How will Indigenous people be compensated for lost native title rights? The High Court will soon decide

William Isdale, The University of Queensland and Jonathan Fulcher, The University of Queensland

Today, the High Court of Australia will begin hearing the most significant case concerning Indigenous land rights since the Mabo and Wik native title cases in the 1990s.

For the first time, the High Court will consider how to approach the question of compensation for the loss of traditional land rights. The decision will have huge implications for Indigenous peoples who have lost their land rights and for the state and territory governments responsible for that loss.

For Queensland and Western Australia in particular, the outcome will likely provide clarity on the significant amounts of compensation they may be liable for in the future.

Western Australia, for example, has areas of determined native title that are collectively larger than the entire state of South Australia. Within those boundaries, there are a number of potential native title claims that could be compensable in the future.

In 2011, the state’s attorney-general, Christian Porter, reportedly described potential compensation claims as a “one billion dollar plus issue”.

Background on native title

The Mabo decision first recognised, and the Wik decision later clarified, how Australia’s common law acknowledges and protects the traditional land rights of Indigenous peoples. Following some uncertainty and political clamour caused by both of those decisions, the Native Title Act 1993 provided a legislative structure for the future recognition, protection and compensation of native title.

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The act provides a right of compensation for the “impairment and extinguishment” of native title rights in a range of circumstances. However, it provides little guidance on what compensation means in practice. Parliament decided to leave the details to the courts.

Surprisingly, it was not until the end of 2016 that the first-ever compensation claim wound its way to the point of judicial determination – in the Timber Creek decision.

The Timber Creek decisions

The case coming before the High Court today is an appeal following two earlier decisions by the Federal Court.

In Griffiths v Northern Territory (the first Timber Creek decision), Federal Court Justice John Mansfield made the first-ever award of compensation for loss of native title rights.

Mansfield awarded the Ngaliwurru and Nungali peoples AU$3.3m in August 2016 for various acts of the NT government going back to the 1980s. These acts included grants of land and public works affecting areas totalling 1.27 square kilometres near the remote township of Timber Creek.

Mansfield approached the compensation award in three steps:

• Firstly, he worked out the value of the land rights in plain economic terms. He did this by looking to the freehold market value of the land, but discounting it by 20% to reflect the lower economic value of the native title. This is due to the fact its use is limited to rights under traditional law and custom, such hunting and conducting ceremonies, but does not include a right to lease the land, for example.

• Secondly, he considered how to compensate for the loss of the non-economic aspects of native title, such as cultural and spiritual harm. This involved having to:

…quantify the essentially spiritual relationship which Aboriginal people … have with country and to translate the spiritual or religious hurt into compensation.

• Thirdly, he gave an award of interest to reflect the passage of time since the acts of the NT government occurred.

The decision was quickly appealed to the Full Court of the Federal Court, which corrected a few errors and reduced the award to just over AU$2.8m. But in broad terms, it approved the three-step approach Mansfield used to calculate the award.

Whether the High Court will follow the same path remains to be seen. A number of new parties, including various state governments, have now become involved in the proceedings, each with their own barrow to push.

The challenge of valuing native title

The challenge is that conventional methods for valuing land may not be suitable to reflect the unique nature of native title rights and the significance of those rights to Indigenous peoples. New principles, or adapted versions of old ones, may be needed.

For example, in most cases where a piece of land is resumed by a government for an infrastructure project or some other purpose, the principal measure of compensation is the market value of the land.

But in the case of native title rights, there is no market to value the land. Native title cannot be sold, mortgaged or leased. Further, native title is different in every case, with no uniform content. Native title rights can include everything from a right to exclusive possession of land to a very limited right to conduct traditional ceremonies on a piece of land.

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Whether the Federal Court has taken the right approach – or whether a new approach should be adopted – will be the subject of debate in the High Court.

The Ngaliwurru and Nungali people contend the correct approach would have seen them awarded roughly AU$4.6m. The NT government is arguing, however, that the amount should be no more than about AU$1.3m.

The politics of Timber Creek

Just as Mabo and Wik resulted in political furore, so, too, may Timber Creek.

