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BACKGROUND
The
Brigalow Corporation was established in 1962 [i]
to administer the Fitzroy Brigalow Land Development Trust Fund and Agreement. Until 1993 the Brigalow Corporation was known as the Corporation of the
Land Administration Commission. [ii]
Under
the Fitzroy Brigalow Land Development Agreement the Commonwealth agreed to
provide the State of Queensland with financial assistance to develop
approximately 4,976,000 acres of land in the Fitzroy River Basin. The development proposal involved terminating existing tenancies and
re-subdividing the area into between 250 and 400 blocks of land. Each existing leaseholder was to be offered a new title in respect of
part of the leaseholder’s existing holding on the condition that the block be
developed to minimum standards.
At
least one quarter of the remaining blocks were to be sold by auction with the
condition that they also be developed to minimum standards. The remaining blocks
(of less than 10,000 acres) were to be leased as purchase leases on the
condition they also be developed to minimum standards. The State could offer to
develop and partly stock each block on behalf of the lessee subject to the
repayment to the State of the cost of the development and stocking.
The
lessee also had the right to purchase the block when it had been developed to
the minimum standard and all money had been repaid to the State.[iii] The Corporation could make advances to a lessee for certain
purposes. [iv]
Land
Administration Commission Report – 1977...
The
Report of the Land Administration Commission for the year ended 30 June 1977
provided the following information about the Fitzroy Brigalow Land Development
Trust Fund:[v]
The
total expenditure from the Fund to 30th June 1977 was $19,861,439. Expenditure of $2,245,793 for the period 1st July 1976 to 30th June 1977
included repayments to the Commonwealth of $1,765,900. Over the same period collections from all sources totalled $2,829,351
including advances from the Commonwealth of $1,909,120.
There
are now no further advances to be drawn from the Commonwealth.
The
Fund balance as at 30th June 1977 is $1,792,966.
Now
that all the land acquired for the purpose of the Scheme has been allocated and
practically all development loan funds have been expended, the major
administrative function involves the collection of loan repayments from settlers
and the repayment of Commonwealth Government loans.
Review
of statutory offices, formation of the Brigalow Corporation – 1993...
In
1993 a number of statutory offices were abolished including the Land
Administration Commission. [vi]
The powers of the offices were assigned to the chief executive of the relevant
department.
[vii]
As the Fitzroy Brigalow Land Development Trust Fund and Agreement were
still operational, it was necessary to replace the Corporation with another body.
[viii]
The
replacement body was the Brigalow Corporation. The Land Act 1994 states that ‘a reference to the Corporation of the
Land Administration Commission in any Act or in any document is taken to be a
reference to the Brigalow Corporation.’ [ix]
The
Land Act 1994 declares the Brigalow Corporation to be a ‘corporation sole.’ [x]
A corporation sole is a corporation consisting of only one person and
that person’s successors to a particular position. [xi]
In the case of the Brigalow Corporation this is the Chief Executive of the
Department of Natural Resources and Water. [xii]
Other examples of corporations sole include the Queensland Treasury
Corporation,
[xiii]
the Public Trustee of Queensland [xiv]
and the Co-ordinator General. [xv]
At
1 July 1995
[xvi]
all amounts in the Fitzroy Brigalow Land Development Trust Fund became part of
the consolidated fund and all amounts to be paid to or from the Fitzroy Brigalow
Land Development Trust Fund were paid to or from the consolidated fund. [xvii]
In
2008 the Department of Natural Resources and Water confirmed that the Brigalow
Corporation continued in existence because a small number of advances made by
the Corporation to lessees under the Fitzroy Brigalow Land Development Agreement
were still outstanding. The Corporation had the power to receive these
repayments and pay the money into the consolidated fund. [xviii]
The Department confirmed that the last loan was repaid in November 2005,
making the Brigalow Corporation redundant. Consequently, the Land Act 1994 would
be amended in due course to remove all references to the Corporation. [xix]
In
2008 the Department of Natural Resources and Water confirmed that the process
was underway to have the provisions relating to the Brigalow Corporation removed
from the Land Act 1994.
