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.




Read more:
How can we meaningfully recognise cities as Indigenous places?


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).




Read more:
Friday essay: the untold story behind the 1966 Wave Hill Walk-Off


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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Australia and other countries must prioritise humanity in dealing with displaced people and migration



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The United Nations says the number of forcibly displaced persons around the world has risen to 68.5 million.
Shutterstock

Samuel Berhanu Woldemariam, University of Newcastle; Amy Maguire, University of Newcastle, and Jason von Meding, University of Newcastle

After six rounds of consultations, United Nations member states have produced the final draft of the Global Compact for Safe, Orderly and Regular Migration (GCM).

It is preceded by the New York Declaration for Refugees and Migrants, which the UN General Assembly adopted in 2016. This was an intergovernmental declaration to initiate development of two separate global compacts: one on refugees and another on migrants.

This latest global compact document focuses on the latter issue. It lays down 23 objectives in order to establish “a cooperative framework to address migration in all its dimensions”.

Key points include securing the human rights of migrants, reducing vulnerabilities in migration, and the use of migration detention only as a last resort. The global compact also promotes “integrated, secure and coordinated” border management. Its aim is for states to cooperate rather than focus strictly on their domestic priorities.

National responses to the draft global compact

Over the last month or so, states have started to declare their positions on the draft text. Notably, these positions do not always align with how those states have conducted themselves in intergovernmental negotiations. As is often the case, tensions can arise between domestic political priorities and intergovernmental relations.

Home Affairs Minister Peter Dutton said Australia would not sign the global compact in its current form. Australia is “happy to negotiate in good faith”, according to Dutton, but it will not “sign its border protection policy over to the UN”.




Read more:
Why does international condemnation on human rights mean so little to Australia?


The Hungarian government also declared its opposition and officially announced its exit from the adoption process.

These developments follow the high-profile US withdrawal from the drafting process in December 2017. At the time, the Trump administration argued that numerous provisions of the New York Declaration were “inconsistent with US immigration policy”.

As the Global Compact on Migration moves towards finalisation in December 2018, there is a chance these early challenges may snowball.

The key to Australia’s resistance

The grounds for Australia’s particular resistance to the global compact are the provisions relating to migration detention. The compact insists detention should only be used as a “last resort”. Signatories would commit to:

review and revise relevant legislation, policies and practices related to immigration detention to ensure that migrants are not detained arbitrarily, that decisions to detain are based on law, are proportionate, have a legitimate purpose, and are taken on an individual basis, in full compliance with due process and procedural safeguards, and that immigration detention is not promoted as a deterrent or used as a form of cruel, inhumane or degrading treatment to migrants, in accordance with international human rights law.

Critical readings of domestic policy and practice find Australia’s behaviour in violation of some or all of the compact’s checks on migration detention.




Read more:
Offshore detention: Australians have a right to know what is done in their name


Indeed, Dutton effectively acknowledges that Australia’s practice is out of alignment with international legal standards. He notes that “we’ve fought hard for [our policies]” and “we’re not going to sign a deal that sacrifices anything in terms of our border protection”.

Multiple actors have sought to bring Australia’s treatment of asylum seekers before the prosecutor of the International Criminal Court. The Australian government faces allegations including crimes against humanity and torture, arising from the system of mandatory offshore immigration detention it continues to enforce.

Global forced displacement and migration challenges are unprecedented

It is clear that states typically prioritise their national interests in international relations. Arguments are often framed in such a way as to absolve states of responsibility and position vulnerable refugees and migrants as a “problem”. It is past time for this mentality to change.

The UN High Commissioner for Refugees (UNHCR) recently released the 2017 Global Trends Report. It confirms that the number of forcibly displaced persons around the world has risen to 68.5 million. This is 2.9 million more than reported at the end of 2016.

The estimated global migrant population is 244 million.

States’ approaches to challenges of forced displacement and migration often fail to acknowledge a sometimes competing, but always essential, consideration – the basic dignity of the human person.

The agenda of the global compact is to encourage states to prioritise human dignity. This consideration does not have to contravene sovereignty. It does not dictate that a country abolish its borders. Nor is it against measures to protect its security.

To construct a justification for state cruelty based on sovereignty is an affront to the shared objectives of member states of the UN.

The case for greater cooperation

The current scope of forced displacement and migration necessitates more rather than less cooperation. Pakistan’s ambassador to the UN, Maleeha Lodhi, stated that the “success rests on mutual trust, determination and solidarity to fulfil the 23 objectives and commitments contained in the GCM”.

