FEDERAL COURT OF AUSTRALIA

Northern Territory of Australia v Griffiths [2017] FCAFC 106

ORDERS

THE COURT ORDERS THAT:

1.    By 4 August 2017 the parties file an agreed form of orders necessary to reflect these reasons for judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 24 August 2016, the primary judge made orders against the Northern Territory and the Commonwealth on an application under s 61 of the Native Title Act 1993 (Cth) (the NTA) brought by the Ngaliwurru and Nungali Peoples (the Claim Group) for compensation and damages for the loss, diminution of, impairment or other effect of the act on their native title rights and interests. He awarded the Claim Group $512,400 compensation for the economic value of their extinguished native title rights, interest on this sum of $1,488,261. He also awarded the Claim Group $1,300,000 for solatium for the loss or impairment of those rights and interests. The primary judge made a declaration that three grants of freehold interests made by the Northern Territory were invalid future acts, and he awarded $19,200 damages together with interest of $29,397, making a total of $48,597 damages for those acts.

2    Before the Court is an appeal by the Northern Territory, a cross appeal to that appeal by the Claim Group and a separate appeal by the Commonwealth in relation to these orders (which are together referred to as the appeals).

3    The Attorney-General for the State of South Australia and the Attorney-General for the State of Queensland intervened in response to notices served under s 78B of the Judiciary Act 1903 (Cth) (Judiciary Act) by the Commonwealth. The Attorney-General for South Australia made written and oral submissions in the appeals but the Attorney-General for Queensland played no further part in the appeals. The Attorney-General for the State of Western Australia intervened in response to a notice served under s 78B of the Judiciary Act by the Claim Group. The Attorney-General for the State of Western Australia also applied to intervene on a non-constitutional point pursuant to r 9.12 of the Federal Court Rules 2011. The application was listed for hearing on the last day of the hearing of the appeals, 24 February 2017. The application was refused. The reasons for refusal are dealt with later in these reasons for judgment.

4    On 20 February 2017, two Native Title Representative Bodies, Central Desert Native Title Services and Yamatji Marlpa Aboriginal Corporation, the NTRB interveners, were granted leave to intervene without opposition by the parties.

5    One consequence of the recognition of native title rights and interests by the NTA was the need to provide for the situation in which governments had made grants of land which, by reason of the recognition of native title, were inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth) (the RDA). The NTA addressed the issue by providing for validation of those acts, by providing for the consequence of validation on native title rights and interests including extinguishment or suspension, and then by providing for an entitlement to compensation to the native title holders.

6    Against this background it is necessary for the purposes of a compensation claim under the NTA and for the general law claim for damages to identify the land involved, the acts which gave rise to the right to compensation or damages, the source of the entitlement to compensation and the native title rights and interests for which compensation or damages were sought. There is no contention in the appeals about these matters, but it is necessary to outline them for a proper understanding of the arguments on the appeal. Those matters are now addressed.

The Land

7    The claim for compensation and damages was made in respect of land within the town of Timber Creek. Timber Creek is in the north west corner of the Northern Territory on the Victoria Highway half way between Katherine and Kununurra. Timber Creek was proclaimed as a town on 10 May 1975. The Victoria River marks the northern boundary of the town. The creek which is Timber Creek is a tributary of the Victoria River and flows approximately north / south on the eastern side of the town.

8    The compensation claim was made for 53 acts, on 39 lots and four public roads and the damages claim was made for 3 acts on 3 lots. Each of the acts was attributed to the Northern Territory. The map below shows the lots in question:

The Compensable Acts

9    The acts for which compensation is claimed are tabulated below in a summary which is modified from the chronology filed by the parties for the purpose of the appeals.

10    Compensable acts that were not previous exclusive possession acts and which are referred to as the exceptions are marked with an *. Subsequent previous exclusive possession acts are marked with a †. Exceptions that were not subject to subsequent previous exclusive possession acts are marked with **. Compensable acts which were used for the calculation of economic loss are bolded. “NT” means the Northern Territory. These markings are further explained in this section of these reasons for judgment.

