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’.
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?
The 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
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.
Mining 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.
The 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.
The 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.