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The Metaphysics of Indigenous Ownership: Why Indigenous Ownership is Incomparable to Western Conceptions of Property Value
Abstract
The notion of property is fundamentally different between modern culture and indigenous people. In practice, modernity posits property as a set of material rights that are notionally comparable to other material values. Indigenous people perceive property only partially in these terms and place greater emphasis on origins and obligations of property within an understanding of community that is alien to modern culture.
If property is recognized to consist of both material and non-material values, then it cannot be adequately valued in commercial terms alone. The Australian experience in assessing compensation for the extinguishment of indigenous ownership has been less than satisfactory with few resolutions and many of those negotiated in secret. Conclusions from this experience provide insights into the nature of the dilemma posed by attempting to render indigenous interests in land into modern commercial terms.
The recognition of the metaphysical foundation of the respective systems of property goes some distance toward understanding the difficulties involved in the valuation of indigenous interests. The solution probably lies outside the attempt to transfer ownership when the real need is merely use.
... Bringing together this literature with the OECD approach to regional development, a conceptual framework for Indigenous development in regional economies was tested and adjusted in dialogue with study participants [1,6,9,[19][20][21]. It recognised that Indigenous economic development is highly heterogenous and embedded: Indigenous peoples have strong attachments to place, and diverse aspirations for development [17,22]. ...
... Concerning the topic of land rights and management, a new round of literature review was conducted. The importance of access to land and land rights frameworks to the continuity of traditional ways of life of Indigenous peoples and the spiritual connections that many Indigenous groups have with their traditional land and waters were fundamental topics that served as a basis for further research [16,20,21,23]. Importantly, different studies across the world showed that Indigenous Peoples have been unfairly dispossessed of their traditional lands and that today they own fragmented lands that are also less connected to regional economies and more remote [24][25][26]. ...
... Given the broadness and complexity of the four dimensions of the OECD study, many variables and potential issues of interest arose, which led to the adoption of a mixed methods approach. The approach consisted of a literature review on Indigenous governance and Indigenous economic development, as described above, which was followed by secondary research compiling policy documents and reports on these topics [1,6,9,20,21]. Furthermore, primary data was collected through questionnaires answered by 13 national governments, field visits to Indigenous communities, and meetings and semi-structured interviews with over 600 Indigenous leaders, Indigenous business owners, and public civil servants from Australia, Canada, the United States, and Sweden. ...
Indigenous peoples are increasingly important players in the management and use of land and natural landscapes, bound in spiritual and traditional practices that endure and pre-date colonisation. This also extends to the aspirations that Indigenous traditional owners may have to generate income from land and to sustain business and employment opportunities that enable reinvestment in local communities. The paper draws from a study undertaken while the authors were at the Organisation of Economic Co-operation and Development (OECD) that involved 13 countries. It presents a framework to compare Indigenous land governance, to activate economic development opportunities across different legal and institutional contexts. The three-part typology allows us to assess the level of autonomy granted to Indigenous groups by law and identify key governance and regulatory instruments that they can employ to protect their cultural practices and activate commercial potential from land and waters. Varying autonomy levels can co-exist within a same country, since Indigenous groups may have different rights, aspirations, and capabilities. The typology allows us to conduct comparative analyses around progress and learnings that can support the self-determination of Indigenous peoples and promote regional well-being.
... And for private property rights based on a Western concept, this is true. Contrariwise, customary property rights are less defined and mostly inalienable (conceptually) (Small & Sheehan, 2008). This view of property prevails on the African continent (Cotula & Chauveau, 2007, Kakulu, 2008 and other developing countries (Xanthaki, 2007). ...
... Inheritance follows traditional (matrilineal, patrilineal, and mixed) practices while allocation to outsiders requires community consent. As Walker (2008) and Small and Sheehan (2008) contend, various emotional dynamics inform people's relationships to land and place, ascribed by their experiences and contexts, public discourse, social location and time. Consequently, some communities, like the Yoruba in Nigeria, consider land as the basis of creation, stories, religion, spirituality, art, and culture. ...
... As Simons and Pai (2008) contend, some tribes are deeply attached with their lands spiritually and the right to land is vital for their survival and identities. Any attempt to place a pecuniary value on such lands has failed in many parts of the world as assessing such properties based on market value treats them as private lands, disregarding their various metaphysical aspects (Small & Sheehan, 2008). Hence, it is hard to establish a definite bundle of rights for customary land and fully indemnify its expropriatory losses (Pachai, 1978) and rejuvenate expropriatees appropriately. ...
