![]() |
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 17 September 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Darwin No D2 of 2018
B e t w e e n -
COMMONWEALTH OF AUSTRALIA
Appellant
and
MR A. GRIFFITHS (DECEASED) AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
First Respondent
NORTHERN TERRITORY OF AUSTRALIA
Second Respondent
Office of the Registry
Darwin No D1 of 2018
B e t w e e n -
NORTHERN TERRITORY OF AUSTRALIA
Appellant
and
MR A. GRIFFITHS (DECEASED) AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
Office of the Registry
Darwin No D3 of 2018
B e t w e e n -
MR A. GRIFFITHS (DECEASED) AND LORRAINE JONES ON BEHALF OF THE NGALIWURRU AND NUNGALI PEOPLES
Appellant
and
NORTHERN TERRITORY OF AUSTRALIA
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE
J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT DARWIN ON THURSDAY, 6 SEPTEMBER 2018, AT 10.02 AM
(Continued from 5/9/18)
Copyright in the High Court of Australia
____________________
KIEFEL CJ: Yes, Mr Glacken.
MR GLACKEN: If the Court pleases, in relation to compensatory interests the trial judge concluded, correctly in our submission, that without interest the native title holders would not be compensated on just terms, this was because material loss was to be assessed at the earlier date when an invalid act occurred rather than at the later date of validation, and there appears to be no issue about that fundamental conclusion.
Could I take your Honours to the trial judge’s reasons, at appeal book page 163, where his Honour expresses that conclusion.
KIEFEL CJ: What paragraph is that, Mr Glacken?
MR GLACKEN: It is paragraph 254 on page 163. At that paragraph his Honour accepts the contention by the claimants that interest is awarded as part of the compensation and expresses the reason in terms of:
the entitlement . . . in circumstances where the market value is to be determined at –
the earlier date and expresses the view that that:
necessarily includes interest . . . to provide for compensation on fair terms, or compensation which is in a just amount –
and therefore is:
not . . . necessary or appropriate to resort to s 51A of the Federal Court -
I will come in a moment to the relationship between section 51 of the Native Title Act, the entitlement, and section 51A of the Federal Court Act.
The basis for his Honour expressing the view that it is not necessary to have resort to that statutory provision appears from the line of authority noted at paragraph 249, which has been described in the submissions so far as the “equitable principle” or the “equitable rule” in the line of cases such as Huon Transport and Marine Board of Launceston. His Honour at line 10 encapsulates the reasoning of those authorities where his Honour says:
That is, the right to interest as recompense for the delay in payment of compensation is an equitable right, developed by analogy to the entitlement which would arise in relation to a specific performance of a contract [sale] -
And had earlier said that, in effect:
the right to receive interest on the compensation entitlement takes the place of the right to retain possession.
That is, the possession of the land or receipt of its rents and profits.
Now, the Full Court also appear to have accepted the proposition that interest was payable by reference to that principle, that the right to interest takes the place of the right to possession of the land, and your Honours have been taken to the relevant passage in the Full Court’s reasons at paragraphs 231 and 233, appeal book page 339.
Pausing at that point, and dealing with the Commonwealth’s appeal as to whether or not interest is part of compensation or on compensation. Certainly in a non-native title context, acceptance of the relevant equitable principle means that allowance of interest has the character of interest as something that is part of the compensation rather than something on top of the compensation.
We collect the authorities in our submissions but particularly paragraph 99, footnote 146 in the Bank Nationalisation Case, Justices Rich and Williams at 76 CLR 277-8, note and conclude that the authority of this Court accepts that in cases of compulsory acquisition of land compensation includes interest as part of the award.
In the context of the present matter, we submit that the equitable principle or what has been developed in that line of authority, informs the entitlement expressed in section 51 of the Native Title Act and does so inform the construction of that entitlement by way of three indications, if you like.
The first is simply by the measure of the entitlement in subsection (1), that is a just terms entitlement. Equity recognises that the retention of compensation and the possession of land or its rents and profits is inequitable. So in that sense to not provide that compensation of that sort, would not provide just terms.
The second indication is in the text of subsection (4) of section 51 in directing permissive regard to compulsory acquisition criteria. That compulsory acquisition criteria commonly in other statutes will now have provision for interest, but, as developed in that line of authority of Marine Board and Huon Transport, if the statutes providing for compulsory acquisition were silent as to interest, the equitable principle would still have a part to play for non-native title so we say that subsection (4) is properly informed by this equitable principle.
The third indication is within section 51A of the Native Title Act, which posits the cap by reference to the interest of a freehold estate on a compulsory acquisition. Again, from that line of authority, if there were compulsory acquisition of a freehold estate then there would be an entitlement to interest as part of the compensation in equity, subject to contrary statutory provision.
As I indicated, the trial judge at paragraph 254 found it unnecessary to resort to section 51A of the Federal Court Act, which provides a source for the Federal Court to award compensation by way of interest or interest on compensation. Of course, subsection (2)(d) provides that the section does not:
limit the operation of any enactment or rule of law which . . . provides for the award of interest –
We submit that section 51 of the Native Title Act is an enactment which provides for the award of interest as part of the compensation. That is all we wanted to say about that particular aspect which is the Commonwealth’s appeal.
Dealing with the measure of interest advanced by the Claim Group below, each of the trial judge and the Full Court rejected the case that the correct measure or rate to give effect to the principle that I have mentioned was supplied by the return on long-term government bonds, which was the subject of expert opinion evidence by Mr Houston. They did so for two connected reasons which can be found in the judgment at first instance at appeal book page 168, first of all at paragraph 269, where his Honour concludes that because of validation that the acts done by the Territory at the time are not invalid:
there is no justification for compound interest simply given the longer time period involved [because] there has been no period . . . of unlawful use of the land.
The second reason for rejecting the case appears at the end of paragraph 270, in the last three lines, and then it is developed in other findings of the trial judge and that was that there was an insufficient:
evidentiary foundation for the award of interest other than on a simple interest basis -
And, his Honour’s findings in that respect appear, for example, at paragraph 278, that:
if the monies received were invested –
his Honour found the Claim Group:
would have applied the interest received toward activities for their benefit.
We submit that those two reasons are faulty in this respect. First of all, as to validation, it serves the particular purpose of ensuring that the titles or acts of others are valid as against the native title. It does not remove the underlying inequity recognised in the equitable principle, that is, the inequity of the government retaining compensation and being in possession of the land or receipt of its rents and profits.
In the statutory scheme here, that inequity is brought about by the retrospective extinguishment – a relation back, if you like – by which there is deemed to be an entitlement to compensation at the earlier time of the act and, necessarily, a corresponding obligation to pay on the part of Government related back to that earlier time.
As with the lines of authority like Inglewood, considered in Huon Transport and Marine Board, it is recognised that that underlying equity is not removed simply because an acquisition, a normal acquisition might be authorised by statute. So in that respect we say the notion that there had been validation by the Native Title Act does not remove that inequity and the rationale for the relevant approach to interest. On the second aspect, which is one of - - -
KIEFEL CJ: But his Honour did not say that, did he?
MR GLACKEN: In what respect?
KIEFEL CJ: His Honour was not of the view that, just because of validation, the equitable principle did not operate. His Honour applied the equitable principle regardless. He considered it does not take you to compound interest.
MR GLACKEN: No. The short point I will come to lastly is that by reference to that principle the measure that we say should be a fair or mean return on a long-term government security or secured loan and that what is put forward in the expert opinion evidence is formulated to that end.
Now, what his Honour concluded was that, as of the arguments that have been presented, something more was required in the line of a flagrant default in fiduciary or the like to go beyond simple interest. We submit that if one focuses on the measure, that is a fair or mean return over a relevant period, and in the statutory context of this retrospective extinguishment that is a basis for awarding something other than simple interest, and I will come to that last.
The second reason – and it is bound up with what I have just said – is that we submit as to causation it is inconsistent with the rationale in equity that some further causal link, for example, loss of use of moneys in a profitable way is necessary. The relevant causal link is that in this case the Territory has obtained enjoyment of the land or its rents and profits without payment of compensation as from the time of taking possession. That is the causal link, that the former owner is dispossessed without payment.
The next two points that we develop from that underlying principle which we say inform the statutory entitlement is that equity in this area imposes an obligation that speaks of having to repay interest and the parties are placed in a constructive trust relationship with respect to the land and the moneys. It is what Lord Jessel, the Master of the Rolls, in Lysaght v Edwards described as a “constructive conversion in ownership” in the context of the purchaser/vendor line of cases. It stems from what is said by Lord St Leonards in Birch v Joy. That is quoted at length in Huon Transport, if I can give the citation.
EDELMAN J: All of that needs to be read in light of what this Court said in Tanwar v Cauchi.
MR GLACKEN: In what respect, sorry, your Honour?
EDELMAN J: In the respect that the old analogies between specific performance and a trust need to be viewed with caution.
MR GLACKEN: Yes. The trust is only something that can be very limited - necessary for the particular obligations that attach to each party. That is simply the obligation to pay is notionally secured.
EDELMAN J: But the compound interest circumstances in relation to a trust arose because the trustee was accountable and the trustee was required to account for the money and account for everything that had been done with it. That is very different in the circumstances of a constructive trust where the entirety of the constructive trust is co-extensive with the order of specific performance.
MR GLACKEN: No, and the measure that we take, though, from that constructive trust relationship is one that the award or the rate would be consistent with an authorised trustee investment. For the early cases on the compulsory acquisition lines - and we mentioned two in the outline and one is dealing with the compulsory acquisition where the award is 4 per cent, that is the historic award, and at that time that was the percentage allowed by Court of Chancery for returns on authorised trust investments.
Now, it is simply another check, if you like, to the final point I wish to make as to the measure and I have already formulated that in terms of looking for a fair or mean return on a long term security or loan for the relevant period - that can be an authorised trust investment or it can be just likened, if you like, to the situation of forced loan.
Perhaps I might do it this way. Justice Gageler asked a question about the Lands Acquisition Act (Cth) and can I hand up an extract of the Act together with the report of the Australian Law Reform Commission that led to its enactment. If your Honours go to the Act, the particular current provision or the one that has been enacted since 1989 dealing with interest generally is section 91. Subsection (2) provides for interest “from the day of the acquisition” until the compensation is paid.
Subsection (4) allows for rests of three months and successive periods of three months from the date of acquisition, in other words, rests by way of compounding, so it is interest upon interest. We have included the current regulation which prescribes the rate by reference to the current government bonds of the Commonwealth. We have not included the current table.
Now, the reason for that approach that we say captures the approach to be adopted in this case appears from the report of the Commission in its recommendations. We have included some earlier discussion by the Commission as to some of the defects in the then present system at paragraph 202, including delays and what have you. But the Commission’s recommendation on interest appears at paragraph 223 and it is the first five lines or so on that page:
The rate of interest should be that appropriate to a government security. Essentially, the claimant is in the same position as a person who has lent money to the government.
Now, that was the basis upon the evidence given by Mr Houston. He approached the question of compensating interest as an economist in two ways. One was to look to see what would be any risk borne by the claimant, and the other was to look at what was the borrowing costs of the Territory.
We collect the references to the report in our submissions at paragraph 108 and also some of the oral evidence where Mr Houston explained that what was being advanced was a measure of a claimant being in a forced position of making a loan to the Territory, in the same manner as this structure in the Commonwealth Act by reference to the government bonds of the Territory for the relevant period, in particular, in the Territory’s material of the transcript, Territory volume, pages 811 to 812.
For those reasons, we submit that the courts below erred in rejecting the measure that had been put forward and that the measure put forward, the government bond risk-free rate, accords with the recognised approach in the line of equitable cases as developed and adapted in compulsory acquisitions which we say properly informs the construction of entitlement in the Native Title Act.
NETTLE J: Mr Glacken, is this prescribed rate more favourable to you than the Federal Court rate?
MR GLACKEN: Only by reference to what would be the period involved. So I cannot speak of that rate, the Commonwealth rate, but in terms of Mr Houston’s evidence, the bond rate that Mr Houston used, those applicable to the Northern Territory, generally would have a lower rate than that prescribed under the equivalent of the Federal Court Act provisions but it is a matter of whether rests are allowed. Mr Houston allowed for six month rests.
NETTLE J: This is only any good to you if you get compound interest, is it not?
MR GLACKEN: Yes – no, no - - -
NETTLE J: Otherwise, you are ahead with the Federal Court rate.
MR GLACKEN: Yes, but we draw upon that material that the rationale for allowing rests - - -
NETTLE J: I understand.
MR GLACKEN: Yes. Just to complete the picture, Mr Houston has adopted 10-year government bonds, having regard to the lengthy period so in effect there are two phases here. There is a 15-year period between the dates of acts, the commencement in 1980 and its validation in 1994, and then there is a second phase, if you like, after that where there was the new statutory regime, albeit related back. He adopted 10-year government bonds as the longest available bond for that phase and allowed for six-month rests being the yields payable on those bonds.
Unless there is something else, I then wanted to address questions of intangible losses. Could I ask your Honours to turn up the reasons of the trial judge, paragraph 317 at core appeal book 178? What I intend to do, your Honours, is to explain the structure of the trial judge’s reasons, pay particular attention to some of the complaints that have been made and then return eventually to the Full Court, given the focus is naturally on the Full Court’s concurrent findings of what occurred at first instance.
But the starting point, in our submission, for this aspect of the case is necessarily informed correctly, we say, by his Honour’s observations at paragraphs 317 and 318, that in assessing subjective intangible effects - first of all, at 317, it is necessary to go beyond the statement of recognised or determined rights which:
cannot be divorced from the content of the traditional laws and customs . . . that sustain rights –
and importantly:
and duties in relation to land held under the relevant Claim Group’s normative system, and –
we emphasise:
the customary practices and beliefs of the Aboriginal peoples concerned.
If we pause there, that inquiry is necessary because as Yanner v Eaton remarks, native title is not just a bundle of dual rights, it is also a socially constituted fact that is expressed by the requirement of connection in paragraph (b) of the statutory definition.
One could not undertake an assessment of the kind that the trial judge was confronted with without appreciating that the nature of that connection for the persons concerned because, if you like, one cannot separate right and person or property and person or land and person. They are one indissoluble whole and the statutory definition reflects that in the terms of paragraph (b) of the definition. So, secondly at paragraph 318, his Honour observes, perhaps somewhat trite, that:
Not all groups will be the same -
and goes on to explain that:
An evaluation of what are the relevant compensable intangible disadvantages –
That is the language of the Lands Acquisition rule, rule 9:
requires an appreciation of the relevant effects on the native title holders concerned, which, may include elements of ‘loss of amenities’ or ‘pain and suffering’ -
et cetera, borrowing from the learning on non-pecuniary damages and in the last sentence his Honour then says:
In that respect, evidence about the relationship with country and the effect of acts on that will be paramount.
If your Honours were to note, the evidence about the relationship of country, and this is the structural aspect of his Honour’s judgment, is at paragraphs 328 to 347 and then his Honour’s appreciation of the evidence of the effects of acts is at paragraphs 348 to 383.
