Selling Your Family: Why Customary Title Is Incomparable To Western Conceptions Of Property Value

Abstract

The notion of property is fundamentally different between modern culture and customary people. In practice modernity posits property as a set of material rights that are notionally comparable to other material values. Customary people perceive property 011~Vpartially in these terms and place greater emphasis on origins and obligations ojproperty within an understanding of community that is alien to modern culture. If property is recognised to both consist of 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 customary title has less than satisfactory with few resolutions and many of those negotiated in secret. Conclusions front this experience provide insights into the nature of the dilemma of rendering customary interests in land into modern commercial terms. The recognition of the metaphysical foundation of the respective systems of property goes some distance towards understanding the difficulties involved in the valuation of customary interests. The solution probably lies outside the attempt to transfer ownership when the more defensible need is use.