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January
2000 |
John
Sheean "Such innovations are required if stakeholders are to negotiate in a fair and meaningful manner, thereby enabling public works to be constructed in an environment which respects Indigenous property rights and interests" |
The dilemma for infrastructure bodies
IN my article in the December edition of Land Rights Queensland, which dealt with past approaches to assessing losses in value to property rights, considerable reference was made to the impact of public works. Infrastructure bodies involved in the construction of public works such as dams, railways and high tension transmission lines have been presented with a dilemma since the recognition by the High Court in Mabo in 1992 of Indigenous property rights and interests arising from native title. On the one hand, such bodies are entrusted by the state with a responsibility of constructing efficiently and economically essential public works. As part of this task, constructing authorities generally must provide compensation for the compulsory acquisition of property rights where an owner is dispossessed in order that construction may occur. Where compulsory acquisition is being undertaken for the Commonwealth's purposes, the Lands Acquisition Act 1989 (Commonwealth) provides that such actions should: …strike a balance between the rights of private property owners on one hand and the legitimate need of society for land for public purposes on the other. In particular, the legislation should balance efficient administration with recognition of individual rights in land matters. The constructing authority pays compensation to those persons affected by the acquisition of an "interest in land" as defined in section 6 of the Lands Acquisition Act 1989 (Commonwealth). However, on the other hand where native title is acquired by compulsory acquisition by constructing authorities, the dilemma faced by the constructing authority is multi-faceted. There is the obvious question of how compensation for native title will be assessed. This subject has been the topic of considerable discussion in earlier articles in LRQ, and remains largely unresolved until judicial guidance is forthcoming. However, there are other more fundamental issues afoot in the dilemma for infrastructure bodies. Sadly, the imbroglio in which Australian land law finds itself today arises directly from the continuing impact of the fiction of the European notion of terra nullius. Even the Mabo decision was a product of imported concepts of law, notably Johnson v McIntosh (United States Supreme Court 1823) and much more recently, the 1975 advisory opinion of the International Court of Justice on the application of the doctrine of terra nullius to the nomadic Sahrawi people (ICJ Rep 1975 12). Paradoxically, notwithstanding the Mabo decision and the subsequent statutory protection of native title by sections 10 and 11 of the Native Title Act 1993 (Commonwealth), traditional owners are still in an uncertain position when compulsory acquisition of their rights and interests occurs. The various pieces of legislation enacted by the Commonwealth, Territories and the States to deal with compensation for the compulsory acquisition of land do not automatically extend the concept of dispossessed "owner" to native title holders, claimants or aspirants. To that extent, the notion of terra nullius has not yet been expunged from Australian land law. In the Commonwealth sphere, it remains unclear whether native title is an "interest in land" as defined in section 6 of the Lands Acquisition Act 1989 (Commonwealth). There is also the question of whether native title claimants are the persons "affected" as defined in section 27(7) of the Act. In July 1999, the Australian Property Institute in its submission to the Department of Finance and Administration on the intra-departmental review of the Act stated that: The definition of persons affected by the acquisition of an interest in land will have to be extended to address the property rights of native holders (or aspirants) given that such rights are compensable. The Institute is of the view that sections 6, 22(7) and 22(10) will need to be amended to respect both the Native Title Act and section 51(xxxi). In the States, a similar situation appears to exist. In NSW, compensation arising from compulsory acquisition undertaken by infrastructure bodies is dealt with under the terms of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). While this legislation has been the subject of some minor amendments to respect the 1998 amendments to the Native Title Act, 1993 (Commonwealth), the status of native title holders, claimants or aspirants remains clouded. As stated earlier, all of the above suggests that infrastructure bodies are faced with a considerable dilemma when they interact with Indigenous property rights and interests arising from native title. Clearly such bodies have a legislative mandate to proceed with their public works, and yet the untidy state of land law in Australia is leading an increasing number of infrastructure bodies to seek a resolution of compensation issues outside of the strict legislative framework that currently exists. The growing use of contracts focusing on compensation, and Framework Agreements and ILUAs dealing with similar matters is a recognition by the stakeholders involved in infrastructure projects that the current state of Australian land acquisition and compensation law is inadequate when native title is to be addressed. Part of this evolving process is also the increasing use of preliminary predictive reports which provide the parties on a shared but confidential basis, with an honest understanding of the likely holders of native title, their likely rights and interests, and the impact of the public works. In the absence of a formal determination under the Native Title Act 1993 (Commonwealth), such innovations are required if stakeholders are to negotiate in a fair and meaningful manner, thereby enabling public works to be constructed in an environment which respects Indigenous property rights and interests. *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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