NATIONAL NATIVE TITLE TRIBUNAL WORKSHOP Practical implications of the Griffith Decision Perth Monday 19 September 2016
Mabo v Queensland (No 2) (1992) 175 CLR 1 The main difference between those members of the Court who constitute the majority is that, subject to the operation of the Racial Discrimination Act 1975 (Cth), neither of us nor Brennan J. agrees with the conclusion to be drawn from the judgments of Deane, Toohey and Gaudron JJ. that, at least in the absence of clear and unambiguous statutory provision to the contrary, extinguishment of native title by the Crown by inconsistent grant is wrongful and gives rise to a claim for compensatory damages.
Compensation applications 1 January 1994 – 18 August 2016 Grand APPLICATION_TYPE APPLICATION_STATUS NSW NT QLD SA VIC WA Total Compensation Active 0 1 0 1 0 3 5 Discontinued 12 2 3 1 1 1 20 Dismissed 4 4 1 0 0 0 9 Full Approved Determination 1 0 0 1 0 0 2 Withdrawn 0 0 2 0 0 0 2 Compensation Total 17 7 6 3 1 4 38
Timber Creek Determination and Compensation
Griffiths v Northern Territory (No. 3) [2016] FCA 900 Practical implications of the Griffiths decision Marshall McKenna 19 September 2016 S Y D N E Y | M E L B O U R N E | P E R T H
Overview • What the decision specifically addresses • What the decision does not address: • what is the quantum payable and test applicable for compensating the grant of mining and petroleum tenure • how does the decision sit with “flow through” and “provisions” on paragraph 1 effect of indemnities • effect of releases in native title agreements (including practical issues) SYDNEY | MELBOURNE | PERTH page | 7
What the decision specifically addresses 1. Basis of assessment of compensation for acquisition of land/grants of ‘standard’ land tenure 2. The relative value of non-exclusive native title rights 3. Interest 4. “ Solatium ” SYDNEY | MELBOURNE | PERTH page | 8
Basis of assessment • Apparently based on Racial Discrimination Act 1975 (Cth) invalidity – no compensation for acts prior to 31 October 1975? • Exclusive native title is functionally equivalent to freehold for valuation/compensation purposes. – context was acquisition of land for the purpose of grants under the Northern Territory’s land legislation • Measured at the time of the impairing act (not at the time of subsequent validation). SYDNEY | MELBOURNE | PERTH page | 9
Value of non-exclusive rights • The value attributable to impairment of non-exclusive native title rights was 80% of freehold value, based on the ability of the existence of (non-exclusive) native title rights to constrain the use of the land absent extinguishment – Apparently (but not expressly) based on the non exclusive rights as found, so it is not clear that 80% is ‘the number’ for assessment of the value of non-exclusive rights as opposed to the specified rights – means that compensation is based on footprint not impact SYDNEY | MELBOURNE | PERTH page | 10
Interest • The Court applied simple interest at the prescribed court rate • The decision does not rule out interest might be payable at a commercial rate if the Hungerfords v Walker principles satisfied. • There is potential for the question of interest to be dealt with differently in a different factual matrix (ie where there are structures that might have benefitted or there is evidence that alleviating poverty would have advantaged the community) SYDNEY | MELBOURNE | PERTH page | 11
Solatium • Assessment was: – ‘Complex’, ‘intuitive’ – ‘in globo’ • Relationship with country and the affect on relationship with country are paramount • Assessed against any impairment existing at the time of the act in question – probably means that one ‘discounts’ the solatium to reflect the pre- existing harm • Not tied to or limited by the economic value attributable to land. SYDNEY | MELBOURNE | PERTH page | 12
What the decision does not address 1. Assessment of the value of land by reference to special characteristics 2. The value of compensation for mining and petroleum interests 3. The effectiveness of flow through provisions i. economic value ii. solatium 4. Native title agreements i. utility to proponents ii. utility to the Crown SYDNEY | MELBOURNE | PERTH page | 13
