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August
1999 |
John Sheehan |
Resolving coexisting multiple property rights and compensation By John Sheehan* This article is the fifth of a continuing series dealing with valuation and Native Title issues. The decision handed down by the High Court in December 1996 in Wik Peoples-v-State of Queensland (1996) (141 ALR 129) (Wik) has resulted in a broad debate over the past two-and-a-half years centred on the perceived conflict of co-existing multiple property rights. Traditionally, any conflict in land use on rural lands has been resolved by private arrangement between the pastoralist and the Indigenous people concerned. As a result, multiple use of the land has been maintained and pastoral activities conducted such that they do not conflict with the Indigenous peoples' need to enter the land for ceremonial or spiritual purposes, or for food gathering or access. It is not widely understood that co-existing multiple property rights are an established feature of existing anglo-Australian land law, and that the term is used in the narrow context of legal interests in property. An individual can hold property rights granted by the Crown which co-exist with other property rights over the same parcel of land. In the case of Native Title, the property rights held by a pastoral lessee may or may not be inconsistent with the bundle of rights known as Native Title. Those pastoral rights that are inconsistent may suppress or even extinguish Native Title to the extent of the inconsistency, however some of the Native Title rights within the bundle may not be affected. It is a paradox that some pastoral lessees appear to view co-existing property rights as a threat to their continued rural enterprise, while holders of property rights in more intensively settled parts of Australia such as Central Business Districts are very familiar with such concepts. It is not uncommon for a specific parcel of land in a city centre to be a complex overlay of property rights held by a multitude of public and private interests. However, the decision in Wik highlighted the limitations on the property rights granted to pastoralists, and whilst unpalatable, the decision merely re-affirmed the constraints implicit in such rights. Debate continues on whether the perceived dysfunctional nature of co-existing multiple property rights will have a deleterious effect on the value of pastoral leases. Continuing research by the Australian Property Institute over the two-and-a-half years since the Wik decision suggests that some market uncertainties have arisen, however such concerns appear overstated. Clearly, there are other factors at play in the market, notably commodity prices, drought, disease and exchange rates, which are causing greater concern than Native Title. The emergence of a dyschronous (separate in time) land law with the recognition of Native Title in Mabo and ors.-v-the State of Queensland (1992 175 CLR 1 (Mabo)) has acted as a catalyst for those seeking to resolve issues or disputes involving Indigenous and non-Indigenous property rights. The decision in Wik has also highlighted an urgent need for dispute resolution techniques which can operate effectively in a multi-cultural environment. The Indigenous cultural environment, whilst recognised as part of the broader multiculturalism of Australia, requires the development of culturally appropriate dispute resolution techniques which recognise the legal fact that Native Title is a valuable property right. In an earlier article in LRQ (July 1999), the constitutional protection of all property rights was explored, and must underpin any dispute resolution techniques. Because Native Title was only first recognised by the common law in 1992 in the Mabo decision, there has been a relatively short period of time for an appreciation of the Indigenous approach to dispute resolution to develop amongst the non-Indigenous community. Apart from the often begrudging recognition that Indigenous property rights have value, there has also been a slow acknowledgment that Indigenous people are the earliest component of our multicultural society. One of the reasons why judicial and other adjudicative means have been increasingly foregone as the sole means of resolving disputes in Australia, is the recognition of multiculturalism. However, a culturally inclusive and pluralist approach to dispute resolution, especially Native Title co-existence, is only a very recent development in Australia. Some writers note that a precondition for just outcomes in such disputes is a recognition that there exists a heterogeneous Australian community which can have differing cultural interests and values. Given the above, it is noteworthy that rural and Indigenous interests are seeking non-adjudicative resolutions of issues and disputes arising from the coexistence of Native Title. These approaches are admittedly imperfect, and sometimes seriously flawed, however they do represent tentative moves which have implications for the development of a methodology for the assessment of compensation for the diminution, impairment or extinguishment of Native Title. Compensation arising from a clash of anglo-Australian property rights has traditionally developed along monetary lines, with little consideration being given to the ongoing relationship between the parties once a statutory or judicial determination has occurred. In the case of co-existence, there is clearly an ongoing relationship in many situations, and a need for a resolution which recognises this phenomena. Alternative dispute resolution techniques may provide an avenue through which the parties recognise that their respective property rights can co-exist in an environment of maturity and goodwill. This type of participatory mechanism enables the parties to understand that they may share many interests and responsibilities in common, and that the resolution of a particular issue or dispute might not be as difficult as first envisaged. Such a framework has distinct possibilities in the area of compulsory acquisition of Native Title, enabling the non-monetary components of any compensation package to be developed in a non-adjudicative manner whilst leaving those quantifiable components to be dealt with by normal commercial negotiation, or if necessary administrative or judicial determination. * 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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