In a historic judgment, the Federal Court of Australia this week awarded millions of dollars in compensation to Indigenous landowners who had been dispossessed under the Native Title Act.
The Ngaliwurru and Nungali people, Aboriginal custodians of land at Timber Creek in the Northern Territory, were awarded $3.3 million for the loss of their native title rights.
It was the first time the court had been called on to calculate damages for native title dispossession.
“We're very buoyed with the court's decision today,” CEO of the Northern Land Council Joe Morrison told the ABC. “This is the first test case of its kind in Australia and we're very happy with the outcome.”
In his final judgment before retiring, Justice John Mansfield awarded $2 million as compensation for the loss of the value of the land, and $1.3 in damages for the distress, anxiety and hurt caused by the loss of connection to the land.
Lawyers have already begun speculating that this could set a precedent which puts state, territory and federal governments on the hook for billions of dollars in compensation.
NITV got our hands on the judgment just before its official publication to find out exactly how Justice Mansfield came to that decision.
The Native Title Act
The 1993 Native Title Act was introduced by the Keating Government in response to the High Court’s decision in the Mabo Case.
Justice Mansfield described the Act as “seminal legislation addressing the progressive dispossession of Aboriginal peoples from their land by European and related settlement.”
Under the act, Indigenous Australians can claim a range of native title land rights if they can prove an ongoing connection to the land. These rights can be lost if freehold title or leases have been granted on the land, a mechanism which protects farmers and property-owners.
But the legislation also grants Indigenous Australians the right to seek compensation if native title rights have been extinguished by the government, for example by granting a mining lease or building on the land.
That's what happened in the case of Timber Creek, where Alan Griffiths and Lorraine Jones took the state and federal governments to court for compensation on behalf of the Ngaliwurru and Nungali people.
The Ngaliwurru and Nungali people first applied for native title rights in 1999. By 2006 they had won some rights in parts of their town, but had been denied native title in others.
Those places where their rights had been extinguished included ground where a concrete bridge and water tanks had been built.
But the local history of dispossession goes back further than those structures.
Timber Creek is a small town, just 24 square kilometres. Its population is 231, two-thirds of whom are Indigenous.
Westerners arrived in the area in the mid-1800s. An exploration party described setting up camp and meeting the locals. They were hostile at times, the leader of the party said, so they fired shots.
By the late 1800s pastoral leases had been granted to settlers and Traditional Owners were pushed off their land by cattle farmers.
“During these early years of settlement, relations between the local Indigenous groups and the European settlers ranged from open warfare, and massacres, to what was at times friendly co-operation,” an earlier judge, Justice Weinberg, had said.
By the 1900s the situation had degenerated into guerrilla warfare, Justice Weinberg said, “with Aborigines striking opportunistically and then retreating into rough range country.”
By the mid-1900s Indigenous people were working seasonally at the cattle stations, but it wasn’t until the mid-1970s that they were granted some rights over their traditional lands.
The 2006 case expanded those rights, but there were some areas where native title had been extinguished.
Justice Mansfield was called to establish the value of compensation the group was entitled to for that extinguishment.
As part of the case, Justice Mansfield and lawyers toured the area. The case transformed the local basketball court into an actual court for the first day of the hearing.
The judge said that if it wasn’t for the dispossession, the Ngaliwurru and Nungali people would have had the following rights:
(1) to travel over, move about and have access to the land;
(2) to hunt, fish and forage on the land;
(3) to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin;
(4) to have access to and use the natural water of the land;
(5) to live on the land, to camp, to erect shelters and structures;
(6) to engage in cultural activities, conduct ceremonies, to hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land, and to participate in cultural practices related to birth and death, including burial rights;
(7) to have access to, maintain and protect sites of significance on the application area;
(8) to share or exchange subsistence and other traditional resources obtained on or from the land (but not for any commercial purposes).
The court said there were three types of loss that needed to be calculated.
(1) Economic loss; [the actual value of the lost land]
(2) Non-economic/intangible loss [compensation for distress and dispossession]; and
(3) Pre-judgment interest [a calculation of the interest the landowners would have earned had it not been for dispossession].
The Commonwealth Government, the Territory Government, and the Ngaliwurru and Nungali people all proposed different methods to calculate the damages.
