Nau, Tracey --- "Looking abroad: Models of just compensation under the Native Title Act" [2009] ALRCRefJl 18; (2009) 93 Australian Law Reform Commission Reform Journal 55

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Looking abroad: Models of just compensation under the Native Title Act

By Tracy Nau*

Under the Native Title Act 1993 (Cth) (NTA), compensation for the loss or impairment of native title must generally be provided on ‘just terms’.

In the absence of statutory criteria or benchmarks in Australia of just forms and measures of compensation, it is difficult to determine what just compensation means and whether it is being achieved through the multiple pathways for compensation under the NTA.¹ In particular, the NTA regime offers insufficient guidance in relation to restitution, while placing significant focus upon monetary compensation.

The UN Declaration on the Rights of Indigenous Peoples (the Declaration) provides a useful framework for assisting judges, arbitrators and negotiating parties to determine just compensation by setting out rights and remedies that are mutually considered appropriate. The remedies also carry significant weight because they are internationally recognised as the protections most likely to address Indigenous concerns.² In particular, the Declaration highlights the importance of land restitution as compensation for the loss or impairment of native title. Land restitution has also been emphasised in a number of international settlement agreements.

In this article, I will consider the role of land restitution in ‘just terms compensation’. I will make particular reference to the guidance provided by the Declaration and other international settlement agreements.

Current understanding of ‘just’ compensation

The current understanding of just terms compensation for the loss or impairment of native title is shaped by the NTA, case law and negotiated agreements. However, these offer limited guidance on what constitutes just terms compensation.

The NTA specifies only a preference for monetary compensation as limited by the freehold value of the land.³ This is subject to the compensation being on ‘just terms’, the meaning of which is undefined.⁴ While requests for non-monetary compensation may be made, the NTA only requires these requests to be considered, not fulfilled.⁵

Case law on the issue of native title compensation is also limited, with Jango v Northern Territory of Australia (Jango) being the first and only instance in which the Federal Court has considered and dealt with an application for native title compensation.⁶ In Jango, Sackville J offered some insight into the issue of compensation, but only insofar as indicating that the spiritual significance of the site ‘bears on the quantum of compensation payable’.⁷ Through its arbitration on compensation for future acts, the National Native Title Tribunal has also offered some insight. However, this has been limited to clarifying that compensation may exceed the freehold value by reference to just terms, with land value being—at best—a starting point ‘for want of a better yardstick’.⁸

Previously negotiated agreements have the potential to provide more substantive guidance in terms of ideas on possible forms and measures of compensation. However, they are not currently useful as precedents because their full details are not generally made public, and they are not independently scrutinised for adequacy.

Parties entering into negotiations, therefore, face significant uncertainty about what forms and measures of compensation will satisfy the just terms requirement. While the lack of precedent in terms of cases or previous agreements has the advantage of facilitating flexibility in negotiations,⁹ it fails to establish a robust framework within which native title holders can assert their rights. This leads to the need for benchmarks or criteria to assist parties to derive appropriate forms and measures of just terms. Such guidelines should be developed with reference to the Declaration and international examples of settlement agreements, as these provide useful insights into how just terms may be met.

Focus on monetary compensation

In Australia, there is a widespread recognition that compensation for loss or impairment of native title rights assessed only in accordance with the freehold market value of land, is not necessarily ‘just’. This is because freehold market value fails to take into account the subjective cultural and spiritual based value of the land to the Indigenous people, and does not truly reflect the losses of past, current and future generations.¹⁰ Yet the just terms entitlement suggests that native title holders should be compensated for these cultural and spiritual losses.

