Greenwood, Justice Andrew --- "Remarks by the Hon Justice Andrew Greenwood on the launching of Dr William Isdale's book entitled 'Compensation for Native Title'" (FCA) [2022] FedJSchol 14

No English words are good enough to give a sense of the links between an Aboriginal group and its homeland. Our word aEURoehomeaEUR aEUR| does not match the Aboriginal word that may mean aEURoecampaEUR, aEURoehearthaEUR, aEURoecountryaEUR, aEURoeeverlasting homeaEUR, aEURoetotem placeaEUR, aEURoelife sourceaEUR, aEURoespirit centreaEUR and much else all in one. Our word aEURoelandaEUR is too spare and meagre. We can now scarcely use it except with economic overtones unless we happen to be poets. The Aboriginal would speak of aEURoeearthaEUR and use the word in a richly symbolic way to mean his aEURoeshoulderaEUR or his aEURoesideaEUR. I have seen an Aboriginal embrace the earth he walked on. aEUR| A different tradition leaves us tongueless and earless towards this other world of meaning and significance. When we took what we call aEURoelandaEUR we took what to them meant hearth, home, the source and locus of life, and everlastingness of spirit. At the same time it left each local band bereft of an essential constant that made their plan and code of living intelligible aEUR| They had no stable base of life; every personal affiliation was lamed; every group structure was put out of kilter; no social network had a point of fixture left.

How then, on just terms, is compensation for such loss, diminution or impairment to be measured?

In the High CourtaEURtms Timber Creek decision (Northern Territory v Griffiths [2019] HCA 7; (2019) 269 CLR 1), the plurality at [44] characterised s 51(1) of the Act as recognising two aspects of native title rights and interests identified in s 223(1) as the aEURoephysical or material aspectaEUR (the right to do something in relation to land or waters) and the aEURoecultural or spiritual aspectaEUR (the connection with land). Thus, the two aspects of compensation involve quantifying economic loss as a result of being deprived of the right to do something in relation to land and quantifying nonaEUR'economic or spiritual loss, diminution or impairment. I will leave it to William to develop his thesis about the preferred method.

The Court expects there to be a large number of compensation cases. As at today, 30 June 2022, there have been 559 judicial determinations by this Court of native title rights. There are 146 applications pending and there are 14 outstanding applications for compensation. Many more will be filed.

Thus, Dr IsdaleaEURtms book is a critically important contemporary analysis of an undeveloped area of inquiry. Dr Isdale examines the structure of the Act generally and the unique character of native title rights; the relationship between s 223(1), s 51(1) and s 51A and just terms more generally; the approach to construing the proper application of s 51A; whether a sui generis approach to determining compensation is necessary or whether learning derived from an orthodox approach to assessing value in circumstances of compulsory acquisition can usefully inform an approach to compensation under the Act. Perhaps, an adapted approach which recognises the orthodoxy of other valuation methodologies and seeks to reflect a sense of equality of treatment is warranted and useful. Perhaps a aEURoereinstatement approachaEUR to compensation remains open having regard to the judgments in the Timber Creek decision. Apart from these matters, Dr Isdale examines the judgments of the High Court in the Timber Creek decision and respectfully expresses some observations on the approach of their Honours and the method reflected in those judgments.

Dr Isdale has also contributed significantly to our understanding of these issues in relation to the general law.

Dr Fulcher and I take the view that this chapter alone is worthy of detailed examination by readers interested in the intersections of the various branches of the law which are affected by the advent of native title.

This is an important and timely book. Compensation for native title loss and diminution may have significant financial and therefore political implications for the Commonwealth of Australia and its constituent States and Territories. Other issues, like COVID19, natural disasters and climate change have stolen the limelight in recent political and economic debates. Compensation for native title has received relatively little attention. However, it may of necessity take a more prominent place in the political landscape in the near future. Dr IsdaleaEURtms suggested approach of similitude in addressing any loss, diminution or impairment suffered by the native title holders, according more weight than hitherto to existing valuation methodologies, is likely to enter that debate as a principled approach to simplifying compensation for native title loss. It is therefore a book worthy of the attention of all keen observers of politics and economics interested in understanding the legal and constitutional framework within which these questions will be addressed in Australia.

These issues are important for the nation as a whole but particularly for Aboriginal and Torres Strait Islanders. Almost all of the issues discussed by Dr Isdale will be ventilated in the forthcoming cases. We regard the work as a careful, thoughtful and excellent analysis. Views may well differ about aspects of the analysis and some of the ultimate conclusions but that circumstance is simply a feature of the demands of an inquiring mind in an evolving area of the law.

We are very pleased to launch this book on its journey.

The Hon Justice Andrew Greenwood
Federal Court of Australia
30 June 2022