Mabo, Wik, and now ‘Griffiths’: the endorsement by the High Court of compensation for cultural loss

Articles Written by Samantha Daly (Partner), Lara Douvartzidis (Associate)

First there was Mabo, then there was Wik. Now, as at 13 March 2019, we have Northern Territory v Griffiths (dec'd) and Lorraine Jones (on behalf of the Ngaliwurru and Nungali Peoples & Anor) [2019] HCA 7 (Griffiths), commonly referred to as the 'Timber Creek case'. In a majority decision of Kiefel CJ, Bell, Keane, Nettle and Gordon JJ, the High Court have, for the first time, judicially considered an appeal against native title compensation awarded to a claim group. For native titles holders, it is now clear that a loss or depletion of spiritual connection to the land is economically compensable relative to the native title held, and the acts that disrupted that spiritual connection.

Background

The Ngaliwurru and Nungali Peoples (Claim Group) are traditional owners of the land compromising the town and outer edges of Timber Creek, a tributary of the Victoria River in the north-western nook of the Northern Territory. In 1882 a pastoral lease was granted over the land surrounding Timber Creek. The town itself was proclaimed in 1975 and is estimated to cover around 2,362 hectares. It has a population of around 230 people, the majority of whom identify as Aboriginal and are native title holders.

Native title was granted to the Claim Group in 2006.[1] In 2007 the Full Court of the Federal Court ruled that the 2,053 hectares of native title land comprised an exclusive possession, use and occupation of the land.[2] In 2011 the Claim Group instituted proceedings in the Federal Court seeking compensation for the following events: that between 1980 and 1996, 53 acts (being grants of tenure and constructing of public works) impaired or extinguished native title rights and interests. However, the land comprising the 53 acts comprised of only 127 hectares, 6% of the total area held by native title holders. This was deemed by the High Court as the ‘application area’.

The Trial Judge ruled in favour of the Claim Group and awarded compensation as follows: $512,400 for economic loss (equating to 80% of the freehold land value), $1,488,261 in simple interest, and $1.3 million for non-economic loss. The Commonwealth and Northern Territory Governments unsuccessfully appealed to the Full Court of the Federal Court. Other than adjusting the economic loss to $416,325 (equating to 65% of the freehold land value) and the simple interest to $1,183,121, the Full Court upheld the findings of the Trial Judge. The Commonwealth and Northern Territory Governments were granted special leave to be heard before the High Court. For the first time in history, the High Court sat in the Northern Territory for the purpose of hearing the appeal. 

Findings of the High Court

Division 5 of the Native Title Act 1993 (Cth) (Native Title Act) likens native title rights and interests to freehold rights and interests for the purposes of dealing with, and compensating, native title. The High Court found that compensation should be attributed both to the freehold value of the area, interest, and also the cultural loss of the Ngaliwurru and Nungali Peoples.

On the issue of economic loss, the High Court reduced the amount to $320,250 (equating to 50% of the freehold land value), finding that the categorisation and timing of the compensable act are relevant in ascertaining the statutory source of the entitlement to compensation of economic loss. Compensation depended on whether the act was ‘a past act, an intermediate period act or a previous exclusive possession act’ in relation to Divisions 2, 2A and 2B of Part 2 of the Native Title Act.[3] In Griffiths, the majority of the compensable acts were previous exclusive possession acts.

On the issue of interest, the High Court rejected the argument of the Claim Group that the interest should have been calculated as compound interest. Instead they confirmed the Trial Judge and Full Court in imposing a simple interest basis at a rate sufficient to compensate the Claim Group for being deprived of the use of the amount of compensation between the date compensation was assessed and the date of judgment. The interest awarded was in the sum of $910,000.

Cultural loss’

It is important to emphasise that there was no dispute that the Ngaliwurru and Nungali Peoples be afforded compensation for non-economic loss. The High Court agreed that it was entirely appropriate in this case. Instead, the decision is significant due to the endorsement by the High Court of the introduction of cultural loss. This type of loss was previously articulated as ‘non-economic loss’ or ‘solatium’, both in the lower courts in this case and in case law more generally. Griffiths demonstrates that the High Court has deemed this language as distracting from the deeper purpose of the Native Title Act.[4] The term cultural loss, the Coram explained, better articulates and reflects the boundless loss felt by a Claimant Group separate to the typical common law description and quantification of economic loss.