So, in other words, what the trial judge did, and I will come to the detail in a moment, was inquire as to the normative relationship between the particular claim group and the area, traditional country concerned. Then having grasped what was the nature of that relationship - so, if you like, that could be called generalised evidence - then came to deploy that understanding when appreciating the effects of the compensable acts.
If your Honours recall the map that I handed up yesterday of the compensable acts they are, if you like, a job lot. There is the subdivision area and then there are various parcels around the town. There was a submission that it is open to a claimant to simply advance a claim for one lot but that, as the anthropologist explained, and I will come to this in a moment, would be artificial.
It would not be productive in a case like this when you have a town where native title has been determined to exist save for extinguished parts and it is a question of what is the compensation for that part when native title has been destroyed. But just staying with the approach taken by the trial judge at 317 and 318, can I draw upon some learning on the approach to non-pecuniary loss. It is a judgment of the Victorian Court of Appeal; it is in volume 6 of the cases at case 44.
BELL J: What is the name of the case?
MR GLACKEN: I am sorry, CSR Readymix v Payne.
BELL J: Thank you.
MR GLACKEN: Volume 6, case 44. It is a personal injury case and President Winneke, commencing at 508 of the report – or PDF 2299 –reviews the relevant authorities such as Miller v Jennings on the nature of the evaluative task involved in an assessment of non-pecuniary loss, makes observations as to the position of a trial judge compared to a jury, given that a trial judge is required to give reasons for the assessment unlike a jury – and if I can draw the Court’s attention to the very final paragraph on 508 of the report where President Winneke notes that although a judge is required:
to state his reasons for arriving at his assessments –
that should not:
be permitted to obscure the fact that the assessment of an appropriate sum in respect of a component of damage such as pain and suffering and loss of amenities is more likely to result from the trial judge’s observation of an injured plaintiff and his judgment of the effect which the injuries have upon him than is the assessment of an appropriate sum for loss of earnings or earning capacity which is more likely to be derived from the drawing of inferences from facts proved -
The assessment of the effects of acts upon a claimant will be concerned with subjective effects. Another example in this Court is Rogers v Nationwide News dealing with defamation where Justice Hayne makes similar observations.
The implications for the present case are, in our submission, illustrated by the findings of the trial judge which I will come to in a moment – perhaps if I can identify them – about the effects of acts, commencing at paragraph 348, where his Honour records the strength of the evidence given and the nature of the beliefs expressed by the claimant witnesses and then onwards, for example, at 352, quotes particular evidence of some of the witnesses referring to the effects of loss of country and sites, in plural.
There has been some suggestion in a case which we will deal with later that the evidence is a lot more isolated, we say, than what is actually the case. Could I then say something about the structure of his Honour’s reasons and what we say are some key - - -
EDELMAN J: Just before you move from 318, do you understand the exercise that the trial judge has performed as effectively - with the analogy of loss of amenities and pain and suffering that he has used at 318 - to have conflated both of them to give a single award for both of those conventional types at least in the area of non-economic loss elsewhere?
MR GLACKEN: In terms of his approach to this case, he has put the expression at 318 “‘loss of amenities’ or ‘pain and suffering’” in quotes by way of saying it is just offering an analogy. But, likewise, his Honour also refers to reputational damage. There is a reason for that both as principle and also, if you like, driven by the facts of the case. A lot of the witnesses gave evidence about letting neighbouring groups down and a feeling of shame and anxiety so, in effect, like reputational damage.
I might go to it now, I was going to come back to it later. But his Honour at 313 noted some usefulness from a judgment of the New South Wales Court of Appeal in Crampton dealing – it is a defamation case where the ultimate touchstone, if you like, is a social judgment - - -
GORDON J: Did you say 313?
MR GLACKEN: Paragraph 313 of the trial judge’s reasoning. Then, at 314 Justice Mansfield says, although in a different context:
those observations are nevertheless apt to the present circumstances.
So, to answer Justice Edelman’s question, there is no separation in the reasons, if you like. At the end, at 383 of the judgment, where his Honour refers to what is known as three particular considerations, he notes that they are not to be considered as having separate values.
EDELMAN J: It is the amenity of the land and the pain and suffering are both mingled in the $1.3 million award.
MR GLACKEN: Yes. We would say necessarily so, given the nature of the property, if I can put it that way, by reason of paragraph (b) of the statutory definition.
I mentioned earlier in Ward there is a remark about the difficulty in the context of recognising native title about having to fragment what is a complex relationship. There has been a passing remark by the Full Court about the fragmentation to some degree in this case. I would submit that to fragment further, if I can adopt that phrase, will not be a helpful exercise. But his Honour is certainly capturing at 318 by analogy what are analogous elements of loss known to the law.
I was going to come back to it later, but his Honour took into account the authorities mentioned by the Commonwealth dealing with injury to culture, and that commences at 307 through to 309. At 309 his Honour mentions appendix A of the Commonwealth’s submissions, which has been provided. His Honour also mentions an additional case to which we drew his attention, being Trevorrow. Trevorrow was an award of some $450,000 in a tort case. But his Honour said, correctly, in our submission, at the end of 307, that these cases were directed to:
personal loss, rather than the collective loss of a claim group which is the present focus of attention.
Although his Honour looked to other learning, if I can put that way, his Honour was correct, in our submission, to say that it always provides some limited assistance. Indeed, having gone to CSR Readymix, I am prepared to say that that provides some limited assistance, but what I take from it is President Winneke’s observation that in this discourse it must necessarily depend upon a trial judge’s impression of the effects on the particular claimant, and those effects are necessarily subjective.
Could I then say something about the structure of the trial judge’s reasons and what we submit are some critical findings that stand in the way of the complaints made by the government parties which might be encapsulated by the notion of whether or not there can be a parcel-by-parcel assessment. The first plaint starts at 317 to 318, which I have mentioned: it necessarily depends upon the laws and customs of the group concerned.
Before launching into the evidence in any detail, his Honour at 324 and at 325 seems to record that it is common ground but certainly agrees that:
a parcel-by-parcel approach to the assessment . . . is not appropriate, having regard to the fact that many of the acts in issue occurred some 30 or so years ago. They were incremental and cumulative.
That is a point to which his Honour returns at 382 and 383 of the reasons, that there is an incremental effect. Secondly and importantly, at 325 his Honour notes:
It is not possible to establish the comparative significance of one act over another. That is simply not how things are viewed according to the traditional laws and customs, in particular by the Ngaliwuuru-Nungali people.
Then referring to the evidence of Dr Palmer and Ms Asche:
one cannot understand hurt feelings in relation to a boxed quarter acre block. Rather, the effects of acts have to be understood in terms of the pervasiveness of Dreaming.
A number of things can be taken from that. The first is to rebut any criticism of the trial judge that it was necessary to look at each individual lot, to make some finding about the significance of each individual lot and then make some finding about the effects of diminution of that act. As we say - and it is a brutal form, if you like – as a job lot, one looks at a chunk of country which has been removed and the overall effects of that removal of part of someone’s traditional country.
The second thing we take from that critical finding - and the anthropological evidence is unchallengeable in this respect; there were attempts to challenge it at trial, but these are the findings – is that things reverberate, if I can put it that way. This gets back to his Honour’s findings at 364, 379 and 380 about the ritual ground – that is given as an example.
But to do something on what we see as an allotment within certain metes and bounds would not be confined, in terms of its effects, to that quarter acre block. They will carry forward and that is really the nature of the connection of the peoples to country but the nature also of connections among different groups.
Hence the sense of shame expressed by some of the men that they feel they are letting down their fellow countrymen because dreaming is connected to a number of groups, and so forth. That is what we take from those critical findings, which we say rebut many of the challenges and complaints made by the government parties.
Can I then say something - which I have already touched on – about the structure of the reasons in his Honour’s approach. As I said, at 328 and through to 347 his Honour looked at the evidence relating to the nature of the laws and customs and practices and belief of these people in relation to their traditional country.
Now obviously, like any judgment, it is not the totality of the evidence; it is the sum of the evidence that his Honour has brought forward in his reasons for judgment in, if you like, articulating the basis of his assessment and condescending into particularity. Again, that is necessary, if you look at paragraph 333, where his Honour speaks about:
The evidence about the Claim Group’s relationship with Timber Creek and their wider country –
that that is an inquiry as to the socially constituted fact of their native title, that is in their society, and then dealing with the nature of their relationship includes various observations from the anthropologists who help explain these things at paragraph 334, that, for example, in the sixth line that:
Protecting the land is a way of protecting yourself.
In other words, there is no separation of land and people. Again, at 336:
Drawing upon their own fieldwork –
And these anthropologists, particularly Dr Palmer, had worked with these people since about 1984, so it is what is known as “observation evidence” as much as “opinion evidence”. But they, in the quotation there on the appeal book page, about line 15, explain what is meant by “site” – different to our normal understanding where the anthropologists say:
Sites are then far more than places or lists of names or locations. They should also be understood as meta-place –
Then, at 337, again dealing with the direct evidence of the claimants but as supported by the anthropologists, his Honour then looks at the “law and custom to look after and speak for country” and being “supported by the primary evidence”.
And at 338 – and there was mention of this the other day – what his Honour is examining is law and custom in relation to duties to look after country. We submit that the proposition that there are findings of effects referenced to a recognisable native title right to control access is not a fair reading of the reasons. As his Honour says later on, there are findings about duties and the nature of people being bound with country and that what is concerned is more than loss of access or loss of control over access. It is about the spiritual integrity of the landscape, which necessarily means the spiritual integrity of the people’s concerns themselves.
And that is then repeated by his Honour, at 345, where referring to events the subject of the earlier evidence. And remember his Honour has received the transcript of evidence from the earlier native title claim. His Honour has seen some of the key witnesses who gave that evidence and assessed their credibility, if you like, which he makes comments about later. Then, after referring to that evidence, which are non-compensable acts, his Honour draws from that, at 345:
The evidence on these events reveals a duty and concern to look after country.
Again, it is about the socially constituted fact that to protect land is to protect oneself. There is no separation between land and people. And then, continuing with that understanding or inquiry into that socially constituted fact for these peoples, his Honour then at 348 deals with the particular evidence led in relation to the effects of loss of country and the effects of the acts.
At 349 his Honour well appreciated that the anthropologists had given more generalised evidence in their report relating to a number of areas and without delimiting the nature of the native title rights, in other words, to control of access. But his Honour at the top of 187 of the appeal book notes that he:
considered their evidence in that context and in particular as a means of interpreting the evidence given by the lay witnesses.
So his Honour was fully aware, if you like, and says it more than once, that his assessment of effect is not on a premise that there is an existing native title right to control access. Then at 350 his Honour makes what we say is a critical finding of the type reflected in – sorry, I should say 348 and 350 makes findings that are critical of the type in that passage from President Winneke that I read before, which is about the trial judge’s evaluation or impression of the effects on the people and that:
The beliefs expressed were generally held and demonstrated a deep connection to country -
and at 350 the type of “gut-wrenching pain and deep or primary emotions” that had been brought forward in the evidence by reference to the effect of loss of country. We are going to hand up a table when I conclude that collects some of this evidence by reference to his Honour’s findings because the government parties have gone into some detail. But what we simply want to draw from that for present purposes is that his Honour first of all, as I said, looked at the nature of the relationship, then looked at the nature of the evidence dealing with the particular acts and the effects, and did so by reference to the laws and customs, practices and beliefs of the people and by reference to the duties.
Then that continues on in terms of what I might call primary findings and then at 368 the consideration commences, which involves an adaptation of a particular compulsory acquisition rule by reference to the way the case was being put below. Then at 370 his Honour brings those two sections of his reasons to bear in his evaluation overall of the effect. Again, if I can just highlight one critical conclusion that appears at each of 370 and 375, which also builds upon the findings at 325 and 326, first of all at 370 his Honour notes that:
The direct evidence of [the claimants] and the anthropological opinion evidence does not depend on any proposition that some parts of Aboriginal landscape are more important than others.
In other words, he rejected the notion that there could be country devoid of spirituality. That was the burden of the anthropological evidence and hence at 375 his Honour repeats that sort of finding by saying:
It is clear that the Aboriginal spiritual relationship to land encompasses all of the country of a particular group, and not just particular “sacred sites” -
bearing in mind his Honour’s earlier observations of the state of the anthropological evidence about that, and then goes on to say:
It is also clear that the destruction of a particular sacred site may have implications beyond its physical footprint because of the spiritual potency –
et cetera, et cetera. We will come to the detail later, but the Court was referred to some evidence about the water tanks. We submit that the evidence tended to convey the impression that it is an isolated incident or it is a matter of just the physical footprint of the water tanks.
Perhaps while your Honours have these pages, at 370 the relevant area is kulungra, which the trial judge notes in the fifth line is a broad expanse and it was the subject of anthropological opinion evidence by both Dr Palmer and Professor Sansom who had been called by the Northern Territory, that it was a classic example of a thesis – I should not say a thesis – but a journal article by Professor Sansom on the effects of losing country with just an example of a hunting ground.
So we say it is incorrect, if you like, to focus on a physical infrastructure and say that is the damage; things reverberate further. I will develop that in a moment. So that is the general approach his Honour took to the assessment.
Now, there was a submission we think to the effect that there was only evidence of a heightened sense of grievance or hurt in relation to the water tanks and a submission we think that that was to be contrasted with an alleged grievance or hurt as to the use - or in the case of the Wilson Street subdivision.
May we make two points about that and then go to the findings of the trial judge. The first is that it tends to treat the incident of the water tanks as something isolated and bounded, in effect, which is not made good by the findings. Secondly, it assumes in the case of the Wilson Street example that an area can be unimportant and, as we say, I think the anthropologists sort of accept the proposition which is encapsulated at the end of 370 of the reasons, that it “defies logic in the Aboriginal tradition” that any area could be “devoid of spirituality”.
NETTLE J: Mr Glacken, I had understood the Commonwealth to submit that the contrast was between evidence as to the effects of the water tank on the Dingo Dreaming track compared to a lack of evidence about any specific exacerbation of the sense of loss of country, the result of the effects upon the ceremonial site that had been compromised by the 1974 tourist road. Was there any specific evidence that any of the compensable acts worsened or exacerbated the sense of loss and pain and suffering associated with that ceremonial site that had been compromised by the 1974 tourist trade?
MR GLACKEN: Yes, could I say I will come to the facts of that case. 1974 is said to be Victoria Highway, but Victoria Highway is actually 1964 but that was the example that was given in the evidence.
NETTLE J: The tourist lookout was what I was thinking of, the evidence given and the secret evidence about the site being overlooked and, therefore, could no longer be used.
MR GLACKEN: Yes. Within the restricted evidence and, in particular, Dr Palmer’s restricted report, paragraphs 23 to 25, Dr Palmer explains that the sense of grievance, if you like, caused by that site - and could we emphasise the relevant finding is no longer being secure. I will come to the particular findings in a moment, but yes, that is the subject of evidence.
In the chart that we will distribute perhaps in the morning tea break, there is also some reference to some other site damage, for example, the council buildings at Lot 79 which is not the subject of any particular cross-examination. But to answer that question more directly, yes, there was a sense of severe, heightened loss, if I can put it that way.
