Native Title Land example essay topic

Native title decisions regarding Indigenous land claims in Australia have been and still are very contentious issues. Native title is the term used by Australia's high court to describe the common law interests in land of Indigenous Australian people. It wasn't until a decision in the high court in 1992 that the longstanding legal fiction that the continent was terra null ius - a land belonging to no one was reversed (Butt, 1996: 22). For the first time, the common law rights of Australia's indigenous people in land were documented.

Indigenous Australians who have maintained a continuing connection with their lands or waters in accordance with their traditions hold native title. Native title may be extinguished by valid grants of land or water to people other than Native titleholders. (ATSIC, 1997: 15) There is an obligation for the commonwealth or state to provide compensation on "just terms" to such people if Native title rights have been lost or extinguished. This paper will investigate further into what is meant by compensation on "just terms" and also whether monetary compensation, paid to indigenous parties for loss or impairment of native title rights is an appropriate form of compensation. It is a very difficult task to really pinpoint exactly what "just terms" compensation really entails. The idiom "just terms" has been around and used throughout Australian courtrooms since its inclusion in the Australian constitution in 1901.

The valuation of native title using "just terms" is not precisely defined or determined under Australian legislation and the fine details have been left up to the court to decide. The condition of "just terms" compensation consciously gives to relevant courts and tribunals, a significant role when assessing compensation. The multi faceted nature of Native title rights and interests has never been encountered before in Anglo-Australian land law. "Just terms" has rarely surfaced in the past mainly because of the simplicity of Australian land tenures before the introduction of native title. (web 2003). Aboriginal land tenures and their complexities have shed new light onto why society really has to assess the real meaning of "just terms". Essentially the courts have the final say.

The concept of "just terms" can be related but is not always equivalent to the American constitutional term of "Just compensation."Just compensation" generally refers to the full monetary equivalent of the land without any non-monetary consideration. "Just terms" however, focuses not only on the monetary equivalent of the land but also what is fair and reasonable in the particular circumstance. This may not always be the full monetary equivalent. In determining what amounts to just terms compensation, the real issue is what considerations over and above the standard elements or methods of assessing compensation should be taken into consideration. Section 51 (1) of the Native title act provides that one will compensate on "just terms": "An entitlement on 'Just terms' to compensate the Native title holders for any loss, diminution, impairment or other effect of the act on their Native title rights and interests" (Bartlett, 1994: 115). This provision highlights that it is the loss to Native titleholders not the value of the land that is in focus.

In meeting the "just terms" principle of fair and reasonable compensation, reference must be made to criteria in addition to that which is set out in legislation, as it is difficult to account for the indigenous peoples loss of spiritual connection with their land under the existing standards. The Prime minister of the time stated that any attachment to the land would be taken into account in determining "just terms."One thing that seems clear about compensation in relation to Aboriginal groups is that they are not prepared to be 'bought out' by cash payment for their spiritual connection with the land" (Stephanson, 1995: 149) "Just terms" should consider the value of the land to the owner, taking into account the different cultural response and the different relationships that aboriginal people have to their land. Unlike freehold land, native title land may not necessarily have a uniform value, as a sacred site would require a different basis for assessment. Consultation with the native titleholder will be essential in determining the value of native title. Reference can be made to existing principles set out in the Compulsory acquisition Acts to also help with the assessment of "just terms". (Stephanson, 1995: 144).

Methods such as market value, highest and best use and the special value of the land are ways in which the land in question can be assessed. However some problems do arise determining these factors. Market value in ordinary circumstances is the value of the land. The normal method for testing market value is what price will the willing buyer pay and what sum will the willing seller accept. However when examining for native title it is very difficult to apply market value to a title that is inalienable, non transferable and not able to be sold or leased (Stephanson, 1995: 144).

Highest and best use is also a very elusive term when it is used in this context. Highest and best use is a concept where land is valued for its most profitable use. The value can change if the land is put to a different use. If we apply this concept to Native title the compensation for a right to hunt or paint may not be very high. However if the land were available for commercial development the value could be substantially increased.

