All posts by Customary Land Solutions

About Customary Land Solutions

Customary Land Solutions is a specialist transdisciplinary consultancy with the vision of equity for customary landowners. Our mission is to provide advocacy, advisory and capacity building solutions to customary and indigenous landowning groups and trusts on land management, leasehold, valuation and resource compensation issues.

Lessons from Timber Creek

This week I sit down with Prof. John Sheehan AM to reflect on and explore lessons from the Timber Creek case in the latest episode of The Customary Land Podcast.

Our far-reaching discussion includes recognition (and extinguishment) of inalienable customary land rights, which are precarious, Native Title, s.51 xxxi of the Constitution of Australia (‘just terms’ compensation), and the relationship to the UN Declaration on the Rights of Indigenous People’s.  The Timber Creek case provides helpful guidance about compensation (for extinguishment) that recognises the ‘cultural loss’ relating to the indigenous connection to the land (rather than ‘solatium’).

Full High Court of Australia background to the Timber Creek case can be accessed here.

The Judgement of the High Court in the Timber Creek case is here.

John also refers to his co-authored paper with Jasper Brown and Kenneth Rayner ‘On solatium: towards a rethinking of compensation‘.

For those who prefer to watch a video version, it is provided here.

Who ‘Owns’ Customary Land?

In this episode of The Customary Land Podcast we explore who ‘owns’ Customary Land… and it isn’t as obvious as you may think!

The episode is built around an article that I co-authored with a former lawyer colleague, Krishn Shah, in which we explored customary land ownership using Fiji as a case study. Using Fiji is helpful, as Native Land Records have been kept since the time of the Deed of Cession to Queen Victoria in 1874. This sets Fiji apart from its Pacific neighbours, as well as many over Indigenous groups. Moreover, since 1940 indigenous ‘landowners’ in Fiji have had their surplus land managed by the Native Land Trust Board (now the iTaukei Land Trust Board), meaning the customary ‘landowners’ have benefited from having legal and property specialists representing then in all land dealings.

Paper by Spike Boydell & Krishn Shah
‘An inquiry into the nature of land ownership in Fiji’

Paper by Joeli Balendrokadroka
‘The Fijian Understanding of the Deed of Cession Treaty 1874’

If you prefer to watch, rather than just listen, you can view the podcast episode here.

Let’s talk about Customary Land…

So the first episode of The Customary Land Podcast is ‘live’ in your favourite podcast player (or click the link. In this episode we introduce ‘Customary Land’ and use land related Articles from the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP 2007) to explain its importance in contemporary society. And yes, there is also a video version for those who prefer to watch rather than listen…

It’s been a while…

It is almost four years since we posted on the Customary Land Solutions website!

But that is about to change. The website will be going through some ‘refreshing’ and ‘updating’ over the next couple of months.

Meanwhile, we are launching The Customary Land Podcast on 1 March 2023 as a way to discuss and socialise land issues. The aim is to publish every couple of weeks… but don’t hold us to that. Several episodes are already in post production. You can find out more and listen to the trailer by clicking Podcast in the menu bar, or following this link:

…or even watch a video version here.

The Timber Creek Case – Property Rights Insights – Boydell & Sheehan 20 March 2019

In this launch episode of Property Rights ‘Insights’ I take the opportunity to discuss the High Court of Australia Decision of 13 March 2019 in what is known as the ‘Timber Creek Case’ with my colleague Professor John Sheehan AM. The High Court upheld Justice Mansfields approach to recognising ‘Customary Value’ as a major component of compensation under the Native Title Act. John has been involved in many Native Title Assessments for compensation on indigenous land over the last 20 years and in many ways the Timber Creek Case, which is the first compensation case of its kind to navigate the Federal Court system, serves to validate his approach to solatium, special indigenous value, or ‘cultural value’ as it is called in this case. We also discuss the applicability to this Australian High Court decision for customary land owners in other countries.

Our conversation should he viewed in conjunction with the full decision, which can be accessed at

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples
Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples
Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory

13 March 2019

D1/2018, D2/2018 & D3/2018

Comments are turned off for this video. If you want to discuss the case further with John or I, please reach out to us via Contact us or via

15 years on, Siwatibau’s wisdom on land tenure in his SPLTC Symposium welcome address remains as valid as ever.

Transforming Land Conflict – FAO/USP/RICS Foundation South Pacific Land Conflict Symposium Welcome Address by the late Savenaca Siwatibau, Vice Chancellor, University of the South Pacific – 10 April 2002.

