The Block shows up limitations in definition of ownership | Law

The Block shows up limitations in definition of ownership

OPINION: Senior Lecturer Amelia Thorpe, The Sydney Morning Herald, 7 July 2014.

An Aboriginal Tent Embassy was pitched at the Block in Redfern on National Sorry Day this year. Bulldozers were expected to try remove the embassy on Monday, and with it four decades of Aboriginal social housing and almost a century of Aboriginal occupation.

Despite the winter cold, an invitation for the public to join a blockade drew large numbers of supporters over the weekend. Police Rescue visited the site about 5am on Monday as protesters scaled the Aboriginal Housing Company (AHC’s) offices to unveil a banner reading “Black Land, Black Law”, but as of Monday afternoon no bulldozers were seen.

This is not the first Aboriginal tent embassy to be established at the Block. One was set up on the site in 2006 to protest against zoning changes by the Redfern-Waterloo Authority, which had allegedly been made with the intention of preventing the development of the AHC’s Pemulwuy residential and commercial development.

This time, it is not a stoush between the AHC and the state government, but between members of the local Aboriginal community – including founding board members of the AHC – and the AHC itself.

The AHC is progressing the latest in a long line of proposals for development at the Block. This time, the plan is to build a mixed-use development, incorporating retail and student housing as well as 62 homes for Aboriginal people. The catch, however, is that finance has not been secured for the Aboriginal housing, so that part of the development has been deferred indefinitely.

Organisers of the tent embassy say that this is at odds with the AHC’s original mandate and with the nature of the site as Aboriginal land. The AHC says that the site is private property, and has erected a sign on the site to that effect.

Legally, the AHC does indeed own the site. With AHC membership capped at 100, the suggestion that non-member Aboriginal people have no rights over the site does seem plausible.

The problem is that our understandings of property are poorly matched with our understandings of ownership. While particularly acute at the Block, this problem is by no means limited to indigenous land.

A large body of scholarship has developed in recent years critiquing the “ownership model” of property, highlighting examples where property entitlements cannot simply be traced to a single owner. Property rights are not absolute, but rather contingent and contextual, shaped by social conditions – from planning laws to licensing, taxation and a plethora of other regulatory regimes, as well as the multiple traditions, social norms and relationships that variously shape the way in which we understand rights and responsibilities in relation to land.

As the heated disputes over the possibility of a loss of objection rights in the planning reforms proposed for NSW last year demonstrate, common understandings of property – at least, of who should have a say over potential changes to a property – extend well beyond the limits of legal title.

The AHC was incorporated in 1973 for the purpose of managing and administering a grant of funds from the Whitlam government to purchase homes for low-income indigenous people at the Block. That grant recognised the long history and ongoing significance of the Block for Sydney’s indigenous population, supporting squatters to resist the gentrification that since the 1960s had been displacing Aboriginal residents from the area.

Previously known as the Aboriginal Housing Committee or the Aboriginal Housing Collective, that group itself was relatively new. The committee had been formed late in 1972 at the suggestion of staff in the then Office of Aboriginal Affairs to enable the large group of squatters living in crisis accommodation to formally request federal assistance. The move in 1973 to incorporate as a company was debated at the time. While the lawyers recommended such a structure, the activist Col James recounts Whitlam advocating a new, collective form of ownership that would reflect an Aboriginal way of life.

As differing conceptions of property in the Block are today brought into stark competition, it is interesting to try to conceptualise such a model. How might our systems of property and planning law better accommodate the social, relational and historical realities of land? If we did indeed find a better model, would it have to be limited to indigenous land?

Here, where the AHC was created precisely to accept the land – not just on behalf of the 50-plus squatters facing eviction at the time, but of Aboriginal people more generally – the limitations of legal title in the face of social, moral and historical understandings of ownership is clearly apparent. Perhaps this is why the bulldozers are yet to arrive.

Amelia Thorpe is a senior lecturer at UNSW Law.

This opinion piece was first published in the Sydney Morning Herald.