A Just Integration of Western and Customary Land Rights in Australia

Abstract

The Wik people of north eastern Australia have successfully argued for recognition of their customary ownership claims over land under state leasehold title. Their success initiated a reaction from the tenants that was grounded more on the fear of losing extra-legal benefits customarily attached to state leasehold title than concern over the rights of indigenous people. To untangle Western extra-legal customs regarding property rights and the question of indigenous rights, a strategy for amortizing the Western extra-legal interests is suggested. Amortizing the Western extra-legal interest is in the interests of the Western community regardless of indigenous customary ownership claims. The methodology adopted is grounded on deductions from the implications of the notion of ownership and a respect for natural justice.

Valuation of the interests to the tenants, indigenous owners, and the Western community is considered conceptually along with some practical issues in resolution. Each of these may be inferred from their natures. If the occupier is subject to market rentals, then the market will price the tenant’s contribution, regardless of the land ownership. It is suggested that the net indigenous customary interest can be related to the traditional value of the land as a source of material support. This would account for only part of the current market rental. The remainder can be explained as largely flowing from the contribution of the Western community and infrastructure. To recoup this for the community that created it, a special land tax over indigenous customary titled land is suggested. This would leave indigenous customary owners with the difference between rental income and land tax. Such an arrangement could eliminate indigenous people from welfare dependency and return to them a degree of self-determination.

Control of land use is an important aspect of ownership and one sorely missed by indigenous customary owners. The inclusion of indigenous peoples in the planning process with a right of veto, either formally or through their position as leasers, has the capacity to overcome this problem, without the need for them to become the occupiers on the land in the Western sense.