11    The parties filed a Joint Statement of Factual Background, Procedural History and Issues (Joint Statement), for the purpose of the appeals which contains a useful summary of the nature of the compensable acts divided into the following five categories (references to orders are references to the orders made by the primary judge):

(a)    grants of development leases by the Territory to non-Crown entities that could be exchanged for freehold upon satisfaction of a development covenant. Each grant was a previous exclusive possession act that extinguished all subsisting native title. The grants of these development leases were: act 2 (Lot 20), acts 5-13 (Lots 22-23, 26-32), acts 31-33 (Lots 43-44, 46), act 40 (Lot 59), act 45 (Lot 64), acts 48-[54] (Lots 75, 79, 81, 85-86, 88[-89]) (order [1(3)]).

(b)    grant of a Crown lease (CLT 624) for a period of 10 years that was a previous exclusive possession act that extinguished all subsisting native title. The grant of this lease was act 34 (Lot 47) (order [1(6)]).

(c)    public works constructed without any underlying tenure. Each public work was a previous exclusive possession act that extinguished all subsisting native title. These were: act 14 (Lot 33), acts 43-44 (Lots 62-63), act 46-47 (part of Lots 70 and 72 respectively), acts 56-59 (roads) (order [1(4)]).

(d)    Crown to Crown grants by the Territory to government authorities, followed by (in one case) a subsequent transfer of the land to a non-Crown entity or (in all other cases) public works established on the granted land. Each initial Crown to Crown grant was a Category D past act that suppressed all subsisting native title. Each later public works act was a previous exclusive possession act that extinguished native title. Consequently, in this category, two or more compensable acts affected a single parcel of land. These were: acts 3-4 (Lot 21), acts 15-18 (Lot 34), acts 19-20 (Lot 36), acts 21-22 (Lot 38), acts 23-24 (Lot 39), acts 25-26 (Lot 40), acts 27-28 (Lot 41), acts 29-30 (Lot 42) (order [1(2)]).

(e)    three Crown to Crown grants in perpetuity by the Territory to government authorities. Each grant was a Category D past act that suppressed (and continues to suppress) all subsisting native title. These grants were: act 1 (part of Lot 16), act 36 (Lot 52), act 41 (Lot 60) (order [1(1)]).

12    For the purpose of calculating the economic loss component of the compensation to be awarded, the Claim Group did not claim compensation for acts in relation to what the primary judge referred to as the infrastructure lots. That was because it was a common position between the land valuers called by the parties that it was not appropriate to add or assess a separate value for the acts done by the establishment of the infrastructure lots, as those acts affected the value of the other lots. Thus, no compensation for economic loss was awarded for acts 4, 14-18, 20, 22, 24, 26, 28, 30, 40-41, 46-47, 53-54, 56-59, comprising various public and infrastructure works. The remaining acts, for which compensation for economic loss was awarded, have been bolded in the table at [10].

13    In summary, the total compensation claim related to 53 acts on 39 lots and four public roads. Compensation for economic loss was claimed for 31 of those acts, on 31 lots.

The Source of the Entitlement to Compensation under the NTA

14    The right to claim compensation depends on the character of the act which the NTA validates. So far as is relevant to these appeals, the source of the entitlement depends on whether the act validated was a past act, an intermediate period act, or a previous exclusive possession act within the meaning of Part 2, Div 2, 2A, and 2B of the NTA.

15    Different consequences flow from validation depending on the classification of the act. Relevantly for the appeals, validation of an exclusive possession act results in the extinguishment of native title, and validation of a category D past act attracts the non-extinguishment principle (s 238).

16    The analysis below demonstrates that all but three of the lots in issue were initially, or ultimately, affected by exclusive possession acts. The remaining three lots were affected by category D past acts.

17    Division 2 of Part 2 of the NTA deals with past acts. A past act is an act, which occurred before 1 January 1994 where native title existed in relation to particular land, which was invalid to any extent but would have been valid to that extent if native title did not exist (s 228 NTA). A category A past act relates to a grant of certain freehold estates, certain leases and construction of certain public works (s 229 NTA). A category B past act relates to certain leaseholds (s 230 NTA). A category C past act relates to mining leases (s 231 NTA). A category D past act is one which is not a category A, B or C past act (s 232 NTA). The past acts in question in these appeals were acts attributed to the Northern Territory (s 239 NTA) and were validated by operation of s 19 of the NTA and s 4 of the Validation (Native Title) Act (NT) (VNTA). Category A past acts extinguish native title, category B past acts extinguish native title to the extent of any inconsistency and the non-extinguishment principle applies to category C and D past acts (s 15 NTA). Where the non-extinguishment principle applies, the act does not extinguish native title, but native title may be suspended wholly or in part to take account of the act (s 238 NTA).

