The cult of forgetfulness: the Commonwealth submission in Yunupingu

  

That I could forget what I have been!

Or not remember what I must be now!

Richard II, Act three, Scene three.

In May 2023, the Federal Court handed down a decision (Commonwealth of Australia v Yunupingu on behalf of the Gumatj Clan or Estate Group) that mapped out a trailblazing path forward in relation to potential native title compensation issues in the NT and the Territories more generally. I published two posts on the case (link here and link here) which I recommend readers revisit for the background to the subject of this post.

 

As I wrote in the first of those posts:

Today’s Federal Court Decision is momentous insofar as it decides that the native title holders of the Gove Peninsula will be entitled to compensation for any native title mineral rights they held prior to the grant of mineral leases, pastoral leases and a mission lease. This arises from the Court’s finding (against the arguments of the Commonwealth) that any native title mineral rights which existed (and which are yet to be determined) were not extinguished by the grants of pastoral leases and mineral leases over the relevant land on the Gove Peninsula, and that the requirement for the Commonwealth to pay just terms compensation for such extinguished native title rights continues in the Northern Territory.

 

The Commonwealth appealed to the High Court and has now lodged a submission (link here) outlining its arguments as to why the Federal Court’s decision should be overturned in this matter. These arguments are highly technical and complex, and I don’t propose to offer a legal critique. Instead, I will merely summarise them (as best I can bearing in mind I am not a lawyer, let alone a constitutional expert), and then draw out some of the non-legal policy implications.

 

The core of the Commonwealth’s concern is that the Federal Court ruling, if it stands, extends back (in the case of the NT) the period for which compensation for extinguishment of native title by the grant of inconsistent interests would be payable from 1975 (when the RDA was passed) to 1911 when the NT was transferred to the Commonwealth from South Australia (see para 2 of the submission). As the Commonwealth notes (in para 3):

 If the Full Court is correct, then for almost seven decades a vast but indeterminate number of grants of interests in land in the Territory would have been invalid.  Further, upon the validation of those grants by the Native Title Act 1993 (Cth) (NTA), the Commonwealth would have become liable to pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911).

 

In essence, the Commonwealth has three lines of argument aimed at avoiding this outcome.

 

First, they argue that the scope of s 51(xxxi) (which requires the Commonwealth to pay just terms for the acquisition of property) does not extend to laws solely supported by s 122 (which allows the Commonwealth to make laws for the government of a territory) because the text and context of s 51(xxxi) shows it applies only to laws made by the Commonwealth when acting as the Commonwealth, not the Commonwealth acting as a territory. See paras 12 to 19 for a summary of this argument.

 

Second, the Commonwealth argues, relying on Justice Gummow’s judgement in the Newcrest Case (supported by Justices Toohey, Gaudron and Kirby):

that native title was inherently defeasible to the Crown granting new rights that were inconsistent with native title.  When that occurred, there was no acquisition of property within the meaning of s 51(xxxi) because the extinguishment of native title upon that occurrence was something inherent in, and integral to, the property itself.

 

The import of this argument is that compensation does not attach to native title property rights per se but is only required due to the application of the Racial Discrimination Act enacted in 1975. See paras. 57 to 59 for a summary.

 

The third line of argument relates to the reservation to the Crown of all mineral rights in the Northern Territory Crown Land Act 1890 (SA) which was incorporated into a pastoral lease over the claimed land issued in 1903. The Commonwealth argues (para.132), citing Justice Gageler (who is now the Chief Justice) in a 2016 case, that the reservation of minerals in the Crown Land Act:

“had the consequence of creating rights of ownership in respect of the land in question, in the Crown” so that the Attorney General “would still have had the possession necessary to found an action for intrusion”.

 

See paras. 130 to 132 for a summary.

 

Commentary

I am not in a position to make an assessment of the legal merits of the Commonwealth arguments. It strikes me however that the Commonwealth is seeking to hold back the tide of much recent jurisprudence, and a broader concern in the community that the rationale for the appropriation of Indigenous lands without compensation does not entirely stack up. Having said that, the High Court will likely adopt a cautious and careful approach to these issues.

 

What I find intriguing however is how the arguments developed by the Commonwealth in litigation such as this is so strongly at odds with the public perception that our nation strives for inclusivity, for fairness, and for openness, and so strongly at odds with the policy narratives endorsed by both the current and previous Governments (think co-design, voice process, Makarrata, truth telling and treaty). Instead, these arguments addressing an important and potentially far-reaching judicial decision by the Federal Court are driven almost entirely by the narrowly legalistic lens through which the Attorney Generals portfolio operates, and the financial lens applied by the Department of Finance.

 

For example, at various places in the submission, the Commonwealth argues (by implication if not directly) that the Commonwealth requires flexibility to govern a territory such that it is not required to pay just terms; and that the Federal Court decision would leave to differential treatment between Indigenous native title holders in a territory and in a state, while ignoring the differential treatment being supported between native title holders and other property holders. Moreover, the submission argues explicitly for the narrowest reading of the nature of native title (ie that it does not amount to property for the purposes of the Constitution).

 

Perhaps the most obvious issue raised in the submission, but not directly addressed by Commonwealth Ministers is the issue of compensation for native title rights extinguished in the Territories between 1901 and 1975. We now have a Federal Court decision raising the issue directly, and all the Commonwealth can do is raise the financial consequences, contextualise it as a financial threat (liability to ‘pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911’) without any public acknowledgement or recognition, let alone public discussion, that the obverse of this ‘coin’ was the loss without compensation of Aboriginal land and other property rights.

 

Of course, these are legitimate public policy positions for the Commonwealth to argue, and indeed one might argue that they are central to the implicit ‘grand bargain’ that underlies the High Court decision in Mabo No.2. But the fact is that instead of ensuring a public discussion, the Commonwealth has framed them entirely as technical legal issues, without any justification by relevant Ministers for why the Government is adopting the position it has. Neither the Attorney General nor the Minister for Aboriginal Australians has issued a media release announcing the Commonwealth submission. The Prime Minister recently stated that treaties were a matter for the states and territories (link here) seemingly oblivious to the fact that his Government is arguing against the recognition and compensation for Indigenous rights extinguished by Commonwealth executive action.

 

While the merits of the Federal Court decision are as yet undecided and will turn on complex and technical legal reasoning abstracted from everyday experience, the issues raised are real and are as yet unaddressed. The determination of our nation’s political leaders and elites to avoid policy substance and importantly, to neglect their democratic responsibilities to lead public discussion of these issues is to my mind both disrespectful to the wider community they purport to represent, and dangerous insofar as it creates an environment that encourages extremist views to flourish without context. This negligence reminds me of Bill Stanner’s comments in his Boyer lectures in 1968, over fifty years ago:

"What may well have begun as a simple forgetting of other possible views turned into a habit and over time into something like a cult of forgetfulness practised on a national scale. It's a structural matter, a view from a window which has been carefully placed to exclude a whole quadrant of the landscape."

 

The Commonwealth submission in Yunupingu, and its presentation, reflects more than it intends: it is simultaneously a sophisticated legal argument, a study in bureaucratic caution and conservatism, a reflection of political timorousness and timidity, not to mention short-sightedness, and irrefutable proof that the nation’s cult of forgetfulness continues to permeate our public policymaking and our political institutions.

 

16 April 2024

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.