The video can also be viewed in YouTube at

Caveat: this was recorded live in Fiji in 2002 on VHS – the video aspect is 4:3 and there has been some deterioration in the magnetic tape so please be patient with screen flickers.

The full transcript is available Savenaca Siwatibau – Welcome Address – SPLTC Symposium – Full Transcript (opens PDF).

The Symposium ‘Declaration and Resolutions’ is available her SPLTC Symposium – Official Declaration and Resolutions (opens PDF).

Ulai meets Pope Francis to talk about Indigenous Land Rights

Ulai Baya (3rd to Pope Francis’ right)

Last week Ulai was in Rome to participate in the Third Global Meeting of the Indigenous Peoples´ Forum at IFAD The International Fund for Agricultural Development (IFAD), a specialized agency of the United Nations, is dedicated to eradicating rural poverty in developing countries. Ulai is the Pacific Regional Representative, which enables him to make the case for the rights of customary landowners on the World Stage.

In a private meeting with indigenous peoples’ representatives, Pope Francis stressed the need to  reconcile development, both social and cultural, with the protection of indigenous peoples and their territories, “especially when planning economic activities that may interfere with their cultures and their ancestral relationship to the earth”. 

“In this regard, the right to prior and informed consent should always prevail,” Pope Francis said. “Only then is it possible to guarantee peaceful cooperation between governing authorities and indigenous peoples, overcoming confrontation and conflict.”

See IFAD press release  Development should consider indigenous cultures and their relationship to the earth.

See NBC news item Pope Francis Says Native People Have Rights Over Their Lands.

Vatican Pope US Pipeline
Pope Francis, standing at right, meets with representatives of indigenous peoples attending a UN agricultural meeting in Rome, at the Vatican, Wednesday, Feb. 15, 2017. Francis has insisted that indigenous peoples must give prior consent for any economic activity on their ancestral lands — an indirect critique as the Donald Trump administration seeks to advance construction on a $3.8 billion oil pipeline over opposition from American Indians. (L’Osservatore Romano/Pool Photo via AP). Ulai Baya seated 3rd from right of camerman.

Land, Indigenous People and Conflict

Spike Boydell is General Editor of the Routledge Complex Real Property Rights book series.

The first book launced in the series is Land, Indigenous People and Conflict edited by Alan Tidwell and Barry Zellen. 9781138847637

As Spike explains in his foreword for the volume:

Real Property Rights are central to the economy and provide a legal framework for how society (be it developed or customary) relates to land and buildings.  Property rights are both institutional arrangements and social relations. We need to better understand property rights to ensure sustainable societies, careful use of limited resources and sound ecological stewardship of our land and water.

Land conflict is all around us – from corporate and political corruption over land dealings in the developed world, to land grab in developing countries, to compromised indigenous property rights, to resource exploitation. At a time where global food security, water security and shelter are paramount, an understanding of property rights is key to sustainability.

Contemporary property rights theory is dynamic and this series strives to engage thinkers who are prepared to step beyond their disciplinary limitations.  ‘Property Rights’ is a broad term that is fundamentally about social relations.  Real property rights, obligations and restrictions can be found in and change across the full range of human societies, both in time and space. Property rights research has emerged from a broad range of disciplines including (but not limited to) archaeology, anthropology, ethics, sociology, psychology, law, geography, history, philosophy, economics, planning, and business studies.

Much writing on property rights has, historically, been mono-disciplinary.  A disciplinary approach has caused a plurality of understanding about property rights that extends significantly beyond the dominant legal / economic divide.  Disciplinary thinking has not minimised or helped to manage / limit land conflict.  What makes this series special is that it facilitates a transdisciplinary approach to understanding property rights and will specifically encourage heterodox thinking.

Land, Indigenous Peoples and Conflict’ is the appropriate title with which to launch the Routledge Complex Real Property Rights series.  As the editors of this volume, Alan Tidwell and Barry Zellen have brought together an eclectic collection of authors who mutually share a depth of insight into contemporary conflicts over indigenous land. 

Land, Indigenous Peoples and Conflict’ has several distinguishing features. Primarily, it is transdisciplinary in nature. Any discussion of the link between land, indigenous peoples, and conflict necessarily requires drawing on ideas, concepts and principles from such disparate disciplines as cultural anthropology, political science, sociology, economics, just to name a few. Taking a transdisciplinary approach helps the authors connect theory to observed reality, which in turn gives traction to inform potential policy outcomes.

