Indigenous World 2019: Australia

Written on 24 April 2019. Posted in Australia

Aboriginal and Torres Strait Islander people make up 3.3% of the nation’s population. Geographically, 62% of the Indigenous population lives outside Australia’s major cities, including 12% in areas classified as very remote. The median age for Aboriginal and Torres Strait Islander people is 23 compared to 38 for the non-Indigenous population.¹ Aboriginal and Torres Strait Islander peoples are vastly overrepresented in the Australian criminal justice system, with 2,481 prisoners per 100,000 Indigenous people—15 times greater than for the non-Indigenous population.²

Official government targets set for 2018 in 2008, to halve the gap between Indigenous and non-Indigenous Australians in child mortality, employment, and reading and numeracy, as well as closing the gap in school attendance, were not met. The target to close the gap in life expectancy by 2031 is not on track.³

There are approximately 3000 Aboriginal and Torres Strait Islander corporations registered under the federal Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act), including 186 registered native title land-holding bodies.⁴

There is currently no reference to Aboriginal and Torres Strait Islander peoples in the national Constitution, though the movement towards constitutional recognition has intensified, as reported below.

Compensation Test Case on Land Loss

Over the last 50 years, two different legal paradigms – a nation-wide system for recognition of ‘native title’, and various statutory land rights regimes that operate in the States and Territories – have effected a partial repossession of the Australian continent and its surrounding islands by Aboriginal groups and Torres Strait Islanders. These areas for exclusive or shared use by First Nations peoples are, however, very unevenly distributed and are found overwhelmingly in very remote areas of the country.⁵ This means a large proportion of the Indigenous population have not regained territory lost in the process of frontier conflict and dispossession that commenced with the arrival of the British in 1788. Compensation and redress or reparations for the loss of land and other severe impacts of colonisation remains an important and largely unaddressed issue. This underlines the significance in 2018 of the Timber Creek litigation regarding compensation for the legal extinguishment of native title.

Timber Creek is a small township of a few hundred people in the north of Australia. The Ngaliwurru and Nungali peoples won legal recognition of their exclusive native title rights over parts of the township in 2007, but the Federal Court of Australia found that in other areas their native title had been extinguished by public works and the past grant of freehold title and leases to third parties.⁶ In 2011 the Ngaliwurru and Nungali peoples started a compensation claim under the federal Native Title Act 1993 relating to this past extinguishment. Twenty years after they first launched a defensive action against the government for compulsorily acquiring township blocks, and many court battles later, the Ngaliwurru and Nungali peoples are awaiting the verdict in their compensation case from the country’s highest judicial body, the High Court of Australia.

The High Court appeal in the Timber Creek compensation case was heard in Darwin in September 2018. It was the first time the Court had sat in the Northern Territory, where Aboriginal people constitute almost 30% of the population (by comparison with a national figure of 3.3%).⁷ Timber Creek is a test case of Aboriginal and Torres Strait Islander rights that ranks in importance alongside the key native title decisions from the High Court. That includes Mabo, which in 1992 first recognised the existence of pre-existing common law property rights held by Indigenous groups in Australia,⁸ and the Wik case from 1996, which found that such native title rights could co-exist with other property rights that had been granted by the Crown, such as pastoral leases for cattle and sheep grazing.⁹

At trial in 2016, the judge found that, based on market value for land in Timber Creek, the economic loss from over 50 extinguishing acts carried out between 1980 and 1996 was A$512,400 (USD $364,000). The pre-judgment interest on that sum was nearly A$1.5 million (USD $1.06 million). The most difficult question was the quantification in monetary terms of the non-economic loss, the harm experienced from the loss or diminution of traditional connections with the land. The judge acknowledged that the task, though complex, was essentially intuitive. He heard extensive evidence from the traditional Aboriginal owners about damage to sacred sites, as well as what he described as ‘emotional, gut-wrenching pain’¹⁰ and a ‘sense of failed responsibility’ for the obligation under traditional law to have cared for the land and protected it against unauthorised use by others.¹¹ The trial judge awarded A$1.3 million for non-economic loss. This was left undisturbed on appeal to an intermediate court in 2017, but the compensation sums for economic loss and interest were reduced by about 20 %.¹² The Northern Territory and Commonwealth government have argued vigorously that the High Court should make further substantial reductions in all three elements of the award. The position of the Northern Territory is that 94% of the award for non-economic loss should be wiped out.¹³