Market value is the most common compensation basis for expropriation of both private and customary property rights. Private property rights are generally exchangeable while customary property rights are conceptually not as exchangeable. It is hence critical to analyse the applicability of current compensation theories, which are founded on private property rights, to different property rights and in different social settings. By using existing literature and empirical evidence from Africa and other countries where customary property rights dominate, this paper undertakes a theoretical analysis of the applicability of existing compensation theories and the methodologies used to achieve the desired compensation goals. The analysis concludes that whilst current compensation theories are broadly applicable to customary property rights as they aim to protect property rights and prevent expropriatees from impoverishment, various ontological and methodological factors limit the realisation of these goals in settings dominated by customary properties. Such factors include ontology and dominance of customary property rights, use of market value as a compensation basis, and capacity of compensation assessors. Broadly, these factors lead to inadequate compensation and impoverishment of affected people.
... In the Aboriginal ethical matrix discussed by Small and Sheehan (2008), land is perceived and treated almost as kin, enmeshed in relationships that span generations. As with dominant Western understandings of property, this is underpinned by, and cocreative of, basic understandings of time and of human existence within this. ...
... Victoria River District Aboriginal understandings of country and law are concerned and imbued with the constant and immediate presence of other generations, who have claims on the tribe's property. Hence current generations are a subgroup of the total tribe membership (Small and Sheehan, 2008). Other generations are not abstract entities; rather, the landscape is seen as the direct result of other generations' engagement with place. ...
The idea of property is a fundamental and foundational component of modern
industrialised economies and yet, as a growing body of work shows, property is far from
settled as a concept, or as a set series of relationships—whether between institutions,
humans, places, and/or other species. Property systems are part of emergent, complex
socioecological systems, refl ecting and manifesting social and political phenomena,
and asserting particular forms of citizen/self as acceptable, preferable and dominant.
Predominant Western understandings of property rely on, enable, and anticipate increases
in property value over time, refl ecting particular conceptualisations and experiences of
time shaped by Judeo–Christian teleological narratives in which time moves towards a
perfect state that ironically remains perpetually imminent. This essay is concerned with
tracing the ontological baggage of predominant understandings of property and time
and exploring the terrain of their Others, as well as exploring the shifts in relationships
between these in a decolonising and postmodern Australian context. This paper will reveal
some of the diversity of what and how societies think about property and time, to suggest
we may be starting—albeit stutteringly—to acknowledge and engage with multiple and
complex iterations of these.
... In the opposite direction, the adoption of a system of property rights also dictates the relationships between people in the society (Nedelsky 1993). Indigenous concepts of landed property are not based on market values but on non-material, metaphysical values that put the land beyond individual ownership; it is viewed as belonging to the collective (Small and Sheehan 2008). 7 Inflicting the Western concept of fee simple private property on an Indigenous community will inevitably affect the members' relationships and culture. ...
Je propose un modèle économique théorique dans lequel la privatisation d’une réserve autochtone en la divisant en parcelles individuelles en fief simple peut abaisser le niveau de bien-être des groupes autochtones. En m’appuyant sur les effets démontrés de l’érosion de la culture autochtone et des droits de propriété communaux, je propose une explication partielle de la raison pour laquelle le bien-être subjectif auto-évalué des peuples autochtones d’Amérique du Nord est le plus mauvais de tous les groupes démographiques. Tout en reconnaissant la nature complexe des économies autochtones, j’établis à des fins analytiques un modèle simple comportant seulement deux biens produits, à savoir les produits alimentaires et un bien culturel. Je montre que le bien-être d’une communauté peut être plus élevé avec la propriété communale qu’avec la propriété privée, malgré le problème classique du passager clandestin associé à la propriété communale - un résultat qui concorde avec la théorie de l’optimum de second rang. Cette théorie explique pourquoi la loi Dawes de 1887 aux États-Unis et des tentatives similaires au Canada ont abaissé le bien-être des personnes autochtones et sont porteuses de leçons en matière d’initiatives politiques actuelles au Canada, en particulier celles relatives à la politique des droits fonciers autochtones. Je soutiens également que les conséquences de la privatisation des terres de réserve autochtones pourraient être bien plus graves que ce que le modèle simple présenté ici à l’aide d’outils néoclassiques permet d’appréhender.
... Esta noción del sistema de propiedad que también prevalece en los inversionistas extranjeros se diferencia notablemente de la perspectiva de las comunidades locales, que se opone a veces a conceptos como el carácter privado de la propiedad o su valoración desde el punto de vista comercial (Small & Sheehan, 2008). Por ejemplo, el artículo 57(4) de la Constitución de Ecuador indica que las comunidades indígenas tienen derecho a "conservar la propiedad imprescriptible de sus tierras comunitarias, que serán inalienables, inembargables e indivisibles". ...