A second distinguishing feature of ‘Land, Indigenous Peoples and Conflict’ concerns the geographic breadth of coverage of the edited volume, spanning from the Arctic to the tropics and including mainland Asia as well as the Austro-Pacific islands; both North and South America; northern Eurasia (Siberia), as well as Africa. Touching upon a geographically broad range enables readers to become more generally acquainted with the diverse property rights challenges indigenous peoples face. A third distinguishing feature of ‘Land, Indigenous Peoples and Conflict’ is its emphasis on both land rights as well as identifying the many ways in which conflicts are managed or resolved.  Uniquely, ‘Land, Indigenous Peoples and Conflict’ provides a breadth and depth to the question of indigenous land conflict not found in other texts.

For more information on this book, and others in the series, please click here.

3 new research papers on Customary Land

Three new research papers have just been added to our Research page.

Using the Plurality of Registers to Investigate Conflict over Customary Land‘ attempts to articulate the disconnected worldview between indigenous values and capitalist interests. This paper critically examines the tensions that result when common law attempts to establish a commercial rights (i.e. a property right) over customary land.

Demystifying the Valuation of Customary Land‘ breaks sown the myths and mystique that surrounds the valuation of customary land.  Whilst appreciating that the inalienable notions of land held by the customary stewards (or guardians) is very at odds with the commodity view of the West that emphasises individual ownership, we attempt to deconstruct these tensions associated with social and economic value through a property rights approach.

Towards the Valuation of Unregistered Land‘ reports on an ongoing UN-Habitat/Global Land Tools Network initiative we are involved with that strives to facilitate the valuation of unregistered land (which forms 70% of land ownership in developing countries).

We hope that you find them useful.

CASLE / UTS: APCCRPR / IAAPLPR Pacific Regional Symposium a huge success

Over 50 delegates participated in the CASLE / UTS: APCCRPR / IAAPLPR Pacific Regional Symposium on Land and Property Rights in the South Pacific in Honiara, Solomon Islands, last week (5-7 August 2014).  Hosted by the Solomon Islands Government Ministry of Lands, Housing and Survey, and with a £6,500 grant from the Commonwealth Foundation, the symposium was facilitated by four members of the UTS: Asia-Pacific Centre for Complex Real Property Rights: Prof. Spike Boydell, Prof. John Sheehan, Ulai Baya and Mike McDermott.

Honiara CASLE Symposium August 2014 Hon Manasseh Maelanga MP - opening address
Deputy PM, the Hon Manasseh Maelanga MP, opens the Symposium on 5 August.
L-R: Mike McDermott, Prof John Sheehan, Stanley Waleanisia, Hon Manasseh Maelanga, Prof Spike Boydell, Ulai Baya, Buddley Ronnie.

There was heated debate about Climate Change and land issues in the Pacific Region, Land Resource Compensation, Using Property Trusts and Leases to support Customary Landowners, and Carbon Property Rights. Each session had a workshop component (see photos below) and there were two comprehensive case studies on Land Compensation (Tina Hydro team) and Land Policy Intervention (Vanuatu Land Program team).

For more video, images and the delegate resource pack, please click on the CASLE / UTS: APCCRPR / IAAPLPR Symposium page (tab above).

Honiara CASLE Symposium August 2014 Mike in HBA mode Honiara CASLE Symposium August 2014 HBA workshop 12 feedback Honiara CASLE Symposium August 2014 HBA workshop 11 feedback Honiara CASLE Symposium August 2014 HBA workshop 10 feedback Honiara CASLE Symposium August 2014 HBA workshop 9 feedback Honiara CASLE Symposium August 2014 HBA workshop 8 feedback Honiara CASLE Symposium August 2014 HBA workshop 7 feedback Honiara CASLE Symposium August 2014 HBA workshop 6 feedback Honiara CASLE Symposium August 2014 HBA workshop 5 feedback Honiara CASLE Symposium August 2014 HBA workshop 4 feedback Honiara CASLE Symposium August 2014 HBA workshop 3 Mike McDermott explaining HIDEGRE Honiara CASLE Symposium August 2014 HBA workshop 2 Mike McDermott explaining HIDEGRE Honiara CASLE Symposium August 2014 HBA workshop 1 Honiara CASLE Symposium August 2014 Gregory Rofeta, Undersecretary (Admin) MoLHS - leads HBA workshop Honiara CASLE Symposium August 2014 Day 2 - MC Nelson Naoapu, Undersecretary (Technical) MoLHS Honiara CASLE Symposium August 2014 CASLE Regional VP Buddley Ronnie in workshop mode