White J
In this matter, White J made a compensation determination by consent in favour of those people who are Nguraritja (landowners) for the Tjayuwara Unmuru determination, in relation to areas of land over which were excluded from their native title determination due to the extinguishment of native title. The State of South Australia was the respondent party and the Attorney-General of the Commonwealth intervened, but did not appear in the proceeding. The area subject to the determination is surrounded by the land which was the subject of the Tjayuwara Unmuru determination and would probably have formed part of the Tjayuwara Unmuru determination.
[1] On 16 July 2013, the Court made a native title determination by consent (the Tjayuwara Unmuru determination) recognising the rights and interests of the relevant Nguraritja people in relation to a significant area in the central part of the far north of South Australia: see De Rose v State of South Australia [2013] FCA 687.
[2] On 27 February 2015, the Nguraritja filed an application pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA) seeking compensation in respect of those areas excluded from the consent determination because native title had been extinguished. The extinguishment occurred by reason of acts of the State of South Australia. The compensation determination concerns relatively small portions of the Stuart Highway corridor, which traverses the Tjayuwara Unmuru determination area (together, the Stuart Highway Corridor Land); and land dedicated for the purpose of a Digital Radio Concentrator Tower which is under the care, control and management of Telstra Corporation Ltd (the DRC Land). The Stuart Highway Corridor land is an area of approximately 4.153 km2 and the DRC land comprises an area of approximately 0.0225 km2. The entitlement of the Applicants to compensation arises from the provisions in Pt 2, Div 2 of the Native Title Act 1993 (Cth) (NTA) and the counterparts to those provisions in the NTSA Act.
[3] The parties agreed that s 19 of the NTA and s 32 of the Native Title (South Australia) Act 1994 (SA) (NTSAA) have the effect of validating the acts involved in the surrender and excision of the Stuart Highway Corridor land and the subsequent establishment of that land as part of the Stuart Highway Corridor. It was also agreed that s 19 of the NTA and s 32A of the NTSAA have the effect of validating the act of the State in excising the area of the DRC land. The entitlement of the Nguraritja to compensation pursuant to s 20(1) in respect of that land was enlivened as a result.
The applicant and the respondent reached agreement as to the compensation payable by the State under the NTA. Pursuant to s 87(2) NTA, the Court may make an order on the agreement of the parties without conducting a hearing. White J referred to the statement of Mansfield J in Lander v South Australia [2012] FCA 427 at [11]–[12] and noted that ‘those observations are as apposite in the case of compensation determinations as they are in relation to consent determinations of native title.’
[25] The parties agreed that the payment by the respondent to the Tjayuwara Unmuru Aboriginal Corporation RNTBC on behalf of the native title holders of the confidential sum referred to in the agreement, comprises full and just (in the sense required by s 51 and 53 of the NTA) compensation for any acts attributable to the respondent (or for which the respondent is liable to pay compensation) in the agreement area, in accordance with the terms of the agreement. The persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of the compensation, shall be determined in accordance with the decision making processes of the RNTBC as set out in its constitution.
[27] The parties engaged in extensive negotiations on a confidential and without prejudice basis. During the course of the negotiations, the Nguraritja provided the State with videoed interviews of the claimants and an expert report concerning the effect of the loss. The videoed interviews included material containing culturally sensitive information provided by the native title holders in support of their claim. That material is, in accordance with the traditional laws and customs of the Nguraritja, to be viewed only by certain senior males.
[30] The Nguraritja have creation stories and laws, known as tjukurpa, which cross the determination area. They claim that the establishment of the Stuart Highway and of the Digital Radio Concentrator tower have interfered with the pathway of a particular highly restricted men’s tjukurpa. There is a ceremony associated with this tjukurpa which is of the highest importance and in which only men of required ritual seniority can participate. The details of the tjukurpa and its association with the determination area have never been recorded in an open or public manner.
[31] The Nguraritja claimed that the Stuart Highway has cut the tjukurpa in three different places, causing irreversible damage to the cultural landscape and to the laws and customs associated with the tjukurpa. The Nguraritja also claimed that the Digital Radio Concentrator tower has been built in a sacred area and now constitutes an impediment to the tjukurpa track, as it travels from one site in the determination area to another. The Nguraritja also claim that Stuart Highway has changed the manner in which water flows across the land which, in turn, has spiritual consequences. In part, this is because the Stuart Highway has been built up and in part, because of the excavation of borrow pits at various places along its length.
The Nguraritja further claimed that the Stuart Highway has affected the exercise of their native title rights to hunt and gather from the land. This is because animals such as kangaroos and emus have been frightened away from the road. In addition, the Highway and its frequent use have restricted the activities which can be carried on in close proximity to it.
[42] The parties filed joint submissions that the Court should make an order preserving the confidentiality of the amount of compensation. They sought the making of that order pursuant to s 37AG (1) (a) of the Federal Court of Australia Act 1976 (Cth) on the ground that it is necessary to prevent prejudice to the proper administration of justice. SANTS provided an affidavit from Mr Pearson, the first of the named claimants. Mr Pearson’s affidavit disclosed the following:
the negotiations which the applicant conducted with the State were on a confidential basis and the applicant had understood, at the time of the negotiations, that the amount agreed upon would be kept confidential;
the amount of compensation is a compromise figure taking into account both legal and factual uncertainties and, further, the applicant’s desire to avoid further disclosure of the highly secret men’s law to which reference was made earlier; and
the potential for there to be a critique in the wider Aboriginal community, and in particular amongst the Western Desert People, of the compensation amount. Such a critique may be positive or negative, informed or uniformed, merited or unwarranted.
[44] Both the applicant and the State further submitted that the prospect of the compensation sum being kept confidential was a significant factor in the obtaining of agreement. Both parties pointed out that the principles concerning the assessment of compensation under s 51 of the NTA are still not finally settled, even taking account of the first instance decision in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 and the Full Court decision in Northern Territory of Australia v Griffiths [2017] FCAFC 106 and that the compromise was reached in this particular context. The parties referred to the suppression order made by Mansfield J in De Rose v State of South Australia [2013] FCA 988 and the reasons for that order given at [82].
His Honour considered there to be some countervailing factors: ‘These include the importance of the open justice principle, the fact that the compensation involves expenditure of public money and the interests of transparency and accountability with respect to the compensation sum. Further, things have moved on since the decision in De Rose. There are now the two decisions in Griffiths to which reference was made earlier. It is also reasonable to think that, in some respects, the disclosure of the compensation figure in this case may facilitate negotiations in other matters’ (at [46]).
[42] – [48] White J concluded that the order for suppression was appropriate, in particular having regard to the matters to which Mr Pearson deposed and the considerations to which Mansfield J referred in De Rose. In addition, his Honour took account of the policy of the NTA to encourage the resolution of matters by agreement, and the circumstance that, this being an early compensation case, the parties conducted their negotiations on the basis of an expectation of confidentiality. White J did note at [48] however, ‘that in the future when the principles concerning the assessment of compensation become more settled, parties may not be able to proceed on that assessed basis, especially having regard to the countervailing considerations to which I have referred.’
[49] His Honour was satisfied that it is appropriate to make the orders to give effect to the parties’ agreement.