SINCE 1992 with the decision of the High Court in Mabo recognising native title, there has developed an increasing understanding that native title and indigenous cultural heritage represent a suite of property rights which have not only spiritual and cultural worth, but also attract compensation.
Professor John Sheehan who has been described as Australia’s foremost authority on the assessment of compensation for native title has been increasingly sought out to provide an underpinning to many native title compensation negotiations. John’s disciplinary background is three fold, covering undergraduate studies in land economics (valuation), and post graduate studies in land use planning, urban studies and environmental law.
Between March 2001 and 2004 he was President of the NSW Division of the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists), and was appointed in January 1997 as the Institute’s National Native Title Spokesperson, a position he occupied for seven years. He has completed extensive research into the subject of Indigenous property rights and has had published a formidable array of articles and monographs on the topic, and regularly lectures in Australia and overseas. He has provided evidence in Hearings before national Parliamentary Inquiries on behalf of the Institute since 1997 on matters pertaining to native title.
As a result, Professor Sheehan has been briefed over the past decade to undertake some of the earliest work of assessing compensation for the extinguishment of native title in many parts of the Australian continent by traditional owners, government infrastructure agencies and mining companies. In most cases he has been jointly briefed by the parties, a recognition of his unique expertise in this area. In 1998 John was appointed a Member of the Land Tribunal, Queensland for a term of five years, and was the only interstate Member of that body which operates pursuant to the Aboriginal Land Act 1991 (Qld). In 2005 he was awarded a Life Fellowship of the Australian Property Institute, and was honoured by the Faculty of Law, Haifa University, Israel as a Visiting Professor, a sessional position he assumed in November 2006. In March 2008, he was appointed Adjunct Professor and Deputy Director of the Asia Pacific Centre for Complex Real Property Rights, Faculty of Design, Architecture and Building, University of Technology Sydney. Subsequently in 2015, John was also appointed Adjunct Professor with the Faculty of Society and Design, Bond University.
Between January 2007 and January 2009 he was appointed for two one year terms to the Land and Environment Court of NSW as Acting Commissioner to exercise the jurisdiction of the Court under the Aboriginal Land Rights Act 1983 (NSW) and other jurisdictions.
John believes that native title as a valuable property right presents a range of important challenges for the assessment of compensation when native title is impaired or extinguished due to compulsory process. Legal research traditionally focuses on the identification of either principles or specific reasons for a decision through interpretation of statutes, common law, case law, legal commentary or refereed articles in law journals. This research approach is at odds with the need to assess compensation for native title which sits a broader jurisprudential level. This situation arises because native title derives from a traditional system of property definition, titling and management which is not due to British sovereignty. Native title requires an extraordinary depth of research crossing over various disciplines including anthropology, ethnography, archaeology, sociology, property law and rights, and land economics (valuation).
Native title presents a significant conundrum to the compensation assessor as a disaggregation of rights in a particular native title has to be undertaken to permit the impact of the extinguishment or impairment to be assessed, and hence a quantum of resultant compensation calculated. To assist this disaggregation approach, Professor Sheehan has developed over the past decade and a half a methodology which addresses not only those incidents of native title which are evident in Anglo-Australian property law but also other ephemeral values such as spiritual and cultural attachment. John argues utility and commodity values embedded in native title can be relatively easily ascertained, however particular spiritual and cultural incidents are less easy to ascertain often due to a lack of physical evidence. The value of traditional knowledge supported by anthropological discourse is utilised by Professor Sheehan in ascertaining spiritual and cultural values.
Given this background of unique experience in native title compensation, in 2009 John was approached by Professor Oren Yiftachel, of Ben Gurion University of the Negev in Be’erSheva, southern Israel to meet with the Bedouin Council regarding the ongoing dispossession of those Bedouin still residing in the Negev desert. Professor Sheehan advised the Bedouin Council there was a remarkable similarity between the property rights of the indigenous Bedouin of the Negev desert to some Australian Indigenous peoples who maintain elements of a semi nomadic or semi sedentary way of life.
The link between Australia and Israel is more similar than what may be publically understood. While colonial New South Wales was occupied by British settlers from 1788 onwards, Israel became the subject of the League of Nations Mandate given to the British in September 1922. Indeed British common law arguable emerged in what was known as the Palestine Mandate in 1917 with the conquest of Ottoman Syria, by the British forces, part of which would become known as Palestine / Israel.
