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Conceptualising Native Title as an Analogous Property Right within the Anglo-Australian Land Law Paradigm

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dc.contributor.author Sheehan, John en_US
dc.date.accessioned 2009-07-31T14:37:15Z
dc.date.available 2009-07-31T14:37:15Z
dc.date.issued 2001 en_US
dc.date.submitted 2002-03-27 en_US
dc.date.submitted 2002-03-27 en_US
dc.identifier.uri https://hdl.handle.net/10535/1498
dc.description.abstract "In the Pacific and elsewhere, indigenous property rights and interests and the associated traditional land use management systems have proved to be much more environmentally appropriate, multi faceted, and capable of survival than originally predicted. The exploitation of natural resources, especially land has seen the increased articulation by indigenous peoples in the Pacific and Southeast Asia of their fears about loss of land, and the concomitant loss of cultural identity. "Concomitant with these developments, there has been a growing recognition in common law countries such as the Philippines, Malaysia and Papua New Guinea, that when indigenous property rights are expropriated by the state, compensation must address the full range of losses born by indigenous people. To do otherwise, would expose the state to claims of discrimination counter to international expectations such as the United Nations Draft Declaration on the Rights of Indigenous Peoples. "Nevertheless, the assessment of compensation for the impairment or even extinguishment of indigenous property resources has proved to be a chimera for compensation law and practice in common law countries. It is alleged in some quarters that fundamental compensation issues have stubbornly resisted resolution because of the communal nature of many indigenous rights. The alleged conceptual difficulties have often been identified as an obstacle to the assessment of fair and just compensation, and of course a hindrance to the panacea of economic development. "Importantly, this pattern is also repeated in many other Pacific and Asian states such as Taiwan, which do not have this common law heritage, but who have an identifiable indigenous minority. Nevertheless, the notion of compensation which has evolved in common law countries paradoxically offers significant hope for the development of a methodology which permits the assessment of compensation for the losses born by indigenous people when their property resources are partially or wholly expropriated. Landmark court decisions in Canada, Australia and Malaysia have been a watershed for the development of this conceptual framework. "As a result, there has been a wide-ranging academic and professional review of land administration practices in many common law countries, especially the area of compensation. The right to just terms compensation enshrined as Constitutional guarantees has provided a guidepost for the development of a more culturally appropriate and inclusive approach to the assessment of compensation for indigenous property resources. "The paper describes continuing research work in this area, which provides hope for a fairer and more just approach to compensation for indigenous peoples in the Pacific and Asia." en_US
dc.language English en_US
dc.subject IASC en_US
dc.subject indigenous institutions en_US
dc.subject property rights en_US
dc.subject water resources en_US
dc.subject land tenure and use en_US
dc.subject compensation en_US
dc.subject valuation en_US
dc.title Conceptualising Native Title as an Analogous Property Right within the Anglo-Australian Land Law Paradigm en_US
dc.type Conference Paper en_US
dc.type.published unpublished en_US
dc.subject.sector General & Multiple Resources en_US
dc.subject.sector Land Tenure & Use en_US
dc.identifier.citationconference Tradition and Globalisation: Critical Issues for the Accommodation of CPRs in the Pacific Region, the Inaugural Pacific Regional Meeting of the International Association for the Study of Common Property en_US
dc.identifier.citationconfdates September 2-4, 2001 en_US
dc.identifier.citationconfloc Brisbane, Australia en_US
dc.submitter.email lwisen@indiana.edu en_US

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