One sore point is between the federal government and the states and territories over who will pay any compensation. Under both the Keating and Howard governments, the Commonwealth undertook to pay 75% of the compensation a state or territory may be required to pay in future claims (with some exceptions).

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But in 2011, Porter tabled in the WA parliament a letter from Prime Minister Julia Gillard renouncing any Commonwealth obligation “for the cost of native title compensation settlements”.

Porter may now find himself on the opposite side of the table, having shifted from state supplicant to his new position as a Commonwealth purse holder.

Just how much political friction there will be will depend on the High Court’s approach to determining compensation and the potential cost if hundreds of other native title groups pursue compensation claims in the future.

William Isdale, Postgraduate Research Student, T.C. Beirne School of Law, The University of Queensland and Jonathan Fulcher, Program Director, Energy & Resource TC Beirne School of Law, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

EU Visit to Orissa, India Triggers Barrage of Accusations

Hindu nationalists protest delegation as Christians cite injustices.

NEW DELHI, February 8 (CDN) — A delegation from the European Union concluded a “fruitful” trip to India’s violence-torn Orissa state on Friday (Feb. 5) amid a swirl of protests by Hindu nationalist groups and cries of injustice by Christians.

The delegation was able to hold “open and frank” discussions with Kandhamal officials on the visit, said Gabriele Annis of the Embassy of Italy.

“We had a very good meeting with the Kandhamal district administration,” Annis told reporters. “It is fruitful. We had open and frank discussion. It helped us in understanding the situation and understanding happenings over the past 15 months.”

The delegation was led by Christophe Manet, head of Political Affairs of the European Commission delegation to India and consisted of members from Spain, Hungary, Poland, Ireland, Italy, Netherlands, the United Kingdom, Finland and Sweden. A delegation from five European countries had visited Orissa earlier in November 2009, but the government of Orissa denied them permission to visit Kandhamal district, where Christians say they continue to be threatened and destitute.

Archbishop Raphael Cheenath said on Saturday (Feb. 6) that despite the claims of the state and district administrations, life for the Christian victims of violence in August-September 2008 remains far from normal: thousands still live in makeshift shanties along roadsides and in forests, he said, and local officials and police harass them daily.

“The block officers have been playing with the facts, indulging in corrupt practices and cosmetic exercises whenever political and other dignitaries come to visit or inspect,” the archbishop said in a statement. “Innocent people are coerced into giving a false picture. The chief minister must investigate the role and functioning of the entire district administration . . . It is strange that officers in whose presence the violence took place and thousands of houses were burnt are still in office and are declaring that there is peace in the district.”

Following attacks in the area after Hindu extremists stirred up mobs by falsely accusing Christians of killing Hindu leader Swami Laxmanananda Saraswati on Aug. 23, 2008, more than 10,000 families were displaced from their homes by the violence. Since then, Cheenath said, an estimated 1,200 families have left the area. Between 200 and 300 families reside in private displacement camps in the district, and more than 4,400 families still live in tents, makeshift shelters or the remnants of their damaged houses, he said.

The number of attack victims who have received financial assistance from the government, churches or Non-Governmental Organizations (NGOs) is unknown, but is estimated at 1,100 families, Cheenath added.

He criticized Prime Minister Manmohan Singh and the Chief Minister of Orissa Naveen Patnaik saying, “Both of them had promised to provide adequate compensation for the damages caused during the 2008 communal violence. But the victims have not been adequately compensated.”

Cheenath said the state government had decided not to compensate any riot-affected religious institutions even though India’s Supreme Court had directed the government to compensate them for all damages.

“This is a national calamity and demands a special package for the affected people, which should include land, income generation, education and healthcare,” the archbishop said.

Extremist Makeover

Prior to the visit, Christian leaders expressed their shock at Kandhamal district authorities attempting a cosmetic makeover by evacuating nearly 100 Christians from G. Udayagiri.

In letters to the EU delegation, the state government and national human rights and minorities commissions, Dr. John Dayal of the All India Christian Council narrated the plight of the 91 members of 21 families from 11 villages who were living under plastic sheets along a road in the marketplace area of G. Udayagiri.