Lastly special value is an addition to market value, it is incidental to the use of the land or where a particular attribute of the land is compensated. Usually it involves a financial advantage to the owner and must relate to the quality of the land (Bartlett, 1994: 117). Could this take into account the spiritual and cultural significance that aboriginal people feel or the land? A wide reading of special value suggests that this is possible. The more frequent use of special value is where it is assessed and where land is adapted to a particular kind of use decided by the claimant.

Taking into consideration the above techniques under the Land Acquisition Act 1989 (cth), compensation equates for wholly the monetary value of the land (Bartlett, 2000: 434). With only monetary techniques as ways of assessing the value of land it is hard to see how a decision can be 'just'. To compensate on "just terms" a form of non - monetary compensation must also be recognised for factors such as spiritual connection. A dollar value cannot be made for such a connection.

Standards of what is 'just' will vary and the courts will have some authority in assessing what really constitutes "just terms" in each individual case. Terms will not be considered unjust merely because they differ from ordinary and established principles of compensation law. Whether monetary compensation is an appropriate means of compensation for the loss or extinguishment of native title is a very vast and perplexing issue. It is very important with this issue to look at both sides of the argument before a decision can be made. A claim for compensation contains two requirements. The first is the detailed nature of the interest in the land which has been acquired.

It would be impossible to value a native title interest until the full quota of rights that comprise native title is known. Native title is not always the equivalent of freehold. The native title interest might amount to a freehold equivalent of ownership where the native title holders have exclusive possession and control of the land (Stephanson, 1995: 144) Here compensation should be determined on a fee simple basis, meaning the absolute title to land which one can sell or pass to another by will or inheritance (Sweetapple (ed. ), 1994: 983). In many cases, however native title would be more like an easement, the right to use real property of another for a specific purpose (Sweetapple (ed. ), 1994: 983).

Valuation can be considered using the 'similar compensable interest' test in the Native title Act 1993 (Cth) (Bache lard, 1997: 36). In considering valuation it should be remembered that a critical feature giving rise to recognition of native rights was a need to uphold the traditional culture of the native title holder. The second requirement for a claim for compensation is to ascertain the value of the interest in the land. The 'value' of land is the monetary worth that the land or interest in the land possesses. There are two types of compensation: monetary and non-monetary.

Monetary is obviously the type that is in question but it is also very important to also take non-monetary compensation into account as another option when assessing the effectiveness or appropriateness of compensation. Some courts have shown an interest in alternative remedies to monetary compensation. "It has been suggested that the development of remedies based on fiduciary duty has been in part prompted by the inadequacy of value based compensation" (Bartlett, 1994: 119). The second report of the aboriginal land rights commission noted that cash compensation for the loss of rights is no answer and that "The only appropriate direct recompense for those that have lost their traditional land is other land" (Bartlett, 1994: 119) In recognition of these issues, the Commonwealth Act provides that in claiming compensation native titleholders will have a right to seek to negotiate non-monetary compensation, including other property or the provision of goods or services. The WA act also provides that land, provisions of service, employment or other privileges or opportunities having economic, cultural or social values. (Bartlett, 1994: 119) Certainly many people have also recognised over the path of history that negotiation is also a function where a broad range of compensable issues can be considered.

There are many and varied ways for which to assess the compensation that is payable to the holder, but it is always very important to not always just look at the easiest and most recognisable solution. It is very hard to be able to compensate indigenous Australians for their spiritual involvement with their lands; it is equally as hard to work out an appropriate form of negotiation and or compensation for such issues. Unlike freehold land, native title land may not necessarily have a uniform value, as sacred sites would require a different basis for assessment. New strategies in valuation may need to be introduced as part of the standard valuation process.

The development of principles for determining such compensation will raise difficult issues, particularly for a legal system, which has looked primarily to market value and or economic loss as the basis for determining compensation for land. By focussing on the loss that native titleholders suffer, by giving considerable discretion to the courts and tribunals, by emphasising mediation and negotiation and by encouraging non-monetary compensation it is hoped that a difficult issue can be simplified and made more workable.