BY SEAN BRENNAN

This is the second of two posts AUSPUBLAW is featuring on the High Court’s Timber Creek decision. Aaron Moss and William Isdale’s accompanying post is here.

With the handing down of the High Court appeal decision in Northern Territory v Griffiths on 13 March, the Ngaliwurru and Nungali peoples came to the end of a long road. They began court action 20 years ago, to defend their native title rights in the bush township of Timber Creek against compulsory acquisitions by the Northern Territory government.  Many traditional owners have passed away in the two decades since. This recent case bears the name of one of them, senior lawman and key witness Mr A. Griffiths, who died three months before the High Court appeal was heard in Darwin last year (his first name was removed from the case title by the High Court in recognition of traditional cultural protocols regarding the recently deceased).

Mr Griffiths came from the Victoria River district where the modern land rights movement dawned in 1966, when Aboriginal stockmen led by Vincent Lingiari staged the famous Wave Hill walk-off. That labour strike turned into a quest for land justice, culminating in the passage of land rights legislation in the national parliament in 1976. More than half a century later, the Ngaliwurru and Nungali peoples have achieved another historic landmark in Australian law that will re-shape relations between First Nations peoples and the Australian state.

The context

This latest case concerned just terms compensation for the native title rights lost as a result of government acts of extinguishment between 1980 and 1996. Those official actions involved the construction of various public works in the town, together with the grant of leases and freehold titles – in all, fifty-three ‘compensable acts’ as they became known during the Timber Creek litigation. Although contestable, the conventional legal understanding in Australia is that nothing that happened before 31 October 1975 is compensable, that being the date when the Racial Discrimination Act became law and acts of extinguishment became acts of unlawful racial discrimination.

In Timber Creek, a lot had happened, of course, between the arrival of European settlers in the area and October 1975. The roughly hundred years of history had much in common with other parts of northern Australia. Pastoral leases put pressure on local Aboriginal people, often obstructing access to areas of spiritual and material importance, such as waterways and hunting grounds. Frontier conflict followed, ultimately quelled by the overwhelming force of colonial authorities. By the early 1900s, many Aboriginal people were working on pastoral stations on or near their traditional land. Full wages and improved conditions remained decades away. Through much of the 20th Century, the Chief Protector, the police and often station managers could exercise intrusive controls over movement, marriage and working lives. Children of mixed heritage could be removed. Education, voting and other citizenship rights were routinely denied.

Eventually Australian law, which had long authorised dispossession and discrimination, began to shift in a new direction, towards what Altman and Markham called ‘legal repossession’ of significant tracts of land by Aboriginal people. First, traditional owners regained territory in areas surrounding the town of Timber Creek, under the federal Land Rights Act operating in the Northern Territory. Then the Ngaliwurru and Nungali peoples were recognised by the Federal Court in 2006 as the native title holders for areas within the township itself. They and their ancestors were found to have occupied the area and practised their traditional laws and customs continuously from before Crown sovereignty was asserted in 1825, through to the present day. But in some areas of the town, their native title was extinguished by official actions taken after 1975, creating a statutory entitlement to just terms compensation.

A complicated legal framework

The legal framework for compensation was established in the original Native Title Act of 1993. Section 51 of the Act is the lynchpin. It says that native title holders are entitled to compensation ‘on just terms … for any loss, diminution, impairment or other effect’ that certain defined acts have ‘on their native title rights and interests’. A court may also have regard to principles and criteria set out in the land acquisition legislation of the Territory, State or Commonwealth.

It is 25 years since that statutory scheme in the Native Title Act came into force, yet Timber Creek is the first compensation claim about the extinguishment of native title that has been litigated to the point of a judge calculating just terms as a monetary sum.

There are at least three crucial factors in determining the overall loss to be compensated:

  • The native title rights affected by the compensable acts
  • The ‘extinguishment outcomes’ caused by the compensable acts
  • The factual evidence and legal issues concerning the loss and other harms suffered.

The Timber Creek litigation demonstrates what an enormous expenditure of time, effort and money can be involved in clarifying these three factors.