Dayal said the group included 11 married women, three widows, an elderly man with a fractured hip and thigh, and two infants born in the camp. They had faced almost daily threats, he said, as they had not been allowed to return to their villages unless they renounced their faith and became Hindus.

Soon after the decision to allow the EU delegation, the water supply to the makeshift site was cut off and police and civil officers drove away the residents, who had only plastic sheets to protect them from the cold, he said. The refugees said officers later gave them permission to come back at night but to keep the area clear.

“The families are in G. Udayagiri, they have moved in front of the road, and they are in a very bad state,” the Rev. Samant Nayak of G. Udayagiri told Compass. “They are literally on the road.”

He said that approximately 55 families were living in G. Udayagiri, where they had been given land, and a Christian NGO was helping to construct houses for them.

The Press Trust of India reported that Orissa officials were nervous about last week’s delegation visiting Kandhamal but finally gave permission under pressure from the central government. State officials finally allowed the visit with the pre-condition that the delegation would be allowed only to interact with people and not engage in fact-finding, according to a senior official in Orissa’s home department.

The Kandhamal district collector, Krishna Kumar, told Compass that all went well and “no untoward incidents took place,” but sources reported at least one minor disturbance in Bodimunda village. On Wednesday (Feb. 3), one house was reportedly damaged there in a scuffle that also resulted in two arrests by the local police.

During their Kandhamal visit, the EU delegation was reportedly forced to cancel a meeting with judges of Fast Track courts established in Phulbani, in Kandhamal district, to prosecute hundreds of those accused in the 2008 violence, due to protests from the local lawyers’ association.

Kumar, however, pointed out that the lawyers’ protest was secondary to the lack of clearance from the High court for the meeting with the judges. “The same was not informed to us prior to the visit,” he added.

Justice Denied

The anti-Christian violence in August-September 2008 killed over 100 people and burned 4,640 houses, 252 churches and 13 educational institutions. Archbishop Cheenath said justice is critical to long term peace.

“The two Fast Track courts, and the court premises, have seen a travesty of justice,” he said in the Feb. 6 statement. “Witnesses are being coerced, threatened, cajoled and sought to be bribed by murderers and arsonists facing trial. The court premises are full of top activists of fundamentalist organizations. The witnesses are also threatened in their homes with elimination, and even their distant relatives are being coerced specially in the murder and arson cases against Member of Legislative Assembly [MLA] Manoj Pradhan.”

Though some witnesses have testified on Pradhan’s alleged involvement in crimes in depositions, he has been acquitted in case after case, the archbishop added.

“We are demanding a special investigation team to investigate every case of murder and arson,” he said. “Similarly, there is also need for transferring the cases against politically powerful persons such as Pradhan to outside Kandhamal, preferably to Cuttack or Bhubaneswar.”

Cheenath said victims have filed 3,232 complaints at Kandhamal police stations, but officers registered only 832 cases. As many as 341 cases were in the G. Udayagiri area alone, 98 in Tikabali and 90 in Raikia, he said.

“Even out of this small number [in G. Udayagiri], only 123 cases were transferred to the two Fast Track courts,” he said. “So far, 71 cases have been tried in the two courts, and 63 cases have been disposed of. Of these, conviction occurred only in 25 cases, and even that is partial as most of the accused have not been arrested or brought to trial.”

Only 89 persons have been convicted so far in Orissa state, while 251 have been acquitted, supposedly for lack of witnesses against them, he said.

“Among them is Manoj Pradhan,” Cheenath said. “It is strange that in the case of 10 deaths by murder, nine cases have been closed without anybody being convicted, while there has been partial conviction in the case of one death. Who will bring justice in the case of the nine murder cases?”

The archbishop demanded that independent lawyers be allowed to assist overworked special public prosecutors.

Hindu Nationalist Protests

Protesting the delegation visit was the Vishwa Hindu Parishad (VHP) and other Hindu nationalist organizations. VHP State General Secretary Gouri Prasad Brahma had lamented on Jan. 31 that the visit would trigger tension and demanded their immediate withdrawal.

“There is no business of the outsiders in the internal matter of the state,” he said.

The delegation also faced the ire of the Hindu extremist Bajrang Dal on the day of its arrival in Bhubaneswar, capital of Orissa, on Tuesday (Feb. 2). Hundreds of its cadres met the delegation at the airport shouting loudly, “EU team, go back.”

