The imminent sale of Caloola Farm in the Naas Valley, south of Tharwa, is being challenged by Ngambri elder Shane Mortimer, who says the land should be handed back to the Commonwealth, and not used to repay debts.
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The leaseholder Auswide went into voluntary liquidation in December, 2014, and liquidators Deloitte Touche Tohmatsu put the 170-hectare property on the market earlier this month. It is now under offer, and includes a large function centre with commercial kitchen and 10 bunk rooms and three additional bunk houses.
Mr Mortimer says the trust act, a universal legislation which applies to most territories and states in Australia, prohibits a charitable lease from being sold to recover debt.
" Firstly the lease is in fact Crown land, it was supposed to be handed back to the Crown because of the charity becoming dysfunctional, defunct or in liquidation," Mr Mortimer said. "That land is the allodial property of my people."
Mr Mortimer what Australia calls common law native title, the rest of the world calls allodial title.
"Australia has always known about allodial title but have swept it under the carpet, they don't want it brought up because of the ramifications involved," he said.
The lease should be handed back and the property should go back to his people, Mr Mortimer said. "We specifically have a use for it, we want to use it for foster children. We want to use it as emergency accommodation.
"I would not like to think bloody-mindedness and racism is getting in the way of looking after people."
An ACT Environment and Planning spokeswoman says a concessional lease is a type of Crown lease, and a lessee may choose to sell it, as with any other type of lease.
"Importantly, a concessional lease can only be transferred to a 'like' organisation, that is, another Crown lessee who would also qualify for the grant of a concessional lease," the spokeswoman said.
"Any transfer of a concessional Crown lease requires the prior approval of the planning and land authority," she said.
If the sale transaction is settled Mr Mortimer says he will begin legal action, first with the ACT Civil and Administrative Tribunal or he will go straight into the Supreme Court.
"Why have they [Planning and Land Authority] issued a new concessional lease to a company that is in liquidation?" Mr Mortimer said. "They are not doing their due diligence."
The authority's spokeswoman says the Planning and Development Act 2007 permits any lessee to make an application for a further Crown lease term of 99 years.
"Once a further lease is granted, it must include a statement relating to the status of the lease [being a concessional lease]."
Mr Mortimer said the same illegal scenario was being applied to other property in Canberra.
"The same applies to the former CSIRO Farm near Gold Creek. This land cannot be subdivided and sold at the whim of the ACT government, as it is designated 'buffer zone' and the same law applies.
"I will keep on fighting them all," he said.
Mr Mortimer raised land ownership with the Australian government in 2009 and was told the Ngambri people had never made a claim on native title.
"We don't have to make a native title claim, we already have native title, it is called allodial title. It is up to the Crown and their representatives, the Commonwealth of Australia to show they have acquired the alodium to the land. You cannot extinguish an allodial title, there has to be a valid transaction, a record of exchange," Mr Mortimer said.
