As featured in the May 2021 edition of Bowls Queensland’s Queensland Bowler.
Many of the Bowls Clubs that we act for occupy their clubhouse and bowls greens under a lease of property situated on Crown Land, which may be administered by the local Council or by a State Government Department (State Lease). There are certain Native Title considerations that Bowls Clubs should be aware of if they have a State Lease, and which may impact your Club’s rights to renew or extend your lease or licence or even remain in your premises.
State Leases
The most common types of State Leases that are granted are “Term Leases” or “Perpetual Leases”. As the names suggest, the main difference between the two types is whether there is a specified term for the duration of the lease. What will not differ between the two types of State Leases is that they will always contain conditions imposed by the State.
Where your Club is located on land the subject of a State Lease, you should look out for conditions in the lease setting out what will occur in the event that a Native Title claim is determined over the land. Under the Native Title Act 1993, where a grant of freehold tenure is made Native Title will generally be extinguished. But in situations where the land is anything other than freehold, Native Title must always be considered, to determine whether or not it still potentially exists or has been extinguished by prior legislative act, or what is often called ‘occupational inconsistency’.
It is also important to remember that Native Title is deemed to exist over Crown Land, until proven otherwise. Its existence is not dependent on there being a registered or determined Native Title claim.
Therefore, if your Bowls Club is a tenant of land that is granted under a State Lease, the potential for Native Title to be determined over the leased land may have adverse implications for your Club.
Potential Implications
We recently provided advice regarding conditions contained in a newly-granted Term Lease to a client who operates a club on a State Reserve. One of those conditions authorised the State to terminate the lease at any time in the future if Native Title was determined to exist over the subject land. If that occurred, the conditions of the lease also allowed the State to require the tenant to remove any works established under the lease (i.e. buildings/car parks/etc.) at the tenant’s cost, expense and risk – with no compensation payable from the State to the tenant for the initial costs of any such development, nor the costs of removing them.
The type of State Lease that was granted in this instance is a common type of lease granted to community groups. Therefore, the scenario highlights the potential implications that a State Lease may have on your Club too if Native Title is subsequently determined to exist – specifically, you might not only lose the right to occupy your clubhouse and bowls greens, but your Club may also be required to remove buildings and other improvements upon the land at your own cost.
Fortunately, in the above case, because the original clubhouse had been constructed under an earlier State Lease prior to 23 December 1996, the grant of that earlier State Lease was considered a “previous exclusive possession act“. Under the Native Title Act 1993, a “previous exclusive possession act” extinguishes Native Title. Therefore, Native Title could not be determined to exist over the land at any future time and the club was not at risk of losing their right to occupy or clubhouse.
Should you have any queries about your lease, or if you would like to know more about Native Title, State Leases and the potential implications on your Club, please contact me on (07) 3224 0353.
