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October
1999 |
John Sheehan |
Learning from the PNG experience This article is the seventh in a continuing series dealing with valuation and native title issues by John Sheehan* AS commonly understood, Indigenous property rights were only first recognised in Australia in 1992 in the Mabo decision. The recognition by the common law of Australia of the legal concept known as native title has also resulted in a need to understand other recognition regimes in common law countries, such as Papua New Guinea. It is generally understood that the existence of Indigenous rights and interests in British possessions, and their relationship with the transplanted English legal system, was of concern to 18th century lawyers. Notable was Sir William Blackstone's Commentary on The Laws of England of 1765 in which he stated: "... if an uninhabited colony be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately then in force". However, a convenient distinction was drawn between settled and conquered possessions. Settled colonies were considered to be those lands which were terra nullius, and as Blackstone advised, British law was to be applied unimpeded. Conversely, in conquered or ceded colonies, the existing legal system of the Indigenous people was to be retained unless specifically changed by imperial legislation. In Papua New Guinea, the recognition of custom and customary law occurred when Western European legal systems were imposed upon the community. Such action has led to the understanding that social balance is pivotal to custom and customary law, in a manner similar to the central idea of justice in Western European law. This central concern for social balance is reflected in the action of some former British possessions such as Tuvalu (formerly the Ellis Islands), which on independence enacted constitutions which specifically incorporated customary law as part of the basic law. Similarly, on independence, Papua New Guinea allowed for customary law within the new Constitution, and according to some writers, this incorporative thrust has been developed further in legislation such as the Customs Recognition Act. In Australia, it is widely misunderstood that while Indigenous property rights were only recognised in 1992 by the common law, Indigenous customs have nevertheless been incorporated in anglo-Australian statute law for at least 130 years. Limited elements of custom and customary law are provided for in a number of ways in Australia. In the Criminal Law Consolidation Act 1876 (Northern Territory), s.6A specifically adopts some Aboriginal law for the operation of the Act. In another example, the custom and customary law of the Malay residents of the Australian territory of the Cocos (Keeling) Islands is recognised in s.18 of the Cocos (Keeling) Act 1955 (Cth), which provides for those institutions, customs and usages to continue in force. Interestingly, the two Indian Ocean territories of Australia, Christmas Island and the Cocos (Keeling) Islands were part of the British colony of Singapore until the 1950s. When they were transferred by the United Kingdom to Australian sovereignty, specific provisions of the Christmas Island Act 1958 (s.7) and the Cocos (Keeling) Islands Act 1955 (s.8) recognised the existence of the law of Singapore prior to acquisition of these territories by Australia. On a more comprehensive level, the Aboriginal Land Rights (Northern Territory) Act 1976 provided for the recognition of traditional rights to use and occupy land by Indigenous people. The Act has one main or paramount purpose, that is the granting of inalienable freehold title to successful Indigenous claimants in the Northern Territory. However, this is only a statutory grant as opposed to Indigenous property rights derived from the Mabo decision. From the above, it can be seen that the anglo-Australian legal system is not as culturally monolithic as might be first thought. In attempting to distil issues for Australia from the Papua New Guinea experience, it becomes clear that significant difficulties lie ahead in accommodating at this late stage the body of Indigenous law and customs first recognised by the common law in Mabo. The attempts by Australian governments over the past 130 years to statutorily recognise and manage Indigenous rights and interests, have either been flawed by the inability of these statutes to recognise the differing cultural interests and values manifested, or by the incompatibility of the statutes with accepted international standards. This latter issue has gained prominence with the recent amendments to the Native Title Act 1993, which have resulted in concern that such actions may be incompatible with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The position of Indigenous people in either statutory regimes such as the Native Title Act 1993, or constitutional arrangements such as exist in Papua New Guinea, are all a manifestation of global concerns for Indigenous rights and interests. Whilst it is not necessary to describe the position of such rights in Papua New Guinea, it is clear that the nature of Indigenous property rights is such that there are compulsory acquisition issues raised which hitherto have never been encountered in that country's compulsory acquisition law and practice. The Australian experience with such matters suggests that new valuation methodologies will have to be developed to accommodate the sui generis nature of Indigenous property rights. It appears that Papua New Guinea is in a similar position. The various forms of Indigenous property rights surviving in Papua New Guinea exemplify the diverse ways in which certain rights may be manifested, and highlight the great difficulties that arise in attempting to assess compensation for compulsory acquisition of Indigenous property rights in Papua New Guinea. In addition, compensation arising from compulsory acquisition becomes indistinct when issues of royalties and occupation fees arise, notwithstanding that legislation may exclude such matters. All of the above ensures that the assessment of compensation for the diminution, impairment or extinguishment of Indigenous rights and interests sourced from land will be fraught with conceptual difficulties. These fundamental compensation issues are also coupled with concerns over the communal nature of many Indigenous rights and interests, which are often regarded as an impediment to development. Finally, the Australian and Papua New Guinea experience with Indigenous property rights mirrors the increasing attempts globally to redress the marginalisation of Indigenous people. The changes in values held by both communities are reflected in an increasing acceptance of concepts of value which are not rooted in the anglo-Australian or anglo-PNG legal systems. This is the central experience of Australia's very recent involvement with Indigenous property rights, and is the impetus for current research aimed at producing a fair and equitable interface between the Indigenous and the non-Indigenous legal systems. The aim is to find a methodology, acceptable to the courts and the community, which provides compensation on just terms for Indigenous property rights. *John Sheehan is the native title spokesman for the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists) and a member of the Land Tribunal (Queensland).
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