We say that that should not, if you like, diminish other forms of loss and loss of country and Wilson Street is a good example. Maybe I will deal with the findings on Wilson Street first. I was going to deal with the water tanks but I will deal with Wilson Street first, I think.
The finding that I think the Court has been taken to – the finding as to what is said to be some acceptance of acts appears in context at paragraphs 364 and 365 of the trial judge’s reasons. If I can summarise 364, first of all the trial judge notes that despite what has occurred it is clear that people still retain a connection to and responsibility for country:
despite the development of the Town and fencing of some lots, and that there were still places to go hunting and fishing –
et cetera. Then, at 365 some reference to the evidence:
suggested that some developments in the Town of Timber Creek were acceptable under Indigenous law. That included the evidence of Josie Jones –
in relation to construction of houses on Wilson Street. Another example is said to be by AG in relation to the construction of the Army Bridge. First of all, to put things in context, at the bullet point at the top of that page, the fourth bullet point above paragraph 363, this was the subject of – this proposition of acceptance was the subject of cross-examination to the anthropologist and Ms Asche:
stated that an example like relocating the Army Bridge involved [the claimant’s] accepting a European imposition on him and making the least damage possible.
So it is an example, if you like, of what was said yesterday - a “torn heart”. There is a sense of reality, if you like, that some developments will have to occur. It is a question of making the best you can out of the situation. But that in no sense removes any sense of loss in the subjective way and there was other evidence which we say the trial judge bought into the balance respecting Wilson Street cited in the reasons at paragraph 371.
His Honour quotes evidence of Lorraine Jones, who is the daughter of Josie Jones, and her recollection of being in Wilson Street with her grandmother. That was not the subject of cross-examination. That, as his Honour then says at 371, is an experience of ongoing impairment. So to put things in context, to say that Wilson Street is acceptable could be something of an overstatement in context. It is a matter of having a torn heart, so to speak, that it still causes anguish and it still causes compensable subjective effects of loss of country.
It is a question of, as Miss Asche said, making the least damage possible from imposition of outside events. So that is an example where we think the submission that has been made tends to, if you like, overstate what was the nature of the evidence on that sort of situation.
Can I deal with the example of the water tanks and to rebut the notion that it is some isolated or confined incident. If your Honours turn to the reference to the evidence in the reasons for judgment at 187 – sorry, page 187 of the appeal book at paragraph 352. His Honour introduces the specific evidence by noting that it was given:
at kulungra (which includes the water tanks on Lot 70) -
I mentioned that later at paragraph 370 his Honour gave a description of the broad expanse of the area. It is a broad pocket between the highway and the escarpment and his Honour then refers to some aspects of the evidence. The first one to note – the first one at paragraph 353 is that that broad area has a connection to what, in secular terms, is known as a trade. But we refer to this in our submissions, it is the subject of restricted evidence as well relating to the ritual that has been the subject of questions earlier.
So, it is a notion that has a secular dimension but also a much deeper dimension which his Honour heard in the restricted session, again disputing a notion that this is some isolated and bounded incident and effect. If you notice the form of the evidence given by the witnesses, first of all in the quotation, it refers to:
this site as very important to us, and all these sites got rid of it.
It is plural and remember this is trying to convey this fairly complex relationship into English terms, and then again at 354, the next witness adds in the “whole lot”.
Then, I have submitted already, at 370 the anthropologist treated this as a classic example of the effects of loss of country such as a wide hunting and foraging area and the evidence of Professor Sansom on that thesis if you like is at paragraphs 357 up to 358 where - it is a paper that Professor Sansom wrote dealing with loss of a hunting ground which he describes as having “primary feelings socially recognised” and somewhat “epic” feelings and Professor Sansom accepted that – this is at paragraph 370, that what he had written about in this paper was going on in the case at hand.
Could I then say something about the submissions that have been made concerning the ritual ground? Could I ask your Honours to turn to the critical finding of the trial judge at paragraph 361 – and, without going to the volume, if I can give your Honours references to the actual evidence? If your Honours go to about point 28 of the page where the trial judge commences with the observations that:
There was evidence in this proceeding of a place that is no longer a secure ritual ground, and evidence in the earlier proceeding of –
something similar occurring. His Honour then says one witness:
gave evidence as to why the area could no longer be used –
If I can just pause there – it is not a finding that the place stopped being used because of an act. Later, in his Honour’s reasons, at 379 – and this is brought to bear as what he describes as a general effect - what the finding is is that it could no longer be used because of acts in the vicinity. The particular evidence as to why it could no longer be used was in the volume at page 644, line 41 – the restricted volume, I should say – and over the page to line 16.
GORDON J: Could you give the references again, please?
MR GLACKEN: The restricted volume, 644, line 41 – I was not going to go to it, though.
NETTLE J: Just speaking for myself, Mr Glacken, it is important, to deal with the Commonwealth’s submission, I think, that you do.
MR GLACKEN: Yes. Your Honours were taken to 644, line 41. The relevant question is about “It had last been used” and:
Why not . . . here any more.
Over the page, the transcript records that the witness is pointing, and then at line 4 the witness refers to what was the subject of submissions by the Commonwealth.
NETTLE J: Is that the 1974 construction that was spoken of in the course of submissions?
MR GLACKEN: That is what was spoken of. That was spoken of as Victoria Highway, but there is a finding in the appeal book at page 20 – it was in the context of the judgment on liability, at paragraph 20, the Victoria Highway was constructed in 1964, not 1974. There is a finding recorded, or an agreed fact, by the Full Court in the appeal book at page 270 that another road, George Street, was constructed in 1980.
I was going to read a passage from Yarmirr, where the evaluation of the evidence necessarily depends upon the advantage of the trial judge being at the place and hearing the witnesses and watching the witnesses explaining what is their concern. We emphasise it is a finding as to why it is no longer secure. It is not a finding as to why it stopped. It is not a finding that it was stopped because of some act that occurred before 1975 or 1974. Indeed, why it stopped at a particular time was the subject of different evidence in the volume at 658.
NETTLE J: There is evidence here as to why it stopped in 1975, is there not, at the bottom of 644 going over to 645? You asked the question at line 40.
MR GLACKEN: Yes.
NETTLE J: “Why did it stop? Why no ceremony any more” – in 1975. He says what he says.
MR GLACKEN: After 1975. It happened in 1975. Then the question is: why no longer is it happening here?
NETTLE J: He says.
MR GLACKEN: He points to something which is referring to a road, and that was the subject of submission by the Commonwealth. Their submission was it was a road constructed in 1974 but that is factually incorrect. That road was constructed in 1964.
As I say, this is a classic example. In Yarmirr it was about the extent of sea country, where the generalised evidence or the only evidence was of a witness pointing, on a beach, to the horizon and saying, “This is the extent of my sea country.” This Court held that the Full Court was correct to conclude that the trial judge was in the best position to assess the burden of that evidence and that this Court could not be in any better position than what the Full Court was. Can I complete the reference to the evidence, your Honour, by - - -
NETTLE J: Before you do, can I ask you in advance: what is the compensable act that caused the 1975 cessation?
MR GLACKEN: His Honour does not identify an individual act but refers to it as generalised at 379 of his reasons. We say that relevantly in terms of this point of evidence that it is George Street and the two allotments, which are two houses nearby. George Street was constructed in 1980 and the houses at around that time or slightly after. As I said, it is important to emphasise it is a finding about not being able to go back.
GORDON J: Do I understand that by reference to pages 644 and then 658 of the raw material, there is a temporal reason for not using that ground for that purpose which is unconnected with a compensable act, by reference to that evidence, and then you have the compensable act? Is that the point you are trying to make?
MR GLACKEN: Yes. The reason why there was a stoppage, if I can put it that way - - -
GORDON J: No, I understand.
MR GLACKEN: That is borne out, for example, from the evidence at 648 as to how the area is to be used. That is at line 27 or thereabouts.
NETTLE J: Is what is spoken of at line 30 or thereabouts at page 648 the George Street Road as opposed to the 1974 construction? Is what is spoken of at line 30 at page 648 said to be the George Street construction rather than 1974?
MR GLACKEN: It is not entirely clear. It is a matter of - if one goes back to that earlier evidence, yes, in context, that is the available finding. His Honour at 379 just referred to a general effect and finding.
KIEFEL CJ: Is your point, Mr Glacken, that on each occasion that something occurs, the hurt, according to the anthropologist’s evidence, is compounded?
MR GLACKEN: Yes, and reverberates, if we can put it that way. But for the moment I am simply dealing and rebutting the suggestion that this evidence was to the effect that there was a road constructed in 1974 and that was the cause of the effect. The relevant effect was not being able to use the ground any more. It is no longer secure.
To complete the evidence that his Honour was given, at 658 at line 40 through to line 15 there is a reference to what occurred within the group in 1974 to 1975. To complete that evidence in terms of the question earlier from Justice Nettle in terms of the effects of loss of a secure ground, that was the subject of evidence by Dr Palmer. In the same volume, it is at pages - in particular, pages 619 to 620.
GORDON J: Where are we now? What - 619 to 620?
MR GLACKEN: Yes, of the same volume.
GORDON J: In the same book- I see.
MR GLACKEN: This was the evidence of Dr Palmer who reported upon the evidence given on that day and the significance of a loss of a secure ground.
GAGELER J: Mr Glacken, as I understand your submission it is that the Commonwealth submission to which you are responding is based on a misunderstanding of the facts.
MR GLACKEN: Yes.
GAGELER J: Precisely what was that misunderstanding?
MR GLACKEN: The submission that they made was that the cause, the loss of security was the construction of Victoria Highway in 1974. Now that is a misunderstanding because the Highway was constructed in 1964 and on the evidence there had been a use in 1974/1975.
GORDON J: So the chronology is 1964, Victoria Highway.
MR GLACKEN: Yes.
GORDON J: The restricted evidence about the events in 1974 and 1975.
MR GLACKEN: Yes.
GORDON J: The reason why it stopped.
MR GLACKEN: Yes.
GORDON J: The construction of George Street in 1980: that is your case?
MR GLACKEN: Yes, which leads to the houses, and the significance of that sort of loss of security, if I can put it, was highlighted by the trial judge’s findings at 361 of the deep value of the ritual and the deep value of the need for its secrecy.
NETTLE J: Is that directed to George Street in your submission?
MR GLACKEN: Yes.
NETTLE J: So, on this view of the matter, there was a cessation for whatever reason in 1975 but it was not until 1980 with the construction of George Street that the pitch was ultimately cruelled as a ceremonial site?
MR GLACKEN: Precisely. Hence I emphasise the finding of the trial judge at 361 is that it is no longer a secure ritual ground; it cannot be started up.
GAGELER J: Was this detailed factual argument played out before the Full Court?
MR GLACKEN: Yes, it was put before the Full Court. I will turn up the Full Court’s treatment, perhaps after the break, if that is a convenient time.
KIEFEL CJ: That might be a convenient time, Mr Glacken.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.32 AM:
KIEFEL CJ: Yes, Mr Glacken.
MR GLACKEN: Your Honours, could I clarify something for the Court generally in relation to a response I gave to a question from Justice Nettle? In the context of Dr Palmer’s evidence about the effects, I should be clear, the ritual goes on. It is about the effects of not being able to use this particular place and its relationship to the ritual. I mean, it is not to say that it is not part of the continuing tradition. It is just the disruptive effect, if you like, about not being able to do it in situ, if I can put it that way, which is the subject of Dr Palmer’s evidence. I just wanted to make that clear.
In terms of the Full Court’s consideration on the matter, it is at page 355 of the core appeal book, and consistent with the submission that we make as to the nature of the finding by the trial judge - so it is 355 of the core appeal book, paragraph 300. They note that:
Nonetheless, the primary judge found that there was an effect from a later compensable act on the use of the ritual ground.
GORDON J: I am sorry, where are you reading from?
MR GLACKEN: Paragraph 300, the second sentence.
GORDON J: Thank you.
MR GLACKEN: They reject the argument of the Territory and the Commonwealth. And then they make the observation about misunderstanding the reasoning of the primary judge, which is the submission that we make as to the nature of the finding, and that was that the reasoning of the primary judge, commencing on the first line:
took into account the effect on the adjacent ritual ground of a compensable act occurring on one of the lots in question was because –
one of the witnesses:
gave evidence as to why the place remains important”. It was the character of the location of the ritual ground at the time of the compensable act and the effect of that act on the then current status of the ritual ground as a site of importance that caused the primary judge to take the effect into account.
Now, in terms of the evidence to which I have gone, this was treated by the Full Court in the context of a causation argument, as is apparent from paragraph 301, and that is how it was also treated by the trial judge. Naturally enough, in a line of cases from a different area, for example, Henville v Walker, there can be more than one cause, the question is whether the act which could be liable is a cause of the relevant effect.
NETTLE J: Is that what the trial judge is speaking about at his 380 - - -
MR GLACKEN: Yes, but bear in mind - - -
NETTLE J: - - - because it does seem that his Honour is there attributing at least some of the effect upon that site to an antecedent uncompensable act. He says, I considered whether it is legitimate. That presumably was something before the compensable acts which to some degree at least compromised this site for use for the ceremonies in question.
MR GLACKEN: Yes, that appears to be his reasoning but not ruling out the effects of compensable acts, and that needs to be understood in the context of his Honour’s approach to causation.
NETTLE J: Well, sorry, just pause there. So, the position is it was compromised by an earlier uncompensable act but there was a subsequent compensable act which made it worse.
MR GLACKEN: That appears to be the burden of his Honour’s reasoning.
NETTLE J: That is - - -
MR GLACKEN: George Street - - -
NETTLE J: George Street.
MR GLACKEN: - - - and the lots, lot 62 and 63, the houses.
NETTLE J: All right, thank you.
EDELMAN J: The point is it is an indivisible injury, not a divisible injury.
MR GLACKEN: Yes, that is one way of putting it. And I was about to say it needs to be looked at in the context that earlier the trial judge, at paragraph 321, appeal book 171, had rejected a test of causation posited by the Northern Territory of requiring direct causation. And his Honour adopted what was described as a practical test of causation. I am borrowing from March v Stramere but noting the different context.
NETTLE J: Mr Glacken, if I may, just persisting once more with 380, this may be too fine a distinction for this area of discourse, but is it correct to say in 380 that accepting that there are, as it were, two causes of the ultimate harm, one compensable, it being the earlier – I beg your pardon, uncompensable, it being the earlier, and a later compensable act, it is only the increment of damage caused by the latter which is compensable, not the total?
MR GLACKEN: Yes, but the evaluation of what is increment would be - - -
NETTLE J: A pretty broad brush, I understand. But, in point of principle, that must be right.
MR GLACKEN: Yes, and a perfectly proper approach. One says the trial judge, at 321, rejected the notion of direct causation. In other words, a single act and a single effect.
NETTLE J: Yes.
MR GLACKEN: Could I just complete this - - -
EDELMAN J: That would not necessarily be right, would it? It would not necessarily be right that one would only compensate for the increment if, without the increment, the damage of its nature would have not been suffered? In other words, the ritual remained possible.
MR GLACKEN: Yes, and on the supposition put by the Commonwealth that there was the Victoria Highway in 1964 and, on the evidence, there was a conduct at the place in 1974, 1975. So the way Justice Nettle put it before is that the later acts, if you like, cruelled and ended the possibility.
