New Dimensions in Land Tenure-The Current Status and Issues Surrounding Native Title in Regional Australia

By Mannix, Jude; Hefferan, Michael | Australasian Journal of Regional Studies, September 2018 | Go to article overview

New Dimensions in Land Tenure-The Current Status and Issues Surrounding Native Title in Regional Australia


Mannix, Jude, Hefferan, Michael, Australasian Journal of Regional Studies


1. INTRODUCTION

A key but arguably underappreciated foundation of the Australian legal, business and community systems, is the highly reliable and successful way in which land tenure and ownership are organised and dealings are managed. These arrangements, in effect, identify and detail each and every parcel of land that has been alienated from the Crown noting its ownership and any significant dealings with that land, all recorded with the public registrar in each state (typically called a 'Titles Office'). These records, all referring back to that identified land parcel, provide definitive proof of such matters. In parallel, each state has established registration systems for those alienated lands held through crown leases.

The structure for freehold land holdings, known as the Torrens System, was first established in South Australia in 1858 and thereafter was adopted not only in the other Australian states and territories but across many OECD countries. In over 150 years, the system has proven simple, accurate and reliable and, of critical importance in such matters, enjoys the confidence of the business and wider community (Mackie et al., 2011). Its longevity, without significant change, attests to this success.

The recognition of Indigenous rights to land, (that is 'native title'), followed the High Court of Australia's Mabo (1992) and Wik (1996) decisions. These, in effect, set aside the 'Terra Nullius' principles upon which 'European' ownership claims and, thereafter, tenure systems were originally based. Despite early confidence in the development of native title as a new property right at common law, Indigenous groups and practitioners involved in the negotiation of compensation for the loss of these interests have continued to grapple with novel and complex issues in applying both legislation and regulation (Song, 2014; Flynn, 2017). Native title as a 'new' property right could be perceived as a challenge to existing property rights, especially where native title co-exists with other rights and interests in land, for example pastoral interests. Such a situation highlights the importance of stable and well understood land use tenure arrangements (Fletcher, 2002; Gerritsen et al., 2018). Remarkably, little is offered by way of specific guidance through policy, precedent, or professional practice notes (De Soyza, 2017a; McGrath, 2017).

While native title can potentially impact lands in any geographic area, regional locations are, in practice, much more likely to be affected given, among other things, the significant proportion of unalienated lands and the higher proportion of Indigenous residents within those areas.

Nearly one third of the Australian land mass is recognised as having a positive determination of native title, either exclusive or non-exclusive (AIATSIS, 2018). This figure does not include the substantial Aboriginal Land Trust areas or the 67 million hectares of Indigenous Protected Areas which together sum to an even larger portion of the Australian continent (Gerritsen et al., 2018; Australian Government, 2018.). As illustrated in Figure 1, nearly all native title and Aboriginal Land Trust areas are located in regional or regionally remote areas of Australia.

Typical economic development initiatives, such as those proposed by the Australian Government in its Northern Australian agenda, tend to favour enterprises from outside of the region in which the project is located, with the resulting economic benefits flowing to the southern states of the Nation. This situation is particularly pronounced for Indigenous communities whose land is often required for such projects (Gerritsen et al., 2018). Recent research findings indicate that localised economic development can bring greater benefits to the local community (Productivity Commission, 2017). A bottom up approach to economic development, that engages local communities in the design and delivery of projects, could work to reverse the current situation where inclusive land use planning is nearly non-existent in remote Australia (Gerritsen et al. …

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