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.

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’

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:

https://www.thecustomarylandpodcast.com

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.

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. 

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.

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.