Many interests, one place: the unsustainability of a hierarchy of rights to land

Real property law enables the grant of multiple rights in the one parcel of land. However, there are other sources of rights in land, and obligations that burden property rights, that might subsist over or in relation to the same physical space. The full complement of rights and obligations over land are therefore in tension with each other. Although these tensions are often not exposed in an urban metropolitan context, they frequently arise beyond Australia’s cities. That some rights prevail to the exclusion of others that exist over the same area of land, reveals the legislature’s priorities and the privileges it bestows. The ordering of rights over land has implications for the sustainability of sites designated as Indigenous cultural heritage within the Australian legislative framework, and for First Nations’ lands more generally. This article assesses the capacity of the existing framework of rights over land to uphold self-determination of First Nations in Australia as a measure of the sustainability of the current hierarchy of those rights.