Five Bajrang Dal members were detained for creating trouble, Deputy Commissioner of Police H.K. Lal told media on Wednesday (Feb. 3).

After the delegation had left, the Orissa Bharatiya Janata Party (BJP) heavily criticized the central and the state governments, with BJP state President, Jual Oram telling a press conference that the state had allowed the visit to “divide people on communal lines.” He said that the delegation had not met any Hindu leader during their visit to Kandhamal, which “exposed their communal agenda.”

Oram accused the delegation of violating protocol in trying to meet the judges of fast-track courts in Kandhamal, saying this “amounted to interference into internal affairs of a sovereign independent member state under the U.N.”

At the same press conference, BJP MLA Karendra Majhi said that allowing the visit was an attempt by the chief minister to win back the confidence of minority Christians. He alleged that the delegation had held secret meetings in a Catholic church at Phulbani with church leaders and select NGOs to facilitate conversions to Christianity.

“I have every reason to believe that the promised assistance of 15 million euros to Kandhamal by the EU delegation will be utilized for conversion activities,” Majhi said.

Report from Compass Direct News 

NEW ATTACKS ON CHRISTIANS IN BAUCHI, NIGERIA, DESPITE CURFEW

Attacks on the Christian community of Bauchi State in Central Nigeria are continuing, despite the declaration of a curfew in the state capital, reports Jeremy Reynalds, correspondent for ASSIST News Service.

According to a news release from human rights group Christian Solidarity Worldwide (CSW), at least eleven people were killed and over 1,500 displaced. Fourteen churches, eight vicarages, one mosque and numerous Christian homes were razed to the ground during a weekend of violence that centered on seven neighborhoods in predominantly Muslim Bauchi Town.

CSW said the violence erupted after the burning of a mosque in the Railway suburb during the early hours of Feb. 21 that was blamed on Christians. It is now believed to have been the work of militants seeking a pretext for violence in retaliation for events in Nov. 2008, when rioting Muslims were shot dead for defying a government-imposed curfew in Jos, the capital of Plateau State.

CSW has been told by local sources that on Feb.13, a COCIN (Church of Christ in Nigeria) Fellowship in the Railway suburb of Bauchi Town had requested that worshipers at a nearby newly erected mosque stop parking their vehicles on church facilities. This angered the Muslims, who reportedly threatened to return in large numbers the following weekend “to avenge events in Jos.”

CSW was also told that two weeks prior to the violence, a Cherubim and Seraphim Church was razed to the ground, and that two days before the outbreak, a Faith Mission International Church had also been burnt down.

CSW said that as the violence raged, the Rev. Turde, Secretary of the Bauchi Chapter of the Christian Association of Nigeria, requested the immediate imposition of a comprehensive curfew in Bauchi Town. However, CSW said, Gov. Isa Yuguda imposed a curfew limited to seven neighborhoods, that allowed the looting and burning to continue elsewhere in the town.

CSW said reports indicate that throughout Saturday and Sunday, attackers continued to move from church to church and house to house, setting them on fire and attacking their occupants. Despite the eventual imposition of a comprehensive curfew, local sources claim security personnel have not been drafted into the area in sufficient numbers.

CSW said at least one person is known to have been killed on Feb. 23, and as reports circulate of “armed men gathering in the bush,” the Christian community fears further attacks.

Tina Lambert, CSW’s Advocacy Director in the UK said in a news release, “It is of deep concern that despite the imposition of a comprehensive curfew, deaths continue to occur. Most worrying are reports of armed groups that are allegedly gathering for renewed attacks on Bauchi’s Christian community.”

She added, “CSW joins in the call for an immediate increase in the number of security personnel currently assigned to Bauchi Town, and urges the state government to track down and bring the perpetrators of the violence to justice. CSW also calls on both state and federal authorities to ensure that the needs of those who have been displaced by the violence are met and (ensure) that they are adequately compensated for their losses.”

CSW is a human rights organization which works on behalf of those persecuted for their Christian beliefs, and promotes religious liberty for all.