La oposición de las comunidades locales a proyectos extractivos en América Latina se ha convertido en una tendencia importante del arbitraje de inversión. Debido a las decisiones que los tribunales arbitrales han tomado en estos casos, este asunto se ha planteado como un conflicto entre comunidades locales y arbitraje de inversión. El objetivo de este artículo es proponer algunas causas de este conflicto. Para esto, el texto desarrolla causas provenientes tanto de una lectura antropológica del conflicto como de ciertas características del sistema de protección de inversiones. De esta forma, se concluye que estas tensiones surgen de una diferencia de perspectivas entre los actores y que las tendencias recientes en el arbitraje de inversión podrían sentar las bases para resolverlas.
... As highlighted by Brave NoiseCat (2017) and others (e.g. Small and Sheehan 2008;Langton 2002), the understandings of place and law upheld by Aboriginal and other Indigenous Peoples 1 share an understanding of place as holding its own rights, and of the place of humans as deeply embedded in material, social and spiritual webs. While that might still seem too physically bound to offer assistance in the face of transition, such understandings of law and place have withstood millennia of physical and social adaptation. ...
... In addition to the imposed inefficiencies of the Dawes Act's alienation rules, economic loss stems from unrecognized sentimental value and the relative efficiency of Indian de jure and de facto common property rights. Citing Myers and Shah (2004), Small and Sheehan (2008) note "The valuation of indigenous interests on the basis of use rights ignores the fundamental and categorically distinct cultural value of land to indigenous peoples and is impossible to render equivalence in commercial terms" (116). The efficiency of common property regimes, argued by Schalger and Ostrom (1992) and illustrated for tribes in the Northwest by Johnsen (1986) and ...
Purpose
This paper develops a conceptual framework that is applicable in various compensation settings vis-a-vis relevant legal frameworks, compensation processes and practices, compensation outcomes and adequacy of resultant compensation by using a common evaluative framework, to address the lack of such a conceptual framework in the compensation literature. Also, by developing a new conceptual framework, this paper provides a platform and an analytical tool for anchoring and analysing future research on compensation for expropriation of various property rights.
Design/methodology/approach
This conceptual paper is based on original thought and review of literature on compensation for expropriation.
Findings
A critical analysis of existing literature on compensation for expropriation of customary properties reveals that most studies are inadequately informed by relevant compensation theories and that each study uses its own tailor-made analytical framework. This entails that there is no general conceptual framework for anchoring new studies in compensation and aid in extrapolating their results to similar populations and contexts.
Originality/value
This paper makes novel contribution to knowledge by developing a new conceptual framework for analysing compensation for expropriation of customary property rights, which is not there currently. Essentially, by developing the new conceptual framework, this paper provides a basis for anchoring new research works in compensation and their analyses, thereby making a further contribution to knowledge.
As India moves ahead in the twenty-first century to be a global player, it must take a balanced and inclusive approach. Marginalized and vulnerable tribal communities make approximately 10% of the massive population, playing a dynamic role in this regard. Their ancestral knowledge can be explored to inculcate the ethos in multiple disciplines. This would most certainly bring the much-needed balance in achieving the United Nations Sustainable Development Goals. Where the world is fast losing its natural resources, promoting traditional knowledge (TK) could become an initiative for its reconstruction in post-COVID 19 scenarios. Apart from reinstating the rights of these indigenous communities, this step would also facilitate the economic benefit of the country through the incorporation of TK in the realm of Intellectual Property. This would be a masterstroke for India to lead the Global South. This would also bring in a balance with the Global North, where significant developments have already taken place, in this regard. TK per se should not necessarily be protectable unless based on scientific evidence.
Australian property law has steadily evolved to facilitate the recognition of new or previously unrecognised property rights. Concurrently, modern property rights have become increasingly complex. This evolution of property rights has had fundamental implications when addressing compensation for the impairment or acquisition of land (Indigenous or non-Indigenous) by government. Indeed as understanding of property rights advances, the ambit of compensation is catapulted into uncharted waters. This paper highlights the difficulty of containing property rights to a particular set of descriptors and the effect this has on compensation claims. Further, the current methodology for processing compensation claims exposes a disconnect between the public and the New South Wales (NSW) government. Finally, through an exploration of specific examples of compensation for private property rights, this paper concludes that there is need for a workable consensus on good, bad and fair compensation.