In
February 2009 section 43 of the Land and Other Legislation Amendment Act 2009
removed Chapter 8, Part 7A (Brigalow and other lands development provisions)
from the Land Act 1994. Section 514 of the Land Act 1994 now relates to the
closure of the Brigalow Corporation.
Section
514 states: Closure of Brigalow Fund...
(1)
All amounts in the Fitzroy Brigalow Land Development Trust Fund established
under the Brigalow and Other Lands Development Act 1962, immediately before the
commencement is transferred to and becomes part of the consolidated fund. [xx]
(2)
On and from the commencement, all amounts to be paid to or from the Fitzroy
Brigalow Land Development Trust Fund must be paid to or from the consolidated
fund. [xxi]
Court
Cases...
A
group of people, who opposed the State’s vegetation management legislation on
the basis that it adversely affects the rights of landowners, claimed that all
land in Queensland is now owned by the Brigalow Corporation.
Information
prepared by Farmers Land Ownership Rights in Australia (FLORA) claims that:
[xxii]
".
. . the government of Qld has moved all the crowns land AND all crown land that was
sold (fee simple) into the Brigalow Corporation through the Land Act, Land Title
Act, Property Law Act etc, etc, etc. ”
The
Save Australia website
[xxiii]
states that:
"OUR STATE IS NOW A
CORPORATION
It is called The Government Corporation, or the 'Brigalow Corporation'. The Queensland Government is no longer a governing body, but instead [has] made itself a business
corporation. Just read the letter heads [sic] on paperwork you receive from any State
office. They called the new business of governing the land of the people of Queensland the "Brigalow Corporation" under which all the land in our state has been removed from our ownership to be used as collateral for this corporation?"
A
number of these websites refer to High Court decisions about the Brigalow
Corporation; however, the High Court decisions referred to are applications for
special leave to appeal against decisions relating to the imposition of a
penalty for clearing native vegetation on freehold land without a development
permit. These decisions do not
relate to the Brigalow Corporation. The applicants argued that the requirements
did not apply to freehold land held in fee simple. The High Court rejected three such applications
[xxiv]
confirming decisions of the Queensland Court of Appeal. [xxv]
As
District Court Judge Nase of the Queensland District Court stated in Glasgow v. Hall:
[xxvi]
There
can be no doubt the grant of power to the State to make laws for the ‘peace,
welfare and good government’ of the State includes the power to regulate land
clearing in the State. The power to
regulate the use of the land does not deny Mr Glasgow’s title to the land he
purchased. As White DCJ commented in
an earlier case, although the ownership of the land is alienated, the land
itself is not alienated from the sovereign State of Queensland. Just as the State has power to prohibit the use of Mr and Mrs Glasgow’s
land to grow illegal drug crops so it has the power to regulate land clearing. Both powers derive from the authority of the State legislature to enact
laws for the ‘peace, welfare and good government’ of the State.
Property
rights and fee simple land holdings...
The
power to regulate the use of land does not deny title to land purchased in fee
simple. [xxvii]
The State’s power to regulate land use derives from its law-making power. [xxviii]
The
Property Law Act 1974 provides for the creation and existence of freehold
estates in fee simple. [xxix]
Under the Land Title Act 1994 the registered owner of land is defined as ‘the
person recorded in the freehold land register as the person entitled to the fee
simple interest in the lot.’ [xxx]
According
to the Department of Natural Resources: [xxxi]
Freehold
land is the most complete form available for land alienation from the State.
It
is purchased from the State. Ownership by the titleholder is not absolute
however, as the State is empowered to withhold certain rights, such as the right
to any materials or petroleum. In addition, use of the land may be controlled by
legislation (e. g. the Local Government Act 1993).
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