The Supreme Court of Queensland has upheld a decision of the Land Court which will enable the State government to issue leases over land in the Torres Strait and Aboriginal communities. On 20 February, Justice Mullins handed down her decision in the case of Wigness & Ors v Kingham, The President of the Land Court of Queensland & Ors [2018] QSC 20. Holding Redlich Special Counsel Jenny Humphris (author of this article) and lawyer Alex Buck in the firms Property & Real Estate team in Brisbane represented Messrs Sabatino and Dorante, the fourth respondents to the Application.

The case concerned the entitlement of the fourth respondents to be granted a lease over land in the Torres Strait under the Aboriginal and Torres Strait Islander Land Holding Act 2013 ( 2013 Act). Their entitlement to a lease first arose under in 1985 under the Aborigines and Torres Strait Islanders ( Land Holding) Act 1985 ( 1985 Act). Their leases were not granted for a number of reasons, including that the State decided that native title was a “practical obstacle” to doing so and that the consent of the native title party, the Kaurareg People, would be required under an indigenous land use agreement (ILUA) before the leases could be granted.

The legal issue had not previously been tested and the fourth respondents appealed against the State’s decision. They argued that the Minister for Natural Resources Mines and Energy could rely upon s 24 I of the Native Title Act 1993 ( the PERBA provisions) to grant the leases as the grant was in exercise of their statutory entitlement under the 1985 Act. The Kaurareg Applicants were given leave by the Land Court to argue about whether native title was a practical obstacle to the grant of the leases. They also argued that a provision of the 2013 Act that changed the underlying tenure of the proposed lease areas from unallocated State land to trust land (the re-vesting ) was invalid. The Land Court upheld the appeal finding that native title was not a practical obstacle to the grant of the leases and ordered the Minister to issue a statement to confirm that.

Before the Minister could do so, the Applicants for the Kaurareg People commenced an application in the Supreme Court for a judicial review of President of the Land Court’s decision arguing that the President had not given due weight to the Applicants’ arguments raised in the Land Court appeal and in particular the re-vesting argument. The State, the Torres Strait Island Regional Council and Messrs Sabatino and Dorante the lease entitlement holders, opposed that Application.

On 20 February 2018 Her Honour dismissed the Application finding that the President of the Land Court had not erred in deciding not to embark on the re-vesting argument as she had no jurisdiction to do so. Her Honour also held that in reliance on s 24OA of the NTA, even if the re-vesting affected native title it did not make the provision of the 2013 Act itself invalid, but only as against native title. Her Honour said that this did not prevent the Minister from granting the leases in reliance upon the PERBA provisions.

The decision clears the way for the State to issue perpetual leases to over 220 entitlement holders that have been waiting for over 33 years to receive their grant of tenure that was promised them in 1985.