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September
1999 |
John Sheehan |
The concept of 'just terms' in native title By John Sheehan* This article develops two of the author's earlier themes in the June and July 1999 editions of LRQ, and is the sixth in a continuing series dealing with valuation and Native Title issues. IN an earlier article in LRQ (July 1999), it was noted that little guidance exists as to the nature of the constitutional protection of "just terms", notwithstanding that the concept has been in place in the Australian Constitution for 98 years. This guarantee of compensation has both complexity and subtlety in the context of Native Title. The multi-faceted nature of Native Title rights and interests with their often complicated and unexpected forms have never been encountered before in anglo-Australian land law. Also, the question of whether compensation is on "just terms" has not arisen greatly in past case law, because anglo-Australian tenures are, in comparison to Aboriginal land tenures, quite simplistic. Nevertheless, there have been questions that have arisen in past cases as to whether a particular monetary compensation package adequately compensates the dispossessed landowner, such that it meets the criteria of "just terms". However, these issues have only arisen in the context of anglo-Australian tenures. In the case of Native Title, the importance of compliance with "just terms" compensation is accentuated by the sui generis or unique quality of Indigenous property rights and interests. Hence, some writers have argued that the nature of Native Title is such that application of the "just terms" criteria may not necessarily restrict compensation to the narrow monetary base adopted for the expropriation of anglo-Australian land tenures. The development of a liberal evidentiary framework within compensation law is increasingly being seen as the avenue through which the various facets (material and non-material) of Native Title can be accommodated. As indicated in an earlier article (LRQ June 1999), the usual technical standards or rules of evidence represent a substantial risk that the unique quality of Indigenous rights and interests may be misinterpreted and hence undervalued. The development of an innovative jurisprudence that respects these qualities of Native Title, but does not fatally fracture the skeletal framework of existing anglo-Australian land law, must occur through an obligatory revisiting of the notion of "just terms". This task will also involve the development of practical diagnostic markers for the various incidents of Native Title, an undertaking which has only just begun in the area of compensation law and valuation practice. When the framers of the Australian Constitution looked to the 5th Amendment of the US Constitution, they encountered the words "just compensation". A prerequisite to revisiting "just terms" in the Australian context, is an understanding of the American phrase "just compensation". Why is this so? The notion of property rights is remarkably fluid and has changed over time as conditions in society have altered. The Americans associate property rights and guarantees contained within their constitutional law with the ancient guarantees in 1215 of Magna Carta, which states that: "No freeman shall be taken, imprisoned, disseised . . .except by the lawful judgment of his peers and by the law of land." They believe that landowners had a right to resist the compulsory acquisition of property rights unless due process of law occurred. Building upon this, the concept of a compact between the American people and their government was developed where the primary purpose of government was to ensure that property rights were protected. The holding of property is seen as a natural right, and the power of government is viewed as being necessarily limited by its general duty to safeguard property rights. This concept of protection of property rights cannot be overstated, and impacts heavily upon American thinking from the 17th century onwards. This is also the heritage of the political philosophy underlying the 5th Amendment, and hence the Australian concept of "just terms". The importance of this shared constitutional history also impacts upon the notion of compensation. American writers also believe that Magna Carta partially recognised the principle of compensation, in that the Crown could not compulsorily acquire private property without payment. By the 17th century, the British parliament often allowed for the payment of compensation where land was taken, and American colonists viewed this as establishing a common law principle. Importantly, in the development of a notion of "just terms" in the assessment of compensation for the diminution, impairment or extinguishment of Native Title in Australia, this understanding of the meaning of compensation by the American progenitors of our Constitution is critical. American writers commonly use phrases such as "full indemnification" and "equivalence for the injury thereby sustained" when discussing the notion of compensation. Legal development and constitutional interpretation of the fundamental right that a citizen ought not to be arbitrarily deprived of property rights is also reflected in the Universal Declaration of Human Rights at Article 17, and also in earlier benchmark documents such as the 1789 French Declaration of the Rights of Man and of the Citizen. Importantly, this latter document recognises that where public need necessitates compulsory acquisition of property rights, this action can only occur "on condition of a just and prior indemnity". More recent documents such as the Indian Constitution allude to a necessity to provide for compensation when compulsory acquisition of property occurs. The Malaysian Constitution requires adequate compensation, while the Japanese Constitution, perhaps reflecting American influence, states that private property rights compulsorily acquired can only be taken "upon just compensation". In concert with the above, there has been increasing recognition and articulation by the courts in the larger common law world of the multi-faceted nature of compensation. In jurisdictions such as England and New Zealand, apart from the US, the courts were developing an understanding of what compensation meant. For example, in 1867 an English court held that the diminution of natural light to an owner's property was a compensable matter, and was to be assessed. In a much later example, a New Zealand court held that the right to sea access and the use and sale of sand and shells, had been extinguished and was a proper subject for compensation. In Australia, the courts have favoured more liberal estimates of compensation, and speak of "common sense" and reject a strict adherence to precise mathematical calculations. They also use phrases such as "common fairness", which are regarded as "a useful touchstone" by which mathematical calculations and established valuation procedures can be tested. Importantly, the courts have stated that categories of special value to the owner which can take compensation beyond the usual norms of market value, can never be closed. This is because such special values (perhaps those held by Native Titleholders) may have their source in a huge range of circumstances which reflect the "many forms of relationship and interdependence" shared between the dispossessed owner and the expropriated land tenure. Such notions have particular relevance for the holders of Native Title and their many and varied rights and interests. Finally, all of the above suggest that the notion of "just terms" will be heavily influenced by its long gestation as a legal concept, and it is clear that the assessment of compensation for Native Title will, as it is developed by the courts over the next few years in Australia, reflect this heritage. *John Sheehan is the Native Title spokesman for the Australian Property Institute (formerly the Australian Institute of Valuers and Land Economists) and a member of the Land Tribunal (Queensland)
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