ABSTRACT
This chapter describes the tenure arrangements in communities on Aboriginal land in the Northern Territory prior to the recent reforms. It considers the way that housing and infrastructure were allocated to particular individuals, families and organisations and the nature of the rights that those occupiers held. Somewhat surprisingly, this has never been done before. While the reforms have been under way for nearly a decade, and were debated for several years prior to their introduction, this is the first time that the pre-existing arrangements in communities have been described in any detail. There is a lot of excellent scholarship on Aboriginal land ownership, including the complex intersection between the formal legal system and traditional law. However, in larger residential communities on Aboriginal land – the target of recent reforms – the land ownership system is only part of the story. There, a set of informal tenure arrangements have developed that are to some extent distinct from land ownership under either formal or Aboriginal law. It is those informal tenure arrangements that are the real starting point for the reforms. It is useful here to revisit one of Hernando de Soto’s key arguments, one that is often overlooked in discussion of his work. De Soto states that, in order to be effective, any land reform programme must begin by identifying and engaging with the existing arrangements, what he refers to as the ‘social contract’. He argues that ‘property law and titles imposed without reference to existing social contracts continually fail’.1 As is often the case, de Soto presents this argument in the strongest of terms. His point about identifying the existing social contract is nevertheless well made. Even if the aim is to alter the existing arrangements, it is clear that identifying those arrangements is the most appropriate starting point for reform. One reason this was not done in Australia is because the language we have used to debate land reform made it seem unnecessary. Communities on Aboriginal land have often been described as places of ‘communal ownership’. This chapter makes it clear why this is such a misleading characterisation, and why referring only to the land ownership system provides
an incomplete picture. The description provided here also enables the actual impact of the recent reforms to be better understood. In certain important ways, the reforms alter rather than reference the existing social contract. They have been used to introduce new governance arrangements and alter the balance of power in communities: not just between community residents and governments, but also between traditional owners and non-traditional owner residents. The chapter is presented in three parts. Section 4.2 describes the emergence of residential settlements and provides a framework for understanding the relationship between land ownership and tenure arrangements in those settlements. Section 4.3 describes the characteristics of the preexisting informal tenure arrangements, by reference to different categories of infrastructure. It also clarifies the relationship between forms of property and sharing norms. Section 4.4 considers the best way of describing the tenure arrangements in communities on Aboriginal land and provides some more general discussion.