Mining and petroleum interests • Mining tenements and Petroleum interests can coexist with native title and other land – compensation provisions under this legislation is NOT tied to land values – where there is coextensive tenure, which is the impairing act? – which compensation regime applies? SYDNEY | MELBOURNE | PERTH page | 14
Effectiveness of flow through provisions • Can you break down the economic value applicable to the grant? • Is “ solatium ” divisible? • It is probably possible to break down economic value to a particular grant. • It is expressly and logically not possible to allocate solatium SYDNEY | MELBOURNE | PERTH page | 15
Native title agreements • What is the effect of native title agreements on the liability of the crown/entitlement of native title parties? – Section 24MD(3); – Release of a grantee party – Indemnity issues; SYDNEY | MELBOURNE | PERTH page | 16
Section 24MD(3) • Applies to compulsory acquisitions notified under s29 • Applies regardless of who compensation was paid to • Crown is in most cases not privy to the details but usually aware of the existence SYDNEY | MELBOURNE | PERTH page | 17
Release of a grantee party • Native title agreements commonly release grantee parties from compensation claims • grantee party is not (directly) at risk • disconnect between claim and release (being that the party liable for the compensation is (usually) not a party to the release) • are releases of the grantee party ineffective? SYDNEY | MELBOURNE | PERTH page | 18
Indemnity issues • Native title agreements not uncommonly include an indemnity of the grantee parties in resect of compensation claims – will only apply if the Crown pursues allocated flow through SYDNEY | MELBOURNE | PERTH page | 19
Indemnity issues: how will this work? • Crown does not know all of the native title agreements, releases and indemnities – has some hints by reference to ancillary agreements recited in s31 Deeds – confidentiality restrictions? • A grantee party may not be aware of a claim against the State that affects it – may also be cost constrained from participating SYDNEY | MELBOURNE | PERTH page | 20
PRACTICAL IMPLICATIONS OF THE GRIFFITHS DECISION Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 NATIONAL NATIVE TITLE TRIBUNAL WORKSHOP SEPTEMBER 2016 TESSA HERRMANN, CENTRAL DESERT NATIVE TITLE SERVICES
PERSPECTIVE ON KEY ISSUES 1. Date at which compensation entitlement arises 2. Freehold value as the starting point: • Due recognition of status as owners of country Difficulty of ascertaining freehold value in remote areas • • Freehold valuation regardless of nature of extinguishing act? 3. Non-exclusive rights at 80% of freehold 4. In globo solatium assessment; cumulative impact 5. Approach to expert evidence; application of economic principles to valuation of native title rights
LINK BETWEEN ECONOMIC VALUE AND SOLATIUM Nexus between economic value and solatium? • • “No market for this” – a matter for “social judgment” ( Crampton v Nugawela (1996) 41 NSWLR 176) • Factors considered: – Loss of and damage to country -> pain and anxiety – Aggravation of pain and anxiety over time – Impact of acts felt beyond their physical footprint • Significant considerations in Griffiths : – Damage to dreaming track – General impact – Diminished ability to exercise rights; sense of failed responsibility • Inability of the Native Title Act to deliver true compensation
ISSUES FACING CLAIMANTS FOR FUTURE APPLICATIONS: RELEVANCE OF SS 47, 47A & 47B NTA Sections 47, 47A & 47B NTA = “Clawback provisions” • • Griffiths v Northern Territory of Australia [2014] FCA 256: operation of s 47B NTA in compensation context may produce “apparently idiosyncratic outcomes” and “recovering twice for the one loss” Is restoration of native title rights truly “recovering” for a loss? Is • this a place for compensation for ‘occupation’? • Section 47B NTA in Griffiths #3 : – Acts 37, 38 and 39: Applicant not entitled to compensation because prior historical extinguishment is not disregarded in compensation context – no greater extinguishment effected once s 47B NTA put to one side – Act 34: claimants enjoyed native title over area since August 2006, compensation still payable in form of interest because s 47B NTA does not apply “Flow through” effect from determination •
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