John Hassell, President WAFarmers

The system of land title in Australia that currently proves and protects our right to property is called the Torrens system, which was first introduced in 1858 in South Australia.

The Torrens title system operates on the principle of “title by registration” which does away with the need for proving a chain of title (i.e., tracing title back in time through a series of documents).

The State guarantees title, and the system is usually supported by a compensation scheme for those who lose their title due to private fraud or error in the State’s operation.

Unfortunately, this is not in the case where the state decides to reduce your property rights by banning land clearing or imposing restrictions such as we are about to experience with the new Cultural Heritage laws, but that’s for another day.

The Torrens system has been adopted by many countries throughout the world and is a much more secure system of land title than the old system of deed by historical reference which required an unbroken chain of signatures on a title deed to be valid, or by word of mouth handed down generation to generation in non-literate societies.

In both the old systems once the chain of ownership was lost so was the property right.

When Australia was settled or invaded, depending upon your view of history, there was in place a version of the old system of title used by the indigenous inhabitants. 

Title or ownership of country, as we currently encouraged to refer to land held under native title rights, was handed down from family group to family group based on an unbroken link of linage. 

Break the link and the land was lost unless they were prepared to fight to regain it or marry back into it, not dissimilar to what had been happening across Europe for centuries with its various monarchies and landed barons juggling family succession and fighting or marrying to retain or regain their landed estates.

Fortunately, Australia escaped this form of land title control and when in 1858 we moved to the Torrens system of certainty of tenure, it literally underpinned the building of a nation on the back of land rights.

But then along came Eddie Mabo and everything changed and uncertainty was reintroduced into property rights.

Mabo, a Torres Straits Islander man, set out to prove that he and his people had unbroken attachment to the land based on custom and that he in fact had under the old system unbroken title to his land.

The High Court ruling determined that native title did exist and the indigenous land ownership could be based on traditional laws and customs, albeit in this case the land in question on Murray Island was marked out by rocks being a relatively small site, no different to many settled indigenous market gardens as is common in the Pacific.

From there we ended up with Keating’s Native Title Act and with it a vast industry was born of lawyers fighting over the bounty that comes with gaining title over land that remains under the ownership of the Crown and with luck has some hapless miner wanting to drill for minerals on it.

Overnight Native Title became a gold mine to many lawyers and a few indigenous family groups.

Unfortunately, Native Title has failed to deliver what was promised by the cheer squad of progressive supporters as a means of closing the gap or what Whitlam coined back in 1972 the pathway to self determination.

In fact, one could argue that Native Title has failed to deliver for the simple reason that, unlike freehold title, it does not confer a real property right, a right that the banks place a value on.

There is a simple rule of thumb that is if you can’t mortgage it, it has limited value or you don’t really own it.

Unlike a farm or a station (which sits on a long lease) these are assets that have value, which families and owners can borrow against to build a business and a future.

A case in point is indigenous housing on land that sits where native title has been determined in remote communities. All the houses have had to be funded by the government as they sit on land the banks don’t value as no bank will fund private construction.

Across Western Australia the state and federal governments have had to fund over 2000 houses across 88 remote indigenous communities because there is no property right that the banks can take a mortgage over.

The brutal reality is if it’s not freehold under the Crown, the banks are not interested in it.

Land which is aboriginal controlled but owned by the state and leased to local communities has no value to the financial community.

There is a good reason why there is no or limited private housing on indigenous communities and it all goes back to the question of freehold, Native Title and the Torrens system of property rights.

This is the same reason why these 88 failed states will never close the gap with the rest of Australia, which is because they live in a no-mans land that does not attract the interest of the banks, the government, property developers or entrepreneurs. 

They are simply bottomless pits for welfare dollars offering no hope and no future to those who remain there.

Australia attracts millions of migrants who are attracted by our rule of law and the fact that any property they amass will be protected by the Torrens system and private property rights. 

But sadly we don’t see the benefits of either flowing into our remote regional communities.

Why? Because they are locked into a paternal system where government offers them a form of title that is effectively useless except for extorting money from the mining sector.

Which takes me to the Voice, how establishing what will be yet another attempt at a body to represent indigenous interests to the federal government will improve the lot of aboriginal people is beyond me when fundamental issues like land tenure are not open for discussion.

In my mind therein lies the real problem with our land rights and the whole Voice discussion.

It doesn’t solve individual self determination, rather it appeals to lofty goals of collective self determination, more akin to the dreams of old school socialists who still believe in the ideals of collective ownership, something that failed miserably in communist Russia and China.

Unless governments and the community at large recognise the failure of Native Title to deliver better outcomes for individuals they are unlikely to recognise that the Voice will also fail to deliver better outcomes, as both are based on the romanticised view that indigenous people need special rights to be able to close the gap.

Just as Native Title is a title only available to one particular race we are set to once again divide our nation by offering a solution to representation based on race.

Australia was set up to be fair and free, there should be one set of laws for all Australians, be it property rights or voting rights.

If we really want a better Australia, we have to stop the division based on race.

We have to allow real tenure on all Crown land in regional communities, based on freehold property rights backed up by the Torrens system of government, with the right to mortgage or sell land as the owners traditional or otherwise see fit.

We also have to accept that our federal MPs including the three senators and eight members of the house of representatives who identify as indigenous are the only voice to parliament that indigenous Australians need.  It is their job to defend all Australians property rights and ensure we all have access to land on an equal footing.