Much of the Australian literature on native title compensation focuses upon ways of quantifying these cultural and spiritual aspects so as to incorporate them into a monetary compensation framework.¹¹ For instance, many authors have sought to import personal injury and property law concepts such as special value and solatium into the native title context, as a means of valuing these intangible losses. Such compensation would then form a special head of value that ‘tops up’ the freehold market value to satisfy just terms. This would appear to be contemplated by the NTA regime, as clarified by Sackville J in Jango. ¹²

However, these valuation proposals have been criticised as ‘ethnocentric and reductionist’.¹³ Arguably, they have limited applicability in the native title context because they are fundamentally based on western market value propositions. Furthermore, the delineation of native title rights and interests into material and non-material aspects is rather artificial because the spiritual, economic, social and corporeal aspects of Indigenous life are indivisible and intrinsically connected with the land.¹⁴

In any case, there is no indication that the loss or impairment of native title can be adequately compensated for in monetary terms, even if spiritual or cultural losses are taken into account. On the contrary, monetary compensation has many limitations. For instance, it cannot directly re-establish traditional relationships with the land or redress the lost opportunity to exercise culturally important roles such as site monitoring and protection.¹⁵ It is also unsustainable, providing little support to the critical processes of reconciliation, reconstruction and development of Indigenous communities. Indeed, Justice Woodward has argued that ‘cash compensation in the pockets of this generation of Aborigines is no answer to the legitimate land claims of a people with a distinct past who want to maintain their separate identity in the future.¹⁶

Shifting the focus to restitution

According to Justice Woodward, ‘the only appropriate direct recompense for those who have lost their traditional lands is other land— together with finance to enable that land to be used appropriately’.¹⁷ This reflects the desire of many Indigenous people to obtain compensation in the form of land acquisition. Land acquisition is important to Indigenous people in terms of helping to rebuild stable communities and stable future generations.¹⁸ Land acquisition also supports the process of reconciliation as the Indigenous people acquire something they can call their own which no-one can take away.

As stated above, the NTA expresses a preference for monetary compensation.¹⁹ This fails to reflect the preference of many Indigenous people to obtain compensation in the form of access or ownership to equivalent land. While not all Indigenous people seeking native title compensation will desire land restitution, the NTA arguably shifts the focus of negotiations upon monetary compensation measures, away from consideration of alternative and perhaps more appropriate measures such as land access and acquisition.

Unlike the NTA, the Declaration expresses a preference for restitution in the form of the grant of ‘comparable land’ as compensation for government takings of land. Comparable land is described in terms of ‘lands, territories and resources equal in quality, size and legal status’. Only if restitution is not possible, should an alternative means of compensation that is just, fair and equitable be considered.²⁰ The Declaration therefore provides clear recognition of the importance of land rights to sustaining Indigenous communities.²¹

Jurisdictions such as South Africa, New Zealand and Canada provide useful illustrations of how restitution can be integrated into a native title framework.²² South Africa explicitly recognises that land rights and reconciliation go hand in hand by adopting a land reform policy that acknowledges the need to make land restitution for forced dispossessions.²³ In New Zealand and Canada, settlements have been negotiated that return land to the Indigenous people. For instance, the Ngai Tahu Settlement returned a major mountain²⁴ to the tribe and several lakes to Maori ownership and the Nisga’a Treaty transferred 2,000 square kilometres of Crown land to the Nisga’a Nation.²⁵

Relevant considerations in awarding restitution

In negotiating land restitution, governments and Indigenous groups should work together to determine the type of land and title appropriate to enable the individual groups to maintain their cultures and meet their immediate and long term needs.²⁶ The type of land most needed may depend upon the major occupations currently held by group members or those which the group hopes to expand into.²⁷ It may also depend upon the land that is considered spiritually or culturally significant to the Indigenous people.²⁸

In considering the type of title that should be granted, parties should collaborate to determine whether it is collective or individual title that is useful, as general notions of ownership may not necessarily coincide with Indigenous peoples’ beliefs about possession. The grant of land will usually need to be combined with other measures including financial assistance to promote the self-sufficiency of Indigenous people so that they can rebuild their communities and develop their land to meet their long term needs. For instance, the Nisga’a Treaty established a water reservation for the Nisga’a Nation to explore hydro power opportunities on rivers and streams.²⁹ In New Zealand, the Waitangi Fisheries Settlement provided $150 million and granted 20% of the new species fishing quota to the Maori to promote Maori commercial fishing.³⁰ Such arrangements allow Indigenous people to retain traditional rights while being able to adapt their culture to participate in the broader economy.³¹

To ensure that Indigenous communities are able to promote their development in accordance with their aspirations and needs, parties should also provide a means by which they can participate in relevant decision making.³² For instance in New Zealand, the

