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.




Read more:
Australian politics explainer: the Mabo decision and native title


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.The Conversation

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.

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Full response from Sherry Sufi for a FactCheck on native title


Lucinda Beaman, The Conversation

In an opinion piece published by Fairfax Media, WA Liberal Party policy committee chairman and PhD candidate Sherry Sufi argued that “native title can only exist if Australia was settled, not invaded”.

The Conversation asked Sufi for sources and comment to support his statement, for inclusion in this FactCheck. Here is Sufi’s full response:

Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are not statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own.

As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order.

Land conquests through war of aggression were only criminalised after World War II.

This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil.

It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the Kellogg-Briand Pact (1928) are deemed lawful conquests.

Yale Professors Oona Hathaway and Scott Shapiro have comprehensively addressed this topic in their recent publication ‘The Internationalists: How a Radical Plan to Outlaw War Remade the World’. Check Part III, Chapter One.

So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.

Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.

Sources that support my argument that territories invaded and annexed prior to the prohibition of war are legitimate conquests:

“However, under the doctrine of intertemporal law and pursuant to the general principle of non-retroactivity of the law, the title to territory conquered and annexed at the time when international law allowed acquisition of title by a conqueror, remains legally valid.” – Boczek, A. (2005). International Law: A Dictionary. Scarecrow Press, page 213.

“ … that before the UN Charter and the recognition of the right of self-determination, conquest and colonisation were legal.” – McDonnell, T. (2009). The United States, International Law, and the Struggle Against Terrorism. Routledge, page 280.

Sources that support my argument that Australia was settled, not invaded:

“It is fundamentally to our legal system that the Australian colonies became British possessions by settlement and not by conquest.”
– Gibbs J in Coe v Commonwealth (1979).

“Most legal commentators agree the ‘foundation case’ of the Australian legal system was the UK Privy Council judgement in Cooper v. Stuart (1889), which described the colony of New South Wales as having been ‘peacefully annexed’ by Britain in 1788.” – Windschuttle, K. (2016). The Break-Up of Australia: the real agenda behind Aboriginal recognition. Quadrant Books, page 376.

“The High Court’s decision in Mabo not only preserves the distinction between settled territories on the one hand and conquered or ceded territories on the other, but it also clarifies the law that applies in territories that have been settled in circumstances like Australia.” – Secher, U. (2005). The Mabo Decision – Preserving the Distinction between Settled and Conquered or Ceded Territories

Here are the relevant quotes from the Mabo decision that support my argument:

“International law recognised conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty.”

“As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers … provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organised in a society that was united permanently for political action.”

“The acquisition of territory is chiefly the province of international law; the acquisition of property is chiefly the province of the common law. The distinction between the Crown’s title to territory and the Crown’s ownership of land within a territory is made as well by the common law as by international law.”


Response from Kate Galloway, lead author of the FactCheck:

As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited above are correct.

However, Sufi’s final paragraph contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect. As Sufi has cited from the Mabo decision, “the acquisition of property [native title] is chiefly the province of the common law”.

Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered. This is the missing link in his original argument, and why the claim is incorrect.

The ConversationRead the full FactCheck here.

Lucinda Beaman, FactCheck Editor, The Conversation

This article was originally published on The Conversation. Read the original article.

FactCheck: can native title ‘only exist if Australia was settled, not invaded’?


Kate Galloway

… there is a fundamental point which goes to the heart of this debate that literally no one, to date, seems to have picked up on …

Native title can only exist if Australia was settled, not invaded.

– Excerpt from an opinion piece written by Sherry Sufi, chairman of the WA Liberal Party policy committee, published by Fairfax Media, January 20, 2018

Every January, the debate about the date of Australia’s national day intensifies.

The current date of Australia Day – January 26 – marks the anniversary of the 1788 arrival of Europeans in Australia. To some Australians, this date is known as Invasion Day, or Survival Day.

The Australian Greens party has renewed its campaign to change the date of Australia Day. Greens leader Richard di Natale has lent his voice to the argument that January 26 marks “the beginning of an invasion”.

