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.
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