EDELMAN J: But that then means the later acts cause the whole of the injury, not just the incremental increase.
MR GLACKEN: We would say that is classically, in terms of the approach of President Winneke, an evaluation of the trial judge, of his impression of what the witnesses are saying about the effects of the acts. But either way in terms of notions of causation there may be more than one act, including social events mentioned in the transcript at 358, the question is whether a compensable act is a cause of the claimed effect. That is the burden of the analysis.
Could I draw an analogy to what has occurred in an earlier case in this Court. Could I ask the Court to go to Commonwealth v Yarmirr, volume 6 of the authorities, case 42 and it is 208 CLR 1.
GORDON J: Just before you go to that authority, have we now finished your analysis of the Full Court’s treatment of this ritual ground?
MR GLACKEN: Yes. I am still on the same subject in terms of why the Full Court was perfectly correct to reject the complaints made by the government parties by analogy to the similar rejection of a similar complaint in Yarmirr that I mentioned earlier.
The report starts at page 1 and the relevant page is 61 of the Commonwealth Law Reports. My guess is that it is 155 PDF. At paragraph 77 of the judgment, as the heading indicates, there was a “challenge to a finding of fact” by the Commonwealth. The relevant finding was by the primary judge as to the extent of the Claim Group’s sea country in a:
north-east and eastern parts of the claimed area.
As apparent from paragraph 77 in the last line, the complaint made was that it was not:
open to the primary judge to make findings on “generalised” evidence.
The Court makes an observation at paragraph 78 about the finding raising:
no point of general principle –
rather than:
the sufficiency of evidence.
It deals with the approach taken by the primary judge. But, the point that we say presently resonates comes from paragraph 79 of the judgment and that is that the finding:
depended upon an assessment of all of the evidence that was given. If, as the Commonwealth contended, the only evidence which touched on the far north-east and eastern parts of the claimed area was the evidence of Mr Wardaga . . . it was a finding which depended upon an understanding of that evidence, taken on New Year Island . . . and which was accompanied by the witness pointing out the areas to which he was referring.
Their Honours continue that the Full Court, or majority:
rightly pointed out, there can be no doubt that the primary judge was in a much better position to assess this evidence than an appellate court. The Full Court was not persuaded that the primary judge erred in his conclusion. Nor are we.
That is, in our submission, where the complaint about the sufficiency of the evidence lies in this case. That is all I wanted to say about that aspect.
Before concluding with more general matters about the state of the evidence and the approach in principle taken to assessment, can I deal with one point that was made by the Commonwealth in relation to the Full Court’s review of comparative materials and simply make two observations. The first I can do by illustration, I think.
If your Honours turn up the Full Court’s reasons at page 383, paragraph 402 – this is in their Honours’ treatment of the first of the overseas judgments. The point we wish to make is that their Honours considered the similarities and the dissimilarities of this material. There was a reference yesterday that this offers no relevance to the present proceedings because, for example, it was an area of 18,000 hectares, or so.
KIEFEL CJ: That was the secondary submission. The primary submission was that material should not have been referred to at all. What do you say to that?
MR GLACKEN: We say that this is not findings of fact, not factual material. It is referring to overseas judgments, and the same with the paper.
KIEFEL CJ: Not readily accessible by the parties. The point put is that the Court should not have referred to this material without giving the parties an opportunity and the interveners to comment upon it.
MR GLACKEN: That would be so if it was material of fact. The point that we make in writing, which is the second point I wanted to make orally, is that the Full Court had independently reached a result at paragraph 396 as to the appropriateness of the sum awarded.
KIEFEL CJ: So you are saying that they merely used this as confirmatory which is, if there has been a breach of procedural fairness, it has not had any real impact on their reasoning.
MR GLACKEN: No, and we note from the submissions it is not suggested that the presence or absence of this affects any approach or any assessment advocated by the government parties. So, the short response to that is that it is not relevantly material to the assessment made - I should say, sorry, confirmed by the Full Court in its review of the amount arrived at by the trial judge. That was my second point. My first point was simply to make that their Honours were careful in noting the similarities and dissimilarities – the similarities arise in relation to the nature of the damages, if I can put it that way.
NETTLE J: But I do not think you should go there. Either you are right about 396 and the Court reached its conclusion that 1.3 was the figure without reference to this foreign material or you are wrong and it was material in their consideration, in which case you face the difficulty that it was submitted undoubtedly to be a denial of procedural fairness to have regard to it.
MR GLACKEN: Very well. I was rebutting a point made yesterday. I just wanted to point out that in that particular case, for example, there was a return of the land in issue, not just a payment of the sum. So, the Full Court fully appreciated what assistance, if any, provided in the same way the trial judge considered what assistance, if any, was provided by the line of authorities.
KIEFEL CJ: I think it is perhaps you do not go there.
MR GLACKEN: If your Honours please. Can I then deal with a submission made as to asserted manifest excess, bearing in mind that a ground of that sort calls in aid a residual error of something where it is said that there must be a wholly erroneous estimate that the amount arrived at bespeaks of error. We put to one side that the government parties pleaded appeal is very much on specific error rather than a residual ground but there was an oral submission made by the Commonwealth which sought to draw two points or two reference points to suggest manifest excess. One was a reference to cases on cultural hurt, appendix A of the Commonwealth submissions.
I have already observed that the trial judge considered those at paragraphs 306 to 309. May we make two observations about that material? First of all, his Honour was perfectly correct to say they were cases of individual loss, rather than collective loss. If one looks at the sort of figures of an individual, if there be any relevance to material we have a Claim Group of some 300-odd people which one can do the maths and say, well, if that be relevant, it is not manifest excess. The primary point we make – that is probably a debating point - as his Honour was perfectly correct to say, they are simply cases of individual loss, not collective or group loss.
A further point we wish to make is that they are quite old. We refer in our submissions to a sex discrimination case called Richardson v Oracle Corporation, which has some relevance to this matter. The Full Federal Court had noted that in the early days of the Sex Discrimination Act the awards of a certain amount were set. That was treated, if you like, as a benchmark for some time.
The amount was quite conservative. I cannot remember the exact figure but something in the range of $20,000 to $30,000 was considered a going rate. That was increased significantly by the Full Court, having regard to what it considered to be current community values and standards.
I mention that because there is the difficulty of this case being the first of its kind, but this particular aspect we are addressing now is necessarily fact-specific, having regard to the customs and beliefs of the particular group concerned. But one can imagine that, as has occurred in that jurisprudence, there will be some adjustment in years to come of what is understood to be a community social judgment of a loss of this sort.
KIEFEL CJ: You mean we should take a conservative approach and then allow later cases to increase it?
MR GLACKEN: That is what happened in that jurisprudence.
KIEFEL CJ: Yes. I wonder why you are relying upon it.
MR GLACKEN: Simply because the touchstone adopted - which is where I am coming to eventually - by the Full Court was one of community standards or community judgment, we submit that both the trial judge in the passage I went to, paragraph 314, in reference to a defamation case about social enormity of loss and assessment, and what the Full Court said at 395 or thereabouts of a community judgment, is the correct standard. It is one of community expectations.
Then the second point that was made as to the suggestion that an estimate in this case can bespeak error was a comparison to present day freehold land value. It seems to be somewhat similar but less extreme than the Northern Territory decision of simply fixing a 10 per cent allowance on economic loss.
Either way, there are at least two difficulties with that sort of analysis. One is that there can be cases where land may not have a significant exchange worth on surrender – that is the analysis that we advance – for example, desert, uninhabited land – but conversely, there may be cases where land has some exchange worth.
KIEFEL CJ: Mr Glacken, are we back on the topic of economic loss?
MR GLACKEN: No, I am responding to the submission made by the Commonwealth that manifest excess might be gauged by the relationship between the 1.3 million mark and the $2 million current land value.
KIEFEL CJ: Yes, I am sorry; I understand.
MR GLACKEN: It is akin to the type of case, like Skelton v Collins, where, having looked at the amount that is awarded for a loss of earning capacity that might have some bearing upon what is awarded for loss of amenity and so forth. I understand the submission being put that way.
KIEFEL CJ: Yes.
MR GLACKEN: What I am submitting is that there are at least two difficulties in suggesting any necessary correlation between economic loss and non–economic loss in this particular discourse. I wanted to give the converse example. There may well be an instance where, having regard to the practices and beliefs of the group concerned, land might have a high exchange worth but the non–material subjective effects are not at the high level, for example, of this case.
The second difficulty with this approach is it diverts attention from the statutory task which is to assess the effects of the acts upon the particular native title rights of the group concerned. That invokes a consideration of paragraph (b) section 223 of the Act’s definition of “native title” of being concerned with the nature of the connection of the group concerned. So ultimately - - -
GORDON J: Is that an arbitrary argument? Is that what you mean?
MR GLACKEN: Yes. Yes, to look at that with some parity, whether it is 10 per cent or 100 per cent or 50 per cent of a freehold land value, would simply not fulfil the statutory task, having regard to the definition of “native title” and the importance of paragraph (b) of that statute definition and what it brings with it, as what I have – I have used the expression from Yanner v Eaton, the socially constituted fact of native title, borrowing from the writings of Professor Gray and Dr Gray.
That takes me to the approach of the Full Court. Your Honours, we have distributed a chart which is then backed up by another chart, but I only want to take your Honours to the first chart. Your Honours should have a cover sheet that is a single page that reads “Challenges to Concurrent Findings on Intangible Loss”. It is a single page. It is only that single page that I want to deal with.
I should mention the second chart collects in one spot – we thought it might be useful to collect in one spot the evidence referred to in the submissions on the issues that have been agitated, for example, today about the evidence on the ritual ground. That follows the structure of our submissions in responding to the government parties’ submissions. It just collects the relevant findings of each court and the supporting evidence.
Can I then return to the single page. What we have done is on the left-hand column we have taken paragraph 394 of the Full Court’s reasons and we have cross-referenced the parts of the trial judge’s reasoning and findings that relate to each particular sentence in the summary given by the Full Court. We have done so because the Full Court terms, correctly in our submission, the findings of the trial judge as being the foundation for the assessment undertaken - that is the word that their Honours use at 395.
Their Honours then, if I can go to the reasons for judgment at page 381 of the appeal book, having encapsulated at 394 those keys findings and then describing at 395 those findings as the foundation for the assessment, their Honours go on to note in the second sentence that:
The ultimate touchstone is provided by the NTA, namely, that the compensation reflect just terms.
Their Honours then pose a question by reference to the task of appellate review and continue in the next sentence:
The moral sense of the community is a relevant touchstone particularly where, as here, there are no previous cases to provide guidance.
KIEFEL CJ: I think you can take it, Mr Glacken, that we are by now reasonably familiar with the Full Court’s judgment.
MR GLACKEN: And the point that I would wish to conclude on, your Honours, the last sentence on page 381, that:
The findings of the primary judge demonstrate that the impact on the Claim Group was at a very high level.
And then at 396, their Honours then reason correctly as to why the figure arrived at would be a “substantial acknowledgement” of that high level. If your Honours please, we say that is perfectly correct reasoning.
KIEFEL CJ: Where are we then, Mr Glacken, in relation to your outline?
MR GLACKEN: I have completed, if your Honours please.
KIEFEL CJ: Thank you. Mr Wright.
MR WRIGHT: Yes, if the Court pleases. The outline of argument that we have handed up addresses, effectively, three main topics. One is starting with some general observations about native title compensation, then addressing some particular issues about economic loss and some issues about non-economic loss.
We start with some propositions about how native title and native title holders may be affected by the extinguishment of native title by an inconsistent grant. So the first effect, that is in paragraph 1(a)(i) of our outline, is the grant may, as a matter of law, remove the common law recognition of native title as a property right. So that is an effect on native title regardless of the fact, if it be the case, that the group has continued to acknowledge and observe their traditional laws and customs.
Now, as a matter commented on by this Court in Fejo, we understand it to be common ground that such an effect is compensable without any proof of actual physical impact on the native title holder’s occupation or use, for the reason that it is a property right that is extinguished and the Crown’s radical title is correspondingly free from the burden of native title. That is what has been characterised in this case as economic loss.
In the case of native title, there is then an additional element to the effect of that loss of recognition and that is the element in 1(a)(ii). That legal effect of extinguishment can also have an associated non-economic, or one could call it non-pecuniary impact, because the effect of the extinguishment is to deprive the native title holders of their legally recognised rights by which they have a spiritual attachment and exercise spiritual responsibility for country. So that is an effect that is different to an effect that would happen when a freehold, for example, is compulsorily acquired because the nature of freehold, unlike native title, is not sourced in a spiritual connection with the land.
We have then, in paragraph 1(b) observed that – sorry, before I turn to that I will just mention in relation to paragraph 1(a)(i) and (ii) the importance of the recognition of indigenous rights was, of course, a matter commented upon in the judgment of Justice Brennan in Mabo (No 2) where at page 69, his Honour referred to the fact that it was:
the action of governments which made many of the indigenous people of this country trespassers on their own land.
And Mr Glacken yesterday also referred to the Full Federal Court decision in Alyawarr which, again, refers to the recognition of native title as being the moral foundation of the Native Title Act.
Those matters all go, in our submission, to show that substantive compensation is available per se for the extinguishment of native title. That is even if the actual impact on the ground on the exercise of native title rights or indigenous rights under their law and custom, is not immediately obvious.
GAGELER J: Mr Glacken would add to your 1(a)(i), during the period in which the Racial Discrimination Act had effect, another element which is the value of the right to surrender. Do you accept that or reject it?
MR WRIGHT: Yes, your Honour, we would certainly accept that. That forms part of what we are describing as a valuable right. It is a right that is recognised by the common law. After 1975 it was also protected by the Racial Discrimination Act.
In our proposition 1(b) we observe that an extinguishing grant may also authorise activities whereby land is used by the grantee. That does not per se involve a loss of a property right but it does affect the native title holders as a consequence of the extinguishment of their property rights. We just note that that is a matter that section 44H of the Native Title Act refers to, albeit in the context of leases, licences, permits and authorities.
Similarly, in our 1(b)(ii), an activity that extinguishes native title may cause non-economic or non-pecuniary loss such as the distress caused by the destruction of an Aboriginal site or the loss of cultural standing due to an inability to use a law ground.
When freehold is valued using a market value analysis, the actual circumstances of the use of the land do not affect the value. A suburban house is of the same exchange market value regardless of whether a family has lived in it for generations or whether someone has just bought it as an investment property. Native title is obviously different.
This case has proceeded on the basis that compensation for economic loss, which is assessed by reference to a freehold value, addresses any actual impacts that have occurred to the native title holders’ utilitarian use of the land – in other words, their inability to hunt, live on the land and so on. On that basis, two issues arise: is freehold the appropriate starting point for assessing economic loss and, if so, how is native title to be valued vis-à-vis the freehold?
I propose to come back to those two issues but I wish to make the point which Mr Glacken also alluded to a moment ago, and that is that freehold value in some parts of Australia, particularly in desert areas for which one of my clients is the representative body, will have negligible freehold value. In those circumstances, it is appropriate, in our submission, still to compensate for the loss of the property right per se but it would also be necessary in order to provide just terms compensation to take into account the actual impact of extinguishment on the use of the land.
