Fire knows no boundaries and property becomes meaningless

Image: James Wiltshire The Border Mail

The devastating bushfires across Australia in the summer of 2019/20 provide us with a clear message. Australians – people, businesses, and those who govern us – can no longer take our environment for granted. We have been willfully ignoring the signs so far but that must now stop.

There is much work to do in recovery. Rebuilding, refinancing, infrastructure maintenance, counselling – and the immediate and grisly task of dealing with the incomprehensible loss of animal life both native fauna and livestock. The Prime Minister today announced the allocation of $2 billion towards these efforts, to be managed by a bushfire recovery agency. As for revisiting climate policy though? No.

This is an egregious error, I think, based on the accuracy of climate modelling over the last 50 years. 2020 was even predicted as the time our climate chickens came home to roost. But climate policies are only one tranche in a complex system of policy levers that affect how we experience this new climatic world. In this post, I explore our relationship with land.

The 2008 Garnaut Report forecast of extreme weather to be observable by 2020.
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The long shadow of the feudal doctrine of tenure in Australia

Oath of fealty (Middle Ages)

As foreshadowed in my last post, I return with some reflections on Love v Commonwealth: a case currently before the High Court of Australia in which two Aboriginal men, both non-citizens, are arguing against their deportation from Australia. The argument involves interpretation of the ‘naturalisation and aliens’ power in s51(xix) of the Constitution. In a nutshell: if the men are aliens (due to their overseas birth) then the Commonwealth can deport them. If they are not (due to their Aboriginality) then it cannot.

The case inherently involves land: land as sovereign territory, birth in foreign lands, native title, and connection to country. In spelling out the bounds of who is ‘in’ and who is ‘out’ – known in the common law as alienage – the law is concerned very much with place. It is the applicants’ birth out of place that ostensibly empowers the State to exclude these men from its territory. But it is their connection to this place, a connection recognised at law, that warrants a rethinking of the foundations of the relationship between Indigenous Australians and the State.

In common law, land upholds and manifests State power, and one of its iterations is as the law of alienage. However, it is perhaps inevitable that as a property lawyer, when I read the Love case I see the long shadow of the feudal doctrine of tenure.

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Can Australia deport an Aboriginal person?

In the case of Love v Commonwealth, the High Court of Australia is considering submissions by two Aboriginal men born overseas, as to whether the Commonwealth can deport them. Neither man has been naturalised and their overseas birth means that they are not citizens.

While both parties accept that the men are not citizens, the case turns on whether it is possible for an Aboriginal Australian to be an ‘alien’ and therefore liable for deportation from Australia. This is therefore a constitutional matter, rather than a matter falling under the relevant statute. The issues are legally complex, but the case raises important questions that speak to the law’s capacity to regularise the status of the relationship between Indigenous Australians and the State. Of particular interest to me is the possibility of a broader comprehension by the common law of the legal construct under Aboriginal Law, of ‘connection to country’.

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Not a revolution in property investment

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Following my last post about fractionalised land title on blockchain, I’ve been thinking through a number of additional unanswered questions about the proposal. Based on responses and discussions on Twitter, it seems clear that there is no use case for blockchain in this context even though it is possible to roll it out.

Assuming it is rolled out – and it was an announcement by a South Australian government minister that kicked this off – there are myriad issues, I think, with the scheme. This post works through the nature of what is being sold. Is it land? Or something else?

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Fractionalised land title a furphy?

Image result for bricksThe South Australian government has announced the launch of a new system of property investment to be rolled out in Adelaide’s two new residential towers. The system involves ‘fractionalising’ the property into ‘bricklets’ and establishing a market for the bricklets via blockchain technology. According to the press release bricklet owners will have their interest recorded on the blockchain for ‘credibility and trust in the audit trail’. Their interest will also be automatically added to the title.

For readers who know anything about land title, or anything about blockchain, this scheme raises a lot of questions. In this post I try to understand how this proposal would work. Continue reading

Adani Freeholding is a Native Title Matter

Several media outlets reported late last week that the Queensland government had extinguished native title over the Adani coalmine, by granting a freehold estate to Adani. If the State did grant freehold, then certainly the effect is to extinguish native title: the two forms of title inherently conflict with each other, and freehold will always prevail.

