Deed of Grant In Trust - DOGIT
Trustee leasing roles and responsibilities
The following content was sourced from the trustee reference document ‘A Manual For Trustees Version 1.5 May 2020’.
1.1 Aboriginal DOGIT land and trustees
Aboriginal DOGIT land is State land granted ‘in fee simple in trust’ by the Governor-in-Council under the Land Act 1962 (now repealed and replaced by the Land Act 1994). Aboriginal DOGIT land is granted for the benefit of Aboriginal inhabitants or for Aboriginal purposes.
Between 1984 and 1986, fifteen Aboriginal DOGITs were granted in Queensland (listed above). An Aboriginal DOGIT may be surrendered, cancelled or have land compulsorily acquired from it.
The Minister administering the Land Act 1994 (currently the Minister for Resources) appoints a trustee as manager and administrator responsible for Aboriginal DOGIT land. The Minister decides an entity is suitable to be appointed as the trustee of Aboriginal DOGIT land because members of that entity have:
- a particular association to the land,
- relevant expertise in managing land for the benefit of Aboriginal people, and
- knowledge of the local community.
To fulfil these responsibilities, trustees are empowered under the Land Act 1994 to make decisions and undertake actions related to land management and use. Trustees are also empowered under the Aboriginal Land Act 1991 to decide on the grant of leases.
After appointing a trustee under the Land Act 1994, the Minister retains a charter of responsibility for the management of State land, including Aboriginal DOGIT land. The Minister, supported by the department, is therefore responsible for ensuring that Aboriginal DOGIT land is properly and effectively managed by trustees in accordance with the Land Act 1994. This includes ensuring that decisions made by the trustee do not diminish the benefit of the land to Aboriginal inhabitants or for Aboriginal purposes. For example, a trustee could diminish Aboriginal benefit by granting inappropriate leases, or granting leases with inappropriate conditions.
The Minister may remove a trustee from office if the Minister is satisfied the trustee has breached the Land Act 1994 or conditions of the trust, or if the removal of the trustee is in the public interest. The Minister may appoint a new trustee if such a removal action is undertaken.
1.2 Aboriginal shire council responsibilities as a local government authority
In 1984, Aboriginal community councils were established as the local government authorities for Aboriginal DOGIT land with their roles and responsibilities set out in the Community Services (Aborigines) Act 1984. Aboriginal community councils were then appointed to also be trustees of Aboriginal DOGIT land with their roles and responsibilities set out in the Land Act 1962 (now repealed).
From 1 January 2005, Aboriginal community councils began the transition to Aboriginal shire councils with their roles and responsibilities set out in the Local Government Act 2009. Aboriginal shire councils were appointed to also be the trustees of Aboriginal DOGIT land with their roles and responsibilities set out in the Land Act 1994.
Note: In 2008, many local government areas in Queensland were amalgamated. In the Northern Peninsula Area (NPA) five local government areas were amalgamated to form the NPA Regional Council. In this manual the term Aboriginal shire council is used to also refer to the NPA Regional Council (NPARC).
Aboriginal shire councils therefore have dual responsibilities—first, as a local government under the Local Government Act 2009, and second, as the trustee of Aboriginal DOGIT land under the Land Act 1994 with leasing powers under the Aboriginal Land Act 1991.
Aboriginal shire council local government roles and responsibilities are described in the Local Government Act 2009, and further information can be found by contacting the Department of State Development, Infrastructure, Local Government and Planning at:
Postal address: PO Box 15009, City East Queensland 4002. Email: info@dsdmip.qld.gov.au.
Aboriginal shire council trustee roles and responsibilities relevant to leasing land under the Aboriginal Land Act 1991 are described in this manual. The Aboriginal Land Act 1991 was significantly amended in 2008 to enhance and increase the options for leasing Aboriginal DOGIT land. These amendments also enhanced and increased the powers of Aboriginal shire councils as trustees. More information on the Aboriginal shire councils’ broader roles and responsibilities as trustees (beyond their leasing responsibilities) can be found on the DoR website www.resources.qld.gov.au.
Aboriginal shire councils must be clearly aware of the differences in their roles and responsibilities as a local government and a trustee of Aboriginal DOGIT land. Aboriginal shire councils must ensure that a clear separation between these roles is maintained. This means that Aboriginal shire councils need to be aware of the statutory powers they are using when making decisions about land. This may require that councils adopt the practice of meeting as a local government and dealing with local government business relevant to the Local Government Act 2009, then closing the local government meeting and reconvening as the Aboriginal DOGIT land trustee to deal with trustee business relevant to the Land Act 1994 and the Aboriginal Land Act 1991.
1.3 Trustee land management responsibilities
Under the Land Act 1994, the main responsibility of trustees of Aboriginal DOGIT land is to manage the land for the benefit of Aboriginal inhabitants or for Aboriginal purposes.
