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Is there a native title right to burn country?

A few sliding doors got me thinking about a right to burn country this week.

First, I was finishing off a paper on carbon projects and land tenure last week and the keyboard always pauses on native title. Could you do a savanna project on non-exclusive native title?

Second, we previously reported on the Torres Strait case which settled the idea that native title can include rights of a commercial nature. And this week I read about the legal system taking another nibble when the Pilki case upheld a right to take resources for any purpose.

Finally, the Clean Energy Regulator sent out their latest missive, including a reminder that savanna projects need to supply burning permits with their application. This sparked me to action.

What am I talking about?

On the one hand, you have a series of cases increasingly recognising native title in the commercial domain. On the other hand, the cases are also saying that native title holders will still need commercial licences to make money.

In the middle, you have a native title holder, who might want to burn country as part of looking after country traditional way, and make a few dollars along the way. Could this fly?

We don’t seem to know.

Is there a native title right to burn country?

In a nice paper last year, Darwin barrister, Michael O’Donnell, highlighted that a native title right to burn country has not been fully tested. The Ward High Court case suggests that such a right is probably inconsistent where there is a co-existing pastoral lease. But what about on exclusive possession native title land? The case has not been heard.

It seems perfectly reasonable that exclusive possession native title could include a right to burn country. If this is so, could it be used to assert the right to carry out a savanna project and reap the commercial benefits?

In the cases of Yanner and Torres Strait, the High Court seems to put a commercial ring around rights to take and fish: you can do it for domestic purposes but not commercial ones where a licence is required.

But burning is different to taking or fishing where commercial licences control the amount of take or catch. With burning, there is no change from the domestic purpose to the commercial purpose – in fact you are really taking less because the burning is controlled! If no commercial licence is required for burning country, it seems fair that exclusive possession native title holders could use their right to burn country to run a savanna project with a commercial return.

And this could be in conflict with the latest Regulator advice.

None of this takes away from the notion of property managers cooperating with neighbours and government to manage fire – managing country is a group effort that cannot be undertaken alone. Maybe there’s a paper here! Later…


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