Secure tenure for home ownership and economic development on land subject to native title
Secure tenure for home ownership and economic development on land subject to native title Report
AIATSIS Research Discussion Paper
- Author(s): Ed Wensing, Jonathan Taylor
- Published: 2012
- Publisher: Australian Institute of Aboriginal and Torres Strait Islander Studies; Native Title Research Unit
- Volume: AIATSIS Research Publications
Abstract: In Australia the focus of the public policy debate on land rights has shifted from the struggle of Indigenous peoples to have their pre-colonial possession of land recognised to how reinstated rights and interests in land might be exercised to fulfil Indigenous peoples’ own aspirations, including for economic development and home ownership. Those people who have had their native title rights and interests in land legally recognised are contemplating the implications for their future prosperity. They are pondering the types of investments they can make to develop their land for social and economic purposes, the use and development rights they might temporarily exchange for income, or, as a last resort, the rights and interests they are prepared to relinquish in return for compensation This paper begins by providing a brief overview of the ‘reserve’ form of land tenure prevalent in WA and the constraints it imposes on residents whom this form of tenure is intended to benefit. We discuss the Aboriginal land tenure reforms promoted by the Australian Government to facilitate private home ownership in remote Aboriginal communities, and the relationship between property ownership and the forms of social and economic development this reform agenda implies. The relationships between land tenure and pathways to sustainable economic development are then explored further, and two schools of thought are investigated. The first stresses the importance of private property rights as a means of participating in the market economy. The second seeks to reinstate the significance of collective forms of land tenure security when considering the rights of Aboriginal peoples to pursue a development pathway of their choosing. We then look at the constraints on dealing with land subject to native title rights and interests. We note that, under current statutes and case law, native title rights and interests must be surrendered and extinguished in order for such lands to be transferred into absolute fee simple (freehold) or leasehold title (where there is an intention that the new form of title is for the exclusive possession of the new title holder). The implication is that native title holders are unable to use their property rights to participate in the modern economy in the same way as other property holders. This means that different approaches within existing land tenure frameworks will be required to deliver more equitable opportunities for Aboriginal people to achieve home ownership and/or undertake other economic development of their lands while continuing to own and manage this property collectively. Finally, we explore a range of mechanisms for ensuring that former Aboriginal Lands Trust (ALT) land granted in compensation for the permanent loss of native title rights and interests will yield the best possible returns and benefits for the former native title holders and their descendants. The discussion has a particular emphasis on sustainable tenure outcomes in which the concept of ‘subsidiarity’ is applied. This concept implies that responsibility for making decisions about land and property assets rests with the smallest (or the lowest) entity capable of carrying the risks associated with housing and economic development.