In those sorts of circumstances a traditional Spencer-type or traditional land valuation methodology may not be appropriate and therefore this case may not be a suitable precedent for such a case. There may be other methods of calculating economic or intangible loss - I will come to one of those later - for example, the cost of relocation, the cost of providing alternative housing or sustenance. This is perhaps what the Full Court was referring to in its observations at paragraph 144.
I note that some of these matters may not be beyond land valuation. For example, the Territory’s Lands Acquisition Act, in Schedule 2, rule 2(d), provides compensation for any other loss sustained over and above the market value analysis. That may be a head that could be invoked in other cases.
So this leads into our second proposition, which is that section 51(1) of the Native Title Act should be construed broadly so as to provide substantive compensation for all of the effects that we have outlined in our proposition 1. And that follows from the terms of the Act, the nature of native title and, by analogy, with compensation principles in other cases.
The section does not operate only by reference to land valuation principles. The starting point is the words of the statute, and your Honours have already been taken through that in some detail. I will not repeat them. I will just note one matter. There has been an observation about the use of the word “entitlement” in section 51. We note that section 23J, which applies to most of the compensable acts here, subsections (2) and (3) actually imposes the obligation to pay consistent with that entitlement.
The entitlement is to compensate for – which, we say, means “by reason of” – loss, which would include extinguishment, or other effects on native title. Given the inextricable link between the society – that is, the native title holders and their laws and customs under which the native title rights exist, effects of loss of native title include effects of the loss on the native title holders themselves and that is certainly how the primary judge approached the case in this matter. It is referred to by his Honour at paragraph 318 and, in our submission, that is correct.
The question of what falls within those words “for loss or other effect” raises questions of causation and remoteness, some of which arise in this case. We observe there is nothing unusual, of course, in the law awarding substantive compensation for non-pecuniary losses.
KIEFEL CJ: Your reinstatement approach – a difficulty here is that there is no evidence to form a basis for its application, so is your argument really addressed to the future rather than this case?
MR WRIGHT: It is, your Honour, and I will come to that. We are certainly not inviting this Court to reassess.
KIEFEL CJ: I take it, then, that your submissions will be shorter rather than longer?
MR WRIGHT: Yes, your Honour. Just in relation to section 51A, which has been raised, in our submission, 51A should broadly be approached in the way that the Commonwealth and the Claim Group have said. We point out that the notion that 51A is referring to some notional freehold owner – that is, a John Doe – would exclude any ability to consider the elements that would ordinarily arise in a compulsory acquisition such as solatium, special value and so on.
So, in effect, if that is what is being put, that there is a notional freeholder then, in effect, what is being said is that 51A caps native title compensation at freehold market value. In our submission, that would be discriminatory because that would not take into account the identity of the particular owner, which is the case even when a freehold is compulsorily acquired and section 7 of the Native Title Act, which has already been touched on, says that the Racial Discrimination Act can be used to resolve an ambiguity.
In our submission, 51A addresses a situation where there may be multiple claims – for example, there may be one native title but individuals or subgroups within that native title holding community could say that they are entitled to compensation. And so the section makes clear that there is, ultimately, one liability.
It has also been raised that section 49 is relevant to this. In our submission, the purpose of section 49 is so that a claimant for compensation cannot come back and make multiple claims to top up their native title compensation. That is not what 51A is addressing.
Our third proposition is in relation to the matter that Mr Glacken has submitted – that is, the Territory’s submission about a 10 per cent relationship between non-economic loss and economic loss. In our submission, that ought not to be accepted, certainly not as a matter of principle. It suffers from the two difficulties that, in effect, if that is what a freeholder gets and that is the justification for the 10 per cent being applied, then there is effectively no allowance being made for substantive compensation for intangible effects. The second difficulty is that, as Mr Glacken outlined, in no way reflects the actual evidence of the individual native title and the circumstances of the native title group.
In relation to economic loss, the issue of is freehold the correct starting point, given the way that the case was presented, in our submission, the primary judge was correct to approach the valuation exercise by equating exclusive possession native title with freehold. That is also consistent, we note, as well as for the reasons his Honour gave in his judgment at 212 to 214 and 225, consistent with the Hansard that the Commonwealth handed up in relation to section 51A.
Contrary to the Full Court’s criticism at paragraphs 112 and 113, in our submission, his Honour’s reference to the true or real character of native title was not a reference to its spiritual aspects. That was something that his Honour was well and truly alive to and, at paragraph 234, his Honour – this is of the trial judge’s judgment – his Honour expressly said that he was careful not to take into account spiritual aspects when dealing with economic loss.
In our submission, what his Honour meant when he referred to the true nature of native title was the concept that native title is a substantive property right that ought to be given the same dignity as freehold. It is, when it comes to exclusive possession of native title, it is the most fulsome relationship that an Aboriginal group could have with their country just as freehold is said to be the most fulsome legal rights that a non-Aboriginal person can have under Australian law. So, it represents everything necessary for the native title holding community to live on their land in perpetuity. So, from that perspective, it is the equivalent of freehold.
The issue, then, of how to value native title vis-à-vis the freehold, then arose. In our submission, the primary judge approached that correctly by not having regard to the strict Spencer test by way of looking at an exchange market value for the non-exclusive native title rights. The Full Court said that his Honour was in error in doing so but, in our submission, the Full Court erred in considering Spencer applicable.
We say, that native title being a form of property that is incapable of being transferred, by its very nature, means that the Spencer-type analysis of what a willing but not anxious purchaser would pay and/or the bargain that would be reached between a willing but not anxious purchaser and a willing but not anxious seller, simply cannot apply. So, there had to be an adapted methodology and that is what his Honour used. Of course, the one circumstance in which there can be a transfer is in the sense of a surrender and his Honour, arriving at his 80 per cent, did refer to the possibility of surrender.
The issue of alienability, or the inalienability of native title, in our submission, was properly disregarded by the trial judge and the Full Court was incorrect to regard inalienability as a factor that reduced the compensation. We have referred to the decision of the New South Wales Court of Appeal in Leichardt where Chief Justice Spigelman, with whom other members of the court agreed, said that where there are restrictions that only affect the person who holds the land and does not affect the person who will acquire the land, then it is not appropriate to reduce the value by reference to those restrictions. That case was decided on the basis of particular statutory wording but, in our submission, the principle is equally applicable here. There is no particular statutory wording in section 51(1) of the Native Title Act that would command an approach, or demand an approach, one way or the other.
So, one goes back to the very nature of native title as being something that can be surrendered to the Crown and upon its surrender the Crown is freed from the native title interest and can deal with the land. So, for those reasons, in our submission, it was inappropriate for the Full Court to reduce the compensation by reference to inalienability.
The question which your Honour the Chief Justice put to me, what we say about the reinstatement principle is really we raise it not to say that, as I say, this Court ought to reassess on that basis but simply to draw two things. One is that the law already recognises that the Spencer market value approach may be inadequate where property is unique to the owner. That was something that the Full Court failed to apply in principle or to recognise that there are, even under the existing law, alternative valuation methodologies that do not demand the use of the simple Spencer market value approach.
The second is to say that the very concept of compensation in section 51 would lend itself to looking at what alternative land could be – or what alternative means could be applied to compensate the native title holders for what they have lost and the reinstatement principle recognises that the fact someone gets by way of compensation something that is new or improved over what they had may nonetheless still constitute appropriate compensation if what they lost was unique.
EDELMAN J: You would still, even if you could come up with a reinstatement-type figure which included something equivalent with spiritual value and so on, you would still need an additional figure for pain and suffering, would you not?
MR WRIGHT: Yes, definitely, your Honour. We are still just focusing on the economic.
EDELMAN J: But I think what you are saying is that reinstatement-type approach incorporates one part of the non-economic loss but not the pain and suffering component.
MR WRIGHT: That is correct, your Honour, yes. So, if one looks to freehold as being all that a person needs or that a community needs to be able to live on the land in perpetuity to obtain all the sustenance that they need, that is similar to native title rights, certain exclusive possession native title but even the non-exclusive rights here which his Honour found were in a practical sense very substantial and exercisable in such a way that no one else could use the land.
Those comments by his Honour the trial judge were criticised by the Full Court but, in our submission, what his Honour was referring to was the fact that in full exercise of the non-exclusive native title rights this community could still live upon the land. They could use it and occupy it so that there was no room for anyone else to do so, unless, of course, as his Honour notes, unless someone was acting pursuant to a grant which prevailed over the native title and that is why his Honour recognised that it was appropriate to discount the compensation by the 20 per cent.
In our submission, the 20 per cent discount applied by his Honour was an intuitive figure that his Honour arrived at having regard to the nature of the native title rights here and the connection that this group had and having regard to, therefore, the practical value of the rights to the group and having regard to also the possibility of surrender to the Crown and the value that that would give to the Crown. In our submission, that 20 per cent was an appropriate assessment in the circumstances and the Full Court was wrong to have overturned it and applied a 35 per cent discount.
In relation to the non-economic loss, I will not address many of the issues as Mr Glacken has already addressed them - perhaps just two issues. Our proposition number 9, the sense of failed responsibility, in this case the primary judge explained that the sense of failed responsibility which his Honour took into account was - and this is at paragraph 381 of the trial judge’s reasons:
the obligation, under the traditional laws and customs, to have cared for and looked after that land . . . not geographic specific, save for the more important sites, but it is a sentiment which was quite obvious from the evidence led from the members of the Claim Group.
His Honour specifically referred to evidence of interference with the water tanks, for example, that spoke more generally of a sense of responsibility for looking after the country. In our submission that sense of failed responsibility could arise on the non-exclusive native title rights which were found to exist. Those rights included a right to engage in cultural activities, ceremonies, right to teach the physical and spiritual attributes of places and to maintain and protect sites of significance. So, in our submission, the notion that a sense of failed responsibility could only arise from a right of exclusive possession ought not to be accepted.
Proposition 10, and this is the last proposition I will come to, concerned what we have loosely called the “future generations” point. The issue does not distinctly arise on this matter. It arises by reason of the Commonwealth ground of appeal, ground 4(c) in which the Commonwealth has raised it as an issue.
If I can take your Honours to the trial judge’s decision at 382 - this is the source of the ground of appeal, the last sentence, talking about the compensation should:
be assessed on the basis of the past three decades or so of the loss of cultural and spiritual relationship . . . and for an extensive time into the future.
The trial judge acknowledged at the beginning, in paragraph 71, and I will not take your Honours to that but Mr Glacken took you to it, that the claim was presented on the basis that the claimants were the group as defined in the native title determination. At paragraph 316, which I will ask your Honours to turn to, core appeal book 177, this is where his Honour said that:
it was accepted by all parties that non-economic loss should be compensated on an in globo basis to the Claim Group (with the apportionment or distribution as between members being an intramural matter). It was accepted that it would not be appropriate for an award to reflect the size of the native title holding group at the time native title was determined to have existed. That was supported in the present circumstances in particular by the evidence that loss or diminution of the compensable acts would be, in effect, suffered by the native title holders as a whole, and the inter-relationships between the members of the related country groups, and their relationships to the countries of those groups. In my view, there is no reason to depart from that approach.
In other words, his Honour dealt with it and it was dealt with below on the basis that the loss was suffered by the community as a whole. The Full Court dealt with that at paragraph 333 of their judgment at page 364 of the core appeal book and dealt with it quite shortly. Their Honours said at the top:
The Commonwealth did not suggest that the primary judge was called upon by the way the case was conducted to consider whether some of the Claim Group members were alive or not at the time when the compensable acts were done or whether there was any issue between the parties that the effects of the acts had a lasting effect.
So, it was on that basis that the Full Court said there are really no facts. The matter was not argued and therefore it is not appropriate to consider the matter of principle. The Full Court did go on at paragraphs 415 to 419 in the context of talking about the inalienability of native title and their Honours said that that was a relevant matter that could be taken into account in assessing the non-economic loss of the community as a whole and, in our submission, that is effectively a reference to our proposition 1(a)(ii).
So, the intergenerational effects, and their Honours used that term “intergenerational”, was in the context of talking about, as I say, what we characterise as our proposition 1(a)(ii). It was not looking at particular effects on individuals into the future.
In light of that, there is perhaps no occasion for this Court to address that. It is, nevertheless an important issue, that is, can future generations be compensated for the loss of native title. In our submission, they can and that is because, unlike the Commonwealth’s reply submission, paragraph 41, where they say that in effect you cannot be compensated for a failure to acquire native title, in our submission the native title being a form of property that endures but for the loss of recognition by an extinguishing act means that the effect of an extinguishing act is that forever into the future people who would have had their rights under traditional law and custom recognised will no longer have those rights recognised and that that falls within the statutory language in section 51 as an effect.
The Commonwealth’s solution is to say that the cause of action or the right to damages continues and can be exercised by the present generation but it has to be assessed by reference to the generation who suffered the loss at the time of the compensable act. We simply note that if that were to be the law, then while there is no limitation period on compensation claims, the effect would be that those people who could in fact give evidence about what that immediate effect was will pass away and so the cause of action, if you like, or the right to compensation will effectively be lost over time, at least in relation to that form of non-economic loss. Those are the matters that we wished to address.
KIEFEL CJ: Yes, thank you, Mr Wright. Mr Lloyd, in reply.
MR LLOYD: Your Honour, I have quite a few matters, but I will be as pithy as I conceivably can. The first relates to a matter raised by the learned - - -
NETTLE J: Mr Lloyd, I am sorry, I cannot hear.
MR LLOYD: Sorry, I will be as quick as I can be. The first matter I wish to address is a matter raised by the Queensland Solicitor-General. He felt that the existence or content of section 49 of the Native Title Act which talks about one award of damages or one award for compensation was an answer to our construction of section 51A. We say it is not. It does not say that there cannot be more than one claim for damages in respect of an area. There are areas where there are determinations where there are overlapping claims by different groups – not overlapping claims – overlapping rights. They can each put in claims. They will be heard together and there will be a determination of compensation that embraces them all, and we say that is when the cap in 51A could bite.
The learned Solicitor-General for South Australia said that we need to read words into section 51A to have the construction we seek. We say that is not so. They are the ones who are contemplating that when it says that instead of having an extinguishment of native title there should be a compulsory acquisition of freehold, that it is talking about a different person. The Act does not say a different person. So we do not need any words read into that.
Western Australia referred the Court rejecting our approach to whether there is an acquisition of property when there is an extinguishment of native title to what Justices Deane and Gaudron said in Mabo and what this Court said in Griffiths. If I can just draw the Court’s attention to what was said in the Full Federal Court in Congoo v Queensland [2014] FCAFC 9; (2014) 218 FCR 358 at 74 – I will not take the Court to it. That addresses those cases and says why those cases when read with other cases of this Court do not say that at all. It is also put by Western Australia, in effect, that the shipwrecks clause - - -
KIEFEL CJ: Has Congoo been subject of an appeal to this Court?
MR LLOYD: It has, yes, of course, but not that point.
KIEFEL CJ: Not on that point. What was actually said in Congoo that you rely upon?