The headlines, however, implied that there was something shady about the grant. Many on social media criticised the government for making the grant, apparently seeing it as a ‘pro-coal’ move. This was so despite statements by Mines and Natural Resources Minister Anthony Lynham, that

[the grant] was enabled by an ILUA [Indigenous Land Use Agreement] that was authorised by the native title claimants and registered by the National Native Title Tribunal almost two years ago.

The Adani coalmine has raised a multitude of legal and political issues, all of which intersect and which apparently played a role in this year’s federal election. Mining, royalties, jobs, exports, environmental protection, climate, energy, and not least of all, native title.

For those with environmental concerns, the grant of freehold represents government support for the mine, and is a further blow to attempts to stop it. However, the basis upon which freehold was granted is part of the native title process. Although linked inherently to the mine (as the diagram below illustrates), the freehold grant cannot be seen as the consequence of processes under mining or environmental legislation.

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Wangan & Jagalingou ILUA

The mine is to be located on the lands of the Wangan and Jagalingou (W&J) people, and is part of the W&J native title claim filed in 2004. Because a claim had been lodged, any activities to be carried out on the land became subject to the ‘future acts’ regime of the Native Title Act. This regime gives the W&J people a right to negotiate in relation to those activities. Consequently, Adani entered into negotiations with the W&J people to come to an arrangement concerning the mine. Ultimately, Adani and the W&J people entered into an ILUA.

A few things to note.

First, the ‘right to negotiate’ given to traditional owners under the Native Title Act is good in that it gives standing to communities to have a say in what goes on upon their lands. However, this right gives only limited power to traditional owners. In a serious limitation to the nature of their title, traditional owners do not have the right to veto acts upon their land.

Secondly, the agreement-making process is fraught. I have written about some of these problems here.

Finally, while ILUAs are registered in the National Native Title Tribunal, their terms are not generally public. In the Adani case, the registered ILUA does indicate that it deals with ‘extinguishment, large mining‘. It is therefore apparent on its face that the ILUA did in fact authorise the freehold grant.

Although the W&J ILUA was registered in 2017, the government likely delayed its freehold grant because in the last few years one of the native title claimants, Adrian Burrugubba, has challenged the ILUA in the Federal Court in a series of cases.

Challenge to the ILUA

In 2015, Burragubba claimed publicly that traditional owners’ inability to veto a future act fell foul of the UN Declaration of the Rights of Indigenous Peoples because it precluded free, prior, informed consent.

He subsequently challenged the ILUA in the Federal Court, claiming that it was invalid because of the alleged fraud of the miner. Consequently, he claimed, the decision of the Native Title Tribunal to register the ILUA was also invalid. In 2016, the Federal Court found against Burragubba and the decision was upheld on appeal.

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In a further action decided in 2017, Burragubba challenged the agreement-making process. In particular, his challenge questioned the authorisation of the ILUA where not all of the claimant group had agreed with its terms. Again, he was unsuccessful.

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Because Burragubba’s challenges to the ILUA have failed, the ILUA stands. Because the ILUA appears to permit extinguishment of native title, the Queensland government has acted in accordance with its terms. This is not a political action, or a ‘pro-coal’ action. It is an action arising from the processes of the Native Title Act.

Whether the extinguishment of the W&J native title is fair, or just, is a question that is to be answered by examining the Native Title Act. In particular, we should be asking about the extent that our law vests rights in traditional owners – especially the limitation on native title holders’ right to veto future acts. We should also question the process for agreement-making, with a better and clearer process that reflects Indigenous people’s norms and processes, rather than the technical legalistic requirements currently in the Act.

Water Imbroglio

Infographic of relationships between departments

The current imbroglio over the Commonwealth’s buy back of water from a company formerly associated with a government minister has dominated the news now for some days. Amongst the commentary I have been left wondering about some assertions concerning the water entitlements at the heart of the deal.

Water regulation is an extremely complicated field at the intersection of science, conservation, policy, the market, and politics – and I don’t pretend to be an expert. However, in this very lawyerly post, I try to work out the general operation of the regulatory framework that underpins the drama, to try to isolate the legal questions.

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Time for some blue-sky thinking in legal education

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Subject to the vagaries of air travel, I will arrive in Sydney later today to attend the UNSW Legal Education Conference. I’ll be presenting with my colleagues Alex Steel and Melissa Castan on some work we are doing developing a taxonomy of legal education research. More on that in another post.

