April 2000 |
 John Sheehan | Discriminating against spiritual and cultural attachment This article is the 13th in a continuing series by John Sheehan*, right, dealing with the developing accommodation between compensation law and valuation practice, and native title. LAST month's article in LRQ (March 2000), discussed the constitutional protection that the notion of "just terms" offers for Indigenous property rights and interests arising from the survival of native title. In particular, the prospect was canvassed that the Native Title Amendment Act 1998 may contravene this constitutional guarantee, and possibly breaches international convention given the views of the UN Committee on the Elimination of Racial Discrimination (CERD). Because spiritual and cultural attachment is an integral component of native title, it follows that the visible expression of native title may not necessarily encompass the totality of the traditional holders' rights and interests. It is likely that some rights and interests derived from native title may have incidents which are unknown in anglo-Australian land law, which has a heritage of feudal land tenure. This phenomena presents a significant problem for legislators attempting to construct a compensation regime which provides "just terms" for native title. The proprietary rights which are recognised in current compensation law and valuation practice are either those having their historic roots in the feudal land system, or created by statutory authority (eg pastoral leases). Whilst cultural and spiritual attachment is not sourced in this manner, there is nevertheless a need to ensure that this component of native title is recognised and valued notwithstanding its sui generis (unique) nature. This action is necessary if "just terms" is to be respected. On first inspection, some Indigenous rights may appear to be totally alien to compensation law, and unknown in valuation practice. For example, in Hayes-v-Northern Territory (1999) FCA 1248, the court gave recognition to the entitlement of traditional owners to control and manage spiritual forces. However, the assessment of compensation for the loss of such rights has been confounded by the Native Title Amendment Act 1998 which attempts to establish a hierarchy of property rights and interests in which freehold is the pinnacle. As a result, this legislative hierarchy may well be ignoring Indigenous rights which fall outside of the framework. These important, and almost certainly valuable incidents of native title are at risk of extinguishment or impairment, with the holders of these rights not being compensated for their loss, merely because the rights do not "fit" within an artificial hierarchy. It is this issue which is central to the argument that the Native Title Amendment Act 1998 discriminates between Indigenous rights and interests, and those held by other Australians. In evidence on 23 February 2000, before the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (PJC), the Australian Property Institute (API) advised that there is no precedent for compensation to be constrained on racial grounds. Indeed, it was the API submission that the current Native Title Act is: … starting to move away from total equality in terms of property rights compensation (Proof Committee Hansard, 23 February 2000, p. NT141) Cogently, Jen Tsen Kwok recently stated in Land Rights Queensland (February 2000, p.6) that the term "equality" ought not lead to: … the presumption that treating two people unequally is necessarily unjust. Because native title contains elements such as cultural and spiritual attachment, which are unknown (allegedly) in the non-Indigenous community, it follows that the application of a freehold cap on compensation for native title will not yield equality. Jen Tsen Kwok provides important guidelines which ought to be central to any compensation methodology for Indigenous rights and interests whatever their manifestation might be, namely that: the protection of native title and the special rights attaching to it are a recognition of the concept of equality. It is equality based in the equal dignity of all Australians. The recognition of special rights attaching to native title refuses to treat people who are different, equally. And, as such, it is just. There is great merit in this approach, which echoes the intent of the "just terms" compensation provisions of the Australian Constitution. The notion of compensation was explained by the High Court many years ago as meaning: … recompense for loss, and when an owner is to receive compensation for being deprived of real or personal property, his pecuniary loss must be ascertained by determining the value to him of the property taken from him. (Nelungaloo Pty Ltd v Commonwealth (1948) 75 CLR 495 at 571.) It is recognised that this explanation of compensation was directed wholly towards the compulsory acquisition of anglo-Australian property rights, and not Indigenous rights and interests, such as spiritual and cultural attachment. However, we should not be misled by this failure to accommodate Indigenous concepts of value, as the Mabo decision was still 44 years away, and cultural and spiritual attachment was seen as a shadowy anthropological construct. Subsequent events have shown that the common law, which has a long history of adapting and changing in response to the needs of society, may ultimately achieve an accommodation with the cultural and spiritual aspects of native title. It must be remembered that in 1992 the High Court showed in the Mabo decision that long-held fictions could be eed, and the common law reworked. However, these changes in compensation law and valuation practice are not occurring swiftly. While we see significant guidance emerging from decisions of the High Court on the law and practice of native title, Professor Garth Nettheim of the Aboriginal Law Foundation, University of NSW, has observed that the recognition of native title by the common law has necessarily: … involved a reassessment of the juridical foundations of the nation. (The Future of Native Title, paper Importantly for the question of cultural and spiritual attachment, he further notes that: the recognition of native title has always involved much more than questions of property, or land management, or even merely questions of law. It has, and continues to involve, profound cultural shifts within Australia and reverberating beyond our shores. The development of a compensation methodology rooted in the skeletal framework of anglo-Australian land law increasingly appears to be the only route by which "just terms" compensation for native title will be reached. However, in order to place a meaningful value on cultural and spiritual attachment, valuers and anthropologists together with the courts will need to evidence innovative thought in understanding and explaining loss or damage to these incidents of native title. In addition, to ensure that cultural and spiritual attachment is not marginalised in compensation assessments, there is clearly a need for traditional owners to translate Indigenous concepts of value in all their complicated, unexpected forms into understandable paradigms. Whilst this task may seem prosaic in the extreme, it is not widely understood that cultural and spiritual attachment explains how the landscape is read like a document by traditional owners. This document explains how spiritual presence at particular places is turned into an aspect of the physical environment, which can also have cultural significance. Because rights and interests derived from native title must be rooted in land to be recognised by the common law, the cultural and spiritual context and construction of such Indigenous property rights must be made understandable in the context of anglo-Australian land law. To do otherwise ensures that assertions of cultural and spiritual attachment will fail. This prospect, whilst unpalatable to traditional owners, pales in comparison to the alternative of a pyrrhic victory from the recognition of native title resulting in a judicial award of nominal compensation for spiritual and cultural attachment. This is a risk that must be regarded as unacceptable to Indigenous people. *John Sheehan is the native title spokesman for the Australian Property Institute and member, Land Tribunal (Queensland). A copy of the Hansard transcript of John Sheehan's evidence on 23 February 2000 to the Parliamentary Joint Committee on Native Title and Torres Strait Islander Land Fund can be obtained from the API by phoning Tony McNamara, Queensland divisional executive officer on (07) 3832 3139, or Gail Sanders NSW divisional executive officer on (02) 9299 1811.
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