Yunupingu v Commonwealth: potential policy implications

Prove true, imagination, O prove true.

Twelfth Night, Act 3, scene 4.

 

In my previous post, I described the recent Federal Court decision in Yunupingu (link here) as momentous. In this post, I attempt to draw out some of the potential policy implications that might flow. I don’t purport to engage in detailed legal analysis, and nor am I claiming to be comprehensive in surveying the potential policy implications of the decision.

 

One obvious caveat of course is that the Federal Court decision is subject to potential appeal, the outcome of which is unknown.

 

I propose to deal with two broad issues.

 

First, perhaps the major policy shift arising from the decision is to expand the period of potential invalidity and liability for compensation for Territory Government granted titles (such as mining leases, pastoral leases and freehold) over native title. In Mabo, the High Court found that native title was vulnerable to extinguishment by inconsistent grant by the Crown. However, the existence of the Racial Discrimination Act from 1975 meant that inconsistent grants without compensation could lead to invalidity. The Native Title Act 1993 includes provisions to validate all such grants made over native title between 1975 and the date of the validation provisions on the condition that just terms compensation would be paid (as is required for all other Australian property owners whose titles are compulsorily acquired). Of course, when the validation provisions were enacted, no-one knew where native title existed.

 

In Yunupingu, the Federal Court confirmed that the constitutional requirement for the Commonwealth to pay just terms continues to apply in the Territories (confirming the High Court decision in Wurridjal). However it also extended this principle to confirm that actions by a Territory Government (established under s.122 of the Constitution) that extinguish native title (or acquire property generally) must in turn provide for just terms compensation. Grants of title without provision for just terms by a Territory Government that are inconsistent with native title are thus invalid.

 

There appear to be three territories potentially affected by this decision: the Northern Territory, the Australian Capital Territory, and the Jervis Bay Territory. The Northern Territory was established in 1911, the ACT in 1911 and Jervis Bay in 1915. Consequently, if Yunupingu is confirmed by the High Court, any inconsistent grants without just terms compensation over native title from these dates to 1975 are potentially invalid. Each of the three jurisdictions appear to require something akin to just terms compensation for compulsory acquisitions (although I haven’t done an historical analysis of the relevant acquisition laws), but may well have made inconsistent grants over native title within the relevant dates without just terms compensation.

 

The likely policy implications of this decision if upheld by the High Court are that the Commonwealth will come under intense pressure to validate all potentially inconsistent grants in the three territories from the relevant dates to 1975 on the condition that where actual inconsistency is found to have occurred, just terms compensation will be paid. A second implication will be that the Commonwealth will come under pressure to fund or underwrite the costs of any actual compensation payments awarded against the Territories. When the Native title Act was first enacted, the Keating Government offered to pay 75 percent of any native title compensation imposts on the states and territories, an offer that was never taken up by the states and territories and which ultimately lapsed.

 

A third policy implication (linked to the outcome of the second implication) will be to encourage intensified impetus by the relevant territory governments to reach native title settlements within their jurisdictions so as to pre-empt litigation and the uncertainty that would necessarily follow. While there has never been any formal confirmation, my strong intuition has long been that the preparedness of the Western Australian Government to negotiate substantial native title settlements is driven by internal advice that the state is potentially liable for compensation arising from the grant of titles inconsistent with native title after 1975. Examples include the Yawuru in Broome (link here), with the Noongar people in the south west (link here), and more recently the Tjiwarl native title agreement in the Goldfields region (link here).

 

Clearly the requirement to negotiate any such land use agreements may well fall within the ambit of possible ‘treaty negotiations’ in each jurisdiction.

 

The second issue I wish to address briefly relates to the nature of native title itself. The Federal Court spent some time discussing the nature of native title; see paragraphs 444 to 459 in their judgment. This appears consistent with the standard understanding, and the discussion cites extensively from earlier cases, including Mansfield J in Griffiths, (but not the High Court in Griffiths). The discussion, which is ostensibly directed at a discussion of the concept of inherent defeasibility versus plain defeasibility (I don’t propose to discuss the difference) concludes with the following paragraph:

 

459. What is extinguished by a grant of rights intended to be inconsistent with native title in certain land is not the traditional laws and customs which give rise to the claimants’ native title. The normative systems of First Nations Peoples remain. Traditional laws and customs are not dependent for their existence on any recognition by the Crown. They have existed for generations prior to colonisation, they continue to exist, and they can be enforced as between First Nations Peoples. They can continue to have normative force amongst those who are bound by them. What (if anything) is extinguished is the title to certain land; the “title” is the nomenclature for what is recognised by Australian common law, and what may cease to be recognised by Australian law, with the corresponding effect or benefit that the burden on the Crown’s radical title is removed.

 

What the Federal Court is not saying here is that native title rights are equivalent to freehold. A Straussian reading suggests that the Federal Court is laying down a pathway to a future expansion of the underlying basis for the calculation of compensation (one that I agree is both warranted and just). Such an expansion would require a future High Court to adjust the High Court decision in Griffiths (link here) so as to move beyond the value of equivalent freehold titles as the metric for establishing economic loss and as an implicit cap on the value of cultural loss (which was based on as assessment of the standards of the Australian community). The view that because an owner of a freehold title has expansive freedom of action over the land does not mean that such ownership captures the full extent of Indigenous relationships to an equivalent area or title. Clearly, such an expansion of the basis for native title compensation will not occur in the near term, and perhaps not even the medium term. However, the unanimous Full Federal Court decision here appears to lay down a potential future path for the development of native title compensation law.

 

In this context, I can’t help referencing Diane Smith’s 2001 prescient and insightful research paper, Valuing native title: Aboriginal, statutory and policy discourses about compensation (link here), where she argues, inter alia:

native title compensation is, like native title itself, sui generis, or unique. Native title compensation will require an innovative jurisprudential approach that acknowledges it as a fundamentally new creature, recognisable at the intersection of Aboriginal and Western laws. A precondition for that innovation will be the creation of a recognition space that ameliorates the legal ethnocentrism of the common law, and addresses the intrinsic value to Aboriginal people of their lands and waters.

 

Perhaps one of the most significant policy implications of the Yunupingu case will be the future development of a more innovative jurisprudential approach to the concept of native title compensation.

Note: some minor typographical errors have been corrected.