Report from the Christian Telegraph

NIGERIA: MUSLIM EXTREMISTS BURN CHURCH BUILDING

Saying it was too close to a mosque, Islamists destroy sanctuary in Kwara state.

ILORIN, Nigeria, September 2 (Compass Direct News) – Muslim extremists on Sunday (Aug. 31) set ablaze a church building in the Baboko area of this city in central Nigeria’s Kwara state.

The Rev. Samuel Ogowole told Compass that the extremists barred members of his Christ Apostolic Church (CAC) from getting to the building on Sunday, and the Town Planning Development Authority had sealed off the premises following pressure from area Muslims. The congregation had gone to a site on the outskirts of the city for worship when the Muslim extremists destroyed the church building, a 20 million naira (US$170,575) structure built four years ago.

Rev. Ogowole told Compass that area Muslims had complained that the church building is located near a mosque. Compass found that the church building was 500 meters from the Baboko mosque.

Muslim leaders had filed a complaint with an interfaith panel called the Inter-Religious Committee, established by the Kwara state government to mediate Muslim-Christian conflicts. Rev. Ogowole said the body initially ruled against the Islamists’ claim, but under Muslim pressure later issued a second resolution ordering the church to relocate.

“The Inter-Religious committee after investigating the issue explained that it is not true that our church is close to the mosque, and as such there is no justification of the claims of the Muslims,” he said. “But the Muslims still have not allowed us to worship here in peace.”

To appease the Muslim community, Rev. Ogowole said, the Kwara state government offered church leaders 3 million naira (US$25,580) and ordered the congregation to relocate. Church leaders rejected the order, saying they had spent nearly seven times that much to construct the church building.

Muslims had objected to the church building soon after construction began in 2001 on property that the church had legally purchased. Rev. Ogowole told Compass that Muslims initially applied pressure on town planning authorities in 2005.

“This ultimately resulted in a relocation notice, asking us to relocate the church out of the area in seven days,” he said. “However, we objected to the relocation order. Our position was that relocating to another place would mean creating hardship for our members here, who would have to travel many kilometers in order to worship.”

The Rev. Cornelius Fawenu, secretary of the Kwara state chapter of the Christian Association of Nigeria (CAN), told reporters yesterday that a review of the inter-religious committee’s ruling is under discussion by panel members and leaders of CAN and the church.

“Both CAN and the church are currently dialoguing on the review of the final resolution with the committee on the matter, all in the interest of equity, justice and fairness, even though the committee had earlier resolved in favor of the church before the twist of events necessitated a second resolution, which we have since appealed against,” Rev. Fawenu said.

The building had been constructed with approval from the Kwara state government, which issued a right of occupancy certificate to the church. Compass obtained property documents from church leaders showing the legality of the building: the certificate of right of occupancy, an Environmental Impact Assessment report, town planning approval and certification and land rental fees that to date were all paid.

 

Second Attack

Sunday marked the second time that Muslim fanatics attacked the church. On June 16, they broke into the church sanctuary, destroying musical instruments, burning pews and pulling down part of a fence around the premises.

The fanatics also wrote Islamic inscriptions on the church gate. Rev. Ogowole told Compass church leaders reported the incident to the police.

“A bag containing Islamic items was recovered by the police the following morning in the church premises,” he said.

Originally the church was planted in 1993 in the Surulere area of Ilorin. It had 300 members, including three pastors and three evangelists, before its building in the Baboko area was destroyed. The construction of the church building began in 2001, with worship services beginning in 2004.

Rev. Fawenu of CAN confirmed the manner in which the church building was burned and said leaders of the association opposed the relocation order on the grounds that it “amounts to persecuting the members of that church.”

Speaking to reporters yesterday, Rev. Fawenu said he hopes the state government will intervene to prosecute the arsonists.

“If this matter is not addressed and the perpetrators of this sacrilegious act made to account for their sin and the concerned church adequately compensated, we will not be left with any other option than to believe that Kwara state is a state whereby everybody is at liberty to visit their fellow human beings with jungle justice,” he said.

Leaders of the Muslim community in Baboko declined to speak on the issue. A Kwara state spokesperson said officials would comment on the destruction of the church only after an investigation.  

Report from Compass Direct News