the Land Tribunal.[10]

Establishing a claim to land

A claim by a Torres Strait Islander or a group of Torres Strait Islanders on the ground of customary affiliation is established if the Land Tribunal is satisfied that the Torres Strait Islander has a connection, or that the members of the group have a common connection, with the land based on spiritual or other associations with, rights in relation to, and responsibilities for, the area of land under Island custom.[11]

In determining the claim, the Tribunal must consult with, and consider the views of, any relevant Torres Strait Island council and the persons recognised under Island custom as the relevant elders of Torres Strait Islanders.[12]

‘Island custom’, known in the Torres Strait as ‘Ailan Kastom’, is:

‘the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships.’[13]

It is instructive to note that the test of customary affiliation refers to common connections based on spiritual or other associations. By comparison the test of traditional affiliation under the Aboriginal Land Act refers to common connections based on spiritual and other associations. The test of customary affiliation in the TSI Land Act as originally enacted included ‘and’ rather than ‘or’. The test was amended by s49 of the Aboriginal and Torres Strait Islander Land (Consequential Amendments) Act 1991 (Qld), with ‘or’ replacing ‘and’. The Minister explained the reason for the change.

‘The Torres Strait Islander Land Act will also be amended to ensure that the basis upon which land is claimed in the Torres Strait appropriately reflects [I]slander relationship with land. I am advised that the principles of traditional affiliation with land in accordance with Torres Strait Islander custom may not necessarily include a notion of spiritual association with land. This, of course, differs from Aboriginal relations with land. Consequently, the definition of traditional [sic] affiliation will permit but not require a claimant to demonstrate a spiritual relationship with the land.’[14]

A claim by a group of Torres Strait Islanders for an area of claimable land on the ground of historical association is established if the Land Tribunal is satisfied that the group has an association with the land based on them or their ancestors having, for a substantial period, lived on or used the land or land in the district or region in which the land is located. The claim may be established whether or not all or a majority of the members of the group have themselves lived on or used such land.[15]

Again the Tribunal must consult with, and consider the views of, any relevant Torres Strait Island council and the persons recognised under Island custom as the relevant elders of Torres Strait Islanders.[16]

A claim by a group of Torres Strait Islanders for an area of claimable land on the ground of economic or cultural viability is established if the Land Tribunal is satisfied that granting the claim would assist in restoring, maintaining or enhancing the capacity for self–development, and the self–reliance and cultural integrity, of the group.

The TSI Land Act provides rules for determining any competing claims to areas of land. Claims established on the ground of customary affiliation with the land are given precedence.[17]

If a claim is established on the ground of customary affiliation or historical association, the Tribunal must recommend to the Minister that the land be granted in fee simple. If a claim is established on the ground of economic or cultural viability, the Tribunal must recommend that the land be granted by way of a lease (in perpetuity or for a specified term of years) on specified terms and conditions.[18]

When making such a recommendation the Tribunal must recommend who should be appointed to be the grantees of the land as trustees for the benefit of the Torres Strait Islander or group of Torres Strait Islanders concerned.[19]

Torres Strait Islander land

Fee simple title to, or a lease of, successfully claimed land is held by grantees for the benefit of specified persons or classes of persons.[20]

There are limitations on dealings with Torres Strait Islander land. The consent of the grantees must be obtained by people wishing to obtain an interest in the land, create a mining interest in the land, or enter into certain agreements for access to or use of the land.[21]

An interest in land (other than land granted on the ground of economic or cultural viability) cannot be resumed, taken or otherwise compulsorily acquired, sold or dealt with except by an Act that expressly provides for the resumption of the land and payment of just compensation for the land.[22]

Repeal of the Queensland Coast Islands Declaratory Act 1985 (Qld)

The TSI Land Act also repealed the Queensland Coast Islands Declaratory Act 1985 (Qld) (‘the Queensland Coast Islands Act’). The Explanatory Notes to the former Act provide background information about the repeal. They state that the Queensland Coast Islands Act applied to islands within a defined geographical area in the Torres Strait (including Murray Island). Section 3 of the Queensland Coast Islands Act declared that, upon the islands being annexed to and becoming part of Queensland and subject to the laws in force in Queensland:

• the islands were vested in the Crown in right of Queensland freed from all other rights, interests and claims of any kind whatsoever and became waste lands of the Crown in Queensland for all purposes of sections 30 and 40 of the Queensland Constitution Act;
• the laws to which the islands became subject included the Crown lands legislation then and from time to time in force; and
• the islands could thereafter be dealt with as Crown lands for the purposes of Crown lands legislation then and from time to time in force in Queensland.