In this post, I outline my thoughts on the state of publishing in Australian legal education. I’ll be presenting these as part of a plenary panel at the conference.

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Marriage equality bill straight from the patriarchy

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It’s been a harrowing few weeks for the patriarchy. Having now been exposed, pants down, a number of big names in Hollywood appear to have been cast adrift by new-fangled feminist norms of respect for bodily autonomy, and non-exploitative deployment of personal wealth and power.

It’s so bad, that some ordinary men have taken to their global media platforms to suggest that they will never get sex again, presumably now that they can’t just take what is their right, and wailing that they hope that we women will share the power with the poor old blokes now that we have achieved global domination.

Alas. Were this but true.

The patriarchy in Australia is faring no better. Despite men’s superior earnings, better job prospects, and an implied licence (or so it seems) to sexually harass, there is a rear-guard action to protect the wellspring of patriarchal power – male headship within the traditional nuclear family. Ironically, this is occurring in the context of marriage equality which is after all, nothing more than a quest to entrench the conservative institution of marriage in Australian society.

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Sexual harassment still a problem in the legal profession in 2017

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He sat across my desk, in my office. He looked me in the eye and said,’Did you know that you can tell the colour of a woman’s nipples by the colour of her lips?’

Another used his 120kg of bulk to trap me against a wall at a crowded work function, leering at me.

A co-worker clumsily groped me in a public space at a conference, again and again. I left

A professional colleague handed me a sheaf of his writing, watching me read his poorly written soft porn as we sat in a public cafe.

As I attempted to call our meeting to an end, he stood in my office so as to block my exit from behind my desk. My office door was open at all times.

These are some stories from my working life as a practising lawyer and as a legal academic over 30 years. One of these stories happened this year. I know that other women have it worse.

These experiences came to mind as I read allegations this week, made by three young women lawyers about their experiences working for a senior lawyer. The man allegedly sent the women to fetch his Viagra from the pharmacy, hired based on physical attractiveness, had pornography visible in his office, made sexually explicit comments, and showed a drawing of his penis.

While reading the stories of the three women, I reflected back on my feelings in similar circumstances. At first I thought it was deep shame that I felt – even after all these years. But I suspect that it is in fact fear. I was afraid of the potential of force – of violence – that each of these situations represented. I can only imagine the fear and confusion experienced by the young women who shared their stories.

Remember – this all happened in professional contexts.

I’ve written before about sexism and harassment in the legal profession (and here, and here). The stats aren’t getting better. Those in the legal profession know it is unlawful to sexually harass. Such behaviour breaches discrimination law, and workplace law. For good measure, it also breaches professional ethics. But it continues.

In some quarters, such behaviour is an open secret. This makes us all, the entire profession, complicit. The young women who have made the most recent allegations – and others like them – have thus experienced powerlessness, and maybe those same feelings of fear that I have had, in the face of our complacency.

There are three actions we in the profession must take. Especially senior members of the profession, and especially men.

  • Call out sexual harassment. Expose the open secret by telling the harasser to stop. It’s not banter, it’s not a joke. Tell them straight just to stop. Team up with others and together tell the harasser that it is unacceptable behaviour in your workplace. Use the power of our professional culture for good, and turn things around.
  • Support the person on the receiving end of the harassment. Ensure that they are supported by others. Shut down gossip. And, do not be that gossip. Hard, I know, in a gossipy profession. But gossip adds to the complicity.
  • I think we need to look to the overall culture of the profession, and our tacit acceptance of such behaviour – and to look for action outside discipline as a first call. However, if they don’t stop, report the behaviour to your professional body. And call the professional body to account if it fails to act.

If such actions are reported to you, it’s not enough just to support the complainant. You must deal with the alleged harasser too. In my own case, I have been personally well supported by men – but in some cases the man about whom I have complained has not been censured, and his bad behaviour continues.

It is therefore our responsibility as employers, and as colleagues, to alert the man to his poor behaviour, to let him know that it is unacceptable, and to sanction it. Otherwise, we know that it will continue. And we will see yet another generation of lawyers suffer the same fate.

I can’t believe I’m writing this. In 2017. About lawyers. But here it goes.

Please. Stop sexual harassment. Do not continue to be a bystander.