18    All of the acts, save for acts 50, 51, 52, 53, and 54, were past acts. The latter five acts were not past acts because they occurred after 1 January 1994, namely from November 1995 to December 1996.

19    Division 2A of Part 2 of the NTA deals with intermediate period acts. These provisions were inserted by the 1998 amendments to address the uncertainty said to have been created by the judgment in Wik Peoples v Queensland (1996) 187 CLR 1; [1996] HCA 40 (Wik) which was delivered on 23 December 1996.

20    An intermediate act is an act, which occurred between 1 January 1994 and 23 December 1996 where native title existed in relation to particular land, which was invalid to any extent but would have been valid to that extent if native title did not exist. Acts 50, 51, 52, 53 and 54 occurred during this period and were intermediate period acts. Intermediate period acts were validated by the operation of s 22F of the NTA and s 4A of the VNTA.

21    Division 2B of Part 2 of the NTA entitled “Confirmation of past extinguishment of native title by certain valid or validated acts” also inserted as a result of Wik, deals with previous exclusive possession acts. A previous exclusive possession act is a grant such as freehold or of certain leases which was made before 23 December 1996 and which was validated under Part 2 or Part 2A of the NTA (s 23B NTA). Therefore, both past and intermediate acts may be previous exclusive possession acts. A previous exclusive possession act attributable to the Northern Territory extinguished native title (s 9H VNTA). The extinguishment was effected by the previous exclusive possession provisions, and not by the past act or the intermediate past act provisions (s 9G VNTA).

22    The compensable acts were previous exclusive possession acts except for acts 1, 3, 15, 17, 19, 21, 23, 25, 27, 29, 36 and 41, which together are referred to as the exceptions. As can be seen from the table in [10] of these reasons for judgment, six of the exceptions were freehold grants to the Northern Territory Housing Commission, two were freehold grants to the Conservation Land Corporation, two were freehold grants to the Northern Territory Electricity Commission, one was a freehold grant to the Commonwealth, and one was a cemetery reserve. The exceptions are marked with an * in the table in [10]. These acts were within various exceptions to the definition of previous exclusive possession acts in s 23B of the NTA, mainly the exception in respect of Crown to Crown grants (s 23B(9C) NTA).

23    The exceptions were category D past acts within the meaning of s 232 of the NTA. They were not category A, B, or C past acts in particular because they were grants of freehold by the Crown to a statutory authority of the Crown and hence within the exception to category A past acts contained in s 229(2)(b)(i) of the NTA.

24    The non-extinguishment principle would then apply to the exceptions. However, except in the case of act 1 (grant to the Conservation Land Corporation), act 36 (freehold grant to the Commonwealth) and act 41 (cemetery reserve), the past acts were followed by previous exclusive possession acts which extinguished native title. This can be seen from the table in [10] of these reasons for judgment. Each subsequent previous exclusive possession act is marked with a † in the table. Act 3 was followed by act 4 which was a grant of freehold. Act 15 was followed by act 16, and act 18 by act 17, the latter act in each case being public works by the Northern Territory Electricity Commission except for the final act, act 17, which was a grant of freehold to the Northern Territory Electricity Commission. Acts 19, 21, 23, 25, 27 and 29 were each followed by an act in the next numerical sequence, and each of those latter acts were public works by the Northern Territory Housing Commission. Certain public works are previous exclusive possession acts (s 23B(7) NTA).

25    Acts 1, 36 and 41 were not followed by a subsequent previous exclusive possession act. As category D past acts the non-extinguishment principle continued to apply to them. These three acts are marked with ** in the table in [10] of these reasons for judgment. Apart from these three acts, all the other compensable acts were previous exclusive possession acts.

26    The entitlement to compensation for exclusive possession acts is in s 23J of the NTA which is in Div 2B which provides:

23J Compensation

Entitlement

(1)    The native title holders are entitled to compensation in accordance with Division 5 for any extinguishment under this Division of their native title rights and interests by an act, but only to the extent (if any) that the native title rights and interests were not extinguished otherwise than under this Act.

Commonwealth acts

(2)    If the act is attributable to the Commonwealth, the compensation is payable by the Commonwealth.

State and Territory acts

(3)    If the act is attributable to a State or Territory, the compensation is payable by the State or Territory.

