May 2019

A delicate balance - executing council duties under one act without breaching another

As is well known, the Crown Land Management Act 2016 (CLM Act) made councils responsible for managing Crown land in their LGAs as if it were community land. At the same time, however, the Native Title Act 1993 forbids councils from doing anything that affects native title.

Sometimes, that can place councils in delicate situations. Here we examine two recent cases which provide valuable guidance to council managers.

A heavy price for flouting the Act

The first is the 13 March 2019 decision of the High Court on compensation payable to native title holders in the Northern Territory. The case ([2019] HCA 7) involved Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples.

In this case, the Northern Territory had granted or allowed development leases and public works, among other things, in the town of Timber Creek. The native title holders claimed compensation on behalf of their group under the Native Title Act, arguing that the council’s actions had impaired or extinguished native title rights and interests.

The High Court agreed and awarded compensation as follows:

  • Compensation for economic loss: $320,250

  • Interest: $910,100

  • Compensation for ‘cultural loss’: $1,300,000

The basis on which the court ordered compensation was:

  • Economic value of exclusive native title rights to an interest in land equates to the objective economic value of an unencumbered freehold estate in that land. In these appeals, the objective economic value of the non-exclusive native title rights and interests of the claim group was 50% of the freehold value of the land.

  • Interest is payable on the compensation for economic loss on a simple interest basis.

  • Compensation for cultural loss arises from the diminution of traditional attachment to the land or connection to country and for the loss of rights to gain spiritual sustenance from the land.

The risk to councils is clear. They must seek advice from their native title managers before dealing with Crown land if they are to avoid impairing native title rights. Liability under the CLM Act is on an indemnity basis and, as the Griffiths litigation shows, can be extensive.

Where the burden of proof lies

The second case is the 18 January 2019 decision of the Federal Court in Pate v State of Queensland [2019] FCA 25.

In this case, Pate had made a non-claimant application to convert her Crown lease into freehold land. A non-claimant application is one made by a person who has a non-native title interest in Crown land and is asking the Court to rule that native title does not exist.

Pate’s application failed because she did not provide sufficient evidence to prove, on the balance of probabilities, that native title did not exist in the land. As one of the main purposes of the Native Title Act is to protect native title, the Court could not rule in her favour. Said another way, the burden of proof rested with Ms Pate – and she failed to meet it.

Councils, too, must meet this standard before the Court will determine that native title does not exist.

Author: Peter Barakate