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May
1999 |
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Compensation for Indigenous Concepts of Value by John Sheehan* This article extends the author's earlier publication in the February edition of LRQ titled "Calculating the Value of Native Title" and is the second of a continuing series which will deal with valuation issues. INDIGENOUS values and anglo-Australian values are at their most visible contrast when the issue of compulsory acquisition of land arises. The vexed issue of just how losses arising from extinguishment or impairment of Indigenous values might be assessed, highlight the need for an accommodation between post-contact land law and the Indigenous legal system if Indigenous people are to receive "just terms". In attempting to assess these losses, it is clear that Indigenous concepts of value and compensation are at the centre of the interface between Aboriginal land tenure and anglo-Australian land law. Experience shows that there is a stark attitudinal contrast in the nature of the value loss when Indigenous people have their property rights extinguished or impaired, as opposed to non-Indigenous people having their property rights compulsorily acquired. This contrast is the strongest manifestation of the different economic, cultural and spiritual values of the two peoples. However, as Mr Justice Fitzgerald noted in his address to the Men's Reconciliation Dinner in Brisbane on 23 October 1998, and reported in the November 1998 and January 1999 editions of LRQ, "Nothing is being sought by our Indigenous people which is not occurring elsewhere in countries like Canada, New Zealand and the United States". The Mabo decision irreversibly impacted upon the accustomed comfort in anglo-Australian land and valuation law which deals with the assessment of compensation. However, as Justice Fitzgerald informs us, international developments in human rights ensure that Australia is not alone in attempting to justly compensate its Indigenous people. Churches, companies and private individuals have all evidenced a growing willingness to recognise the need to accommodate Indigenous concepts of value and compensation. Professional associations such as the Australian Property Institute (API) have not been untouched by the need to seize the opportunity to rediscover and reconcile with the past. Indigenous property rights in all their complicated, unexpected forms must be recognised, and the API expressed great concern in 1997 over implications of poorly drafted amendments to the Native Title Act, 1993. These amendments which were passed in the Native Title Amendment Act, 1998 do little to assist attempts to achieve administrative efficiency. The Institute's concerns have re-appeared in the decision on 18 March this year of the United Nations Committee on the Elimination of All Forms of Racial Discrimination (CERD). The Committee reviewed the 1998 amendments and concluded that they, "... wind back the protections of Indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act". (CERD, Australia Decision, para 8). From a valuation perspective, if the amendments do contain provisions that breach international convention, and extinguish or impair Indigenous concepts of value, it is uncertain how the High Court (if asked) will view the amendments. The "just terms" provisions of the Australian Constitution provide the fundamental framework within which compensation for the compulsory acquisition of all property rights by the Commonwealth must be assessed. It would appear that Indigenous concepts of value ought not to be regarded differentially if these protections contained in the Constitution are to be upheld.
* John Sheehan is the Native Title Spokesman for the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists), and Member, Land Tribunal (Queensland).
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