This responsibility includes:
- controlling pest plants and animals
- protecting and maintaining any improvements on the land (eg. buildings, fences, buried pipes)
- exercising a duty of care for the land and taking all action necessary for its maintenance and management
- obtaining a vegetation clearing permit before destroying any vegetation on the land
- maintaining records as required by the Minister or as required under the Land Act 1994 and other Acts
- complying with other statutory requirements relating to land management. In addition, trustees:
- may lease all or part of the DOGIT land
- must not mortgage DOGIT land without the approval of the Minister
- are not permitted to sell DOGIT land
- must maintain adequate public liability insurance for the benefit of the trustee, and any member of the public who may use the DOGIT land
- may consult with other parties and enter into management arrangements (e.g. with conservation groups) provided the agreement does not permit activities which do not provide benefit for Aboriginal inhabitants or for Aboriginal purposes
- may not use, sell or lease quarry material, forest products or mineral and petroleum products found on or below the surface of DOGIT land because they are reserved to the State under the Forestry Act 1959, Mineral Resources Act 1989 and Petroleum Act 1923.
1.4 Trustee responsibilities when leasing land
When granting a lease over Aboriginal DOGIT land, trustees:
- have no power to bind the State
- are responsible to ensure compliance with the Native Title Act 1993 (Cth)
- have no authority to recognise native title or to recognise an Aboriginal group as the traditional owner of the land
- must abide by the and other requirements of the Planning Act 2016 (PA 2016) for proposed development of the land
- must comply with any directions issued by the Minister for Natural Resources, Mines and Energy
- continue to bear the responsibility to ensure the Aboriginal DOGIT land is managed for the benefit of Aboriginal inhabitants or for Aboriginal purposes and cannot delegate that responsibility
- should ensure that trustee land management responsibilities (see section 1.3) are passed on to lessees through the conditions of the lease.
After the grant of a lease:
- payment received from a lease of land must be spent by the trustees on the maintenance or enhancement of the DOGIT land
- payment received for an existing dwelling on a Home Ownership lease (if the dwelling was previously used to provide subsidised housing for residential use) must be spent by the trustee on housing services for Aboriginal inhabitants of the DOGIT land.
1.5 Informed responsibility
To fulfil their leasing responsibilities in an informed and effective manner, trustees of Aboriginal DOGIT land need to have comprehensive knowledge about:
- the values of and appropriate uses for the land,
- existing interests in the land, and
- community opinion on proposed leases over the land.
Trustees of Aboriginal DOGIT land need to have internal policies relating to the leasing of land. Trustees should also make people aware of the leasing options available on DOGIT land and the processes to get a lease.
Planning
Trustees should have access to comprehensive information about appropriate and desirable uses for Aboriginal DOGIT land. Trustees should refer to this information when making decisions about granting a lease to ensure that a lease for a particular piece of DOGIT land is not granted for an unsuitable purpose. A planning scheme, compliant with the PA 2016, is the best source of information about land-use suitability since that Act requires planning schemes to be developed through a process involving extensive public participation to comprehensively identify existing values and constraints on land, and the desired outcomes of development. State agencies are currently working with Aboriginal Shire and Regional Councils to finalise the development of approved planning schemes under the provisions of the PA 2016.
All local government authorities are required to adopt a planning scheme. Many Aboriginal shire and regional councils have finalised or are in the process of finalising planning schemes for their shire or region. In the absence of a planning scheme, trustees should refer to any available land use or community development plans for the Aboriginal DOGIT land, to check whether the land use and purpose of a proposed lease is suitable and consistent with community aspirations.
If a well-developed land-use plan does not exist, it is recommended that Aboriginal shire councils, as trustees, prepare a land-use and development plan that identifies land that has constraints to development. These constraints may include, but are not limited to, land that:
- is flood prone or unstable
- is not serviced with water, sewerage, waste collection or other services and utilities
- has high cultural heritage values
- has high natural values such as being in a wild rivers catchment, a world heritage area, the habitat of a rare or threatened species, or subject to coastal management considerations
- is already used for another purpose
- is constrained by native title issues.
The plan should also identify land where development is desirable, such as land close to existing development that is not affected by the constraints listed above and is considered by trustees to be suitable for development.
Consultation
Trustees are not required under the Aboriginal Land Act 1991 to consult with the community when considering an expression of interest to lease trust land. Although there is no legislative requirement to do so, it is good practice to seek the views of the community to establish that the community generally agrees with the grant of the lease prior to making any long term decisions about trust land.
Record keeping
Trustees should establish a system to record and manage leases granted over Aboriginal DOGIT land. The following information should be included:
- details of existing interests—leases and licences, their locations, terms and conditions
- a register of interests for financial reporting and lease management purposes
- details of existing land use
- procedures for accessing information held in government databases.
Awareness raising Trustees should also make people aware of the leasing options available on DOGIT land and the processes for expressing an interest in, and being granted, a lease. Potential lessees, including members of their local community, should be advised about land that is most suitable for various purposes and would receive the most favourable consideration. This advice could be based on the planning scheme or land use plan.
Trustees should ensure expression of interest forms and other suitable materials are available at Aboriginal shire council offices and distributed by other appropriate methods.
A Manual For Trustees Version 1.5 May 2020. Leasing Aboriginal Deed of Grant in Trust Land, Department of Resources, 2021
A full copy of the manual is available at www.resources.qld.gov.au
Acknowledgement of Country
The Yarrabah Aboriginal Shire Council (YASC) wishes to acknowledge the traditional owners of the land within the shire boundaries – the Gunggandji and Yidinji peoples; and the area agreements developed through previous negotiations that provide clear opportunities and processes for traditional owners to be formally involved in the land planning process.
The Yarrabah Aboriginal Shire Council also wishes to acknowledge the historical people brought here to Yarrabah from various locations by government policies of the past.
