Mansfield J
In this case, Mansfield J determined a claim for compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA) in relation to native title rights and interests over land and waters within the township of Timber Creek in the Northern Territory which had been partially extinguished by earlier acts and three invalid future acts.
Background
The compensation application followed an earlier decision concerning 3 applications by the Ngaliwurru and Nungali people for a determination of native title to vacant Crown land within Timber Creek. The trial judge determined that native title existed and held that s 47B applied to the claimed land, with the result that any prior extinguishment by the grant of pastoral leases was to be disregarded: Griffiths v Northern Territory [2006] FCA 903.
The Full Court varied the determination to provide that, in relation to those parts of the claim area to which s 47B applied, the native title comprised a right to exclusive possession, use and occupation of that part of the claim area: Griffiths v Northern Territory [2007] FCAFC 178.
It was found that at the time of each compensable act, the following native title rights were affected:
(1) to travel over, move about and have access to the land;
(2) to hunt, fish and forage on the land;
(3) to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin;
(4) to have access to and use the natural water of the land;
(5) to live on the land, to camp, to erect shelters and structures;
(6) to engage in cultural activities, conduct ceremonies, to hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land, and to participate in cultural practices related to birth and death, including burial rights;
(7) to have access to, maintain and protect sites of significance on the application area;
(8) to share or exchange subsistence and other traditional resources obtained on or from the land (but not for any commercial purposes).
In Griffiths v Northern Territory [2014] FCA 256, Mansfield J ruled on the question of whether s 47B can apply to a compensation claim and the effect of declarations of Reserves, construction of public works and Crown to Crown grants, leaving the consideration of issues regarding the appropriate amount of compensation to be determined at a later date.
In this matter compensation was claimed in relation to areas where non-exclusive native title was found to exist because s 47B NTA did not apply to those areas and all other land and waters within Timber Creek that was not included in the earlier claim.
The respondents to the compensation application were the Northern Territory Government, the Commonwealth of Australia. The Attorney General of Queensland and State of South Australia were joined as interveners.
Compensation orders
Mansfield J assessed the compensation entitlement as:
80% of the freehold values of the relevant allotments.
Simple interest on that market value from the date of respective acts to the date of this judgment calculated in accordance with Practice Note C16, with an agreed proxy to the extent required.
Non-economic loss (solatium) of $1,300.00.
The compensation payable due to the extinguishment of the native title holders non-exclusive native title rights and interests is $3,300,661 comprised of:
Economic value of the extinguished native title rights: $512,400;
Interest on the sum of $512,400: $1,488,261;
Allowance for solatium: $1,300,000
Mansfield J also declared that the damages payable by the Northern Territory for the invalid future acts is $48,597 comprised of $19,200 and pre-judgment interest of $29,397.
The compensation application was dismissed in relation to three acts.
Consideration
Mansfield J noted that no particular framework exists under the NTA for the determination of the compensation payable on just terms. In arriving at a compensation amount, His Honour ruled on four main issues which were contentious in determining the appropriate amount of compensation:
the time at which the valuation of the extinguishment of native title rights and interest should be assessed;
the value which should be ascribed to the native title rights and interests which have been extinguished;
the manner and extent to which traditional attachment to the land should be reflected in the compensation award; and
the manner and extent to which the passing of time between the various dates in which the entitlement to compensation arose and the date of judgment should be reflected in the award of compensation.
The date of assessment
Mansfield J considered whether compensation should be assessed at the date of each extinguishing act or the date of validation of the extinguishing acts. Mansfield J concluded at [172] that the date of each act which extinguished or impaired the native title, deemed valid by the legislation, is the appropriate date of valuation rather than the validating legislation itself.
His Honour noted at [173] that this ‘does not preclude the desirability of stepping back at the end of the process…to determine whether, in the circumstances, and having regard to the interest awarded the “just terms” requirement of s 51(1) of the NTA has been satisfied.’
The value of native title rights and interests
In considering what value could be attributed to native title rights and interests, Mansfield J considered that the freehold value is the appropriate starting point because s 51A of the NTA sets it as the upper limit. However, where the native title holders did not have, at the relevant time, the right to exclusive possession, the freehold value is not the appropriate end point.
Under the statutory regime, compensation is to be paid for the loss, diminution or impairment or other effect of the determination acts on the particular native title rights and interests in question. Consequently, non-exclusive native title rights must be less than the market value of that freehold title.