In an opinion piece, WA Liberal Party policy committee chairman Sherry Sufi said Di Natale was “attempting to undermine native title by implying that Australia was invaded and conquered”.

Sufi argued that “native title can only exist if Australia was settled, not invaded”.

Let’s look at the law.

Checking the source

When asked for sources and comment to support his statement, Sherry Sufi provided this response:

Disclaimer: My article in Fairfax Media and the correspondence with The Conversation are not statements on behalf of the WA Liberal Party or any of its constituent bodies. The views expressed are my own.

As one of the 193 member states of the United Nations, Australia exists as part of a rules-based world order. Land conquests through war of aggression were only criminalised after World War II.

This prohibition does not apply retroactively. Doing so would throw the entire world map into turmoil.

It applies on future attempts to conquer. The status quo of international borders at the time was deemed ‘frozen’. Lands conquered before the Kellogg-Briand Pact (1928) are deemed lawful conquests.

So it follows that if Australia was invaded, then it has been conquered. This would technically negate claims to separate land rights for descendants of native populations.

Yet the Mabo decision rested on the presumption that Australia was settled, not invaded. Therefore, native title is safe.

You can read Sufi’s full response and references cited here.


Verdict

Sherry Sufi’s claim that “native title can only exist if Australia was settled, not invaded” is incorrect.

Native title is the legal recognition of Aboriginal and Torres Strait Islander peoples’ property rights to Australian land that existed when the English took possession of the territory in 1788. Native title was recognised by the Australian High Court in the 1992 Mabo case.

Had Australia originally been deemed to be conquered – or “invaded” – rather than settled, native title would indeed have existed.

Under English law, if Aboriginal and Torres Strait Islander peoples were conquered, they would have retained their interests in land – or native title – under their own laws, until those laws were overturned by the English.


Responding to Sufi’s argument

As to whether the law deems Australia to have been settled, not invaded, the sources Sufi has cited in his full response to The Conversation are correct.

However, Sufi’s response contains the reason that his claim that “native title can only exist if Australia was settled not invaded” is incorrect.

As Sufi has cited from the 1992 Mabo decision, “the acquisition of property [native title] is chiefly the province of the common law”. Following this, Sufi does not examine the common law rules about land ownership that would apply if Australia had been deemed conquered.

This is the missing link in his original argument, and why the claim is incorrect.

In his article, Sufi justified his claim, in part, on the grounds that “international law recognises all territories acquired through invasion and annexation by force, prior to World War II, as lawful conquests”.

Whether or not that statement in itself is accurate is a matter for an international law expert to determine.

Because even if this is now the status of international law, it concerns the basis of sovereignty in modern times. To the extent that the means of acquiring sovereignty is relevant to native title law, it is sovereignty in 1788 that is relevant.

The High Court of Australia in the 1992 Mabo decision found that an Australian court does not have the power to challenge the basis on which the English claimed sovereignty in 1788.

The status of Australian land law, including native title, is a different matter: it is determined under domestic law, not international law. Australian courts do have the power to alter domestic law, which is what the Court did in Mabo.

So Sufi’s statement about international law, whether correct or incorrect in itself, is not relevant to native title in Australia. The justification does not stand.

Let’s look at the relevant law.

Conquest or settlement?

To assess Sufi’s primary claim, we need to look at what happened when Europeans arrived in Australia in 1788, and at the 1992 Mabo case heard in the Australian High Court, which formed the basis of native title in Australia.

The Mabo case decision is the primary source document for this FactCheck.

In 1788, England sought to establish itself as sovereign – or the governing body – over Australian territory.

There are a number of ways to become sovereign under international law. In considering what happened in Australia in 1788, Justice Brennan – who wrote the leading judgment in Mabo – focused on the three most relevant. They were:

  • conquest – the acquisition of a territory by force,
  • cession – an existing state transfers sovereignty over its territory to another state, or
  • occupation – taking possession of a territory not under the control of an existing sovereign.

In his article, Sufi talks about the consequences of “invasion”. The international law described in Mabo refers to “conquest” rather than invasion. So that’s the term I’ll use in this FactCheck.

Fact or legal fiction?

Of those pathways to becoming sovereign over Australia, the English considered themselves to be ‘occupiers’.

