The value of native title in Australia

Monday, 18 March 2019 11:27 GMT

ARCHIVE PHOTO: Lance-corporal Vinnie Rami, an indigenous soldier from Australia's North West Mobile Force unit, hunts for fish with a spear as the sun sets on Wigram Island, part of the English Company Islands, located inside Arnhem Land in the Northern Territory July 18, 2013. REUTERS/David Gray

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Australia's landmark decision to recognise the spiritual attachment of indigenous people to their land, will make further compensation claims likely

Timber Creek is the quintessence of a one-horse town. Even by Northern Territory, Australia standards it is tiny. Now, it is the centre of a native title decision which has national significance and massive implications for the country. 

On Wednesday 13 March 2019, the High Court of Australia handed down the most significant decision in relation to native title since the decision in Western Australia v Ward in 2002.

The High Court clarified the value of native title in the specific circumstances of the case of Northern Territory of Australia v Griffiths [2019] HCA 7. The case involved the compulsory acquisition of land decades ago, land subject to native title held by the Ngaliwurru and Nungali Peoples.

The court found that native title is valuable.

This comes after two centuries of European settlement in Australia, which ignored that value and denied the existence of native title until 1992.

Essentially, the High Court determined that, in this case: the economic value of the non-exclusive native title rights was 50 percent of the freehold value of the land; that simple interest is payable for the period from the extinguishing effect of the acquisition and the date of award; and that the amount of compensation payable for cultural loss - a loss of the fundamental spiritual attachment of the people to the land - is $1.3 million.

The case is important for several reasons.

First, it is the first final determination in a native title context of how native title should be valued and compensated when it is adversely affected or extinguished. Previous cases in the Federal Court had either not been suitable for determination of compensation or had been discontinued.

Second, the High Court made it clear that the facts of each case will determine the extent of the native title which exists at the point it is adversely affected, and thus will condition the value of that loss. In other words, the economic component of the loss suffered may be more, or less than 50 percent of the freehold value in other cases, depending on the nature of the native title rights and interests affected.

Third, the decision recognises the fundamental importance to indigenous people in Australia of their spiritual attachment to their land, which they refer to as their ‘country’.

The value ascribed to this non-economic component of their loss was significant.

The High Court said that this was what Australian society would consider ‘just’ and ‘equitable’ for the loss of such a singular relationship to country.

The award of $1.3 million for this component of the peoples’ loss was a counterpoint to the economic value being expressed as a percentage of freehold value.

Fourth, the award in this case for small parcels of land (1.27 km2) crystallises the contingent liability that sits on Commonwealth, State and Territory balance sheets. That liability for individual jurisdictions will be very large. Further compensation claims are therefore likely. They will test the depth of the pockets of Governments at all levels in Australia.

In turn, lastly, this will test the political arena and the public sphere in its ability to address the Court’s comments about the justice of this decision.

There have been various flare-ups in indigenous-white relations in Australia in the last two decades, including the public hysteria about native title after the High Court in 1992 ruled that the common law recognised native title in Australia. The rise of the One Nation party in the mid-1990s, and the ‘culture wars’ that debated the effects of European settlement on Indigenous people in Australia have also been factors.

The debate inside and outside Parliaments around the country as Governments respond to this High Court decision may polarise the country again over the vexed question of race, European settlement and compensation.

Hopefully, people will accept the rule of law, respect the Court’s decision and debate the issues in a measured and positive manner.

But when it comes to the value of native title, Australia’s long-distant past may loom large in its future.

Jonathan Fulcher is Adjunct Professor of Law at the University of Queensland and Partner at HopgoodGanim Lawyers in Brisbane