|
November
1999 |
John Sheehan |
Cultural heritage and native title In this article John Sheehan*, develops themes he raised in the February 1999 edition of LRQ. This is the eighth in a continuing series dealing with valuation and native title IN an earlier article in LRQ, it was noted that Indigenous values and anglo-Australian values are at their most visible contrast when the issue of compulsory acquisition of property rights arises. The vexed question of how Indigenous values might be assessed is in stark contrast with current valuation case law and practice which has been progressively settled over the last two centuries. This contrast is also strongly manifested in the different evidentiary needs when Indigenous property rights and interests arising from the survival of native title are to be assessed for compensation purposes. While non-Indigenous property interests are generally evidenced by written documentary proof in a form readily recognised by the courts, native title is evidenced through a complex multi-disciplinary approach rooted partly in Indigenous oral evidence, ethnohistorical records and texts, anthropological evidence, and at times, innovative legal argument. A major concern in meeting evidentiary requirements to assert the survival of native title is the need to address the related but different issues of Aboriginal cultural heritage, and native title. ATSIC, in its submission to the Joint Parliamentary Committee on Native Title, the Aboriginal and Torres Strait Islander Land Fund and Aboriginal and Torres Strait Islander Heritage Protection Bill 1998 stated that: "Heritage values and native title rights may be intimately related". Importantly, the commission in its submission stated that: "In many cases, the existence of significant areas will be relevant to proving the existence of native title". However, caution must be exercised as some archaeological and heritage assessments may be disputed by Indigenous people as either incomplete, or even worse, inaccurate and incorrect. On the other hand, some research and literature may be preferred, and can act as an important tool linking Aboriginal cultural heritage places and items with Indigenous property rights and interests which have survived as native title. This dichotomy arising from Aboriginal cultural heritage is not unexpected, given that a diagnostic marker for Indigenous property rights and interests remains elusive throughout most of Australia. While the recent High Court decision in Yanner v Eaton (1999) HCA 53 (unreported 7 October 1999), shows that native title is still being developed as a legal concept in Australian jurisprudence, it also demonstrates that native title is multi-faceted and has many and varied (and sometimes uncommon) forms. Nevertheless, as stated earlier, while it is critically important to recognise the presence or likely presence of Aboriginal cultural heritage sites and items, some of which may be readily identifiable and significant, great caution must be exercised in attributing to heritage presence a confirmation that Indigenous property rights and interests have survived. It must always be remembered that these are separate matters for consideration, and may or may not be linked. In attempting to assess compensation for the impairment, diminution or extinguishment of Indigenous rights and interests, any prediction of the likely survival and ambit of native title will always be problematic in the absence of a formal determination. The presence of Aboriginal cultural heritage sites and items, important though they may be historically, culturally and spiritually, may not represent a satisfactory evidentiary proof that native title has survived and is presently being exercised. As unpalatable as the Yorta Yorta decision may have been to the Indigenous claimants, it nevertheless highlighted the problematic nature of establishing a link between Aboriginal cultural heritage and native title.From the standpoint of developing a compensation methodology acceptable to the courts and the community, it is clear that much of the above remains untested. There is a need for realistic preliminary predictions of the interests held by Indigenous claimants in order that a meaningful assessment of the likely compensation can be attempted. Past experience in Australia and nearby PNG shows that minimal value was placed upon Indigenous rights and interests, with vast tracts of land being acquired or purchased by the Crown with payment (if made), being in kind rather than cash. Whilst the monetary equivalent of such compensation is extremely difficult to determine today, it is nevertheless clear that little worth was placed upon native title. At the outset of this article, it was reiterated that Indigenous values and anglo-Australian values are in stark contrast when compensation arising from compulsory acquisition of property rights arises. Historical records indicate that minimal attempts were made to elucidate the economic benefits derived by Indigenous people from their land, while the value of cultural and spiritual attachment was effectively dismissed. There is an urgent need for an accommodation to be reached between Indigenous values and anglo-Australian values. To do otherwise would see the reassertion of widely discredited compensatory approaches which have in the past marginalised Indigenous people in Australia and elsewhere. *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).
|
|
HOME | NEWSROOM | LAND RIGHTS FRONT PAGE | ABOUT FAIRA | ISSUES |
|
|
 |
FAIRA
Aboriginal Corporation |