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February
2000 |
John Sheehan |
Can cultural and spiritual attachment be valued? John Sheehan* continues his series of articles dealing with the developing accommodation between compensation law and valuation practice, and native title THE dilemma faced when compensation for native title has to be assessed was mentioned in the article in the January 2000 edition of Land Rights Queensland. The sui generis (unique) nature of Indigenous property rights and interests arising from the recognition of surviving native title suggests that these rights and interests will be manifest in diverse ways. For an accommodation to be reached between Indigenous values and anglo-Australian values, Indigenous rights and interests in all their complicated, unexpected forms must be addressed. Hence, the most vexed component of native title from the valuation perspective is clearly the assessment of compensation for the impairment, diminution or loss of cultural and spiritual attachment. Significant difficulties lie ahead in devising at this late stage in Australian land law, methodologies which attempt to provide a formulaic framework for the valuation of Indigenous culture and spirituality. Apart from reversing the established direction of compensation law and valuation practice which currently marginalises culture and spirituality, there is also the difficulty of devising a methodology which correctly identifies, and fully values the spiritual interaction existing within Indigenous property rights and interests. Richard Eckersley of the ANU National Centre for Epidemiology and Population Health, recently observed that: Human well-being is associated with the personal, social and spiritual relationships that give our lives a moral texture and a sense of meaning, of self-worth, belonging, identity, purpose and hope. Psychologists have shown that positive life meaning is related to strong religious beliefs, self-transcendent values, membership of groups, dedication to a cause and clear life goals. Further, he noted that: ...spirituality offers something deeper. It is central to the age-old questions about the meaning of life...it represents the broadest and deepest form of connectedness (Sydney Morning Herald 8 January 2000, p.4s) Indigenous concepts of value strongly mirror Eckersleys observations. Traditional societies at a very early stage identified the repetition and sequencing of events in their world, such as day and night, the seasons, tidal movements, and even stellar movement. These patterns enabled Indigenous people to connect with their landscape and to read order into their lives. Geneticist David Suzuki has argued that this need for order is deep-seated, and lies within the human brains built-in ordering capacity. He argues that this holistic view of the world shared by Indigenous peoples has been severed in Western societies, and there is a sacred balance that has been lost. Paradoxically, Indigenous concepts of value were remarkably similar to the values evident in the relationships between religion and medieval European societies. Medieval societies had social frameworks, work practices and property allocation policies which were essentially religious questions. Medieval land tenures and land management practices reflected those societies traditional understanding that their world was a religious place. Christian values in those times would appear to be analogous to Indigenous concepts of value first recognised in Australia in Mabo, and which position spirituality as culturally, politically and socially determinative. On first inspection, all of the above would appear to have led the search for a methodology for the valuation of culture and spirituality into unchartered waters. However, the heritage of feudal land tenures which underpins much of Australian land law provides great prospects for a hitherto unexpected understanding of the many and varied Indigenous property rights and interests arising from native title. Perhaps these prospects are even further enhanced when it is realised that only two rights, religion and property, are protected by name in the Australian Constitution. The indissoluble relationship between culture and spirituality, and Indigenous property rights and interests, may ultimately rely upon these constitutional protections if Indigenous culture and spirituality is to be respected in future compensation determinations by the Courts. As stated earlier, spirituality pervaded medieval society, and it is not surprising that feudal land utilisation encompassed holistic notions such as soil conservation strategies, and village communism. The wastelands beyond the medieval village including forests and moors were held in common by every holder of land. These important communal rights, together with personal responsibilities within the village unit, were the source of important bodies of customary rules. These village customs had the effective standing of law, and yet, as legal historians note, were far more difficult to change. Not all rights to land necessarily involved physical ownership of the land, and often rights were enjoyed over other persons lands, commonly known as easements or profits. Profits in particular are an interesting feature of feudal land tenure and could be separated from the ownership of land. Profits might allow the holders, in common with others, to graze stock, to cut grass, to cut and remove wood, and importantly the right to take fish and deer. These rights, known in modern valuation terminology as profits-a-prendre, have been recognised as a component of Australian land law which are strongly analogous to a large number of Indigenous property rights and interests arising from the survival of native title. While history has recorded the demise of feudal society, land law in Australia still reflects a heritage of feudal land tenure through the ultimate ownership of the Crown of all land, together with Crown proprietary rights subject to native title, in waste (unalienated) lands. Apart from the above, the ghost of feudalism is also evident in those rights known as profits-a-prendre. A market price for these valuable property rights currently exists, reflecting the worth of access to resources accruing to the holder of the rights. It is, however, important to recognise that such rights had as their foundation the understanding that medieval society relied almost wholly on the produce of the land for its existence. These subsistence needs influenced the development of feudal land law, and ensured that rights such as profits-a-prendre would be a marketable commodity. The analogy with Indigenous rights in natural resources is striking. However, as stated earlier in this article, there is an indissoluble Indigenous cultural and spiritual aspect not previously encountered. This is notwithstanding that European influence in Australia set in train a process of cultural and spiritual destabilisation. If it is accepted that Indigenous forms of profit-a-prendre may be analogous to those currently evident in anglo-Australian land law, what additional compensation should be added to their market price for cultural and spiritual attachment? The answer to this question almost certainly lies in an examination of past approaches by courts to compensation loadings for those matters which, at the outset, appear incapable of quantification. We have the example of the judicial discretion known as solatium, which is provided for in many compulsory land acquisition statutes in Australia. The courts, in addressing solatium, have described it as a loading or percentage to be awarded to the dispossessed owner: ...merely by reason of the fact that the compensation was compulsory (Re Wilson and State Electricity Commission of Victoria (1921) VLR 459) The various judgements dealing with solatium use phrases such as imponderable factors arising from the compulsory nature of the acquisition and intangible or non-pecuniary disadvantages. This terminology suggests that the courts are aware that the nature of compulsory acquisition is such that unquantifiable losses, inconvenience, disturbance and disruption can be considerable due to the impact of the compulsory dispossession. Notwithstanding, the problem in many of the cases is that the evidence for the award of solatium is difficult to establish and hence quantify in any meaningful manner. Awards of 2 per cent and 3 per cent loading by the courts in such cases strongly suggests that successful claims under the heading of solatium must rely heavily on evidentiary proof of loss. Various statutes provide for this judicial discretion to be exercised at loadings considerably in excess of that described above. For example, in Western Australia, the compensation sum may be increased by up to 10 per cent if evidence before the court elicits support for such an award. It is suggested that percentage loadings, whilst possibly an anathema to dispossessed Indigenous claimants, may nevertheless provide a useful benchmark from which a meaningful claim for a loading for cultural and spiritual attachment can be formulated. The search for a methodology for the assessment of compensation for Indigenous property rights and interests such as profits-a-prendre will almost certainly produce a formulaic methodology which will please neither the acquiring authorities or the dispossessed Indigenous holders. Other common law countries appear to have effectively sidestepped the search for a compensation methodology, and could be said to have evidenced cowardly disregard for the orderly evolution of land law in those countries. Flawed though the Australian methodology may well be, it will not evidence these failings. *John Sheehan is the native title spokesman for the Australian Property Institute and member, Land Tribunal (Queensland).
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