The outcome of the Timber Creek litigation is being closely watched by Indigenous groups around the country, by governments, and by third parties who may face future compensation liabilities, such as mining companies. It is the first time the Australian courts have quantified ‘just terms’ compensation for native title extinguishment. In strict legal terms, the consequences of this test case for other groups are limited. As noted, native title is achievable only by some Indigenous groups, mainly in areas far from the population centres of Australia. The legal pathway to compensation for past extinguishment is even more restrictive. As a threshold issue, a group must first prove that their native title existed up until the time the relevant extinguishing acts occurred, generally understood to mean until after the enactment of the federal Racial Discrimination Act in October 1975. That is typically an arduous, expensive and highly legalistic process. It is only then that the argument begins about the particular acts of extinguishment that occurred post-1975, their impact on the affected group and how that loss should be quantified. Because the Mabo decision denied that compensation is payable at common law for native title extinguishment, the orthodox legal position is that most of the dispossession that occurred in Australia after 1788 (that is, official action on land taken before October 1975) is not compensable at all under the Native Title Act.

If, however, in a decision expected in 2019, the High Court resists government submissions that call for a more tight-fisted approach, the Timber Creek case could have profound and broad-ranging consequences. Even allowing for the legal restrictions on recovery, governments will face the prospect of large compensation liabilities for post-1975 extinguishment. It will also intensify a wider debate about the losses suffered everywhere as a consequence of dispossession.

A sound public policy response would look to negotiations of comprehensive settlements, regionally-based but within an agreed national framework. It is here that this potential landmark development in native title law intersects with the other major issue addressed in this report, the increasing prospects during 2018 of constitutional and structural reform based on the Uluru Statement from the Heart.

Structural Reform and the Uluru Statement

The Indigenous World 2018 reported on the outcome from a historic Indigenous-designed and led deliberative process of Regional Dialogues on constitutional recognition. The culmination of that process, at the First Nations Constitutional Convention held in central Australia in May 2017, was the Uluru Statement from the Heart.¹⁴ Widely acknowledged for the short and simple power of its message and language, the Uluru Statement called for a single constitutional reform to be put to a referendum of Australian voters: a representative First Nations Voice that can influence the political and law-making process. The Uluru Statement also called for a national body, to be known as a Makarrata Commission, which would oversee agreement-making between governments and First Nations, and a process of truth-telling about Australian history. Makarrata is a word from the Yolngu people of northern Australia, which essentially means coming together to make peace after conflict.

Despite the then Prime Minister Malcolm Turnbull having rejected the proposal for a constitutionally-entrenched Voice, his governing Liberal Party joined others in March 2018 in establishing a parliamentary committee inquiry into constitutional recognition that focused almost entirely on the Uluru Statement. In November 2018 the committee reported that the Voice should become a reality and said it should be “co-designed with government by Aboriginal and Torres Strait Islander peoples”.¹⁵ In pursuit of bi-partisan support, the report abstained from committing to constitutional entrenchment and said that a legislative basis for the Voice should also be kept under consideration.

