Reconsider Compensation Says QC

Native title compensation claims will be far more complex and costly than the original native title claims and Governments need to reconsider how to manage the large number of cases that are expected to be lodged, says a leading native title barrister and former President of the Native Title Tribunal.In her 2019 John Mansfield Lecture Native Title Exists, Now What?, Raelene Webb QC said that “the spectre of complex, lengthy and expensive native title compensation claims to come” means that Governments should consider non-litigated ways of compensating traditional owners for their loss of connection to country.She argued that the complexity and volume of these cases “provides a reason and an opportunity for Federal, State and Territory governments to holistically re-examine relationships with Indigenous people and to engage in a respectful manner to explore how the dispossession of land and cultural harm done to Indigenous peoples since 1788 may best be addressed for the benefit of all”.Ms Webb reported that to date there have been 475 determinations of native title with native title now recognised as existing over more than 37% of the Australian continent.Where native title has been found to be extinguished, native title groups can claim monetary compensation for their loss. Last year’s Timber Creek case was the first litigated native title compensation case and is seen to establish a basis for future compensation claims.However, in her Mansfield lecture, Ms Webb said that the way forward for compensation is still not clear.“Timber Creek will not be the final word on native title compensation. There is still a lot of intuitive work to be done in trying to determine native title compensation awards on a case by case basis.”Ms Webb said that there is no easy formula to calculate compensation in the ‘forthcoming flood’ of native title compensation claims.“A determination of compensation involves issues of extinguishment and detailed tenure histories as a step in establishing the original existence of native title” she said.“This means starting from the first act, even in the early colonial period, which had the potential to affect native title and then considering every act thereafter to assess whether there was any effect on any extant native title” she said.After the lecture, Ms Webb told Aboriginal Way that she hopes that governments will see this legal challenge as an opportunity.“My hope is that the federal and state governments and the territory governments will look at other ways of resolving it and may even, I hope just say, ‘Look, isn’t there a better way?’“This is throwing up a lot of problems. It’s going to be hugely expensive, hugely divisive as native title claims are. And compensation, perhaps even more so, now is a chance to actually reset the relationship” she said.Under the Native Title Act, compensation is only payable after 1975 when the Racial Discrimination Act commenced.However Ms Webb argued in her Mansfield lecture that that provision could be challenged on the basis of the ‘just terms’ section 51 (xxxi) of the constitution.“…it may be arguable that certain restrictions on compensation in the Native Title Act are unconstitutional”she said.“Further, as the Commonwealth is bound by section 51 (xxxi) it may be possible for compensation claims to be made for losses that occurred before the Racial Discrimination Act commenced on 31 October 1975.“If that were the case, the Commonwealth could be liable to pay ‘just terms’ compensation for any extinguishment of native title by it since 1901” Ms Webb said.More might be payable to native title groups if this were the case she said.“Furthermore, larger awards of compensation could be possible under a constitutional framework, given the traditonally broad interpretation of ‘just terms’ in s 51 (xxxi) as being concerned with fairness, while compensation connotes monetary equivalence.”Ms Webb also addressed the challenges facing native title groups in managing their native title rights and responsibilities. In the Mansfield lecture she spoke of the contradiction between requirements to prove native title and those required to manage it.“The journey to recognition of native title can be long and arduous; it is also disruptive for Indigenous groups required to establish their adherence to traditonal laws and customs in order to succeed. Once native title has been determined to exist, furthe disruption occurs, this time when non-Indigenous governance structures which contrast to Indigenous cultural governance are imposed” she said.She told Aboriginal Way that this situation is a ‘wicked problem’.“It’s a wicked problem because when you have to establish your native title, you have to show how you continue to acknowledge and observe all your systems of governance, which in fact support your native title.“Once you have it, in order to manage it, native title holders have to set up a Western style corporation and act like a Western style company in order to manage it.“A lot of the rules around those corporations are actually in conflict with the traditional governance rules and undermine in fact the native title, so that you find that native title holders are continually coming up with conflicts between what they need to do to maintain their culture and the governance within their culture and to maintain their native title.“So it’s quite a battle. It’s very, very difficult” she said.Ms Webb argues that this is also an area that is in need of reform.“I think it needs to be looked at and it needs to be looked at together as to where there’s another way. Is there a way of actually allowing native title holders to manage their own affairs in the way that they want to manage them and in accordance with their decision-making and accordance with their aspirations, not what we think is good for them, but what their aspirations are” Ms Webb said.The 2019 John Mansfield Lecture was hosted by the Law School at UniSA and is available to view here:

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