Indigenous Tayal experiences of dispossession in Taiwan reflect a familiar pattern of state-sanctioned property rights precluding recognition of Indigenous rights. This paper examines Tayal customary institutions and how they have governed, and continue to govern, land interests in customary domains. In an agricultural economy encompassing patterns of mobility and long-term movement between areas, Tayal people maintain continuing rights in land that is not currently or permanently occupied or used. However, following Second World War and Taiwan’s occupation by the Chinese Nationalist Kuomingtang party, a new system of individually registered property titles was established, only allowing registration of individual land in settled fields that were occupied and cultivated. Interests in fallowed land were not registrable and such land was reclassified as State property. The system’s enforcement in the 1950s was central to the dispossession and non-recognition of Tayal rights and parallel discourses making Indigenous people invisible. We argue that unpacking the ontologies behind hegemonic understandings of property in Taiwan offers ground for recognizing the plurality, messiness and openness that articulate contestations over time, space and property. In the context of Taiwan’s 2016 Presidential Apology to Indigenous citizens, we conclude that contested constructions of temporality and spatiality are fundamental to challenging Indigenous dispossession.
Over a century before Mabo and generations before ‘Terra Nullius’, Aboriginal land rights were briefly acknowl-edged, sparked by the anti-slavery and humanitarian movements.
In the push to colonise South Australia and Port Phillip, well intentioned people voiced humanitarian concerns about Aboriginal dispossession – both in London and closer to the frontier. Yet those good intentions paved the way not for recognition and respect, but for a settler-colonial legal system which denied Indigenous sovereignty, land title and even legal subjecthood for many decades.
In this book, Hannah Robert prises apart a key moment in Australia’s legal history and reveals the machinations of colony and empire amid the turbulent confluence of ideas about “civilization”, “property” and “the noble savage”.
This paper determines how the rule-in-use on access to agricultural land affects both the size of Russian farms and the nature of land property via enforcement mechanisms. The concept of “institutional arrangements”, developed by Ostrom, is used to show that land use practices by farmers can be considered a compromise between legal land access regimes and economic and social interests of nested communities. This compromise leads to the preservation of both large-scale agricultural production units and “land-share ownership” in Orel
With colonial occupation, independence, migration, inter-tribal warfare, and other changes in government, indigenous tribes
have lost their lands. This exploratory research considers indigenous and tribal land claims on a global basis. Over the years,
indigenous peoples have lost their collective property rights to own, use or exclude others from utilizing their traditional
lands. Many countries, including the United States, India, Canada, South Africa, and others, have begun to develop processes
by which land claims can be processed, and lands or money returned to the original groups. We compare the various legal systems
for this process. To accomplish this, we have surveyed available data, which are collected by countries that include laws
present in those nations and their constituent sub-national bodies, cases of tribal claims, basis for the claims, and court
and financial outcomes. Case studies for several counties and their outcomes are described. Using inductive learning from
case studies, a research design for an international study for modeling successful land claims is set forth.
Home ownership has only recently begun to be available for the residents of remote Indigenous settlements and town camps with community title land, but it has long been an option for Indigenous peoples living on freehold title in rural towns and urban centres. The article presents the results of a household survey of these existing Indigenous home owners, under the Indigenous Business Australia (IBA) Home Ownership Program (HOP). The survey revealed a high degree of home-owner satisfaction, not only in terms of financial gain, but also in developmental terms such as empowerment, ownership and control. Repayment defaults were low and people were successfully managing maintenance, including renovations. The people interviewed were generally found to be literate, numerate, working, low-income households, similar to first-home owners in the mainstream. In addition to household income, employment history and household size were found to be strong precursors and ongoing indicators of the social transition involved, along a broader development pathway. In concluding, the article reflects on the opportunities and constraints involved in generalising these findings to communal title land typical to remote Indigenous settlements.
This paper attempts to add depth to the question of property theory in the face of recent challenges, including the demise of socialism as a global ideological political force and the rise of recognition of customary property rights. It examines the dynamics of human action using a sociological/anthropological approach to review the appropriate treatment of property within society. It begins by reviewing the accepted politico/economic categories of Left and Right in the light of historical performance in order to examine their appropriateness and efficacy for human flourishing. While both approaches to the material condition of humanity have been heralded with great promise, it is argued that neither has freed human society from misery. The shortcoming of the Left/Right approach is located within its dependence on the methodology of modernity that necessarily discourages examination of other dimensions of human action. These are explored using an anthropological approach. It is suggested that concepts of kinship and solidarity, often given potency by cultural and spiritual beliefs, offer more promise in developing a robust theory of action for property.
