Indigenous Law Bulletin
Australian Property Institute, 2000
Reviewed by Professor Garth Nettheim
How are titles to land subject to co-existing native title rights to be valued?
The Australian Property Institute represents Valuers and Land Economists. It has been grappling with the question of valuing native title for some time, particularly through its native title spokesperson John Sheehan (with limited assistance to date from the judiciary). After a series of consultations, the Institute has now published Guidance Note 27 for its members. Generally, this publication provides admirably dispassionate information and indicates that, in many cases, the value of an estate may not be adversely affected by co-existing native title rights.
Chapter 2 identifies various types of estates with which native title may co-exist (including possibly some of the estates listed in Appendix 1). Factors affecting the nature and extent of the co-existence of indigenous and non-indigenous title are identified.
Chapter 3 considers how to identify relevant features of native title when it is recognised as co-existing with non-indigenous title. Chapter 4 discusses ‘native title predictive practices’. Both chapters suggest useful sources of information to the Valuer. The next two chapters proceed to consider how to approach the valuation of surviving native title interests in co-existing tenures.
GN 27 cautions members that native title rights and interests are not necessarily ‘frozen’ in the form in which they existed at the time of first contact. It refers members to various points of reference including NNTT Registers, native title representative bodies, the Australian Anthropological Society, ATSIC, industry organisations and other sources.
Members are advised to ‘become sufficiently knowledgeable about native title processes contained in Commonwealth and complementary State/Territory legislation, and case law associated with this topic’ (para 1.5). It points out, however that native title is extinguished by exclusive possession titles such as freehold titles and the leasehold titles listed in Appendix 1, based on Schedule 1 to the NTA.
The advice offered to API members is, necessarily, not definitive, given the lack of judicial guidance in this area. But it should provide considerable assistance to professional valuers in grappling with these difficult questions.
Garth Nettheim is Emeritus Professor at the Faculty of Law, University of New South Wales.
 See John Sheehan’s occasional series of articles on these issues for Indigenous broad-sheet Land Rights Queensland published by the Foundation for Aboriginal and Islander Research Action. The first article in this series appeared in the February 1999 issue and the latest, fifteenth in the series, appeared in the November 2000 issue.
 Guidance Note 28 addresses the distinct and more difficult issue, Native Title – compensation for loss, extinguishment, or impairment of.