Justice Mansfield landed somewhere in-between when arriving at a figure. He said that “justice requires that compensation on just terms be provided to the holders of native title whose rights have been extinguished.”
That phrase, ‘just terms’, is taken from the Australian Constitution and the Native Title Act, and it was the Justice Mansfield’s guiding principle.
He arrived at the figure of $512,000 in compensation for the economic value of the land, combined with an extra $1,488,261 in interest dating back to the 1980s and 90s.
That made for a total economic loss of $2,000,261.
Compensation for pain, distress and suffering
The case also involved a claim for "non-economic loss" and "intangible disadvantages" relating to the dispossession of Native Title.
The judge said it wasn't a matter of dispute that this form of compensation was appropriate.
“The issue before the Court was how to quantify the essentially spiritual relationship which Aboriginal people, and particularly the Ngaliwurru-Nungali People, have with country and to translate the spiritual or religious hurt into compensation,” Justice Mansfield said.
The judge quoted an earlier case which discussed the special connections Indigenous Australians feel with their land.
“The fundamental truth about the Aboriginals' relationship to the land is that whatever else it is, it is a religious relationship,” Justice Blackburn had said. “There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole.”
Justice Mansfield also noted what an expert in Indigenous culture, Kingsley Palmer, had told the court.
“People identify in relation to a particular country, and in this sense, a particular Dreaming that is within the country, and that is a fundamental proposition of their sense of identity and who they are,” Dr Palmer had said.
"Protecting the land is a way of protecting yourself. Protection of the land and particularly of those places within it which are regarded as being potent sources of spirituality is a duty of a Yakpalimululu, while other consociates are required to work with him (or her) in this endeavour," a report by Dr Palmer and Wendy Asche said.
Their evidence was supported by statements from lead plaintiff, indigenous representative Alan Griffiths.
“I got all those sites, all that Dreaming, I have to make sure people don’t make a mess of it,” he told the court. “That’s how I look after country. My grandpa, Lamparangana, taught me to look after country and now I teach my kids. My kids follow me for country.”
A concrete bridge was built without consultation, Griffiths said, and had disrupted a sacred dingo Dreaming site.
Another bridge had been built with consultation and was less of an issue, he said, although Griffiths was still worried it might interfere with a barramundi Dreaming site.
Griffiths said he advised a mining company not to explore for diamonds at a site which was considered dangerous according to the Dreaming.
“I don't want to see nobody digging up hill because my grandfather told me not to – you know, you're not going to touch it there when he took me hunting. We never get near there,” he said.
Other locals then told him they should find a way to let the company dig, “so we can get a bit of money.”
“I said alright […] if digging out on one side, you'll be right,” Griffiths said.
He told the court that those who disrupted traditional sites would have to pay in one form or another, either through compensation, blood, or divine karma.
"Each group has to look after its bit of the Dreaming. If something goes wrong of our part, others think we are no good. That’s what happened when all of these things have been built in the town. Other Aboriginal people will complain about it and say that we are letting them down," local man Jerry Jones said.
"The evidence from the Claim Group, supported by Palmer and Asche, was that loss of and damage to country caused emotional, gut-wrenching pain and deep or primary emotions," Justice Mansfield said.
The judge said it was clear that the Indigenous landowners had a “deeply religious connection to country” and that the distress and anxiety caused by their dispossession caused deep emotions of hurt, shame and worry.
He said he found three things of primary significance, including the disruption of the dingo Dreaming site, the impact on the group's ability to conduct ceremonial and spiritual activities, and the way in which the extinguished areas had eaten into the group's overall native title claim.
“The selection of an appropriate level of compensation is not a matter of science or of mathematical calculation," Justice Mansfield said. "Having regard to the matters to which I have referred, in my view, the appropriate award for the non-economic or solatium component of the compensation package should be assessed at $1.3m."
The money is to be distributed by a body set up to compensate members of Ngaliwurru and Nungali people.
Barrister Brian Keon-Cohen discusses the original Mabo Case
The Act was proclaimed by the Keating Government in 1993, to enshrine the principles of native title outlined in the Mabo decision and allow for 'the recognition by Australian law that Indigenous people have rights and interests to their land that come from their traditional laws and customs'. The Act was substantially amended by the Howard Government in 1998.