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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The trouble with the McGlade amendments to the Native Title Act

Lump-o-coal

The dominant discourse in native title amendments is that of … coal?

In June 2015, the Australian Law Reform Commission handed down its final report into the Native Title Act. Amongst its recommendations was the amendment of provisions for the process of authorising Indigenous land use agreements (‘ILUAs’).

Coinciding with the ALRC Report, the Northern Development White Paper proposed a fund to settle all native title claims within a decade.

There has been no response to either the Report and the White Paper that might indicate just how native title processes might be improved, let alone settled, in the short or medium term. All of a sudden however, native title reform is back in vogue. But the heat of debate over proposed changes to ILUA authorisation masks what is at stake.

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A new state? Think creative governance instead

Word on the street (ie all over mainstream news outlets, on social media and in pubs across the north) has it that there is a push for a new state of North Queensland. A new state, they say, that is truly representative of the needs of those in the north, and one that will equitably distribute state finances and finally provide the infrastructure the north needs.

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The issue is as old as federation itself and certainly, the Constitution provides for a fairly straightforward reception of new states into the federation – subject to the agreement of the parliament of the relevant state. So – legally possible, but likely politically unviable as states presumably seek to retain their stake in national taxation revenues, and their political power base. It is difficult to imagine that the relatively small population in the north could outvote the populous south-east of the state, to effect such radical change. It is also difficult to imagine the economic viability of the north as its own state.

The real problem though for those who call for North Queensland secession, is that they smack of parochialism and are therefore treated with derision by those in the south. This buries the real issue underlying the movement. While a new state might be the wrong solution, calls for a split state signal a deeper problem of our system of governance that deserves attention.

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Public activities in reserves: can you photograph Barangaroo?

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It’s usual to require a permit for disruptive activity in a public reserve

The case of the photographer being banned from photographing Sydney’s foreshore reserve, Barangaroo, has intrigued me. The story is that landscape photographer Ken Duncan was taking photos of landscape work at the parkland, when he was stopped by rangers. He was told that as he had a tripod, his work was commercial and therefore not permitted without a permit. Duncan was in fact taking the photos for friends, for no charge. However it appears that taking photos is itself prohibited activity in the reserve.

This raises some interesting questions.

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Mining proposal sets new benchmark of Indigenous exclusion

Screen Shot 2015-11-27 at 9.05.13 pmMining company Adani wishes to build an airport, power station and accommodation for its Carmichael mine on leasehold land it owns in central Queensland. ABC now reports that the Queensland Coordinator-General has proposed that the government convert Adani’s leasehold land into freehold land. The effect of this conversion would be to extinguish native title over the land, held by the Wangan and Jabilingou people. While the government has extinguished native title this way in the past, this is apparently the first time that it will be done without the agreement of the traditional owners.

This move calls into question the Queensland government’s commitment to human rights – notably the right to free, prior and informed consent. This post explores the implications of this decision, and the precedent it sets for land dealings – notably against the backdrop of the pro-development approach of the Northern Development White Paper.

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Freehold tenure: it’s no panacea for the north

Roo at UndaraThe contemporary discourse around land tenure in Queensland – and more widely in Northern Australia – is about facilitating economic development (or sometimes ‘growth’). Of little interest in most metropolitan areas, land tenure is of great interest to pastoralists and Indigenous Australians, both of which groups hold tenures ‘less than freehold’. It is also of great interest to government, both state and federal, seeking to promote economic development.

One of the recurrent themes in economic development in the north is the need for ‘secure tradeable’ interests in land. This concept is implicit in the recent Queensland reforms allowing holders of Indigenous tenures to ‘freehold’ their land. The cost of this is extinguishment of native title, albeit in consultation with traditional owners. The implied benefit is the ability to use land as collateral for investment.

This post challenges the received wisdom of freehold as the gold standard of land tenure. I suggest that we should be thinking more creatively about tenure and economic development in the north, in particular respecting Aboriginal and Torres Strait Islander interests in land.

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Northern Australia development: a stocktake of land tenure issues

Cobbold GorgeThe Commonwealth government recently released its White Paper on Developing Northern Australia (‘White Paper’). The White Paper identifies land tenure as a key component of development in the north. It identifies challenges associated with land tenure, and proposes some tentative solutions, although in the main the action plan for land promotes undertaking pilot schemes rather than concrete plans.

This post outlines the land tenure ‘challenges’ identified in the White Paper, the opportunities that might arise and some of the potential impacts. In particular, I am interested in how the language around land tenure might advance or affect social and environmental objectives in northern Australia.

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