by Ganesh Sahathevan
In 2019 Bridgid Cowling , a senior associate in the native title practice at Arnold Bloch Leibler wrote an op-ed published in The SMH where she explained how the High Court had provided a framework for assessing extinguished native title compensation claims, and had determined that compensation ought to be half of the freehold value.
She ended by declaring:
Twenty-seven years after the Mabo decision and 23 after the Wik decision, surely now is the time for us to bury that old chestnut in the compost heap of useless scaremongering.
Let us be the civil society that the High Court of Australia believes us to be – an Australia that accepts the compensation as appropriate, fair and just, and celebrates the decision as a clear, positive way forward for the nation.
Today, in 2023, the senior partner and. founder of that firm, Mark Leibler, has taken to public fora to lecture Australians on the error they will make if they vote to reject The Voice referendum. Instead of scolding Australians for being afraid, he ought to explain the consequences for all Australians who can be subject to native title compensation claims.
To Be Read Wth
OPINION
Timber Creek decision shouldn't inspire land title fearmongering
By Bridgid Cowling
March 21, 2019 — 11.11pm
One of my first tasks as an intern with the Northern Land Council was to source an interpreter for the Timber Creek native title case of the Ngaliwurru and Nungali Peoples.
As English is not their first language, they needed an interpreter to communicate their connection to country to the judge, and help the claimants and the legal system to understand one another.
Michael Murrimal of Timber Creek at the Gregory National Park in the Victoria River Region in the Northern Territory.
Michael Murrimal of Timber Creek at the Gregory National Park in the Victoria River Region in the Northern Territory. GLENN CAMPBELL
Fourteen years on (20 since the native title claim was first lodged), the High Court of Australia has not only understood and recognised the native title rights of the Ngaliwurru and Nungali peoples, it has found an elegant way to understand the impact of the extinguishment of those rights, and to put a dollar figure on it.
It has valued native title rights and translated the loss of connection caused by extinguishment into financial compensation.
The decision
The High Court decision in Timber Creek is a relatively uncontroversial decision that clinically interprets the compensation provisions of the Native Title Act and plainly applies the common law.
The High Court has given us a clear process for assessing compensation: What are the native title rights and interests? What acts have extinguished native title? What is just compensation as required by the Native Title Act?
The compensation will comprise the economic value of native title rights and interests that have been extinguished, plus an amount for additional, non-economic or cultural loss caused by the diminution of the native title holders’ connection to country.
In the Timber Creek case, the economic value of the non-exclusive native title rights and interests was 50 per cent of the freehold value of the land. This amounted to $320,250, with an additional amount of $910,100 interest on that sum. The award for cultural loss was $1.3 million.
What now?
Each compensation decision will be unique, dependent on the acts of extinguishment, the native title rights and interests that are extinguished, and the specific impact on the native title holders themselves. State legislation will be relevant to the analysis of the extinguishment and compensation. As the High Court emphasised, there is no one-size-fits-all approach.
There is also no magical economic analysis that can be undertaken by extrapolating the financial compensation award in Timber Creek to accurately estimate a total bill for compensation payable under the Native Title Act. Such a suggestion – and there have been many of them in the wake of the decision – should be viewed with extreme caution.
So too should statements that native title holders around the country will be inspired by the Timber Creek decision to make a flood of compensation claims. Those with long enough memories will remember that we’ve experienced this kind of unwarranted hysteria before. When native title was first, and belatedly, recognised by the High Court in 1992, "back yards are under threat" fearmongering abounded. Thankfully we’ve moved on as a country since those dark days.
Native title holders and their advisers have been working with the Native Title Act and its compensation regime for years now. If there has been a delay in making compensation claims before the courts, it is because claim groups are busy responding to future act notices, negotiating agreements and proving their native title.
It is also because, responsibly, many will have held off until there was clear guidance from the courts. As the High Court recognised in its judgement, the resources of native title claimants are limited.
The Timber Creek decision does not usher in any new law. It is a conservative judgment and extremely helpful.
As the first High Court decision of its kind, it provides much-needed guidance on a valuation process and on how the courts will approach compensation claims. Native title holders, proponents, governments and lawyers advising them will be much better able to negotiate in good faith, and accurately assess what is fair compensation.
The decision is not remotely surprising. Nor is it in any way radical. Responsible governments and proponents have been preparing for this day for decades.
Any suggestion that they have been caught unawares speaks either to poor planning or, more likely, to a disingenuous attempt to employ the “bucket loads of extinguishment” politics of fear that we saw after the 1996 Wik Decision, in which the High Court found that native title could co-exist with pastoral leases. An unworthy response that set back the cause of reconciliation by a decade or more.
Over the past 20 years, every significant reasonable gain in Aboriginal land and sea rights has been met with a corresponding outcry that the recognition of rights will be detrimental to business and/or is, for some other reason, unjust.
Twenty-seven years after the Mabo decision and 23 after the Wik decision, surely now is the time for us to bury that old chestnut in the compost heap of useless scaremongering.
Let us be the civil society that the High Court of Australia believes us to be – an Australia that accepts the compensation as appropriate, fair and just, and celebrates the decision as a clear, positive way forward for the nation.
Bridgid Cowling is a senior associate in the native title practice at Arnold Bloch Leibler
https://www.smh.com.au/national/timber-creek-decision-shouldn-t-inspire-land-title-fearmongering-20190321-p5166m.html
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