Number one is establishing the rights that were there before the government action took place. The formidable first obstacle in the path of an Aboriginal group seeking compensation is that they must achieve a native title determination proving that, at least until October 1975, their native title rights survived. The Timber Creek native title determination arrived at by Justice Weinberg in 2006, after lengthy litigation, and then revised on appeal in 2007, clarified the set of non-exclusive native title rights that the Ngaliwurru and Nungali people held as at October 1975.

Secondly, the acts that affected native title after October 1975 have to be itemised and their extinguishment outcome has to be defined. Extinguishment law is about how the friction between two sets of very different legal interests is characterised, and what consequences to attribute to that friction.

Australian law has developed three categories to describe these legal consequences for native title that are attributable to adverse government action:

  • total extinguishment in the relevant area, for example by a freehold grant or true lease;
  • partial extinguishment, for example the loss of control over third party access, due to the grant of grazing rights and other entitlements under a pastoral lease; and
  • suppression of the native title in whole or in part, for the duration of the adverse action by the Crown or parliament (such as the creation of so-called Crown-to-Crown grants where one arm of government grants another arm of government title over land).

In Timber Creek, some of these extinguishment outcomes were clarified during the original native title claim litigation that ended in 2007. But after the compensation claim was launched in 2011, there was further detailed litigation over these questions. Almost all the compensable acts were found to have totally extinguished native title. In three instances the acts were so-called ‘Category D past acts’ that attracted the suppression or non-extinguishment principle, but in this case they were also treated, on an agreed basis, as essentially permanent in their effect. Adjudicating all these ‘extinguishment outcomes’ involved the complicated interplay of Commonwealth and Territory native title legislation, together with an array of mainly Territory laws such as the Crown lands legislation.

Thirdly, and only then, does a native title compensation claim focus on the question of loss and how to quantify it. This third question was the focus of the judgment delivered by Justice Mansfield in August 2016, the Full Federal Court appeal in 2017 and the recent decision by the High Court. Three issues dominated the proceedings.

Economic loss, pre-judgment interest and cultural loss

The first was how to put a value on what the applicants designated as the economic loss suffered by the native title holders as a result of acts of extinguishment done between 1980 and 1996. The High Court has confirmed a default expectation that where native title amounts to exclusive possession, the proxy for its economic value is the market price for freehold in that area. Where the Aboriginal group held non-exclusive rights at the time of extinguishment – most commonly because of the grant of a pastoral lease long before 1975 – the economic loss equates to some lesser percentage of the freehold market price. Mansfield J said the non-exclusive rights of the Ngaliwurru and Nungali were worth 80% of freehold, the Full Federal Court said 65% and the High Court further discounted them to 50%. The plurality High Court judgment acknowledged that it is an ‘evaluative judgment’ based on the limitations compared to exclusive rights, and in the end a ‘fairly broad-brush estimate of the percentage’. The High Court contemplated that the economic value of non-exclusive native title might vary, both above and below a 50% discount on freehold (see paras [70], [74], [106] and [107]).

The second major issue was how interest should be calculated on that economic loss. That is, the compensation for being kept out of money between the time the compensation entitlement arose and the date of judgment – a delay now nearing 40 years in some instances. The claim group said that it was inequitable for the Territory government to have both the land (with associated rents and profits) and the compensation money in its hands for such a long time. The statutory standard of ‘just terms’, supported by precedent, demanded the payment of compound interest, which would reflect what the Territory saved on its borrowings over decades. The High Court, however, followed the lower courts in rejecting these arguments and ordering simple interest instead. The plurality did leave open the possibility that compound interest may be appropriate in a different set of circumstances (paras [108], [128], [132], [133] and [137])

The third and final issue is the hardest: how to put a value on the non-economic loss suffered by a native title group when their traditional rights are extinguished, what the High Court preferred to call ‘cultural loss’. This has proved to be by far the most significant aspect of the case. The traditional owners and anthropologists gave powerful evidence about cultural loss and what the trial judge described as gut-wrenching pain and deep emotion. He awarded $1.3 million for that loss, which related to just over one square kilometre of land. On appeal, both governments resorted to various arguments that downplayed the nature of this loss, and atomised its effects. The Commonwealth said cultural loss compensation should be paid on a quarter acre block-by-block basis across the township, generally $5000 per lot. The Territory said it should be 10% of the economic loss. These approaches would have wiped out 80% and 94% of the original award for non-economic loss, respectively. But the Full Federal Court and the High Court both decided that Justice Mansfield’s ruling should be left intact and vindicated his approach to the evidence and the law.

