|
July
1999 |
John Sheehan |
A guarantee for compensation for Native Title By John Sheehan* This article develops the author's earlier publication in the June 1999 edition of LRQ entitled "Valuing Native Title as a Bundle of Rights", and is the fourth of a continuing series dealing with valuation issues. THE compulsory acquisition of any private property rights in Australia by a Commonwealth-sourced action is subject to statutory provisions which are the basis for the assessment of of compensation. Generally these provisions are contained within ss55-58 of the Lands Acquisition Act, 1989 (Cwth). The High Court informs us that: [a]ny acquisition of property by the Commonwealth will ... attract the operation of s51(xxxi) [of the Australian Constitution] because it will be in pursuit of a purpose in respect of which the Parliament has power to make laws... Toohey, J. Newcrest Mining (WA) Ltd & or
-v- The S51 of the Constitution states: The Parliament shall subject to this constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: ...(xxxi) The acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws. Interpreting s51(xxxi) the High Court has stated that: [t]he terms of s51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the federal authority, except on fair and equitable terms. (Kirby, J in Newcrest) We have, however, little guidance as to the nature of "just terms", notwithstanding that all existing compensation assessments involving Commonwealth legislation must be undertaken with a view to ensuring that the resultant compensation package respects s51(xxxi). Given the important role that private property rights have in the Australian psyche, it is surprising that there has not been a clarification of "just terms" in the ninety eight years since Federation. Some writers have indicated that for the terms of any compensation to be just, they must meet a test of reasonableness, or alternatively a test of the degree of being unreasonable. Further, it is argued that "just terms" must not be narrowly construed. Importantly, the concept of "just terms" for the compulsory acquisition of private property rights by the Commonwealth is one of the few guarantees of rights expressly stated in the Constitution. The High Court has reinforced this view of "just terms" as a fundamental constitutional right saying that: [t]his Court should ensure that the promise is kept. (Kirby, J in Newcrest) Given the above, it is intriguing that Native Title, which has been described by the High Court as a valuable property right, should have been considered in the early days of the Wik debate for extinguishment, on terms which could only be described as less than just. Such ill-conceived notions of confiscation of property by the Commonwealth Government were subsequently viewed by a number of commentators as almost certainly in breach of s51(xxxi). Early debate surrounding the Wik decision resulted in the Australian Property Institute expressing concern that any attempts to modify the protection afforded by s51(xxxi) "would create an undesirable precedent for all Australians" (viz. API press release, 5 February 1997). The subsequent limit on compensation enacted in the Native Title Amendment Act 1998 attempts to cap compensation for extinguishment at that which would be payable if the property right compulsorily acquired were freehold. However, this limit is ameliorated by the requirement that such compensation may have to be increased should the quantum not satisfy the "just terms" criteria of s51(xxxi). Whether this combined approach to compensation contained within the 1998 amendments to the Native Title Act 1993 is acceptable constitutionally remains untested. What is known, however, is the attitude of the High Court to the protection of the limited number of fundamental rights embodied in the Constitution, such as "just terms". The attitude evidenced in the Newcrest decision indicates that a weakening of such rights is not contemplated. Importantly for Native Title, entreaties for the continued protection of private property rights have also grown in response to increasing land use and environmental regulation both in Australia, and especially in the United States. The decision in Newcrest was viewed by some writers as evidencing an unnecessary preoccupation by the High Court with private property rights, which in turn may constrain governments in regulating land use for fear of compensation claims. Some land use planners even saw the Newcrest decision as inhibiting moves towards ecologically sustainable development. However, in the United States the diminution, impairment or compulsory acquisition of private property rights are protected by the Fifth Amendment to the Constitution which states: ...nor shall private property be taken for public use, without just compensation. The central role of private property rights in the United States is viewed as that of a social contract, setting out the individual's rights and in turn guaranteeing that society will only act in a just manner when assessing compensation. Interestingly, in Newcrest, the High Court noted that the Fifth Amendment provided assistance to the framers of the Australian Constitution, and that: "...the terms of s51(xxxi) were "intended to recognise the principle of the immunity of private and provincial property from interference by the Federal authority, except on fair and equitable terms". (Kirby, J in Newcrest) All of the above suggests Native Title as a private property right can only be acquired in a manner commensurate with the processes which the broader Australian community expect to be applied when compulsory acquisition occurs. To this end, it is clear that the increasingly evident view of the judiciary (discussed in LRQ May) that Native Title can be viewed as a bundle of rights within the context of anglo-Australian property law, offers considerable hope that a classificatory approach to Native Title will afford holders "just terms" compensation. * John Sheehan is the Native Title Spokesperson for the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists), and Member, Land Tribunal (Queensland).
|
|
HOME | NEWSROOM | LAND RIGHTS FRONT PAGE | ABOUT FAIRA | ISSUES |
|
|
 |
FAIRA
Aboriginal Corporation |