27    The entitlement to compensation for category D past acts is in s 20 of the NTA, which is in Division 2 of Part 2, and which in turn refers back relevantly to s 17(2)(a):

20 Entitlement to compensation

Compensation where validation

(1)    If a law of a State or Territory validates a past act attributable to the State or Territory in accordance with section 19, the native title holders are entitled to compensation if they would be so entitled under subsection 17(1) or (2) on the assumption that section 17 applied to acts attributable to the State or Territory.

…

Recovery of compensation

(3)    The native title holders may recover the compensation from the State or Territory.

…

17 Entitlement to compensation

...

Non-extinguishment case

(2)    If it is any other past act, the native title holders are entitled to compensation for the act if:

(a)    the native title concerned is to some extent in relation to an onshore place and the act could not have been validly done on the assumption that the native title holders instead held ordinary title to:

(i) any land concerned; and

(ii) the land adjoining, or surrounding, any waters concerned; or

…

The Native Title Rights and Interests

28    As the compensation claimed relates to the loss of native title rights and interests it is necessary to identify those rights and interests. There is some background to the way those rights and interests were identified for this proceeding.

29    In 1999 and 2000 the Claim Group applied to the Court for a determination of native title over vacant Crown land within the township of Timber Creek. That application was determined by Weinberg J in Griffiths v Northern Territory (2006) 165 FCR 300; [2006] FCA 903 (Griffiths SJ). Following an appeal in Griffiths v Northern Territory of Australia (2007) 165 FCR 391; [2006] FCAFC 178 (Griffiths FC) it was determined that the Claim Group had exclusive native title rights and interests over most of the land in the township of Timber Creek, and, by the operation of s 47B of the NTA, previous extinguishing acts were to be disregarded.

30    Most of the lots for which compensation was claimed in the present proceedings were not included in the earlier native title determination applications. But the parties to the compensation application agreed that the Claim Group held native title in respect of the lots in question and agreed on the nature of the acts for which compensation was claimed. There was disagreement about the effect of some prior acts on native title, and hence on what native title rights were to be the subject of compensation.

31    Before the primary judge embarked on the assessment of the amount of compensation, he determined whether native title had been extinguished or partly extinguished by historic tenure grants, reservations, or public works, and whether that extinguishment occurred before the RDA came into effect: Griffiths v Northern Territory [2014] FCA 256 (Compensation Decision Part 1). Significantly for present purposes is the finding by the primary judge in Compensation Decision Part 1 [41] - [43] that Pastoral Lease 366 granted on 20 June 1882 (PL366), under the Northern Territory Land Act 1872 (SA) to the Musgrave Range and Northern Territory Pastoral Land Co Ltd, which covered all of the relevant parts of the application area, was effective at common law to partially extinguish native title leaving non-exclusive native title rights and interests.

32    The parties then adopted, for the purposes of the compensation application, the description of such interests from the native title determination made in Griffiths FC which had been the result of a full trial in Griffiths SJ and thus the result of a detailed examination by Weinberg J of Indigenous and expert evidence about the traditional laws and customs of the Claim Group in relation to land in and around Timber Creek.

33    The description of the Claim Group’s non-exclusive native title rights and interests adopted by the parties was set out in [23(3)] of the Joint Statement as follows:

Where the native title had not been wholly extinguished, but had been partially extinguished by an earlier act, the native title rights and interests were the following non-exclusive rights in accordance with traditional laws and customs:

1.    the right to travel over, move about and to have access to the application area;

2.    the right to hunt, fish and forage on the application area;

3.    the right to gather and to use the natural resources of the application area such as food, medicinal plants, wild tobacco, timber, stone and resin;

4.    the right to have access to and use the natural water of the determination area;

5.    the right to live on the land, to camp, to erect shelters and other structures;

6.    the right to:

(a)    engage in cultural activities;

(b)    conduct ceremonies;

(c)    hold meetings;

(d)    teach the physical and spiritual attributes of places and areas of importance on or in the land and waters; and

(e)    participate in cultural practices relating to birth and death, including burial rights;

7.    the right to have access to, maintain and protect sites of significance on the application area; and

8.    the right to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes).

THE FRAMEWORK FOR THE ASSESSMENT OF COMPENSATION

34    The way compensation is to be assessed is governed by s 51 of the NTA which relevantly provides:

51 Criteria for determining compensation

Just compensation

(1)    Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

…

Compensation not covered by subsection (2) or (3)

(4)    If:

…

(b)    there is a compulsory acquisition law for the Commonwealth (if the act giving rise to the entitlement is attributable to the Commonwealth) or for the State or Territory to which the act is attributable;

the court, person or body making the determination of compensation on just terms may, subject to subsections (5) to (8), in doing so have regard to any principles or criteria set out in that law for determining compensation.