In this case, the High Court emphasised the language of s 51(1) in assessing entitlement on just terms in the Native Title Act as ‘any loss, diminution, impairment or other effect of the act on native title rights and interests’[5] due to the dual aspect of native title rights and interest, being the physical or material aspect and the cultural or spiritual aspect.[6]  Although not in dispute, we note that the date used for the assessment of cultural loss was from the time of the act itself.[7] Contrary to the argument of the Commonwealth and Northern Territory, s 51(1) does not require the detrimental consequence to have arisen directly from the compensable act.[8] The High Court held that an evaluation under s 51(1) required three steps, as follows:

  1. Identification of the compensable acts;
  2. Identification of the native title holders’ connection with the land or waters by their laws and customs; and
  3. Consideration of the particular and inter-related effects of the compensable acts on that connection.

The High Court endorsed the Trial Judge’s finding that cultural loss should be measured by the nature and extent of the Ngaliwurru and Nungali Peoples’ connection or relationship with the land and by their laws and customs, in addition to the effect of the (compensable) act on that connection or relationship. In this case, the connection was articulated as the ‘loss from diminution in or disruption to traditional attachment to country and for loss of rights to live on, and gain spiritual and material substance from, the land.’[9]  Of particular significance were the three following issues: first, the construction of water tanks on a specific lot of land of Dingo Dreaming. Second, the water tanks impacted a ritual area that was not within the specific claimed area, but adjacent to it (deemed the ‘collateral detriment effect’). Third, that each act chipped away at the geography of the land which incrementally reduced their enjoyment of the land and created a ‘sense of failed responsibility’ in not caring for country.

The High Court used an analogy of a single large painting to demonstrate this third issue of collateral detrimental effect – if a single large painting represents a single and coherent pattern of belief, ie ‘organic parts of one dissoluble whole’,[10] and if, over time, acts effectively punches a hole in the painting, the painting is greatly diminished because the connection of the canvas to the overall area, ie the ‘pervasiveness of Dreaming’, and the Peoples’ obligation to care for the canvas, is compromised.[11]

The majority ultimately affirmed the finding of the Trial Judge that the Claim Group suffered a loss or diminution of their traditional attachment to the land, a loss of connection to country, and a loss of rights to gain sustenance from the land, and were therefore entitled to economic compensation, largely due to the three significant issues above, in the amount of $1.3 million dollars.

What now?

The High Court left it open for past acts to be compensable through cultural loss if native title rights and interests have been impaired or extinguished – because compensation on just terms must be provided to a claimant group in keeping with the purpose of the Native Title Act.[12] Spiritual connection to land should not be understood as being directly related to the activities on a specific lot of land, as this ignores the incremental nature of the spiritual potency of the land which contributes to an overall cultural loss of a claim group.

This case may be viewed as a precedent for the depth of compensation for past interference or extinguishment of native title rights and is likely to be relevant in negotiations for claimant groups for compensation for future acts. It may be that state governments, and in limited cases, third-parties, are now liable to compensate for cultural loss in keeping with, and articulated by, the decision of Griffiths. The dichotomous nature of calculating, in quantitative terms, the spiritual and metaphysical loss of culture is now a thing of the past, with Griffiths as a roadmap of the future. 

 


 

[1] Griffiths v Northern Territory (2006) 165 FCR 300.

[2] Griffiths v Northern Territory (2007) 165 FCR 391.

[3] Northern Territory v Griffiths (dec’d) (on behalf of the Ngaliwurru and Nungali Peoples) [2019] HCA 7 [28].

[4] Ibid at [53]-[54].

[5] Ibid at [46].

[6] Section 51(1), Native Title Act 1993 (Cth).

[7] Ibid at [43].

[8] Ibid at [218].

[9] Ibid at [161].

[10] Ibid at [278].

[11] Ibid at [205].

[12] Ibid at [27].

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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