A Just Accommodation of Customary Land Rights in Land Use Planning Systems

Australia does not have a system of implicit recognition of the prior and continuing ownership of land and waters by its Indigenous Peoples (Customary owners) according to their traditional law and custom. Such recognition has to be sought and determined through the Federal Court of Australia which is highly constrained in delivering positive determinations. Its recognition is based on the pre-existing superior right to the whole of the land of Australia, which must be shown not to have been extinguished by legal acts by the Australian government. Customary owners understand their connection to land in somewhat more substantial terms than is currently countenanced by western civilization. The reality of customary ownership and its relationship to western law have implications for planning. Planning is effectively the right, held by the government against private landholders, to control land uses. Since customary owners hold superior title to the government, it is consistent that they are not only exempt from most normal actions of planning control, but also merit some level of involvement in the planning process by virtue of the nature of their rights to the land. The logic of customary ownership implies that they should have a right of veto against development proposals comparable to that which is the operational power of urban and regional planners. Customary owners have a highly developed sense of responsibility for maintaining their land which suggests that involvement in the planning system should respect the fundamentals of customary ownership and lead to enhanced land use outcomes.