Indigenous land reform: when is freehold better than leasehold?

Thursday, 18 June 2015
Dr Leon Terrill

Over the last decade, several Australian governments have been engaged in Indigenous land tenure reform. The recent Aboriginal and Torres Strait Islander Land (Providing Freehold) Act 2014, however, is unique in that it is the first reform that results in the partitioning of Indigenous land into parcels of ordinary freehold. Other reforms have instead involved the leasing and subleasing of Indigenous land. This includes earlier Queensland reforms, and leasing remains an alternative option for communities on Indigenous land in Queensland.

How should the people who will be called upon to implement these reforms (the trustees, native title holders) decide when freehold is preferable to leasing? One issue is that freehold extinguishes native title. 

This paper considers the matter from the perspective of residents and communities. It draws on land reform theory from overseas to set out a framework for considering whether freehold or leasehold is preferable in a given situation. This is a complex issue, and the paper concludes by arguing that there is a need for more published research of a technical nature, to help native title holders decide whether to agree to the extinguishment of their title.