Valuing native title: Aboriginal, statutory and policy discourses about compensation

Abstract

The issue of native title compensation generates deep divisions and conflicting evaluations in Australia. Underlying the tensions are unresolved questions concerning the nature of the native title that might be affected; how loss, impairment and extinguishment are to be determined and measured; who is entitled to compensation and on what basis; what might constitute just terms for that compensation; and who is to pay it. To date, solutions have largely been dominated by legal and economic valuation discourse, often pursued within highly charged contexts of resource development or court litigation. This paper presents a largely anthropological and ethnographic analysis of these matters by examining some of the competing modes of discourse about compensation; namely, the Aboriginal, statutory, common law and policy discourses. The primary focus of the paper is on one particular mode of discourse which seems largely to have been missing from the public debate to date, but which is arguably central to it; namely, that of Aboriginal groups in respect to their own regimes of compensation derived under Aboriginal law and custom. For that purpose, the paper commences with an ethnographic analysis of Aboriginal compensation processes, concepts and criteria, and seeks to extrapolate the core compensatory principles and values that might be generally applicable. Many Aboriginal groups across the country continue to exercise varying compensatory rights, interests and responsibilities that are derived from Aboriginal law and custom, and are directly relevant to native title over land and waters.

The paper then proceeds to describe the distinguishing features of the multiple statutory pathways established for compensation under the Native Title Act 1993—for there remains considerable confusion about them. Aboriginal people bring the values, behaviours and logic grounded in their own culturally-based compensation processes with them when they engage in these statutory procedures. The Aboriginal discourse about compensation is not always compatible with Western legal principles or market valuation models. Nor is it always comprehensible to other parties involved in statutory negotiations or determinations of compensation.

The paper then considers the value systems revealed in Aboriginal compensatory processes, and their implications for how 'loss', 'extinguishment' and 'just terms' might be better conceptualised by the common law and in practical negotiation settings. It is argued that a core attribute of native title is that it is 'cultural property right' and that land is an inalienable Aboriginal possession, the extinguishment of which would require full reinstatement.

The paper then draws together these seemingly disparate threads to argue the need for a new 'recognition space' for 'native title compensation'. It is proposed in the second half of the paper that native title compensation is, like native title itself, sui generis, or unique. Native title compensation will require an innovative jurisprudential approach that acknowledges it as a fundamentally new creature, recognisable at the intersection of Aboriginal and Western laws. A precondition for that innovation will be the creation of a recognition space that ameliorates the legal ethnocentrism of the common law, and addresses the intrinsic value to Aboriginal people of their lands and waters. To assist in that objective, the paper proposes a 'Heads of Damages' for possible use in the more formal arena of arbitration and court determinations about compensation. The Heads is developed on the basis of the actual losses potentially experienced by individual, communal and future generation native title holders. Guidance as to the content of a Heads is taken from the Aboriginal compensation principles and criteria that are described in the first part of the paper.

The paper concludes by highlighting the implications of these often incommensurable modes of discourse for practical negotiation and determination of native title compensation. A series of key policy challenges and long-standing lessons are discussed, including the issue of static compensation, substitution compensation, distributive equity and spread, the need for transparency and benchmarks, and proposed taxation arrangements for native title compensation. These policy and practical matters will all need to be addressed in order to secure just and sustainable compensation processes.