MR LLOYD: What was said by the majority of Justices North and Jagot, was that it - I think they say something like it is trite, that native title is inherently vulnerable to being extinguished, which is what I think Justice Gummow and perhaps others said in Newcrest. They dealt with and addressed what this Court said in Griffiths and what Justices Deane and Gaudron said in Mabo, and said that that did not stand in the way of that conclusion.
KEANE J: If there is not an acquisition in some sense – perhaps a looser sense than a stricter sense – upon the extinguishment of native title by the enhancement of the radical title or the feeding of a grantee’s title, what is the purpose of section 53?
MR LLOYD: The purpose of section 53 is the same purpose of any shipwrecks clause which is to offer security to the Commonwealth that it has not missed something.
KEANE J: But in relation to that, it is presumably there on the basis that, within the contemplation of the Native Title Act, there may be acquisitions. There is no other candidate as the party whose title might be acquired.
MR LLOYD: There are other candidates, as Western Australia well knows there are other candidates. One possible argument that could be advanced is that the way sections 47, 47A and 47B work is to effect an acquisition of property from the States when the land is given back to the native title holders. There are other possibilities. The Commonwealth obviously opposes that as well.
The Court should not work on the assumption that that is the only possibility. It is clearly in there in case the Court were to find that that would amount to an acquisition of property. It is not like the other provision in section 61, which deals with compensation claims addressed to native title holders. It is addressed to persons. All of the provisions for group claims do not apply under section 53.
It is quite a different provision to the compensation claim. It is not simply a top-up provision. It is a separate claim to be made. I am not saying it could not be combined but, as to the notion of it being made by a group, none of the Act supports that. The provisions that relate to compensation claims do not necessarily apply. That is all we say about section 53. Obviously the reference there to future acts is a recognition that the Court may find that that is an acquisition of property, not that there is or is an acceptance that that would be so. That will no doubt arise one day.
Now, if I turn to matters raised by my learned friend Mr Glacken, on multiple occasions Mr Glacken of the native title party said that the compensable acts were invalid against the native title holders but otherwise valid. We say that that is wrong. We have already taken the Court to paragraph 108 of Ward. The third scenario there – I will read it out again:
(iii) a State law, for example, extinguishes only native title and leaves other titles intact –
That is the scenario and the Court said:
the situation falls in the second category identified by Mason J and the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 -
The effect of that is that the Act is wholly invalid. It is not just invalid against the native title holders; the grant is wholly invalid. That is to be distinguished from section 24OA of the Native Title Act. Under the Native Title Act, things that are invalid are invalid to the extent that they affect native title whereas under the RDA the matters were wholly invalid.
Mr Glacken at one point, after referring to Ward, acknowledged that there is some fragmentation of native title as required by the NTA, but denied that fragmentation was required in compensation. We say that the Court, having recognised that native title can be extinguished in part necessarily leads to the compensation regime having some consequences or flow–on effects from that.
So if one conceives native title as recognised by the common law as a bundle of rights, if one of those rights is extinguished and extinguished for all time, if it is compensable, it may be compensable then but then is not compensable every other time. Let us say, for example, that the extinguishment of the right to control access is compensable, we say yes, at that point in time it should be compensated for the loss of that at every time.
Now, when another compensable act comes up, when some other native title right is interfered with or impacted in some way there will be compensation but not compensation again because they could not stop that act. Otherwise, the extinguishment of the first right does not result in a flow–effect of the compensation.
To put it a different way, the essence of the native title party and the native title body is they say, yes, maybe their exclusive right has been extinguished but the claimants feel the same suffering whether it is extinguished or not and so the extinguishment does not remove the pain and suffering in relation to that aspect of the right. What we say is if the right has been extinguished and compensated, or not compensated if it was historical, one does not get compensated for it in future acts.
Mr Glacken said that valid acts could not be made on the land covered by native title after 1975. We say that is clearly not open to the Court to find. In this very case there were three grazing licences in Timber Creek. They were issued at the time of the RDA. The native title party contended that they were compensable acts and they went to Justice Mansfield and said, “These are compensable acts”.
The problem they had was that the grazing licence did no further extinguishment than the earlier pastoral lease and so the Territory and the Commonwealth said they are not compensable acts, and one sees this in the core appeal book on pages 55 and 56. So, if your Honours see at the bottom of 55 there is a reference to Act 37 and over the page you see there is:
NT: Dispute that compensation is payable by the Northern Territory under Division 5 . . . on the basis that the grant . . . had no greater effect on native title -
The Commonwealth basically says the same thing. That is true for Acts 38 and 39. Now, they were grants of grazing licences. It seems the native title party realised that that was a problem so they argued before Justice Mansfield that section 47B applied to compensation cases. Now, if 47B applied, that would have re-enlivened full exclusive native title so that these acts would then be inconsistent with the now 47B effective full native title.
Justice Mansfield rejected the notion that section 47B applied and he does that in paragraphs 61 to 81 starting at pages 21 of the core appeal book. So we say all of that is an example of licences that could have been and, in fact, were issued on this land at the relevant time, validly issued. As a result of that they were not compensable acts and the native title party has never appealed that. So, for those reasons, we say the Court should reject the notion that no compensable – no valid acts could have been issued.
My next point is that Mr Glacken says if no one else has a right then his use rights become effectively exclusive rights. We say they do not. They cannot exclude people, that is to say the claimants cannot exclude people. They cannot exclude people who just wander onto the land and want to camp there or recreation. It is lawful under the laws of the Northern Territory to do that. So that cannot be done.
Mr Glacken says that they can use their power of surrender as a veto to control the future use of the land. Even on his view it is not a veto, because he accepts that it can be acquired at freehold value. But we say in any event that by reason of the power of imminent domain the Territory can acquire it – can acquire the land and that converts all of the interest in land to a right to compensation for such interest as there is.
So they do not have any way of bargaining up the value of the land. If the Territory wants to acquire the land it can acquire the land and it can do so by paying for the value of the rights. By the “value of the rights” I accept that means all of the economic and non-economic values but it does not give them an ability to negotiate above the value by reason of the surrender.
GAGELER J: I do not quite understand that. You said that surrender has no value, that the right to surrender has no value? Is that what you say?
MR LLOYD: Well, there may be a transactional value in the sense that, say the Northern Territory or the Commonwealth wanted to acquire it, they could go to the native title holders and say on the basis of “let’s look into the future, well-established compensation principles, we think we can take your land for $100,000. That would be a fair compensation and what you would get under a compensation claim”.
If the native title holders said, “Well, give us $105,000 just to save you the hassle of doing the compensation”, there would be that amount of value in agreeing to surrender rather than else but otherwise if the Territory or the Commonwealth was right that it was really worth $100,000 then they could not say, “Well, freehold is worth $300,000, so we’re going to hold out till we get $300,000”, because either the Commonwealth or the Territory could just use their powers under acquisitions acts and pay what the rights are worth. So, to that extent, we say that the power to surrender only has that kind of transactional marginal value to save the hassle of other mechanisms.
Mr Glacken said there was a simple equation that native title has to be surrendered so others could be granted an equation – sorry, granted an estate. First, he said that all freehold land is susceptible to being compulsorily acquired and one does not normally deduct value from freehold on that basis. We do not really understand that submission. If the freehold title is taken compulsorily, then the compensation is paid on the basis of freehold and there would not be a deduction.
The second point made by Mr Glacken is that it relates to the Territory’s power of compulsory acquisition at material times, and that takes my friend to the Full Court’s decision in Griffiths. That was a challenge to the validity of the Territory’s proposed acquisition of land in Timber Creek for the purpose of granting various development leases in circumstances where the only subsisting interests in the land were native title rights.
The majority upheld the validity of the proposed acquisitions. Their Honours found that the statutory power to acquire land “for any purpose whatsoever” extended to acquisitions for subsequent sale or lease for private use. Mr Glacken’s submission is based on an earlier form of the statutory power. We say his submission is wrong. The various iterations of the power are set out at paragraphs 24 to 28 of Griffiths. In short, before June of 1982 there was only a power to acquire land for public purposes.
Now, at that point in time the only compensable acts in this case were undeniably of that character. They were a grant of a special lease to the Conservation Land Corporation, there were various public works and construction of roads, there was water infrastructure and there was public housing.
On 29 June 1982, section 43 was amended so that the power was that the Minister may under this Act acquire land, full stop. We say there is no reason why that form of section 43 should be construed as operating any more narrowly than the version considered in Griffiths.
Your Honour the Chief Justice observed in that case, I accept in dissent, that this - your Honour was in dissent as to the result, but said that this amended version of the section “could hardly be more widely stated”. We say that as well. So we say that to the extent that my friend relies upon Griffiths to say that there could not have been a compulsory acquisition, that that is wrong.
He also relies upon paragraph 39 of Griffiths. That suggests that it would not have been lawful to just acquire the native title and leave the other right unacquired. We accept that, but that is irrelevant to this case because the premise of this case is if they had to, the Territory could have, prior to giving whatever the compensable grant is, acquired the land in order to do that, and we say that it could have done.
KIEFEL CJ: That may be a convenient time, Mr Lloyd.
MR LLOYD: Thank you, your Honour.
AT 12.48 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
KIEFEL CJ: Yes, Mr Lloyd.
MR LLOYD: My next point is that Mr Glacken seemed to envisage effects on native title could be subjective. We say that section 51(1) is looking at:
loss, diminution, impairment or other effect of the act on their native title rights and interests.
We accept that there can be a provision of compensation for suffering but there has to first of all be an effect on a native title right and the provision of compensation for suffering, as it were, is a head of compensation. One does not go straight to grievance as a compensation.
My friend, Mr Glacken, suggested that the 1882 pastoral lease had extinguished only a right to exclude for any reason or no reason at all. We say that that is inconsistent with what Ward says. If they had any kind of right that in any way allowed control of access that was inconsistent with a grant of access and it was entirely extinguished, there was no partial extinguishment, which was another way he put it. He put it that his right to control access was partially extinguished. We say it was wholly extinguished.
Mr Glacken stated that the trial judge had largely accepted his submissions that his rights were practically exclusive. That may be accepted at paragraph 232 but of course that finding was overturned on appeal by the Full Court, which we say did so correctly.
Mr Glacken suggested that the fact that their rights were inalienable is no reason to apply a discount because the rights acquired by the Crown were not inalienable. We say the entire practice in the State of New South Wales of taking land from councils which is inalienable in the hands of councils is against that. The Crown gets title unconstrained by alienation. They can do anything they want with it. The council could not, and it is discounted as a result. We say that that is contrary to that entire line of authority.
Mr Glacken made some submissions about the Native Title Act being a special measure. I will not take the Court to it but if I just ask the Court to make a note of page 483 in the Native Title Act Case. At the bottom of that page there was a discussion where the Court talks about the measure being about regulating competing rights and interests. There is not even a finding that it is a special measure. It was not rejected that it was a special measure but the Court did not have to find that it was a special measure and we say that that discussion at the bottom of page 483 over to 484 is supportive of the concept that not every aspect of the native title right is a special measure or that it needs to be somehow construed by reference to that.
In response to a question from Justice Gageler, Mr Glacken said that the similar compensable interest test operated to equate any native title irrespective of content with freehold, we accept that insofar as he is talking about the level of security against extinguishment but we certainly do not accept it if, as we apprehended him to be suggesting that it meant in relation to the value of the right.
So, we accept that all native title has the same protection from being extinguished but not the same protection in relation to value. Or perhaps I should say – saying it has different protection. The same principles apply but insofar as the rights are worth less then non-exclusive native title rights would be more comparable with non-exclusive non-native title rights and they would be valued on the same basis according to the same principles.
My friend, Mr Glacken, took the Court or referred the Court to Jango at paragraphs 116 to 118 in 159 FCR 531 as being a case where, I think as it was put it was a case to show that where the RDA applies it does not lead to total invalidity. We say that that case - and I will leave the Court to read it - but that case when properly read says the exact opposite of that.
The whole point in the appeal was that the RDA had applied and made certain grants invalid and the Commonwealth had run a different argument in relation to registration under the Real Property Act which was perhaps not invalid under the RDA. They were trying to get a result that way which was unsuccessful and dealt with only obiter.
My friend referred to sections 118 and 119 of the Crown Lands ordinance as suggesting that the RDA would apply to it and give non-exclusive native title holders the same right of ejectment as licensees have under that legislation. That raises a number of quite complex issues as to how the RDA works but we say even if it did operate that way the power of ejectment under section 118 only applies in relation to unlawful occupation of the land. That, under the Crown Lands Act, means if you are residing on it or if you have built a building on it or if you have cleared the land, so it does not stop people going on to the land for recreation or other camping or the like.
They are all my comments pertaining to yesterday. In relation to today, my friend referred the Court to the judgment of Justices Rich and Williams in the Bank Nationalisation Case and said that compensation includes interest as part of the award. We say that their Honours said the opposite of that. They had previously said that and that they said that they were accepting that the majority in Marine Board and Huon had the day and that they were accepting that compensation did not include interest. They also did not see the equitable rule as applying in the context of the share acquisition in that case and so they found the Act to be invalid on that basis. So, we take issue with that.
GAGELER J: Does this point matter anymore, given your construction of section 51A?
MR LLOYD: Does the point matter on compensation?
GAGELER J: Does the interest point matter? Whether the interest is compensation or on compensation? As I understood it, it only went to section 51A and, as I understand your construction of section 51A, it really does not matter.
EDELMAN J: It is a fairly narrow distinction between whether the equity is brought within the word “compensation” or whether it comes from outside the statute.
MR LLOYD: It may be that if the Court accepts our construction of section 51A, it does not matter. We apprehend that that argument of section 51A will not be resolved in this case. But, the issue of whether it is compensation on, or part of, should be resolved because it is an appeal point in this case. We say, it is most clear – but not only in this case – but most clear from Justice Dixon’s discussion in Marine Board that he sees it as clearly a separate conception to compensation. Because compensation does not provide interest, equity is stepping in and so it is referred to I think by at least four of the judges in Marine Board as being interest on compensation. So, because it can be relevant down the track, depending upon how section 51A – we say it should be construed that way.
There was the reference – my friend took the Court to the reference in the judgment of Justice Mansfield about parcel-by-parcel not being appropriate. We do reiterate that, again, it is their choice whether they bring it parcel-by-parcel. Ultimately, the Commonwealth’s submission is that however the compensation is determined, it would be unattractive and not a good policy result if you got more money by having 51 separate claims to one claim carrying 53, or vice versa. It should be some mechanism whereby the processes of analysis are relatively neutral into the outcome, otherwise that will encourage one process over another.
Re the ritual ground issue, on this point, we do not say, and never said, that the effects are limited to the quarter acre block. We accepted, and have always accepted, that it can have a penumbra and affect the exercise of rights in adjoining areas. So, to the extent that that is put against us, that was never part of our issue.
My friend went on in relation to the ritual ground - there are various factual matters there that were raised. The first one, I should say, is the explanation my friend said today that “they were pointing to George Street” is something that your Honours will scour the record for any mention of that ever. He never said it to the trial judge. The trial judge never ruled on it. It was never said to the Full Court. The Full Court never ruled on it. He did not say it in his submissions to this Court. The first time he said it was when he was on his feet in this Court.