In 1988 the Full High Court considered a challenge to sections of the Queensland Coast Islands Act by Murray Islanders. In summary, the plaintiffs’ statement of claim asserted that since time immemorial the Murray Islanders have maintained a system of laws, customs, traditions and practices of their own for determining questions concerning ownership of, and dealings with, land, seas, seabeds and reefs. The statement of claim alleged that, in accordance with these laws, customs, traditions and practices, the plaintiffs now own, or have proprietary interests in or usufructuary rights in relation to, the land, seabeds, reefs and fishing waters of the Murray Islands.

In Mabo v Queensland [No. 1] (‘Mabo [No. 1]’),[23] a majority of the High Court decided that, on the assumption that the plaintiffs could establish the land rights claimed:

• the effect of s3 of the Queensland Coast Islands Act was to extinguish all such rights and not only those that would affect the validity of any past disposal of land in pursuance of Crown lands legislation; and
• section 3 was inconsistent with s10(1) of the Racial Discrimination Act (Cth) 1975 within the meaning of s109 of the Commonwealth Constitution and, hence, was invalid.

Native title in the Torres Strait

In Mabo v Queensland [No. 2] (‘Mabo [No. 2]’)[24] a majority of the High Court decided that the common law of Australia recognised a form of native title which, in the cases where it has not been extinguished,[25] reflects the entitlement of the indigenous inhabitants, in accordance with their laws or customs, to their traditional lands. The Court also decided that, subject to the effect of some particular Crown leases, the land entitlement of the Murray Islanders in accordance with their laws or customs is preserved, as native title, under the law of Queensland.

The Court’s decision raised the distinct possibility that native title exists on other islands in the Torres Strait. Consequently, Torres Strait Islanders could commence proceedings in the Supreme Court of Queensland seeking a declaration of their native title rights.

Alternative processes were subsequently provided by Commonwealth legislation and by complementary Queensland legislation, which has passed through the Queensland Parliament but which has not commenced

to operate.

Following Mabo [No. 2] the Federal Parliament passed the Native Title Act 1993 (Cth) (‘the NTA’) which commenced to operate on 1 January 1994. The NTA is administered by the National Native Title Tribunal, which established an office in Brisbane on 1 October 1996.

The NTA provides that a person or persons claiming to hold native title may make a native title determination application. The first claimant application to land in the Torres Strait area was lodged with the National Native Title Tribunal in September 1995.

By October 1997, 35 claimant applications had been lodged in respect of land in the Torres Strait area covered by the TSI Land Act. Four of those were subsequently withdrawn. Of the remaining applications, 27 had been accepted by the National Native Title Tribunal at 30 June 1997.

Native title and claims under the Torres Strait Islander Land Act 1991 (Qld)

A land claim made under the TSI Land Act is not a native title claim. The Land Tribunal does not have the jurisdiction to hear native title claims, nor does it have power to declare whether the claimants (or any other Torres Strait Islanders) have native title to land claimed under the TSI Land Act .

Native title issues, however, may arise in relation to some Torres Strait Islander land claim proceedings. Amendments have been made to the TSI Land Act (and some have yet to be made) by the Native Title (Queensland) Act 1993 (Qld) (‘the NT (Qld) Act’) to deal with those issues. The latter Act is complementary legislation to the Native Title Act 1993 (Cth) of the Commonwealth.

The NT (Qld) Act was amended in 1994 and some sections commenced to operate on 28 November 1994 and 5 December 1994. Much of the Act had not commenced to operate at 30 June 1997.

The NT (Qld) Act provides, among other things, for the establishment of the Queensland Native Title Tribunal to deal with matters relating to native title. To date that Tribunal has not been established. The Queensland Native Title Tribunal will have power to determine whether and where native title exists.