The concept of ‘occupation’ relies on the land being ‘terra nullius’ – or belonging to no one. In its literal sense, this means there were no prior inhabitants in the territory.

Of course, that was not the case in Australia – Aboriginal and Torres Strait Islander peoples had been living in the country for at least 65,000 years before the First Fleet arrived.

But the arriving Europeans took the approach that Australia’s Indigenous peoples were “too low in the scale of social organisation to be acknowledged as possessing rights and interests in land”, and were deemed not to have laws, or to be sovereign over Australia.

This allowed for the application of what Justice Brennan described as an “enlarged notion of terra nullius”, and for the English to deem that they had occupied the land.

It’s important to note that in this case, terra nullius, and therefore occupation, is a ‘legal fiction’: an assertion of a state of affairs deemed by the law to be valid, even though it may not be factual.

Who owns the land?

Having established sovereignty, England needed to determine what law applied in the new colony – and in particular, what law applied to the ownership of land.

This was a question for English law, rather than international law.

Under English law, in territories that were conquered or ceded, the existing laws of the original inhabitants would continue to apply until they were overturned by the English.

Therefore, if Australia had been deemed to be conquered, or “invaded”, the existing laws of Aboriginal and Torres Strait Islander peoples, including laws about land ownership, would have continued to apply until the English repealed them.

However, for territory that had been occupied or settled – as was declared to be the case in Australia – English law would be imported, including English land law. Under that law, the Crown owned all land.

The Mabo decision

These concepts were challenged in the Mabo case in the Australian High Court in 1992.

In the Mabo decision, Justice Brennan stated that the concept of terra nullius ignored the reality of the existing inhabitants of the territory.

The Mabo decision found that the legal fiction that Australia was uninhabited could no longer stand. It acknowledged that Aboriginal and Torres Strait Islander peoples did have a recognised system of laws.

The Mabo decision did not change the international law position that Australia had been occupied. What the Court did do was create a new English law category for working out what law applied: the territory was settled, but inhabited.

Based on this new category, sovereignty and land ownership were separated. The Crown was no longer automatically the owner of all the land.

Instead, the original occupants of Australia – the Aboriginal and Torres Strait Islander peoples – remained the owners until the Crown extinguished their interests, or they were otherwise lost. This is native title.

Conclusion

So, what does that all mean for Sufi’s claim?

Sufi said “native title can only exist if Australia was settled, not invaded”.

In 1788 Australia was, under English law, deemed to be settled. In 1992, the Australian High Court deemed Australia to have been settled, but inhabited. Because of that decision, native title as we know it today does exist. Land law stopped being English land law, and became Australian land law.

Had Australia been deemed to be conquered (or “invaded”), the interests in the land – the native title – would also have existed. Aboriginal and Torres Strait Islander peoples would have continued to own the land until the Crown extinguished those interests.

Either way, whether Australia was deemed to be “invaded” or settled, Australian land law would recognise Indigenous interests in land – that is, it would recognise native title. – Kate Galloway

Blind review

The verdict is clearly correct.

It is not the case that “native title can only exist if Australia was settled, not invaded”.

As this FactCheck points out, it is to the contrary. It has long been a rule of English law that in a colony acquired by conquest the former laws continue to apply until altered by the conqueror, and rights to land continue until they are extinguished.

Some elements of the Mabo decision have been contested by scholars. This is not one of them. It is very clear that native title could exist if Australia were characterised as conquered. – Leon Terrill


The Conversation FactCheck is accredited by the International Fact-Checking Network.

The Conversation’s FactCheck unit is the first fact-checking team in Australia and one of the first worldwide to be accredited by the International Fact-Checking Network, an alliance of fact-checkers hosted at the Poynter Institute in the US. Read more here.

The ConversationHave you seen a “fact” worth checking? The Conversation’s FactCheck asks academic experts to test claims and see how true they are. We then ask a second academic to review an anonymous copy of the article. You can request a check at checkit@theconversation.edu.au. Please include the statement you would like us to check, the date it was made, and a link if possible.

Kate Galloway, Associate Professor of Law

This article was originally published on The Conversation. Read the original article.