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

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."