The High Court stressed the ‘essentially spiritual’ nature of Aboriginal connection to land and the corresponding gravity of the harms suffered when governments take land, disrespect its significance and damage sites. With a series of observations about the evidence presented at trial, the plurality judgment from the High Court constituted an emphatic rejection of government attempts to ringfence and minimise the loss. The connection of the Ngaliwurru and Nungali to their land was described as broad, deep and unique. The loss from successive acts of extinguishment was both incremental and cumulative. The pain experienced due to desecration of sites and the failed sense of responsibility to protect traditional country from harm is ongoing. The loss cannot be compartmentalised, because the Dreamings – the creation stories that confer significance upon the land – are pervasive: ‘the people, the ancestral spirits, the land and everything on it are “organic parts of one indissoluble whole”’ (paras [153], [176], [180] and [206]).

Conclusion

With a deeper discount to freehold value being applied by the Full Federal Court and again by the High Court for the economic loss of non-exclusive rights, the overall compensation award for extinguishment at Timber Creek has come down from $3.3 million to $2.9 million to $2.5 million (consisting of $320,250 for economic loss, $910,100 for pre-judgment interest on that loss and $1.3 million for cultural loss). That was no doubt a disappointment to the Ngaliwurru and Nungali. Nonetheless, they have drawn a line in the sand. They forced the Australian legal system to confront an issue that has awaited attention for 25 years since the Native Title Act came into operation, and for 231 years since Governor Phillip at Port Jackson claimed sovereignty for the Crown.

This test case asked our highest court to stop and reflect on what harm is involved, when governments take land from Aboriginal people. The Court has spoken before of the ‘essentially spiritual’ connection to land, in the Ward case in 2002. Back then, that idea seemed to diminish the potency of native title as a property right to be enjoyed in the contemporary world. The fear of Aboriginal groups was that governments might persuade courts to double down on that effort at minimising the significance of native title, this time in compensation terms. But, like the Federal Court, the High Court resisted those submissions. It held the line and saw through the consequences of insisting on the differential nature of native title in this spiritual respect. The Timber Creek litigation was an important test for the High Court in the new and somewhat more bicultural legal world we have after Mabo. And now, the outcome of the case is a moment of reckoning for Australia.

Litigating these issues tooth and nail, case by case, would burn up a lot of resources. Putting aside the human cost involved, just look at the thousands of pages of transcript, submissions and judgments, the dozens of days in court or in on-country hearings, the many thousands of hours of paid labour, to arrive at this outcome in Timber Creek – for an area just over one square kilometre.

When the Mabo decision was handed down in 1992, some people saw an opportunity for Australia to grasp the challenge and opportunity of comprehensive agreement-making. In such a process, governments and Indigenous groups would seek to negotiate and resolve outstanding issues relating not just to land and dispossession, but other priorities regarding the past, present and future, in a holistic way. However, the interdepartmental committee that reported to the Commonwealth government in 1993 steered away from this option, and the wider ‘social justice package’ promised by the Commonwealth government as part of its response to Mabo was never delivered.

After twenty-five years’ experience with a slow, arduous and legalistic system, the calls for more comprehensive and negotiated approaches to native title and Indigenous empowerment have strengthened not diminished. With the Timber Creek decision, the High Court has now confirmed the gravity of loss suffered when Aboriginal people are dispossessed of their land and the dollar figure attached has no doubt captured the attention of politicians and bureaucrats. Once more there are incentives to talk about integrating native title with a broader policy agenda. And this time we have a clearer framework available for moving forward. The Uluru Statement from the Heart calls for a Makarrata Commission to oversee a process of agreement-making between governments and First Nations. The creation of a constitutionally-enshrined First Nations Voice will give the Commonwealth the opportunity to sit down and negotiate the establishment of a Commission and the framework for such a comprehensive agreement-making process.

Sean Brennan is an Associate Professor of Law at UNSW

Suggested Citation: Sean Brennan, ‘Timber Creek and Australia’s Second Chance to Grasp the Opportunity of Mabo’ on AUSPUBLAW (03 April 2019) <https://auspublaw.org/2019/04/timber-creek-and-australia’s-second-chance/>.