March 2000

CERD and compensation

This article is the 12th in a continuing series by John Sheehan dealing with the developing accommodation between compensation law and valuation practice, and native title.

IN an earlier article in LRQ (October 1999), it was noted that the constitutional protection of just terms compensation has a heritage extending back to the ancient guarantees of 1215 in Magna Carta. More recent benchmark documents such as the Universal Declaration of Human Rights and the International Convention on the Elimination of All Forms of Racial Discrimination build upon these ancient rights, and recognise the fundamental right that a citizen ought not to be arbitrarily deprived of property rights.

Importantly, on 9 December 1999, the Senate resolved that the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (PJC) should inquire into:

1. whether the finding of the Committee on the Elimination of Racial Discrimination (CERD) that the Native Title Amendment Act 1998 is inconsistent with Australias international legal obligations, in particular the Convention on the Elimination of all Forms of Racial Discrimination, is sustainable on the weight of informed opinion;
2. what amendments are required to the Act, and what processes of consultation must be followed in effecting those amendments, to ensure that Australias international obligations are complied with; and
3. whether dialogue with the CERD on the Act would assist in establishing a better informed basis for amendment to the Act.

This inquiry has special importance for the notion of compensation for the diminution, impairment or extinguishment of Indigenous property rights arising from the survival of native title. It will be recalled that notwithstanding native title being described by the High Court as a valuable property right, a number of commentators during the Wik debate supported the notion of extinguishment on terms which could only be described as less than just.

The subsequent Native Title Amendment Act 1998 attempted to strike a balance between these and other views, and the constitutional protection of property rights known as just terms. The Australian Property Institute expressed concern in 1997 that any attempts to modify the protection afforded by the Constitution:

"would create an undesirable precedent for all Australians"

(API press release, 5 February 1997)

The Institute was greatly concerned over the implications of poorly drafted amendments to the Native Title Act 1993, which did little to assist attempts to achieve administrative efficiency, and could be adversely viewed by the courts. The subsequent limit on compensation enacted in the1998 amendments attempt to cap compensation for extinguishment as if freehold property rights were being acquired.

This limit on compensation was ameliorated by the rider that such compensation for native title could be increased should the quantum not satisfy the just terms criteria. The framers of the amendments doubtless recognised that 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.

However, given that Indigenous concepts of value ought not be regarded differentially if these protections contained in the Constitution are to be upheld, a question arises as to whether the combined approach to compensation within the Native Title Amendment Act 1998 is acceptable constitutionally. Importantly, the strong reservations by the Australian Property Institute appear to be reiterated in the 1999 decision of CERD which considered the amendments, concluding 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)

The current CERD inquiry by the parliamentary joint committee must be completed and reported back to the Senate by the end of the second sitting week in April 2000. Should the committee conclude that the compensation provisions of the Native Title Amendment Act 1998 conflict with the Convention on the Elimination of All Forms of Racial Discrimination (and/or other international obligations), some writers such as Darren Dick and Margaret Donaldson of the Human Rights and Equal Opportunity Commission (HREOC) have previously suggested some outcomes.

Apart from continuing scrutiny by CERD, among other things they suggest that:

"if a more beneficial characterisation of the race power prevails, the CERD committees findings will be a persuasive element in the High Courts determination of whether the amended NTA is discriminatory."

(AIATSIS Issues Paper No 29, August 1999, p.10)

While there is uncertainty about whether the Constitutional race power (section 51(xi)) can be both beneficial and discriminatory, there is, however, a broad consensus that the "just terms" provisions (section 51(xxxi)) will not be debased. The High Court has already stated its view of just terms as a fundamental constitutional right, saying that:

". . . this Court should ensure that the promise is kept."

(Kirby J in Newcrest Mining (WA) Ltd & or v. The Commonwealth of
Australia & Ors (High Court (1997) unreported FC 97/036 at 161)

Paradoxically from a valuation perspective, if the 1998 Act is found by the parliamentary joint committee to contain provisions which contravene the constitutional guarantee of just terms compensation, and hence breach international convention, the other arguments regarding international legal inconsistency may pale into relative insignificance. This is because we already have the strongest of indications in Newcrest as to how the High Court may react to Indigenous concepts of value being regarded differentially.

* 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).

A copy of the Australian Property Institute submission to the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander land fund can be obtained by phoning Mr Tony McNamara on 07 3832 3139 or Ms Mirella James on 02 9299 1811.

Related Articles Previous articles from John Sheehan that have appeared in Land Rights Queensland

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