We say, for what it is worth, and it still seems to me that even on his view that George Street was constructed in 1980, there is still a clear temporal problem in his analysis. But, for what it is worth, the evidence is that – and this is in the Territory further materials, volume 1 – that the Victoria Highway my friend says was constructed in 1964, it may well have been, but it was sealed - - -
KIEFEL CJ: Where are you reading from, Mr Lloyd?
MR LLOYD: It is page 399 of the Territory’s further materials book, at page 399, and about the middle of the page, the fourth paragraph on the page, there is a reference there to the history and the - - -
GORDON J: Is this the paragraph commencing “Traffic passing”?
MR LLOYD: That is so. Then there is a reference there to the sealing of the highway in 1974. So when we spoke in our submissions about the development of the highway, we were referring to the evidence about the sealing of the highway in 1974.
BELL J: The primary judge, at core appeal book page 20, paragraph 55, refers to the construction of the Victoria Highway “In about December 1964”. His Honour described the highway as being “constructed or established” and then “formally named in November 1966”. That is in the first judgment in the core appeal book.
MR LLOYD: I accept that, and then it was sealed in 1974. Ultimately, the evidence was clear. The Court has the restricted material. We agreed to the expurgations on the basis that my friend said, everything the Court would need is in there. We say that it is and that it shows clearly that the native title party or the claimant, in any event, stopped their ceremonies because of tourists in 1975 and from 1975 because of the lookout. That is the clear evidence as to what caused them to do it. We say there has to be an effect on native title.
Now, they might have been - we do not deny – they might have felt some grievance that there were other compensable acts done nearby, although one actually does not see any evidence of that in that material. But, even if there was, the grievance – there has to be an effect on native title. The compensable act was not over the area, so it did not have the legal effect to extinguish it, nor did it impair the exercise because it had already stopped. So it does not impair the exercise; it does not have a legal effect. All it did, if anything, it was a grievance and we say that that is not sufficient to engage section 51(1) and that his Honour erred and that the court below erred in failing to apply the causal nexus. There are issues also about the timing of George Street - - -
NETTLE J: Just before you go, if it were, say, the construction of the houses on lots 42 and 43 which were the subsequent compensable acts that further compromised this ceremonial site, granted that was not on a plot of land that was affected directly by a compensable act, is he not right that it is at least conceivable that because of the compensable acts there was an exacerbation of the sense of loss in relation to the ceremonial site?
MR LLOYD: My first answer to that, your Honour, is that, let us accept that it was near enough to that to have some effect - - -
NETTLE J: Yes.
MR LLOYD: - - - in the sense of making them unhappy about it being done. Our first point is, under 51(1), there has to be an effect on native title.
NETTLE J: On that block on which the site is situated.
MR LLOYD: I am not saying that, but the effect on native title could be on the exercise of native title. We accept that, but they already were not exercising their ritual right there and then they had not legal effect, so it did not affect native title. In the same way as in one of the other events – the Court will recall one of the other four events that his Honour talked was the scraping of the gravel at a different site.
That had nothing to do with a compensable act. No doubt the claimants felt very irritated by that but we say they cannot claim and I think my friend accepts they cannot claim. He just said his Honour did not improperly take that into account. This would just be another thing where they might be upset by it, but it was not by an act which had an effect on native title. If they came and they said that they stopped or they were going to come back, or they were going to start again, but now they will not start again, that might be an effect - - -
GORDON J: Is that not the evidence that we were taken to at 658 of the restricted material?
MR LLOYD: I do not believe so, your Honour.
GORDON J: Over to 659.
MR LLOYD: Is there a particular line your Honour has in mind?
GORDON J: At the top of 659, the evidence explains why it was that they stopped the business, the ritual business, on that land. As I understood the way Mr Glacken put it this morning, it was not to do with the construction of the road. There were two arguments: one was a temporal argument and the second was he relied upon this evidence that the cause of the cessation was not the road but the additional evidence there at 659.
MR LLOYD: I need to make this clear. We are not saying the evidence was because of the road; we are saying the evidence was because tourists would be able to see them from the lookout. They would hear them because the activities they were doing would attract attention and they would go to them, but they wanted their ritual to be secret and private. So because there were more tourists around, they did not do it there any more. That is what we say is - - -
GORDON J: That is the point. What I am trying to say to you is that 659, as I understood the argument being put against you in relation to the ritual ground, was the cessation was not because of that initially; it was because of those events there set out.
MR LLOYD: But that happened in 1974, so that was an earlier event in relation to that one year, but the ongoing cause was the tourists. One sees that in the passage on 645, one sees it in the passage of Mr Griffiths at 648.
NETTLE J: It is 645 at line 20 and 658 at line 40.
MR LLOYD: Yes, 658 as well. We would accept that if there was a slightly different situation - we do not deny that there could be an incremental problem in a given case, like if somebody has a back injury and then they have a second injury and it gets a bit worse then obviously you get more. We are not saying that. We are just saying there needs to be a causal nexus and we say there was not one established in this case.
NETTLE J: There was not one on the evidence or could not have been one because the posited acts on lots 42 and 43 did not affect the native title on the site. Which is it?
MR LLOYD: Probably both of those things.
NETTLE J: Put aside the evidence, you say even if there were direct evidence, say constructing the houses on lots 42 and 43, further compromised the use of the ceremonial site that would not be recoverable loss?
MR LLOYD: No, I do not say that. I accept that if there was direct evidence that 42 and 43 meant that – let me give an example. If, instead of doing it five times a year they would only do it once a year, so there was a further effect on their exercise of their rights, then that would be compensable.
EDELMAN J: Or if it were a possible exercise of rights that may be returned to but that possibility had been excluded after 1980, would that be compensable?
MR LLOYD: There would need to be some evidence to suggest that they would go back. The reason for the complaint had not changed. There was still a lookout; we took evidence from the lookout. We would say that that is contrary to the evidence to suggest that they, as it were, were about to go back. I accept that they would like to have the ritual there, but the reason for not having it there existed since 1975 and the compensable acts did not make it worse.
GAGELER J: As I understand it, you say that the effect has to be on the exercise of the right, as distinct from the holding of the right under traditional law and customs.
MR LLOYD: No, I do not say that. I say on both. I certainly accept - - -
GORDON J: When you say “both”, do you mean it has to have both elements to it? It has to impact and have an effect on the holding and the exercise, and without one it is not sufficient?
MR LLOYD: No, I do not say that either. I am sorry, I have not made myself clear. If there was an acquisition of this site, assuming that they had completely given up any exercise of rights there but it was still important to them, particularly important to them in a spiritual sense, or even not particularly important, there would still be an amount of non-economic loss because their spiritual connection to the land would be destroyed. If it was a matter of particular importance, it would be a greater amount of compensation. That is just because the native title rights in that exact land was extinguished. That is the first point.
Separately, if the extinguishment was done nearby and then the extinguishment led to activities nearby, such as the building of houses or whatever, and the grant was for the grant to build a house, assuming this case, and that led to an impairment of the exercise of rights, then we would accept that section 51 is made out because then you would have an act, you would be compensating for an act, which would be the impairment of the exercise of native title rights.
EDELMAN J: Or potential exercise of rights.
MR LLOYD: Or potential – well - - -
GAGELER J: Why, in the second case, do you go only to the exercise? Why is it not enough that the rights held under traditional law and custom in a place which is a ceremonial place are diminished under aboriginal law and custom by reason of the nearby development? Why is that not enough?
MR LLOYD: Well, we would say – maybe I am misunderstanding it, but we would say their rights are not diminished.
GAGELER J: Well, you might say that as a matter of fact, but is that all that you are argument comes down to? An assertion of what is to be made of the evidence here?
MR LLOYD: Well, no. Our case really is hinging upon the causation in – causal nexus involved in section 51(1), but we say that there has to be a diminution of rights. Now, a diminution of rights could happen, for example, if the non-extinguishment principle applied and it could not be exercised for a lengthy period of time. That would be a diminution of rights. But having an act which - - -
GORDON J: Is it not, in effect, ignoring the jurisprudence on what is a bundle of native title rights and interests, in the sense that you ignore, seem to carve out of the second example special connection to country, because you are only looking to the exercise of the right rather than subsistence of it.
MR LLOYD: Well, no. I am saying that the compensable acts did not have an effect on the subsistence. Their rights to carry out the ritual were fully in place at all times throughout history. It has never been affected. Their right to carry it out has not been diminished.
KIEFEL CJ: Mr Lloyd, does your submission come down to there has to be an effect in fact, rather than a perception from the native title holders of an effect?
MR LLOYD: That is certainly a part – that was the point I was making earlier about it is not – there is no such thing as a subjective effect on native title. There has to be an effect on native title.
KIEFEL CJ: In fact.
NETTLE J: In law.
MR LLOYD: Or at law. We think that extending it to the exercise is meant to be a broadening of the section. One might say it is only on the native title. Well, we accept that - - -
KIEFEL CJ: In the way you put it, it is something that is measurable. It is something that can be seen or acknowledged.
MR LLOYD: They can give evidence to say, because of this we cannot do this anymore.
KIEFEL CJ: They cannot say, because of this and our perception of how it affects the dreaming, we are upset.
MR LLOYD: We say they need to show an effect on the native title, so simply being aggrieved by a decision – if one cannot show that that act had an effect on either their ability to hold their rights, or the existence of the rights, or the exercise of the rights. I am not trying to make it narrow but I am saying that in this case - - -
EDELMAN J: But do you add to that “or the potential exercise of rights” as well.
MR LLOYD: Well, so long as there was some evidence of that. I mean, in all of these cases, for example, they have the right to hunt but the - - -
EDELMAN J: But there is evidence that the rights were exercised in 1975 and there is no evidence that anything happened between 1975 and 1980 that changed the potential for the exercise of those rights.
MR LLOYD: I would say there is no evidence that anything happened from 1975 that has changed the potential exercise - they can still go there now. They have the right to do the exercise now. They have the full right to do it. They do not want to do it for the same reason they did not want to do it in 1975. Nothing has changed. The compensable acts have not changed their reason for not wanting to do it and so, therefore, it has not had an effect on what they would do. It might have contributed to the cause but it did not change the position.
GORDON J: Well, let us just take that - the contribution to the cause itself gives rise to a claim for compensation and a right and entitlement to it, even on your analysis.
MR LLOYD: Well, with respect, we would say no. If the matter has already happened - so if, for example, somebody has a car accident and breaks their back and they are quadriplegic and then has a second accident and that second accident would have itself been a thing that would have made them quadriplegic, but in fact they already were quadriplegic, we would say that the second accident would have not have to pay for making them quadriplegic again though they might have to pay for additional pain and suffering but not for something that it did not cause.
Other matters, there was some question about where this evidence was in relation to specific acts relating to the 53 acts. Can I just draw the Court’s attention - footnote 135 of our submissions in-chief sets out references, putting aside the gender restricted evidence, but it sets out every other reference to every other specific act, so to all of the evidence on those issues.
In relation to what is said at 365 by the trial judge, which is the evidence pertaining to “the sense of grievance”, we do place reliance upon the fact that those words are not words to say that there is a lack of a sense of grievance. They were not words of the witnesses. They were the trial judge’s characterisation of that evidence. It was the trial judge who, having heard that evidence, said that it did not create a sense of grievance.
To the extent that my friend tried to suggest that there was, you know, a tearing of the heart, one would assume that his Honour would not have characterised it in that way. They would have said, well, they were conflicted or they did not like it but whatever. But he has put the evidence in those terms and we rely upon that.
I was going to give a reference earlier to the George Street issue, if that be an issue. Can I just say in relation to that, that if I go to my friend’s written submissions, I am confident that he will not dispute them, at footnote 10 of them he identifies George Street as having been constructed in 1986 in that matter. We, of course, say whether it is 1980 or 1986, it does not matter.
The other evidence before the Court should – if the Court thinks that it matters, that was at 59 which is dealt with by Justice Mansfield in the liability judgment on page 69 of the core appeal book. That suggests that the road – that George Street was constructed in 1987, that the power lines were put in in 1980 and so if that be relevant, we say it is not.
My friend took the Court to a passage in Yarmirr which I recall all too well as that was my first chance to present argument in this Court. We would say that that matter is quite distinguishable. It did turn on which side of the island Mr Wardaga had said he owned – well, ultimately it did not turn on that but it was about evidence in that context. Here there is a temporal element of the conduct having stopped in 1975 and in those circumstances whether, while we would say he was pointing to the lookout, it is neither here nor there that there is actual oral testimony in relation to the lookout. So, we say that that case is distinguishable.
In relation to the Inter-American Human Rights Court judgment, can I just indicate that the Court at paragraph 397 goes to it and says that those cases are of assistance. It has not found – it is in the context of assessing manifest error. It has a discussion in 396 and 395 which my friend took the Court to which said this is a high level of damage and this amount is a high amount. Then it went to the Inter-American cases in the Burke report and then it reached its conclusion or his Honour reached his conclusion at paragraph 413 after those matters were taken into account.
We say the Court should not find that it was merely confirmatory, the finding at 396. At 396 there was an observation that there was a high level of harm on the basis of the findings that had been made, that the Full Court had accepted where it did not reveal error but then they had regard to those two matters before reaching the conclusion at 413.
Finally, we would accept the touchstone of the community standard as being an appropriate way of looking at it. We return to the notion of the Copland document I handed out. We say that if the Court - certainly if the Court accepts the Full Court’s finding of 65 per cent of freehold as being correct, even more so if you accept it on appeal, then what they get by way of compensation is not only full economic value for the land or their interest in the land, they get an amount of simple interest which exceeds the current – considerably exceeds the current value of the land and then, in addition, they get again, in effect, 65 per cent of the current value, the freehold value, which is to say 100 per cent of their rights.
We say that from a community standard point of view that is manifestly excessive. We do not, in any way, undermine the significance of spiritual connection but 100 per cent of the market value of the land we think - to measure a community standard a significantly lower amount would have been sufficient. May it please the Court.
KIEFEL CJ: Thank you. Solicitor-General for the Northern Territory.
MR GLACKEN: Your Honours, might I mention something very briefly? If it were an issue as to how the case was put in the Full Court and if it were of assistance we could provide an extract of our written submissions and of the transcript before the Full Court in relation to this evidentiary matter concerning Lots 62 and 63.
KIEFEL CJ: Yes, if you provide a note to the Court with these copies within five days, and the Commonwealth has the opportunity to a response in the same period.
MR GLACKEN: If your Honour pleases.
MS BROWNHILL: Your Honours, the native title party referred to and relied on the cases of Amodu Tijani and Geita Sebea in order to sustain the ground of appeal equating the value of a freehold estate with the value of the native title rights and interests. That reference raises two related questions. The first question is whether native title is to be valued by reference to what the acquirer obtains and, joined with that, does inalienability affect the value of exclusive native title rights and interests?
We make the point in our written submissions that in the non-native title context, interests are not valued by reference to what the acquirer obtains but by what the owner has lost, and that is sometimes referred to as the unifying common law principle of value to the owner. Secondly, inalienability does affect the value of what the owner has lost.
