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June
1999 |
John Sheehan |
Valuing Native Title as a Bundle of Rights By John Sheehan* This article develops the author's earlier publication in the February 1999 edition of LRQ entitled "Calculating the Value of Native Title", and is the third of a continuing series dealing with valuation issues. ON 18 September 1998, the High Court confirmed in Jim Fejo & David Mills on behalf of the Larrakia People v The Northern Territory & Oilnet (NT) Pty Ltd, that a grant of freehold title permanently extinguished Native Title. The emerging pattern in this case and other more recent cases decided by the High Court is of a more restricted view of the nature of Native Title. Indeed it has been suggested by some writers that the High Court is actually recasting Native Title. Why is this so? There are two views of the concept of Native Title, and the Court is slowly revealing which view it prefers. The concept of Native Title can be viewed as either a bundle of property-related rights under anglo-Australian law or as a manifestation of of Aboriginal legal and cultural systems. The High Court appears increasingly to be giving support to the first concept of Native Title, and in Fejo the judgements referred to "the bundle of interests we now call Native Title" and "the rights which together constitute Native Title". In adopting this concept of Native Title, the Court appears to be moving away from the view that Native Title is unique (or sui generis) in character. In some respects, Native Title is being allocated a position in the hierarchy of anglo-Australian land tenures, and hence being made capable of comparison with other tenures such as freehold and leasehold. Some commentators have noted that the High Court in Fejo contrasted the factual existence of Indigenous rights and interests with the artificial concept of "Native Title" in anglo-Australian law. This approach has been viewed as contrary to the decision of the Court in 1992 in the Mabo case where it is sourced in traditional laws and customs. However, Fejo may represent a pragmatic realisation by the High Court that future judicial decisions regarding compensation for the extinguishment of Native Title will of necessity be noted in existing land and valuation case law. There are a number of hurdles to be overcome before anyone can express confidence in this classificatory approach to Native Title, not least being the general judicial caution toward recognising the existence of new forms of rights in property. Nevertheless, the bundle-of-rights approach to Native Title appears increasingly sensible if Traditional Owners are to be afforded the long history of protection embedded in the anglo-Australian land law when valuable property rights are compulsorily acquired or extinguished. While anthropological research continues to stress the strength of the spiritual and cultural relationship that Indigenous people have with land, the bundle-of-rights approach nevertheless attempts to accommodate the intricacies of the various values evident in adversity of Native Title rights. Valuations of Native Title based on the bundle-of-rights approach need not conflict with the view that spirituality and culture are integral with Aboriginal concepts of land ownership. Already there are cases which have dealt with loss of cultural fulfilment where there have been concerted attempts by the Courts to gain sensitivity to cultural differences. Whilst imperfect, such attempts within a liberal evidentiary framework of the law are increasingly being seen as capable of accommodating the non-material components of Indigenous property rights. While these non-material components are far from settled, and may vary from location to location, there is a substantial risk that they may be misinterpreted and hence undervalued primarily because they do not meet the usual technical standards or rules of evidence. The Australian Property Institute has consistently argued that the material and non-material aspects of the bundle of rights comprising a specific Native Title can be measured, and hence made capable of being compensated using existing valuation law and methodology as the skeletal framework. *John Sheehan is the Native Title Spokesman for the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists), and Member, Land Tribunal (Queensland).
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