The firmer message from key Aboriginal leaders of the Regional Dialogues was for an Indigenous-led approach to designing a Voice proposal for parliamentary consideration. They also restated the importance of constitutional entrenchment. They said that constitutionalising the Voice kept faith with the consensus outcome from the Uluru convention and achieved greater certainty and stability, given the past history of governments abolishing Indigenous representative bodies. Endorsement by popular vote at a referendum and placement in the Constitution, they said, would also secure enduring legitimacy for the Voice and accord it a proper place in Australia’s system of government.¹⁶ They pointed out that in the Dialogues, ‘participants considered the potential for legislative, administrative and other forms of change to achieve structural reform, as compared with constitutional change, before emphatically embracing a constitutionally enshrined First Nations Voice’.¹⁷

Although the new Liberal Party Prime Minister Scott Morrison reiterated government reservations about a constitutionally-enshrined Voice,¹⁸ the proposal continued to gain momentum through 2018. The Opposition Labor Party, strongly favoured in opinion polls to win a May 2019 election, committed to implementing the constitutional and structural reforms called for in the Uluru Statement.¹⁹ As civil society organisations continued to advocate for the Uluru Statement, the business sector also began to come on board. Most recently, mining giants BHP and Rio Tinto, who both have regular dealings with Aboriginal groups in minerally prospective parts of Australia, endorsed a referendum to constitutionally entrench a Voice, and BHP pledged A$1 million (USD$708,315) to support an education project about the Uluru Statement and constitutional change.²⁰

The Uuru Statement represented the historic achievement of Indigenous consensus on viable proposals for structural reform through an Indigenous-designed deliberative process. It broke the logjam in a public debate about constitutional recognition that had been mishandled and frequently neglected by mainstream politicians over the preceding decade. At the end of 2018, the signs are relatively positive that a referendum on a representative First Nations Voice will occur soon and that Australia will shift national attention to a comprehensive agreement-making process, as well as a belated and much-needed reckoning with the history of colonisation and its impacts.

Notes and references

1. Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2016. Available at: http://bit.ly/2TaVzqx
2. Australian Bureau of Statistics, Prisoners in Australia, Available at: http://bit.ly/2Ev2eS9
3. Department of the Prime Minister and Cabinet, Closing the Gap Report 2019 (2019), 6-10. Available at: http://bit.ly/2Ev1QDb

4. Department of the Prime Minister and Cabinet, Annual Report 2017-18 (2018) Available at: http://bit.ly/2En6h2Q
5. Jon Altman and Francis Markham, ‘Burgeoning Indigenous Land Ownership: Diverse Values and Strategic Potentialities’ in Sean Brennan, Megan Davis, Brendan Edgeworth and Leon Terrill (eds), Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment? (Federation Press, 2016) 129,
6. Griffiths v Northern Territory (2007) 165 FCR
7. Australian Bureau of Statistics, Estimates of Aboriginal and Torres Strait Islander Australians, June 2016. Available at: http://bit.ly/2TaVzqx
8. Mabo v Queensland (No 2) (1992) 175 CLR
9. Wik Peoples v Queensland (1996) 187 CLR
10. Griffiths v Northern Territory (No 3) (2016) 337 ALR 362,
11. Ibid
12. High Court of Australia, Short Particulars: Northern Territory v Griffiths. Available at: http://bit.ly/2TgnRAd
13. Northern Territory v Griffiths (2017) 256 FCR 478,
14. See Referendum Council, “Uluru statement from the ” Available at: http://bit.ly/2Tej2Hw
15. Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples, Final Report (November 2018). Available at: http://bit.ly/2TelTjy
16. Pat Anderson et al, Submission to Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples, November 2018 (Submission 479). Available at: http://bit.ly/2TeBwYr .
17. Ibid
18. Paul Karp, ‘Scott Morrison claims Indigenous voice to Parliament would be third chamber’, The Guardian Australia, 26 September 2018. Available at: http://bit.ly/2Tg43g3
19. Australian Labor Party, A Fair Go for Australia, 48th ALP National Platform (2018), paragraphs 52, 53, 72. Available at: http://bit.ly/2TbUY7X
20. BHP, ‘BHP and Rio Tinto endorse Uluru Statement from the Heart’, Media Release, 31 January Available at: http://bit.ly/2T9F3Hn

Sean Brennan is Director of the Gilbert + Tobin Centre of Public Law at UNSW Sydney and an Associate Professor in the Law Faculty. His teaching, research, publication and public engagement work is focused on Aboriginal legal issues and constitutional law.