Amendments made or to be made to the TSI Land Act by the NT (Qld) Act:

• establish a relationship between the Land Tribunal established under the TSI Land Act and the Queensland Native Title Tribunal;[26]
• provide that relevant evidence before another body can be received by a Land Tribunal;[27] and
• provide that a grant of fee simple under the TSI Land Act is subject to the continuation of any pre–existing native title interest.[28]

If land is made available for claim, Torres Strait Islanders who want legal recognition of their customary interests in land will be able to choose whether to pursue native title claims or make claims under the TSI Land Act.

A brief history of the Torres Strait Islander Land Act (Qld) 1991

The Bill for the TSI Land Act was introduced into the Queensland Legislative Assembly on 22 May 1991. It was debated and passed[29] on 31 May 1991[30] and received the Royal Assent on 12 June 1991. Two sections commenced to operate on 12 June 1991.

Before most of the Act commenced to operate, it was amended by Part 10 of the Aboriginal and Torres Strait Islander Land (Consequential Amendments) Act 1991. That Act received the Royal Assent on 21 November 1991. Parts 1 and 2 commenced to operate on that date.

On 21 December 1991 the provisions of the TSI Land Act and the Aboriginal and Torres Strait Islander Land (ConsequentialAmendments) Act 1991 that were not already in force commenced to operate.

The Torres Strait Islander Land Regulation 1991 was made by the Governor in Council on 19 December 1991 and was published in the Queensland Government Gazette of 21 December 1991.

The TSI Land Act has been amended by various Acts, including native title legislation.[31] Some of those amendments were relatively minor technical changes.

The TSI Land Act has been reprinted three times. Reprint No 2 not only included amendments up to Act No 81 of 1994 but also completely renumbered the Act. Every section was given a different number from that which it bore when the Act commenced.

• The Governor in Council appointed Graeme Neate Chairperson of the Land Tribunal for three years from 20 January 1992, and then for a further five years.

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[1] For a discussion of the background to and passage of the legislation see F Brennan, Land Rights Queensland Style, 1992, UQP.

[2] TSI Land Act s10.

[3] Ibid ss11–13.

[4] Ibid ss25–35.

[5] See notice in Queensland Government Gazette 20 September 1996, No 13, p 193.

[6] Torres Strait Islander Land Amendment Regulation (No. 1) 1997 (Qld).

[7] TSI Land Act ss14–23, 42.

[8] Ibid s23.

[9] Ibid s43.

[10] Ibid ss3, 44, 46.

[11] Ibid s50(1).

[12] Ibid s50(2).

[13] Ibid s8

[14] Hon AM Warner, Minister for Family Services and Aboriginal and Islander Affairs, Legislative Assembly, Debates, 23 October 1991, at p 1975.

[15] TSI Land Act s51(1).

[16] Ibid s51(2).

[17] Ibid s58.

[18] Ibid s57(1) and (2).

[19] Ibid s57(3) and (4).

[20] Ibid s60–62.

[21] Ibid ss36–37, 73–74, 129.

[22] Ibid ss38, 75.

[23] (1988) 166 CLR 186.

[24] [1992] HCA 23; (1992) 175 CLR 1.

[25] The nature of extinguishment and the co–existence of native title and other legal rights to land were considered again by the High Court in Wik Peoples v State of Queensland &Ors (1996) 187 CLR 1.

[26] TSI Land Act s8.26A.

[27] Ibid s116.

[28] Ibid ss31, 68.

[29] Queensland has one House of Parliament.

[30] The High Court heard argument in Mabo [No. 2] on 28–31 May 1991. See F Brennan, op cit, pp 153–4.

[31] The Nature Conservation Act 1992 (Qld), Statute Law (Miscellaneous Provisions) Act 1992 (Qld), Lands Legislation Amendment Act 1992 (Qld), Native Title (Queensland) Act 1993 (Qld) (as amended by the Native Title (Queensland) Amendment Act 1994 (Qld)), Fisheries Act 1994 (Qld), Transport Infrastructure Amendment Act (No. 2) 1994 (Qld), Land Act 1994 (Qld), Statute Law Revision Act 1995 (Qld) and the Public Service Act 1996 (Qld).