How Do I Object to a Tenure Conversion?

A conversion order abolishes customary rights over the land. The objection process is where a person who would lose those rights has their say, and it is time-limited.

Section 8(2)(c) — the two grounds

The two grounds cover the two ways a conversion goes wrong in practice: someone was left out, or someone’s agreement was assumed.

Who may object

Anyone who claims ownership of, or an interest in or in relation to, the land. The phrase “in relation to” is wide, and deliberately so. It reaches:

• members of the owning group who were not named;
• neighbouring clans disputing a boundary;
• holders of derivative interests — gardening, sago, hunting, fishing, access, water; and
• anyone shown as agreeing who does not agree.

Because section 16(b) abolishes all rights, titles, estates and interests — legal or equitable, customary or otherwise, in rem or in personam except those specified in the order, a holder of a derivative interest who does not object may simply lose it.

The period — not less than 30 days

The notice under section 8(2) must specify a period, not being less than 30 days, within which objections may be made. Thirty days is the statutory floor; the Commission may allow longer.

Before the hearing: the boundaries are shown

Under section 8(4), before proceeding to a hearing of an application or an objection, the Commission shall arrange for any parties interested to be shown the boundaries of the land the subject of the application or of the objection, and any boundary marks placed on the land.

An objector is therefore entitled to have the ground walked. This is where most boundary objections are resolved, and it is worth attending with the people who know the country.

Sections 18 and 19 — public, and near the land

• All hearings shall be held in public (s 18).
• Except with the consent of the parties, all hearings shall be held as close to the land concerned as is reasonably practicable (s 19).

These are genuine protections for objectors, who are often the people least able to travel.

Section 10 — how the Commission deals with them

The Commission may:

• consider a number of applications and objections together, where it considers it proper;
• adjourn consideration to allow inquiries about further applications or objections relating to the same or other land, or to allow such applications or objections to be made; and
• deem a person to have made an application or objection.

In deciding who is interested, the Commission has regard to its own findings as to ownership and to any claim made under the Act to another interest. It need not determine the claim of a person other than the applicant if that person agrees to the application.

Section 10(4) — everyone must understand the effect

This is the provision an objector should hold the Commission to. Given how comprehensively section 16(b) abolishes existing rights, a decision made without that assurance is open to challenge.

Review and appeal

Section 16 makes the effect of a conversion order subject to any decision on review or appeal under Part V of the Land Titles Commission Act 1962. That is the route for challenging an order once made.

Beyond that, a decision of the Commission is amenable to judicial review in the National Court under section 155(3) and (4) of the Constitution — including for breach of the principles of natural justice under section 59, or where a condition the Act requires to be satisfied was not.

Drafting an objection

1. Head it clearly, identifying the application and the conversion plan.
2. State which ground you rely on — left out, or wrongly shown as agreeing — or both.
3. Identify your interest precisely: what it is, where it is, and how it arose under the custom of that place.
4. Identify the area by reference to the conversion plan.
5. Name the people who can speak to it, and bring them to the hearing.
6. Say what you want — refusal of the order, or its variation so that your interest is specified in the order and entered on the title under section 11(1)(b).
7. Lodge within the period and keep proof.