Bonds of solidarity at the international level are heavily strained by the disproportionate burdens borne by a small number of receiving states. Developing countries now host 84% of the world’s refugees.

In this context, the last thing national governments should do is abandon cooperative efforts to build stronger global responses to migration and refugee protection.

The ConversationThe lives and wellbeing of millions of people depend on countries working together and prioritising humanity in their domestic policies.

Samuel Berhanu Woldemariam, PhD Candidate (Law), University of Newcastle; Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle, and Jason von Meding, Senior Lecturer in Disaster Risk Reduction, University of Newcastle

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

Older people now less likely to fall into poverty



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The incidence of poverty among people over 65 is decreasing in part because of increased labour force participation.
Col Ford and Natasha de Vere/Flickr, CC BY-SA

Guyonne Kalb, University of Melbourne

The risk of people past retirement age falling into poverty is now decreasing. There has been a substantial improvement compared to 15 years ago, when the incidence of poverty among the elderly was 32.4%.

People past retirement age are much more at risk of poverty compared to people of other ages. In 2014, 23% of people over 65 were identified as experiencing poverty, while among the general population this was 10.1%.

If we look at poverty in older age using three alternative, well-established, definitions: the Henderson Poverty Line, the OECD 50% poverty line and the OECD 60% poverty line, they all lead to very similar conclusions.


Read more: How we could make the retirement system more sustainable


The OECD 50% poverty line is defined as 50% of median household equivalent disposable income. Equivalised household income allows for differences in household composition, like the number of adults and children who live in the household. It therefore makes income comparable between households of different sizes. Someone is counted as poor if their equivalised disposable household income falls below this poverty line.

Applying this to data from the Household, Income and Labour Dynamics Australia (HILDA) survey shows clear differences between ages. There’s a much larger incidence of poverty among people over 65, as well as a larger decrease in the poverty rate among those over 65.

Between 2000 and 2014, the prevalence of income poverty among older people declined by more than 9 percentage points, well above the decline of other age groups.

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There are a number of reasons for this decrease in the poverty rate. One is the increase in labour force participation from 6.9% to 12.5% for this older group, whereas for other age groups labour force participation has remained quite stable.

Another reason is the larger increase in pension rates (which is the typical social security payment for people over 65) compared to allowance rates (which is the typical social security payment for working-age people). From an already high base, the payment rates for the oldest age group clearly increased by the most.

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These two reasons combined account for over 75% of the decrease in poverty incidence. Increased private pensions account for a further large part of the decrease (nearly 41%), while changes in investment income would have increased the poverty rate.

Why pensions are so important

This shows just how important public and private pensions are for the standard of living of older people. Given that more and more people will be covered by superannuation, we expect that poverty rates will further decline in the future. However, maintaining the value of public pensions is equally important as a substantial proportion of people over 65 will remain dependent on these payments.


Read more: How can we prevent financial abuse of the elderly?


Those dependent on the age pension include people with a disability during their working life, and many women, as they remain the ones who are more frequently out of the labour force and working part time to raise children. As a result, these groups have less opportunity to build up sufficient superannuation. However, the age pension may perhaps be better targeted.

Although the largest increases in income support are for those classified as poor (with the largest average increase observed for those over 65), the non-poor population over 65 also receives a substantial increase in income support.

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The increase in payments for people who aren’t poor and over 65 is nearly as large as the increase for those classified as poor who are aged 15 to 64. Payments for working-age people have only been increased with inflation, while pensions increased at the same rate as average earnings which has generally been higher than inflation.

The ConversationTo better alleviate poverty for our whole population, government payments for working-age people need to keep up with average earnings like the pensions do. If the government is not prepared to direct more resources to income support payments, they need to treat different age groups more equally. This means better targeting payments among our older population and using any savings to increase payments for the working-age population at a similar rate as pensions.

Guyonne Kalb, Professorial Research Fellow and Director of the Labour Economics and Social Policy Program, University of Melbourne

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

Trump-Turnbull call: trading people like pawns undermines the goals of international co-operation



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AAP/Eoin Blackwell

Amy Maguire, University of Newcastle and Jason von Meding, University of Newcastle

What is the point of international co-operation in matters of shared concern? According to the UN Charter, its founding member nations were determined to achieve overarching societal progress based on human rights.

Excerpt from the UN Charter.

The international legal system of the UN era continues to attempt, with mixed success, to promote these goals.

Within intricately connected global systems that produce ever-more complex problems, a framework for international co-operation is essential. The international legal system, however imperfect, must be maintained as a bulwark against the wholesale pursuit of domestic political interests.

