The difference between a rented house and an owned one is usually obvious. Owners take greater care. They improve and maintain. The difference between a house rented by a couple and a group house is perhaps more profound. The latter frequently descends into a slum as each occupant can blame another. Moreover, with each occupant having less ownership there is less incentive to improve, clean and maintain.
Alas, that has often been the case with native title. Communal title seems wonderful, but defies human nature. It might work in the face of adversity when the community gets together to survive. But when the basics are met, it holds back economic progress. Communal title in Soviet Bloc countries, for example, failed.
Native title in Australia has got some major drawbacks – most significantly, the land cannot be mortgaged. So where does anyone get the money to build their own home or start a business?
The proposal this week for changes to the way Indigenous people hold land in the Northern Territory would change that.
Warren Mundine, a member of the Prime Minister’s National Indigenous Council, called for a system of 99-year leases – similar to ACT tenure – for individuals on what is now communally owned land.
It seems to me that nothing in this proposal contradicts the fundamentals of native title. The experience I had in 1993 on Mer (or Murray Island) where the Mabo case began shows this sort of title is more in keeping with the native title described in the Mabo than the communally held land on the mainland. More of that anon.
Bear in mind there are two sorts of Indigenously-held title in Australia. The first is peculiar to the Northern Territory and was created by the Federal Parliament by the Aboriginal Land Rights (Northern Territory) Act 1976. Under it, Aboriginal groups could make a claim for unalienated land – land not sold or leased by the Crown after white settlement. They had to prove customary links and usually continuous occupation. A land rights commissioner would then put the land in trust held by a land council for the benefit of the claiming Indigenous people and their descendants.
The second sort of title is common-law title, first formally recognised in the Mabo case in the High Court in 1992. The Mabo case said that the change of sovereignty in 1788 did not take away indigenous interests in the land. It meant that after 1788 the Crown could grant freehold or otherwise dispose of the land and indigenous people could do nothing about it. But now the Crown (or Australian Governments) can no longer do that. The Commonwealth has always been prohibited from doing it without granting compensation – under the just terms clause of the Constitution. And the States cannot do it because it would be a breach of the Racial Discrimination Act 1974.
Land held under the Northern Territory Act could easily be converted under the Mundine plan. It is a matter of federal legislation – just like land tenure in the ACT. The Land Councils will scream about destruction of native title, but one should bear in mind that a lot of power and bureaucracy have developed around the land councils in the past 30 years, so some people have a lot to lose.
Mabo land is slightly trickier. The Native Title Act has given legislative recognition to what was a common-law title. There might be some constitutional difficulty in changing that legislation to provide for the Mundine plan of 99-year leases for individuals. Even though all the 99-year leases would go only to individual Indigenous people, it still might constitute an extinguishment of native title thereby requiring compensation under the just-terms provisions of the Constitution, or it might render the legislation invalid if it did not provide for that compensation.
However, if the indigenous people themselves found a way to carve out 99-leases on communally held land, it might work.
Something like this happens on Mer. On Mer, individuals are recognised as owners of particular parcels of land, usually marked out by partially buried giant clam shells. In 1993 I witnessed a “conveyance” of a parcel of land to a family member of the deceased previous owner. The individual plots on Mer seemed to be well looked after.
If you go back to the Mabo case, individual ownership is allowed for.
Justice Gerard Brennan, for example, said: “A mere change in sovereignty does not extinguish native title to land. The term ‘native title’ conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants.”
“Traditional customs” are not immovable in the face of new circumstances. It may well be that the experience of invasion, white settlement and welfare gone wrong that Indigenous people decide to change the way they exercise native title and allow individuals among themselves exclusive rights to some parcels of land – as in Mer. Indigenous people would have to do it themselves, which is no bad thing.
It may well be that that exercise could get legislative recognition which is turn would allow a form of mortgage to allow for individuals to build individually owned dwellings with the underlying title still being held as native title, in the same way that people in the ACT in effect own their dwellings with the underlying title being owned by the Commonwealth.
In any event, it has got to be an improvement on the present system of housing shortages in Indigenous communities, overcrowding and lack of incentive to repair and maintain dwellings with the consequence that many Indigenous people flee to the city where things are not much better for many of them.