In considering how much less this should be, His Honour noted that it is not appropriate to treat non-exclusive native title rights as valued in the same way as if those rights were held by a non-indigenous person and expressly rejected the Territory’s approach of valuing the native title rights in conventional economic terms. His Honour valued non-exclusive native rights as 80% of the freehold value, at [232]. His Honour acknowledged at [233] that this was an intuitive decision which reflects a ‘focus on the entitlement to just compensation for the impairment of those particular native title rights and interests which existed immediately prior to the determination acts’. This percentage did not include an allowance for cultural or ceremonial significance of the land, or of the very real attachment to the land which the Claim Group as an Indigenous community obviously has.
Interest component
It was accepted that interest was payable on the value of extinguished native title rights and interests to reflect the time between when the entitlement to compensation arose and the date of judgment. Mansfield J considered, in the absence of any guidance in the NTA, whether that interest should be calculated on a simple basis, a compound basis at superannuation rates, or a compound basis at the risk free rate. Mansfield J found that it should be assessed at the simple rate.
In determining this matter, His Honour considered what actions the native title holders would have taken if they had been compensated at the date of the compensable acts. His Honour noted that compound interest could not simply be given because a longer time period was involved. Mansfield J was not persuaded that the Applicant's evidence was sufficient to support a finding that the native title holders would either have invested the money on a compound basis at either 'superannuation' or 'risk-free' rates or in any enterprise which would have longer term been productive of economic earnings at such levels. In arriving at this conclusion His Honour relied upon contemporary evidence of the applicant’s commercial management which revealed that funds were generally distributed to individuals and families, and there was little evidence to suggest that once distributed, those individuals had sought to invest or use those funds to generate income for commercial or investment purposes. His Honour therefore considered the appropriate interest calculation is simple interest at 4%, the rate specified in the Court's Practice Note CM 16.
Non-Economic Loss/Solatium
The applicant sought an award in globo for the loss sustained and disadvantages experienced by the native title holders because of the extinguishment and impairment of their native title. The issue before the Court was how to quantify the essentially spiritual relationship which Aboriginal people, and particularly the Ngaliwurru-Nungali People, have with country and to translate the spiritual or religious hurt into compensation.
Mansfield J awarded $1.3 million under this heading, noting that an important aspect of native title rights and interests was the spiritual, cultural and social connection with the land.
In arriving at this figure, Mansfield J considered the proper question is what non-economic effect there was upon pre-existing native title by the compensable acts and referred to 3 particular considerations of significance to the assessment of the appropriate amount of compensation:
construction of water tanks along a line of particular spirituality that has caused clearly identified distress and concern;
the extent to which certain acts effected not simply the precise geographical area of the lot over which that act specifically related, but in a more general way to related area so as to have impaired the native title rights and interests more generally; and
the fact that each of the compensable acts to some degree have diminished the geographical area over which native title rights within the Township of Timber Creek, and more generally, may be exercised, and each in an imprecise way has adversely affected the spiritual connection with the particular allotments, and more generally, which the Claim Group have with their country
His Honour held that the claimants were only entitled to compensation for the 'hurt feeling' evoked or caused by the determination acts. Any sense of loss generally derived from a loss of access to country in the town of Timber Creek and the inability to exercise native title rights on that country lies outside the parameters of s 51(1) of the NTA.
Mansfield J further noted that as the evidence revealed that the effect of the acts had not dissipated over time, the compensation should be assessed on the basis of the past three decades or so of the loss of cultural and spiritual relationship with the affected lots and for an extensive time into the future.
Mansfield J held that as this compensation is made as at the date of this judgment, there is no question of interest to be calculated in relation to it.
Section 94 of the NTA
The Commonwealth argued that the Applicant's proposed order for payment of compensation to the proposed prescribed body corporate, which would manage how it is applied, may involve a court delegating its judicial functions when it cannot do so.
The Court found that the proposed order is appropriate and accords with s 94 of the NTA and is not unconstitutional.
Invalid Future Acts
The Applicant claimed compensation for trespass to land or compensation in lieu of injunctive relief under the general law in relation to a number of residential lots and freehold grants which were invalid future acts under s 223 and s 24OA of the NTA. The NTA has no provisions expressly providing for compensation in relation to invalid future acts. Mansfield J was satisfied that the Court has jurisdiction in relation to the claim and further orders will be made addressing the invalid future acts.