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May
2000 |
John Sheehan |
The extra-territorial nature of native title This is the 14th in a continuing series by John Sheehan* dealing with compensation law, valuation practice and native title IN the current debate over the CERD report on the Native Title Amendment Act 1998, much discussion has centred on the issue of problematic compliance with Australia's international legal obligations. This is not surprising, as the development of native title law and practice in Australia has occurred in an established international legal environment which recognises both past thinking and current research in the area of Indigenous property rights and interests. In last month's article (LRQ April 2000), mention was made of the reassessment of Australia's juridical foundations resulting from the recognition of native title by the common law. International Ramifications of
Native Title Mr Dalgarno's observations were especially pertinent given the attendance at the API launch by a representative of the United Nations Information Centre. It is not commonly appreciated that when the survival of native title was recognised in Mabo, a process was commenced which necessitated a re-examination of Australia's international legal borders from the standpoint of Indigenous property rights. At the recent Representative Bodies Legal Conference hosted by the Mirimbiak Nations Aboriginal Corporation in Melbourne, it was noted by Perth-based barrister Greg McIntyre that: ". . . across the international common law, world courts have recognised that governments have a fiduciary obligation to their Indigenous peoples to protect Indigenous rights and not to extinguish those rights, which arises out of the power of governments to affect the Indigenous interests, and that it creates a duty in governments not to take any action to affect Indigenous interests without acting fairly, which may involve informing, consulting and negotiating with them in good faith, minimising the impact on Indigenous interests and compensating fairly for any loss occasioned". (Fiduciary Obligations of Governments towards Indigenous Minorities - paper presented at Representative Bodies Legal Conference 16-20 April, page 1) This international perspective was highlighted in an article by Richard Tanter in The Sydney Morning Herald (18 March, page 4s) where he addressed the rethinking occurring about international borders between Indonesia and Australia. He mentioned that: " . . . the oldest tradition of foreign trade in Australia long antedates Western colonialism. For at least 300 years before 1907, Makassan fishing praus brought Indonesian fishermen to the northern coastline of Australia searching for trepang, to export along the ancient but still thriving trade routes from Sulawesi to China. Aborigines, in places hostile, in places friendly to the visitors, received new technologies, new diseases and vocabulary for their languages. Some accompanied their Makassan visitors back home." Tanter observes that even though the colonial legal borders between Australia and Indonesia were established by Britain and Holland many years ago, trade lingered on between Arnhem Land and Sulawesi. Because the Mabo judgement gave recognition to pre-existing Indigenous property rights, it follows that Indigenous people beyond our artificial legal borders may also be afforded recognition by Australia if they legitimately exercise rights and interests within our borders. This notion of "non-Australian" Indigenous people having enforceable rights within our legal boundaries may appear surprising. However, it should be recognised that the rights and interests of peoples beyond our international borders have already been recognised in our legal system for nearly half a century. For example, the custom and customary law of the Malay residents of the Australian territory of the Cocos (Keeling) Islands were recognised in section 18 Cocos (Keeling) Act 1955 (Commonwealth), which provides for those institutions, customs and usages to continue in force. In addition, 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 (section 7) and the Cocos (Keeling) Islands Act 1955 (section 8) recognised the existence of the law of Singapore prior to acquisition of these territories by Australia. Recently, developing the Mabo principles it has been proposed that Australia could recognise the Indigenous property rights of people from the island of Roti (within Indonesia), specifically their traditional fishing rights. Tanter in his article records that: " . . . for more than 400 years these people have fished for shark, trepang, trochus, sponges and molluscs in the shallow waters around Ashmore Reef off north-western Australia". The point of this discussion is that the principles of Mabo (and Wik) are extraordinarily pervasive, having an increasing impact upon the way in which land and valuation law and practice in Australia are conceptualised. For example, the decision in Yanner v Eaton (1999) HCA53 (unreported 7 October 1999) builds upon these principles, and has resulted in a re-assessment of the legal notion of "property", and the narrow conceptual basis upon which this notion is constructed. We are now seeing increasing evidence that the concepts of land tenure and land usage which were rendered by the Mabo decision (in Tanter's words) less singular and absolutist, are also making our understanding of Australia's legal international borders less clear. All of the above suggests that our understanding of "property" is becoming more complex, and disconcertingly less clear. However, rather than retreat from these developments in land law and valuation practice, Australian valuers must ensure their continuing participation in this learning process, notwithstanding that it may be periodically uncomfortable. * John Sheehan is the native title spokesman for the Australian Property Institute and member, Land Tribunal (Queensland). A copy of the industry standard mentioned above can be purchased from the API National Secretariat by phoning Mr Grant Warner on (02) 6282 2411, or by placing an order with Mr Tony McNamara, Queensland Divisional Executive Officer on (07) 3832 3139.
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