Waitangi Fisheries Settlement secured greater Maori representation on statutory bodies responsible for fisheries management, making them more accountable to the Maori and giving the Maori greater control and input over fisheries management.³³

Engaging continuous dialogue

A central premise of this article is that native title compensation should include a greater focus on land restitution. However, not all Indigenous groups will share the same concerns. Discussions with Indigenous groups are therefore necessary to determine what form restitution could take, and where redress can be more adequately achieved by alternative forms of compensation.³⁴

For instance, granting title to mining lands will have no value to the Indigenous people if their primary concern is environmental protection of land and resources. Accordingly, an alternative agreement to involve the Indigenous people in ongoing environmental planning is likely to serve their interests better than any grant of land title.³⁵ This was the case for the Cree in Canada whose sustainable development concerns over Canadian forestry practices in its territory were addressed by Quebec with an amendment of its forestry regime in the Cree territory to accommodate traditional Cree lifestyles.³⁶

The focus, therefore, must be upon establishing a continuous dialogue between Indigenous groups and the national government to uncover Indigenous needs and determine the appropriate remedies to redress those needs. The government and Indigenous groups should also expand their discussion to determine, on an ongoing basis, the adequacy of compensation terms and conditions.³⁷ This is important to ensure equity within the native title group over time.³⁸

Conclusion

Statutory criteria or benchmarks need to be developed to provide greater assistance to judges, arbitrators and negotiating parties in deciding the terms of just compensation for the loss or impairment of native title. These guidelines should recognise that land restitution has an integral role to play in providing just terms compensation, particularly when offered in conjunction with financial assistance and other measures that promote the self-sufficiency of the Indigenous people. This is because land restitution can more directly redress the cultural and spiritual losses of the Indigenous people and provide critical support to the processes of reconciliation, reconstruction and development of Indigenous communities. In developing these guidelines, the government should draw upon the framework provided by the Declaration and the insights gained from settlement agreements achieved in Canada and New Zealand.³⁹ The Indigenous people will then be able to employ these guidelines as a commanding tool for ensuring that concerns such as land rights and self-sufficiency are given the attention they deserve.

*Tracy Nau was a student intern with the ALRC from July to August 2008. This article was prepared as part of her internship. She now works as a graduate lawyer with Freehills law firm.

Endnotes

1 Compensation can be provided through Indigenous Land Use Agreements, right to negotiate procedures, arbitration through the National Native Title Tribunal and determinations by Federal Court.

2 United Nations General Assembly (2007) Declaration on the Rights of Indigenous Peoples UN Doc A/61/L.67. See, V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 322.

3 Native Title Act 1993 (Cth) ss 51(5), 51A.

4 Ibid, ss 51(1), 53(1).

5 Ibid, s 51(6)(a).

6 Jango v Northern Territory of Australia [2006] FCA 318, See also T Jowett and K Williams, ‘Jango: Payment of Compensation for the Extinguishment of Native Title’ (2007) Land, Rights, Laws: Issues of Native Title, Vol 3 Issues Paper No 8, 2.

7 It should be noted that these comments were only obiter: Jango v Northern Territory of Australia [2006] FCA 318, [517].

8 Northern Territory of Australia/Bill Risk on behalf of the Larrakia People; Tibby Quall on behalf of the Danggalaba Clan/Phillips Oil Company Australia [1998] NNTTA 11.

9 DE Smith, ‘Valuing Native Title: Aboriginal, Statutory and Policy Discourses about Compensation’ (2001) Centre for Aboriginal Economic Policy Research Discussion Paper No 222, 30.

10 Ibid, 32.

11 Ibid, 3; J Litchfield, ‘Compensation for Loss or Impairment of Native Title Rights and Interests: An Analysis of Suggested Approaches (Part 1)’ (1999) 18 Australian Mining and Petroleum Law Journal 253, 257–63.

12 Jango v Northern Territory of Australia [2006] FCA 318, [517]; B Keon-Cohen, ‘Compensation and Compulsory Acquisition Under the Native Title Act 1993’ [2002] MonashULawRw 2; (2002) 28(1) Monash University Law Review 17, 24.

