Wednesday, 31 August 2016

Handy - Dandy: Native title and compensation for extinguishment

A man may see how this world goes with no eyes. Look with thine ears: see how yond justice rails upon yon simple thief. Hark, in thine ear: change places; and, handy-dandy, which is the justice, which is the thief?       King Lear Act 4, Scene 6

I recently wrote a short piece for The Guardian on native title compensation, and in particular the recent Federal Court decision in Griffiths v Northern Territory of Australia, and in particular exploring the policy implications. Link is here. Space was an issue so the argument was quite truncated.

Issues I would have liked to explore further included the nature of the intangible costs which Justice Mansfield recognised and the more fundamental narrative of the recognition and acknowledgment of native title since the High Court’s Mabo decision.

Mabo was a compromise. The Court held that native title was sui generis, part of the common law, but that it was vulnerable to extinguishment through inconsistent decisions of government. However, it also found that decisions of government which extinguished native title since the passage of the Racial Discrimination Act in 1975 and which did not do so in a non-discriminatory manner (that is by providing compensation) were invalid. This led to calls for existing titles in non-Indigenous hands to be retrospectively validated if they were at risk. Subsequently, one of the components of the Native Title Act was to provide for the validation of such titles.

One of the issues I dealt with in the Guardian piece, albeit briefly, is the capacity of the legal system and the courts to drive political and policy change in circumstances where parliaments and elected representatives find it too difficult. Political scientist Colin Tatz argued in the late 1970s that the law and the courts presented more opportunities for reform and recognition of Indigenous rights than the political system. He was certainly proved right in relation to native title.

While the courts work hard to appear to remain behind the veil of ‘judicial’ neutrality, their social function as interpreters of law in a rapidly changing society means that they inevitably make new law to deal with new circumstances. Arguably the High Court decision in Mabo can be seen as a judicial response to the failure of the nation’s political elites to recognise the existence and legitimacy of pre-existing Indigenous land ownership.

This failure was starkly visible in the failure of the Hawke Government’s proposals for National Land Rights largely at the instigation of the Western Australian Labor Government led by Brian Burke, and even more so in the failure of the most states to establish comprehensive land rights regimes with the broad applicability evident in the NT Aboriginal Land Rights Act enacted by the Fraser Government in 1976.

My argument in The Guardian was that in effect, the Federal Court has been continuing in this vein, step by small step, filling in the interstices within the Native Title Act’s complex structure and framework. However, while these incremental steps have been largely positive, there is no guaranteed that particular steps will be, nor that the trend will continue to be expansive as opposed to restrictive. The legal system generally, and particular judges, develop decisions and lines of argument which are themselves shaped by community sentiment and support, and the wider political debate. Even where the legal system makes the running, the shape and form of the debate in the wider political and public domain continues to be hugely significant.

Perhaps the most innovative and far reaching aspect of the Griffith decision by Justice Mansfield relates to the nature of the intangible costs which were imposed on the native title holders whose ownership was extinguished by the actions of the NT Government in 1994. Compensation for the intangible costs of a compulsory acquisition is a recognised element in Australian (and British) common law. It is often referred to as ‘solatium’. In many statutes which recognise it, it is capped. Mansfield in assessing it referred to it as the non-economic impacts of the acquisition, in other words, the impacts on Aboriginal culture, on connection to country, on sacred sites and so forth. This is an appealing distinction to draw, and is intuitively justifiable.

However, many anthropologists would emphasise the hybrid nature of culture and economy, and indeed, Mansfield in his recent decision in  Rrumburriya Borroloola Claim Group v Northern Territory of Australia, a native title case based on land near Borroloola, found that native title rights could include a range of economic and commercial components or elements. It follows that the intangible impacts of extinguishment will not be quarantined to non-economic, religious or cultural matters, but will inevitably impact on economic rights. It may be argued that any such economic rights are incorporated into the value of the title linked to comparative freehold values, and there is some merit in this. However the economic activities that non-Indigenous land owners undertake on land are limited in comparison to the range of potential economic activities which are incorporated into native title.

Nevertheless, policy is made and implemented in most areas of public policy on the basis of limited information, and with a focus on simplification aimed at establishing general rules or approaches which can then be adopted without having to re-prosecute de novo every new circumstance. I suggest that Mansfield’s approach, while perhaps conceptually conservative, will form the basis of the approach to intangible costs into the intermediate term future.

Turning to the narrative which underpins the discussion of native title in the public domain, it has to date been dominated by the process of native title holders lodging ‘claims’, or more accurately, seeking formal determination of their native title. Once formally determined, native title is acknowledged by the legal system to have always existed.

The Griffiths case opens a new chapter in this narrative. It will shift the focus of public discussion and debate more squarely toward the ongoing and continuing extinguishment of native title (dispossession) since 1975.

The fact that the Native Title Act validated potentially invalid acts of extinguishment between 1975 and 1993, and these provisions were later extended even further by the Wik amendments to the Native Title Act, was a cause of deep-seated angst amongst Aboriginal and Torres Strait Islander peoples. The legislated validation provisions included complementary provisions requiring the payment of just terms compensation in accordance with the constitution. However, the mechanisms were primarily designed to provide immediate certainty and security for non-Indigenous land owner’s property rights. They were successful in this aim.

However, the validation provisions also created a situation where many native title holders whose property rights had been extinguished since 1975 would miss out on compensation. The reason is that seeking and achieving a formal determination of native title is a long, slow and expensive process; there is a backlog of applications, and understandably, there has been a focus on seeking and obtaining determinations over native title which has not been extinguished. Seeking determinations over titles which have been extinguished, and for which the only recompense is just terms compensation, understandably is a lesser priority.
But from the perspective of those native title holders alive when the extinguishment occurred, and who presumably felt most keenly the adverse consequences of that legally authorised and retrospectively validated change of ownership status, most individuals in those situations will not outlive the wait time for ‘just terms ‘ compensation.

This raises a fundamental issue of justice and fairness. What seems clear is that for many individuals whose native title has been extinguished since 1975, the mere inclusion of a provision alongside the validations requiring the provision of ‘just terms’ compensation in the future in the event a successful application for determination is made is not in reality the provision of ‘just terms’.

In 1993, the Parliament at least acknowledged the injustice of past dispossession, and made this tangible through the establishment of the Aboriginal Land Fund. While more than tokenism, it is far from an adequate recompense.

One test of this is to imagine yourself behind a hypothetical Rawlsian ‘veil of ignorance’; unsure whether the title to your home would be secured and validated, or extinguished and possibly and belatedly compensated. Would you agree to the arrangements put in place in the Native Title Act? I know that I wouldn’t.

The unfairness and injustice of the validation provisions in the Native title Act are an ongoing reminder to Indigenous Australians that dispossession is ongoing, and that the playing field is not level. It is a key part of what drives the aspiration and demand for substantive constitutional recognition and a treaty.

Public policy makers would be wise to find ways to advance these discussions and negotiations. An obvious way would be to put real bureaucratic and political focus and commitment into settling native title claims outside the litigation mindset which shapes so much native title policy at the moment.

History tells us that where the political system is gridlocked, the courts will eventually step in. To my mind however, leaving these issues unaddressed would be a monumental national failure, and runs the risk that generations of young and yet to be born Indigenous Australians will question the moral basis of the Australian nation state. Such an outcome would not bode well for our nation's future.