This paper argues that the introduction of western cadastral concepts into communities with different land tenure systems have involved “cultural costs.” The paper discusses these cultural costs and concludes that cadastral reformers need to re-design their product to fit the communities.
Land Information Systems (US) have been primarily developed to serve the needs of countries that use a ‘western ’ style land market where indMdualland rights are the norm. However many countrieS that have a large proportion of lands held under customary land tenures where communally held land rights are comrriOn, are also wishing to establiSh US. For these countries US is a tool to facilitate the management and administration of their land resources. preserve their customs and traditions and promote the development of a market economy. In order to be eflective, the US introduCed into these countries will need to incorporate customary land tenure data. This paper considers the implications of incorporating such customary land tenure data into a US. Firstly the attributes of western land tenures that are currently used in land Information Systems are reviewed; then drawing examples from Fiji, the paper examines some of the attributes of customary tenure that could be entered into a LIS. This is followed by a discussion of some of the major issues associated with including customary tenure data in a LIS.
A laboratory simulation of property sales revealed that in a mildly optimistic market, auction prices returned premiums to the rational capitalised values, whereas tender sale did not. Results suggest that auction premiums may tend to peak near the middle of the auction, however, the properties were sold in order of diminishing value, so further research may be necessary in order to distinguish between these two factors. The paper relates the experiment to the developing literature on the behavioural study of property auctions that tends to use analysis of actual auctions. One advantage of the experimental environment is that unlike actual auctions, the rational value of the property can be perfectly visible to all subjects. The shortcoming of experimental simulations appears to be that subjects may be less risk conscious. The discussion raises several issues for future experimental design, including the manipulation of market sentiment and the sensitivity of the experimental situation to rewards and punishments in order to achieve external validity. The paper concludes with a summary of the usefulness of this type of property research and makes suggestions for its future direction.
Land Information Systems (LIS) have been primarily developed to serve the needs of countries that use a ‘western’ style land market where individual land rights are the norm. However many countries that have a large proportion of lands held under customary land tenures where communally held land rights are common, are also wishing to establish LIS. For these countries LIS is a tool to facilitate the management and administration of their land resources, preserve their customs and traditions and promote the development of a market economy. In order to be effective, the LIS introduced into these countries will need to incorporate customary land tenure data. This paper considers the implications of incorporating such customary land tenure data Into a LIS. Firstly the attributes of western land tenures that are currently used in Land Information Systems are reviewed; then drawing examples from Fiji, the paper examines some of the attributes of customary tenure that could be entered into a LIS. This is followed by a discussion of some of the major issues associated with including customary tenure data in a LIS.
The notion of property rights has undergone fundamental change recently as a result of the commodification of natural resources such as water and biota. All property rights result in the conferral of three qualities or capacities, namely a management power, and ability to receive income or benefits, and an ability to sell or alienate the interest. However the transition from open access to property rights for natural resources has drawn attention to just how we define whether "particular rights" are in fact property rights. Property in the more familiar sense of land and buildings conveys a tenor of regularity, constancy, and fixity – this is not so with the new forms of property which are inherently sui generis. As knowledge is gained as to the nature of these less familiar property rights accepted truths regarding the notion of property rights are being shown to be only partial and incomplete visions.
`[Meikle's] aim is to make proper sense of Aristotle's economic thinking, and in a detailed, lucid discussion he succeeds brilliantly.' Peter Jones, Sunday Telegraph Aristotle's work on money was the backbone of medieval thinking about commerce, and it is still the foundation of Catholic teaching about market behaviour. Marx's theory of economic value was based on it, and so was much of the economic analysis of money into the present century. In the past hundred years the interpretation of Aristotle's work on money has become chaotic. Economists claim Aristotle as the father of economics, while classical scholars hold that Aristotle had no economic theory at all. It is argued here that Aristotle does develop a coherent theory of economic value, wealth, exchange, and money, but that this theory cannot be assimilated to what we call economics because its metaphysical foundation is incompatible with the Humean metaphysics on which economics is built. From an Aristotelian standpoint, ethics and economics are competitors over the same ground, as rival sources of reasons for decision-making in the public realm, and they cannot be reconciled.
This is the revised version of Peter Laslett's acclaimed edition of Two Treatises of Government, which is widely recognised as one of the classic pieces of recent scholarship in the history of ideas, read and used by students of political theory throughout the world. This 1988 edition revises Dr Laslett's second edition (1970) and includes an updated bibliography, a guide to further reading and a fully reset and revised introduction which surveys advances in Locke scholarship since publication of the second edition. In the introduction, Dr Laslett shows that the Two Treatises were not a rationalisation of the events of 1688 but rather a call for a revolution yet to come.
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