13 DE Smith, ‘Valuing Native Title: Aboriginal, Statutory and Policy Discourses about Compensation’ (2001) Centre for Aboriginal Economic Policy Research Discussion Paper No 222, 32.

14 Ibid, 32.

15 Carriage v Duke Australia Operations Pty Ltd [2000] NSWSC 239, [13], [15]; S Phillips, ‘Enforcing Native Title Agreements: Carriage v Duke Australia Operations Pty Ltd’ [2000] IndigLawB 47; (2000) 5 Indigenous Law Bulletin 14–16.

16 DE Smith, ‘Valuing Native Title: Aboriginal, Statutory and Policy Discourses about Compensation’ (2001) Centre for Aboriginal Economic Policy Research Discussion Paper No 222, 38. Justice Woodward’s comments were made in the Aboriginal Land Rights Commission inquiry which led to the enactment of the Aboriginal Land Rights Act 1976 (NT).

17 Ibid, 38.

18 See eg, Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997), Pt 4 Ch 14.

19 The Native Title Act 1993 (Cth) states in s 51(5) that compensation should consist only of money, unless the native title claimants make a request under s 51(6) for non-monetary compensation.

20 United Nations General Assembly (2007) Declaration on the Rights of Indigenous Peoples UN Doc A/61/L.67, art 28(2).

21 M Ferch, ‘Indian Land Rights: An International Approach to Just Compensation’ (1992) 2 Transnational Law and Contemporary Problems 302, 321; V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 312–13, 318.

22 It should be noted however, that the land restitution policy in South Africa provides restitution for the dispossession of a broader range of land rights than just ‘customary law’ interests.

23 S Dorsett, ‘Making Amends for Past Injustice: Restitution of Land Rights in South Africa’ (1999) 4(23) Indigenous Law Bulletin 67.

24 ie, Aoraki Mt Cook on the South Island. This was a symbolic gifting to the Ngai Tahu tribe who would gift the mountain back to the nation: Ngai Tahu Claims Settlement Act 1998 (NZ), s 16.

25 The Ngai Tahu Settlement was finally reached in 1998 while the Nisga’a Treaty was reached in 1999 in Canada.

26 V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 319–320.

27 Ibid, 319.

28 DE Smith, ‘Valuing Native Title: Aboriginal, Statutory and Policy Discourses about Compensation’ (2001) Centre for Aboriginal Economic Policy Research Discussion Paper No 222, 39.

29 Nisga’a Final Agreement (1999); R Glindemann and D Bursey, ‘Compensation and Native Title Rights in Australia and Aboriginal Rights in Canada: An Overview’ (2001) 20(3) Australian Mining and Petroleum Law Association Journal 286, 294–95.

30 Waitangi Tribunal, The Fisheries Settlement Report 1992 (1992), Ch 1.

31 V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 307.

32 United Nations General Assembly (2007) Declaration on the Rights of Indigenous Peoples UN Doc A/61/L.67, art 18.

33 Waitangi Tribunal, The Fisheries Settlement Report 1992 (1992), Ch 1.

34 V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 316–17.

35 Ibid, 321.

36 R Glindemann and D Bursey, ‘Compensation and Native Title Rights in Australia and Aboriginal Rights in Canada: An Overview’ (2001) 20(3) Australian Mining and Petroleum Law Association Journal 286, 294–95; ‘Agreement in Principle between Le Gouvernement Du Quebec and the Cree of Quebec’ [2002] AUIndigLawRpr 2; (2002) 7(1) Australian Indigenous Law Reporter 15.

37 V Prasad, ‘The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations’ (2008) 9 Chicago Journal of International Law 297, 297–98.

38 DE Smith, ‘Valuing Native Title: Aboriginal, Statutory and Policy Discourses about Compensation’ (2001) Centre for Aboriginal Economic Policy Research Discussion Paper No 222, 41.

39 The Rudd government has recently expressed its support for the Declaration and is seeking the views of the Aboriginal and Torres Strait Islander Social Justice Commissioner, among other stakeholders including Indigenous individuals and organisations, on matters relating to how Australia should formally indicate its support for the Declaration.