When Israel became independent in 1948 there were not only Jewish and Arab settlers in the new country, but also Indigenous peoples primarily located in the southern areas of the country which is known as the Negev or Naqab desert. The Bedouin are a traditional nomadic people whose range extends from Syria through Jordan and into southern Israel and elsewhere. Biblical narrative indicates Israel was nominated as the Jewish homeland, however archaeological studies are slowly revealing that the Bedouin are probably the oldest surviving occupants of this part of the Middle East. The status of the Bedouin in Israeli society remains dichotomous – they have been recognised as Israeli citizens since 1948 whilst their children serve in the military for the state of Israel.
Yet, they are trespassers on their traditional lands in the Negev desert as they have no property titles which are recognised by the state of Israel. An enormous similarity exists between the plight of the Bedouin today and Australian indigenous peoples a heartbeat before the handing down by the High Court of the Mabo decision in 1992. Australian Indigenes were also trespassers on their traditional lands and would have remained so had not the High Court decided Australian common law should recognise their pre existing occupancy.
What then is the parallel between the current development of a pioneering land rights claim by the Bedouin of the Negev desert, and Australian native title jurisprudence and compensation practice? The answer lies in the fact Israeli and Australian land law are rooted in part at least in British common law. Countries such as Australia, Canada and Malaysia share this common law heritage, as does Israel. In the Mabo decision, considerable weight was given to the 1975 Advisory Opinion of the International Court of Justice in the Western Sahara case, which effectively threw out the notion of terra nullius (uninhabited territory). In addition the Racial Discrimination Act of 1975 removed any capacity to legally discriminate on race. These two coincident moments in history enabled the Australian High Court to closely consider the land laws of the Meriam people of the island of Mer in eastern Torres Strait. It was clearly evident to the Court that traditional institutions of land definition, titling and management existed on Mer, albeit not sourced from a British Crown Grant.
The land was not uninhabited nor was the rest of continental Australia, and subsequently it has been revealed that indigenous property rights and interests recognised as native title by the Australian common law have survived in many parts of the continent. The parallel between the Bedouin of the Negev desert and Australian indigenes is indeed quite remarkable. The ongoing dispossession of Israeli citizens who are Bedouin proceeds on the basis that these indigenous people have no right at all to their traditional lands. Subsequent to a second meeting with the Bedouin Council in November last year Professor Sheehan visited the village of Al-Arakib which had been destroyed by the Israeli authorities a few days earlier as had a nearby productive Bedouin farm at Abu-Ziad. The farm comprising six hundred fifteen year old olive trees and a vineyard was owned by Bedouin Mohammed Abu-Ziad at least since 1948. The land remains his family’s traditional area, however this is not recognised by the Israeli authorities who regard the area as legally uninhabited.
The demolition of Bedouin villages in the Negev desert continues apace and there appears to be a significant concerted effort to “solve” the Bedouin problem once and for all. The demolitions at Al-Arakib village and the farm at the Abu-Ziad have been the subject of a televised report by journalist Amos Roberts on SBS Dateline 27 March 2011. Professor Sheehan is interviewed in the story and expresses the view that the traditional definition of Bedouin land holdings is capable of recognition under Anglo – Israeli common law in the same manner that the Australian High Court did in 1992.
A team of advisors is being assembled under the guidance of Professor Oren Yiftachel, of Ben Gurion University to advance through the Israeli courts a pioneering land claim for land near Be’erSheva, which is in the traditional ownership of a very determined Bedouin tribal leader, Nuri Ekobi. Nuri has been arrested numerous times by the Israeli authorities as he has tried to camp on his traditional lands- the title to which is not recognised by the state of Israel.
Using the principles of Australian native title jurisprudence and compensation practice, much effort has been given to compiling a sound documentary case for Nuri Ekobi’s right to his traditional lands. It is anticipated that if the land claim reaches the Israeli Supreme Court the highest court of the land, the precedents in other high courts in the common law world will have a strong persuasive influence. It is to this end that John Sheehan has worked with the Bedouin of the Negev desert in an unexpected product of Australian native title expertise.
Professor John Sheehan AM.
Deputy Director, Asia Pacific Centre for Complex Real Property Rights and Adjunct Professor, University of Technology, Sydney.
Adjunct Professor, Faculty of Society and Design, Bond University.
Former National Native Title Spokesperson and Past New South Wales Divisional President, Australian Property Institute.
Australian Property Journal