Thursday, June 17, 2021

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Home Issue 14 Native title push to freehold: Land price slump ahead?

Native title push to freehold: Land price slump ahead?

By ERWIN CHLANDA

Land prices in Alice Springs, and other NT towns, may be heading for a slump as supply grows in the wake of NT Government changes to native title laws.

Actions by the first Labor government, under Chief Minister Clare Martin, at what is now what now Stirling Heights, had the effect of valuing native title at 50% of freehold.

Now the current Labor government, under Michael Gunner, seems to be upping it it to 100%.

Ms Martin’s legacy included driving real estate prices to Sydney levels, but this time the demand for land is much less keen than in the early 2000s: any flooding of the market would drop present land values.

Minister for Aboriginal Affairs, Selena Uibo, in a media release, explains that the NT’s “historic” Land Title Amendment Bill 2021 just passed allows “exclusive” native title to be switched to freehold.

This will permit title holders to sell, subdivide and lease their land, amongst other uses.

This means the possible entry into the market of huge tracts of land in the municipality of Alice Springs (see map – native title is extinguished in the white-coloured areas) and may turn on its head not only the real estate prices but the look of the town.

At the moment there is no “exclusive” native title in the Central Land Council area except Kalkarindji.

“It is possible for exclusive native title to be determined in other towns in the future,” says a government source.

There are currently Federal Court determinations of exclusive native title affecting the towns of Borroloola, Elliot, Newcastle Waters, Mataranka, Timber Creek, Kalkarindji and Pine Creek. 

Native title is often described as a bundle of rights in land.

“Non-exclusive” native title rights may include the right to access, hunt and camp on traditional country, but not the right to control access to, and use of, an area.

But exclusive native title rights mean its holders have the power to deny access, and that is understood to be a consideration of the Federal Court in native title declarations.

Native title can be extinguished by Indigenous Land Use Agreements (ILUAs) such as were made for Stirling Heights, opposite the Desert Park, and Mount Johns Valley, between the golf course and the ranges.

The deal Ms Martin made at Stirling Heights was to give native title holders 50% of the publicly owned Crown land in exchange for the extinguishment of native title over the other half where residential development was able to take place.

That put the value of Native Title at 50% of freehold, some 10 times the value it had in WA at that time.

Land on which native title exists in a town is usually Crown Land.

Court decisions remain in place until they are changed by the court, but there is clearly  opportunity for this to take place – including turning non-exclusive native title land into the exclusive variety.

Section 13 of the Native Title Act 1993 says in part: “The grounds for variation or revocation of an approved determination of native title are: That events have taken place since the determination was made that have caused the determination no longer to be correct; or that the interests of justice require the variation or revocation of the determination.”

It is fair to assume the Federal Court would take into account the views of the land’s current owner, likely to be the NT Government, which leaves no doubt about its position.

Minister Uibo makes clear her enthusiasm about giving Aboriginal people new opportunities: The law just passed will be “empowering Native Title Holders [and provide] all the options and flexibility of a freehold land owner – meaning they can hold onto it, lease it, mortgage it or sell it.

“Prior to the Bill passing, native title holders were limited in what they could do with their land … [the new policy enables] more control and flexibility in managing their land into the future.

“This move will increase economic opportunities for Aboriginal Territorians, which will have flow-on benefits right across the Territory, will mean more opportunities for areas to be subdivided to meet residential and community needs to plan for future growth [and] increase investment opportunities and viability.”

It’s in the government’s hands to make access to Crown Land subject to native title holders’ consent and hey presto – here’s an argument for a new determination by the Federal Court.

“We will be looking at the legislation in coming days,” says Graeme Smith, Acting Executive Director (at least until recently) of the Lhere Artepe Aboriginal Corporation, the town’s native title body. (It is possible the organisation has by now appointed an ED – the News has asked the question.)

“The difference in value of land is yet to be determined. Fair to say we are still looking through this legislation and seeing what it really means.”

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