To make good those points in the non-native title context, we refer firstly to a decision of Commonwealth v Reeve which is referred to by the Full Court in the reasons at paragraph 91, tab 40 in volume 6 of the joint book of authorities.
The plaintiffs in the case were lessees of a room in an office building which they used as a café business and the Commonwealth resumed the land on which the building stood. The plaintiffs were compensated for the full value of their leasehold interest even though the Crown got a full title, fee simple title to the entirety of the land. At 91 of the Full Court’s reasons their Honours set out a passage there from the judgment of Chief Justice Latham who at the bottom of that passage makes the point about value to the owner being:
not that the owner is entitled to damages for all of his loss consequent upon acquisition of his land, but that the value to the acquiring authority is not the measure of compensation.
Secondly, in the Full Court’s reasons at - - -
KEANE J: Sorry, Ms Solicitor, I understand the point you are making but is that the same as saying that evidence of value to the acquirer is not relevant – is of no relevance to the loss to the owner - - -
MS BROWNHILL: No.
KEANE J: - - - in the sense that the value to the acquirer can be some indication of the value of that which has been acquired – just as a matter of evidence.
MS BROWNHILL: I do not think I would put it as highly as it not being at all, in any way, relevant. But the point is that the principle on which the basis on which the compensation is assessed is not in relation to what the acquirer acquires but in relation to what has been – whether it is extinguished or transferred, or whatever it might be.
Similarly, in relation to that point, in the Full Court’s reasons at 121 they make reference to the decision in Commonwealth v Arklay. That case involved an acquisition of land and how to assess its value when there were wartime controls which both fixed the price at which the land could be sold and required the consent of the controller, the treasurer, or whoever it was, in order for there to be any sale. The passage on page 45 of the Court’s reasons – their Honours refer to the Spencer test – essentially:
why value for the purpose of compensation is measured by what an owner prepared to sell would demand and what a buyer desirous of obtaining the land would give is that this ascertains the value in money contained in the land -
and reference to once there is an authority forbidding the parties or one of them to give so much as they would normally require it ceases to be evidence of value. They contrast that with – a bit further down in the passage:
On the other hand the existence of a regulation of land sales would be calculated itself to affect what a buyer would be prepared to give. He himself would be buying an asset of which he could not, if need arose, freely dispose of at the price he would demand from a buyer free to give it.
So, you could not disregard the regulation of the sales in that way. It would have to be taken into account because it affects what a buyer would be prepared to give to obtain the land. So, the restriction on sale would affect the hypothetical price that the purchaser was prepared to pay.
GAGELER J: Ms Brownhill, as I understand your argument in-chief, you embrace the notion that the value to the owner, here, includes an exit value.
MS BROWNHILL: Yes, your Honour.
GAGELER J: Does not embracing that notion necessarily embrace the concept of the native title being hypothesised to be alienable?
MS BROWNHILL: No.
GAGELER J: No?
MS BROWNHILL: In the same way that authorities like the Sydney Sailors’ Home Case where there were restrictions or the land could not be sold without approval - - -
EDELMAN J: Except they are restrictions that apply also to the acquirer.
MS BROWNHILL: Well, that is what the Court – in the Sydney Sailors’ Home it was a trust deed which applied so that the holder of the land itself had bound itself by a trust deed not to dispose of the land without the consent or approval of the Governor. I was going to come to that case because the – perhaps we can go to it. It is in joint book of authorities volume 13, tab 103. The headnote refers to the appellant having bound itself to hold the land “upon trust” on the condition that it:
not be sold, exchanged, leased, mortgaged, charged or otherwise dealt with without the approval of the Governor -
Then at the bottom of 116 of the report, it is set out that:
The substantial issue between the parties is the extent to which the obligation to obtain the consent of the Crown to any disposition of the land should be taken into account in valuing the land, or did in fact affect the value of the land.
It was argued that the resumption assumed a disposition and therefore consent to the disposition so that the restriction should be disregarded for the purpose of valuation. But over the page, Justice of Appeal Hope refers to that line of reasoning being inconsistent with the authorities, specifically Corrie v MacDermott. There is a reference there to, again, land that was held on trust and the deed of grant containing no power of sale at all and:
The High Court held that the value to be assessed was the value to the Society of their interest in the land and not the value to the Crown or to those for whom the Crown was acquiring the land; and that in ascertaining this value the conditions, reservations and restrictions on the use of the land and the right to dispose of it should be taken into consideration. The decision of the High Court was affirmed by the Privy Council.
There is a reference to a passage there. In the rest of the judgment, his Honour goes one to consider the decision in Geita Sebea, which I was going to mention shortly, but over the page on page 118 reaches the view that that decision does not cut across the principles affirmed in Corrie v MacDermott but rather is a case about the construction of the three Papuan ordinances.
So we say that the general common law principle is that both inalienability does affect the market value posited by the Spencer test of what the owner has lost and that is contrasted with the idea of the value obtained by reference to what the acquiring authority obtains.
NETTLE J: Madam Solicitor, do you say Amodu Tijani turns on the statute too?
MS BROWNHILL: Yes, your Honour. I am hoping that your Honours’ associates have copies of the statute that was referred to in Amodu Tijani and a copy of the decision itself. It is not in the bundle, not as far as I could locate it. My learned friend corrects me, it is in the bundle, but in any event your Honours have it now one way or another. So, it is in volume 3 apparently. In the decision in Amodu Tijani your Honours will see in the headnote that the land was:
acquired for public purposes under the Public Lands Ordinance, 1903 –
We have provided a copy of that Public Lands ordinance. Specifically, reference we make is to section 3 which is the power of the Governor to acquire:
lands required for public purposes for an estate in fee simple, or for a term of years, or for any estate or interest recognised by native title law and custom -
Then, section 6, which provides that:
Where lands required for public purposes are the property of a native community, the Head Chief of such community may sell and convey the same for an estate in fee simple, notwithstanding any native title law or custom to the contrary.
So, the question for the Privy Council in the case was there were two competing ideas about what the valuation of the rights acquired should be based on competing views about the nature of those rights. The two competing views are set out at page 402. One was the view of the Chief Justice of the Supreme Court that essentially what the chief had was the “seigneurial right” of control and management as opposed to what the chief was claiming which was:
the full value of the family property and community land –
Their Lordships had to determine which of the two was the true view and that depended on the real character of the native title to the land. On 404 to 405, at the bottom of 404 and over the page, reference is made to the nature of the native title that was held and I would emphasise particularly that the chief had:
charge of the land, and in loose mode of speech is sometimes called the owner . . . He has control of it, and any member who wants a piece of it to cultivate or build a house upon, goes to him for it . . . He cannot make any important disposition of the land without consulting the elders –
et cetera. Then, at the bottom of the page about two-thirds of the way down, the Privy Council, Viscount Haldane, I think it is, said that, therefore, the interpretation of paragraph 6 of the Public Lands Ordinance had the meaning that the chief could transfer the title of the community and that therefore that was the compensation that had to be made for that title in fee simple.
So, the decision in Amodu Tijani turned on two things: firstly, that the native title held was equivalent to full ownership but secondly that there was a statutory provision which required any inalienability pursuant to the traditional laws and customs to be ignored.
GAGELER J: Ms Brownhill, I am sorry, I know that I am asking the same question over and over again, but if you rely on the native title interest being inalienable how do you get to an exit value or a negotiation value? Can you just talk me through the steps, please?
MS BROWNHILL: Yes. Your Honour, what Mr Lonergan did was to recognise that native title rights and interests are, in their nature, inalienable with all of the consequences that that has in terms of differentiating between freehold in the sense of inalienable – I mean, you cannot lease, you cannot licence, you cannot mortgage et cetera – but recognised that the native title rights and interests could be surrendered to the Crown. And so he posited that the proper hypothetical transaction was in the nature of a surrender rather than in the nature of a transfer, which is how he then came up with the idea of the negotiation value being the difference between the value of the native title rights and interests themselves in their nature and what either the Crown, who is seeking to acquire the land for its own benefit for public purposes or for the benefit of someone else, would be willing to pay in order to put the land to a different use. So it is - - -
GAGELER J: It is a limited form of alienation.
MS BROWNHILL: Yes, recognising that the Crown could always compulsorily acquire the land so that, contrary to what the native title party puts, there is some sense of power or veto in the native title holders about what could be done with the land. That is not so because of the power of compulsory acquisition. But the capacity to surrender does give rise to the Crown entering into, or the potential for entering into, a negotiation about the price at which it might put the land to a different use. I hope that answers your Honour’s question.
So Amodu Tijani turned on the effect of the statute and that is why inalienability did not affect value. Similarly, Geita Sebea – my learned friend took your Honours to it, I do not propose to go back – there was a similar context and a similar conclusion in the sense that, firstly, the native title, as your Honours all observed yesterday, was equivalent to full ownership of the land. Secondly, the constraint on alienation arose not as a consequence of the incidence of the native title itself but as a consequence of a statutory provision.
And then there was another statutory provision that provided that compensation was payable on the footing that it was a transfer of the fee simple from the native title holders to the Crown. So there was a statutory inconsistency and that inconsistency was resolved in favour of disregarding the inalienation provision. So, again, that was why it did not affect value in that case. So neither Amodu Tijani nor Geita Sebea are authority for the propositions that native title is valued by reference to what the acquirer gets as opposed to what was lost and the acquirer got fee simple, therefore native title equals fee simple value. Nor are they authority for the proposition that one has to ignore the inalienability of native title when determining its value.
Both the native title party and my learned friend, Mr Wright, relied on the decision in Leichardt Council v Roads & Traffic Authority. That is in the bundle. In that case it was held that the principle in Corrie v MacDermott did not apply, nor did the unifying principle of value to the owner, was in the context of – it is volume 8, tab 69 of the authorities.
So the case concerned again two New South Wales statutes this time. One was the Land Acquisition (Just Terms Compensation) Act which dealt with acquisitions and then the Local Government Act which had a provision that said community land which is held by a council cannot be sold. The court held that the community land held by a council which had been acquired was to be valued without reference to the restriction on sale.
If your Honours turn to paragraph 31, his Honour the Chief Justice makes a reference to the object of the Act, which was:
to “guarantee that . . . the amount of compensation will be not less than the market value of the land”. This guarantee confirms that the terminology of “market value” is not used in the sense [in the common law sense] of “value to the owner”, which was the unifying concept that was applied . . . in Corrie -
And then His Honour says that:
once the idea of “value to the owner” is taken away as a unifying concept, as it has been, the foundation of the reasoning in Corrie v MacDermott has also been removed.
His Honour recognises that:
There are, of course, restrictions on use, eg zoning, which affect all vendors and purchasers in the hypothetical sale.
And that is where his Honour comes to the view that:
Where, however, a restriction affects only the person whose land has been acquired . . . the restriction is not a matter –
to be taken into account. So, it is only in that statutory context where the ordinary unifying rule about “value to the owner” is removed, that you would reach that conclusion. His Honour goes on in paragraph 35 to say that:
Matters of valuation turn in large measure on the precise statutory scheme.
And that, we would say, is the consequence of cases like Amodu Tijani and Geita Sebea.
And then from paragraph 45 and onwards, his Honour deals with again what is found which is the competition between two statutes of the same legislator and how they should be dealt with. His Honour considers the decision in Geita Sebea and says that it is similar to what is faced by the court in that case where there was a statute - this is 51 – sorry, 47 - there was a statute containing the hypothesis:
a statutory intersection . . . where the operation of one statute proceeds on a statutory hypothesis which the second statute denies.
That is paragraph 46.
GAGELER J: Is the consequence of your submission that in a case where native title holders have exclusive native title which is extinguished, the economic value for which they are to be compensated is necessarily less than the freehold value of the land?
MS BROWNHILL: Yes.
GAGELER J: How much?
MS BROWNHILL: We do not yet have any evidence before the Court about that sort of quantification. Mr Lonergan expressed a view about, in this case, the impact that inalienability - he called it lack of marketability but same thing – inalienability would have. This is in his report which is in the Northern Territory’s bundle of further material, volume 1 at page 336. He expressed the view, after a comparison between freehold exclusive rights and non-exclusive rights, at paragraph 65:
There are very significantly greater rights for a freehold owner compared to a non-exclusive native title rights holder . . . The differences also relate directly to the ability to generate cash flow / benefits from the property. Accordingly, in my opinion non-exclusive native title rights are worth markedly less than freehold value.
He has not purported there to express any view about the difference between freehold and exclusive rights, but that is certainly captured in what he has observed there about the difference between the native title rights he was asked to consider and freehold.
The methodology and the negotiation value is - so what Mr Lonergan is theorising is that the typical negotiated bargain in this surrender of native title scenario would see a bargain reached at the midpoint between the usage value and the freehold value. That is in paragraphs 78 and 79 and 81 of his report and that midpoint is selected because he says in paragraph 71 that the normal potential reference points for where you consider the bargain might be reached where there is a wide negotiating range are not available in this context. So at 81 he adopts the studies in Behavioural Economics and Game Theory as the reason to select the midpoint.
That opinion was to the effect that the significant lowering of the midpoint from the perspective of the hypothetical purchaser because of inalienability and inability to commercially exploit would be offset by the raising of the midpoint from the perspective of the hypothetical native title holder because of the spiritual connection to country.
So, in the Lonergan valuation there is essentially already - your Honour Justice Edelman’s idea of the loss of amenity or the objective loss of amenity is already captured in that part of the equation, leaving separately something in the nature of an award for pain and suffering and in
that sense what Mr Lonergan has done, coupled with the award for solatium in this case of $1.3 million does represent something of a double counting which would be another reason, we would say, that the award of $1.3 million is inappropriately high.
Just one other point, your Honours, in relation to - if one were to take the approach that the proper valuation of native title is the value to the acquiring authority, there would be two consequences. Firstly, the actual nature and incidence of the rights and interests would be irrelevant. Any earlier extinguishment would effectively be disregarded because you would get fee simple all the time or at least fee simple.
That seems an unlikely legislative intention, given that the Native Title Act contains specific provisions providing for the partial extinguishment of native title and a compensation consequence for those things and I am referring to sections 23G and 23I.
Secondly, the Native Title Act expressly permits the disregarding of extinguishment of native title, but only in the scenarios involved in sections 47, 47A and 47B. It would be because the Native Title Act makes no similar provision in relation to compensation; the idea that you would nevertheless just disregard extinguishment does not sit comfortably.
The other point about that idea is that there could not then be an award for the spiritual attachment component for the loss of material or spiritual sustenance and so on because there would not be any basis in principle for adding that on. If you are focusing on what the acquirer obtained, the acquirer does not have any of those spiritual associations so the only value would be the value to the acquirer, what the valuer gets: a fee simple estate.
We say that there is no foundation in either Amodu Tijani or Geita Sebea to suggest that even where the focus is on what the acquirer got that there is something then to be added on top of that for spiritual attachment or connection. Those are the submissions. May it please the Court.
KIEFEL CJ: Yes, thank you, Ms Solicitor. The Court reserves its decision in this matter and adjourns to 10.00 am on Monday, 10 September in Canberra.
AT 3.22 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2018/176.html