Day-to-day management of trust land (reserves and deeds of grant in trust) is generally the responsibility of the trustee. The trustee is usually appointed by the Minister for Resources and Critical Minerals, and should have some association or expertise with the trust land and its purpose, or with the local community.
Trustees are often the local government, but can also be the state, another statutory body, an incorporated body or a named individual.
The trustees are the owners of the land for the purposes of legal proceedings, so they can sue and be sued, and take action to remove trespassers or to protect property under their control.
Trustees cannot sell or transfer the land. They also cannot mortgage the land, except for deeds of grant in trust issued under the repealed Land Act 1962 (our approval and the Treasurer's approval is required).
The rights to quarry materials, forest products and mineral and petroleum products are reserved to the state, in accordance with legislation.
Trustees may authorise the use and occupation of trust land by third parties only through trustee leases and trustee permits. Rents received must be spent on the maintenance or enhancement of the trust land unless we have given written approval for another use.
Trustees must maintain and manage the land in a manner consistent with the purpose of the trust land. However, trustees can take an inconsistent action if this does not diminish the trust land’s purpose and adversely affect the public interest. Trustees may require approval from us or may need to prepare a management plan.
Trustees may adopt as their by-laws any or all of the model by-laws for trust land.
A trustee can be removed from their position if the removal is in the public interest or if they breach the conditions of the trust, their appointment or the Land Act 1994.
The trustee must maintain and manage the land in a manner consistent with achieving the purpose of the trust land. They must comply with any conditions associated with their appointment as well as the following requirements.
Any action on trust land must be consistent with the Native Title Act 1993 (Cwlth). This means the trustee must assess and, where native title is found to exist, address native title before starting any action on the land. This includes:
Section 28 of the Land Act 1994 provides more detail on actions taken on trust land that are relevant to native title.
Native title must be assessed on the dedicated purpose of the reserve or the purpose of the deed of grant in trust. This is the purpose of the trust land as shown on the title in the Land Registry.
Native title must not be assessed on the ‘taken to be’ purpose .
The native title assessment must also include details of any earlier native title assessment, including whether or not the reserve or deed of grant in trust was dedicated or granted in accordance with a specific module from the native title assessment pathway. The intended action is to have no greater impact on native title.
A park reserve is 'taken to be' for parks and recreational purposes.
The trustee proposes a swimming pool on the trust land. The construction of a swimming pool on the reserve, which has been dedicated for the purpose of a park, will have a greater impact on native title and Module J won't apply. It is likely an Indigenous land use agreement will be required.
An existing public boat ramp reserve is 'taken to be' for community facility purpose.
The reserve for public boat ramp was dedicated under Module K as a public boat ramp is a facility for the benefit of the public and satisfies the requirements of Module K.
This community facility purpose is too broad and general for Module K to apply.
A public boat ramp reserve dedicated under Module K is unable to be used for any other community facility, i.e. may only be used as a public boat ramp, unless native title is further assessed, and an agreement is likely to be required.
A reserve was dedicated for open space purposes under Module L where very limited improvements, if any, may be made.
Open space is now categorised for parks and recreational purposes, so if a trustee was intending to use and/or develop the land for a recreation ground, native title must be further assessed. It is likely that an agreement will be required.
The same requirements apply for other reserves that may have been dedicated under Module L including beach protection and coastal management, environmental, natural resource management, buffer zones, strategic land management and scenic.
Following the Land and Other Legislation Amendment Act 2023, there are now 6 broader community purposes for trust land that was dedicated or granted under the Land Act 1994.
However, the trust land’s title in the Land Registry will not be updated to the ‘taken to be’ purpose.
This is because an update to the purpose would be a change in purpose of the trust land, which would be a future act for the purposes of the Native Title Act 1993 (Cwlth). Without an assessment of native title, this action would be inconsistent with native title.
Further, some trust land may have been dedicated for, or is defined as, an operational purpose. Native title on trust land, for a community or an operational purpose, must be assessed on the purpose shown on the title in the Land Registry.
In this guide:
