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Compensation for the Taking of Indigenous Common Property: The Australian Experience

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Type: Conference Paper
Author: Sheehan, John
Conference: Constituting the Commons: Crafting Sustainable Commons in the New Millennium, the Eighth Biennial Conference of the International Association for the Study of Common Property
Location: Bloomington, IN
Conf. Date: May 31-June 4
Date: 2000
URI: https://hdl.handle.net/10535/460
Sector: Land Tenure & Use
Region: Pacific and Australia
Subject(s): IASC
common pool resources
indigenous institutions
land tenure and use
property rights
traditional resource management
indigenous knowledge
Abstract: "Indigenous common 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. Indeed, Western spiritual and cultural value systems, and especially 'scientific' land management techniques, have exhibited far less resilience and appropriateness. "In the face of increasing evidence of the environmental and climatic impact of Western approaches to the utilisation of property resources, there is an increasing recognition of the need to introduce regimes of property titling and land use management which meld the most evident desirable features of both Western and indigenous approaches. "Concomitant with this change in attitude towards property rights, there has been an increasing recognition in common law countries such as Australia, that when indigenous common property resources 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 racial discrimination counter to international obligations such as the United Nations Draft Declaration on the Rights of Indigenous Peoples. "Nevertheless, the assessment of compensation for the diminution, impairment or extinguishment of indigenous common property resources has proved to be a chimera for Australian valuation law and practice. It is alleged in some quarters that fundamental compensation issues have stubbornly resisted resolution because of the communal nature of many indigenous property resources. 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 Western style economic development. "This pattern is repeated in many other states in the South Pacific, such as Papua New Guinea and Kiribati. "The conceptual framework within which compensation has evolved in anglo-Australian land law 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 common property resources are partially or wholly expropriated. The landmark Mabo decision of the High Court of Australia was a watershed in the development of a home-grown land law in Australia. "As a result, there has been a wide-ranging academic and professional review of many areas of land administration practice, especially land use regulation and, the closely related issue of compensation. Current developments in the area of Australian valuation law and practice show that the right to 'just terms' compensation enshrined in the Australian Constitution have their genesis in the American Fifth Amendment. Such a heritage has provided guideposts for the development of a more culturally appropriate and inclusive approach to the assessment of compensation for indigenous common property resources. "The paper describes groundbreaking research work in this area, which provides hope for a fairer and more just approach to compensation for indigenous common property resources."

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