Yet our belief in the efficacy of this system is challenged when the stark reality of international power relations is laid bare. It seems the more insight we have into what happens behind the scenes, the harder it becomes to convince the sceptical that international law has either legal or normative power.

On Friday, The Washington Post published a leaked transcript of a now-infamous phone call between the then newly elected US president, Donald Trump, and Australia’s prime minister, Malcolm Turnbull.

The shocking conversation reveals that the deal for the US to accept some of those asylum seekers currently detained offshore – a key feature of the Australian government’s effort to close its offshore detention centre on Manus Island – imposes no obligation on the US beyond “going through the process”. According to Turnbull:

… the agreement … does not require you to take 2,000 people. It does not require you to take any.

Trump made it abundantly clear that he did not see either the US national interest or his personal popularity being served by upholding the agreement:

… boy that will make us look awfully bad. Here I am calling for a ban where I am not letting anybody in and we take 2,000 people. Really it looks like 2,000 people that Australia does not want and I do not blame you by the way, but the United States has become like a dumping ground.


Further reading: Five quotes from the Turnbull-Trump call show the folly of Australia’s refugee policy


Trading lives in a ‘refugee swap’

The deal between Australia and the US remains mired in confusion almost a year on. Australia committed to resettling some Central American refugees currently in Costa Rica, as part of a US-led program.

Soon after, Turnbull announced an agreement with the Obama administration that would see the US resettle perhaps 1,250 refugees currently detained on Manus Island and Nauru.

The transcript confirms that Trump was resistant to inheriting what he described as a “rotten deal”:

I hate taking these people. I guarantee you they are bad. That is why they are in prison right now.

Turnbull sought to reassure Trump he could sell the agreement to the US public as consistent with his campaign promise to tighten immigration controls.

Turnbull emphasised his and Trump’s shared identity as businessmen and represented the “deal” as a business transaction that ought to be upheld, at least formally:

Please, if we can agree to stick to the deal, you have complete discretion in terms of a security assessment. The numbers are not 2,000 but 1,250 to start. Basically, we are taking people from the previous administration that they were very keen on getting out of the United States. We will take more. We will take anyone that you want us to take. The only people that we do not take are people who come by boat. So we would rather take a not very attractive guy that help you out then to take a Noble [sic] Peace Prize winner that comes by boat. That is the point.

Despite Trump’s reluctance, US immigration officials have conducted some screening interviews with refugees on Manus Island. However, these were suspended mid-run and the officials withdrew to the US, once it was announced that the US’ annual humanitarian refugee quota had already been fulfilled.

Those detained have been told that interviews will resume and that resettlement in the US is still on the table. However, whether the Trump administration ever had any serious intention to be party to a resettlement solution is now in doubt, as is Turnbull’s commitment to anything more than a domestic political win.

On Manus Island, the leaked transcripts arrived amid heightened tensions. Protests have been ongoing since Tuesday, when water and power services were withdrawn in the largest compound. Local police, detention centre guards and reportedly the Australian Federal Police are attempting to remove those deemed “prisoners” by Trump – something that Turnbull, perhaps tellingly, did not dispute.

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This latest insight into the international game of trading unwanted human beings compounds the frustration and sense of injustice that those trapped in Australia’s offshore detention system are experiencing.

Proof that Australia fails to see the humanity of refugees

Turnbull’s position appears to be that the people detained on Manus Island and Nauru are “good” and deserving of protection somewhere, but that his domestic political environment demands they must be treated like criminals.

In the call, Turnbull repeatedly refers to the people imprisoned on Manus Island and Nauru as “economic refugees”. This pernicious framing is consistent with government messaging about “boat people” and “queue jumpers”.

In reality, no refugees are accepted on economic grounds under Australia’s rules. It is disingenuous of Turnbull to make such an inference about those detained in offshore detention, considering that almost 90% of those on Manus Island have been assessed as bona-fide refugees by both Australia and the UNHCR.

Turnbull’s indifference to human suffering is chilling, surprising even Trump:

We should do that too. You are worse than I am.

When two of the most powerful men in the world conspire to inflict further harm on some of the world’s most vulnerable to satisfy domestic agendas, we truly need to question whether the goals of the international community as constituted in the UN are being upheld by our elected officials.

Dehumanising refugees and treating them as the problem avoids any serious consideration of why people are displaced. This is where the international community should be working together.

The ConversationAdopting a punitive approach to those seeking protection not only goes against international law, but it is an insult to those that uphold Australia and the US as leading beacons for human rights and freedom.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Jason von Meding, Senior Lecturer in Disaster Risk Reduction, University of Newcastle

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