Customary land tenure, communal titles and sustainability: The allure of individual title and property rights in Australia

Abstract

In 2006 the Aboriginal Land Rights (Northern Territory) Act 1976 was amended to provide a framework for the conversion of communal aboriginal title, held as inalienable fee simple under the Act, into forms of individual title. Both symbolically and practically this marked a major shift in the political and legal delineation of indigenous land title in Australia. This chapter provides a detailed analysis and evaluation of the form, structure and rationale of these changes, noting that little serious argument was made to support the assumptions underlying the changes: that a model of individual property rights in land will inevitably produce economic, social and political development as an antidote to the social and economic alienation of indigenous peoples within Australian society. These developments are analysed in a broader context of the relationship between customary tenures and settler schemes for land and resource management and the allocation of property rights and interests in land and resources. Some attention is given to subsequent land tenure changes in the Northern Territory and other Australian jurisdictions. The chapter argues that rather than a simple and rigid emphasis on individual titling, a more nuanced and complex set of ideas encompassing local social and cultural dimensions of land tenure and the property relationship is needed if land titling is to advance the economic empowerment of indigenous land title holders. A degree of formality in land tenure coupled with flexible property institutions, and a willingness to engage the social, political and cultural dimensions of the property relationship, might constitute a necessary although insufficient condition for sustainable economic growth for indigenous and local communities.