Monetary compensation

(5)    Subject to subsection (6), the compensation may only consist of the payment of money.

…

35    Section 51A or the NTA imposes a limit on compensation in the following terms:

51A Limit on compensation

Compensation limited by reference to freehold estate

(1)    The total compensation payable under this Division for an act that extinguishes all native title in relation to particular land or waters must not exceed the amount that would be payable if the act were instead a compulsory acquisition of a freehold estate in the land or waters.

This section is subject to section 53

(2)    This section has effect subject to section 53 (which deals with the requirement to provide “just terms” compensation).

36    Section 53(1) provides for an additional entitlement to compensation whenever that is required to avoid invalidity by reason of s 51(xxxi) of the Constitution. It is as follows:

Entitlement to just terms compensation

(1)    Where, apart from this section:

(a)    the doing of any future act; or

(b)    the application of any of the provisions of this Act in any particular case;

would result in a paragraph 51(xxxi) acquisition of property of a person other than on paragraph 51(xxxi) just terms, the person is entitled to such compensation, or compensation in addition to any otherwise provided by this Act, from:

(c)    if the compensation is in respect of a future act attributable to a State or a Territory – the State or Territory; or

(d)    in any other case – the Commonwealth;

as is necessary to ensure that the acquisition is made on paragraph 51(xxxi) just terms.

37    There is a compulsory acquisition law for the Northern Territory in the form of the Lands Acquisition Act (NT) (LAA), s 5 of which requires the LAA to be read so as to provide for the acquisition of land on just terms.

38    Section 66 of the LAA provides relevantly that in assessing compensation the relevant Tribunal must have regard to, but is not bound by, the Rules set out in Schedule 2 (as modified in respect of the acquisition of native title rights and interests).

39    Schedule 2 provides relevantly:

Schedule 2 Rules for the assessment of compensation

1. VALUE TO THE OWNER

Subject to this Schedule, the compensation payable to a claimant for compensation in respect of the acquisition of land under this Act is the amount that fairly compensates the claimant for the loss he has suffered, or will suffer, by reason of the acquisition of the land.

1A. RULES TO EXTEND TO NATIVE TITLE RIGHTS AND INTERESTS

To the extent possible, these rules, with the necessary modifications, are to be read so as to extend to and in relation to native title rights and interests.

2. MARKET VALUE, SPECIAL VALUE, SEVERANCE DISTURBANCE

Subject to this Schedule, in assessing the compensation payable to a claimant in respect of acquired land the Tribunal may take into account:

(a)    the consideration that would have been paid for the land if it had been sold on the open market on the date of acquisition by a willing but not anxious seller to a willing but not anxious buyer;

(b)    the value of any additional advantage to the claimant incidental to his ownership, or occupation of, the acquired land;

(c)    the amount of any reduction in the value of other land of the claimant caused by its severance from the acquired land by the acquisition; and

(d)    any loss sustained, or cost incurred, by the claimant as a natural and reasonable consequence of:

(i)    the acquisition of the land; or

(ii)    the service on the claimant of the notice of proposal,

for which provision is not otherwise made under this Act, other than costs incurred as a result of attending, participating in or being represented at consultations for the purposes of section 37(1) or mediation under section 37(4).

…

9. INTANGIBLE DISADVANTAGES

(1)    If the claimant, during the period commencing on the date on which the notice of proposal was served and ending on the date of acquisition:

(a)    occupied the acquired land as his principal place of residence; and

(b)    held an estate in fee simple, a life estate or a leasehold interest in the acquired land,

the amount of compensation otherwise payable under this Schedule may be increased by the amount which the Tribunal considers will reasonably compensate the claimant for intangible disadvantages resulting from the acquisition.

(2)    In assessing the amount payable under subrule (1), the Tribunal shall have regard to:

(a)    the interest of the claimant in the land;

(b)    the length of time during which the claimant resided on the land;

(c)    the inconvenience likely to be caused to the claimant by reason of his removal from the acquired land;

(d)    the period after the acquisition of the land during which the claimant has been, or will be, allowed to remain in possession of the land;

(e)    the period during which the claimant would have been likely to continue to reside on the land; and

(f)    any other matter which is, in the Tribunal’s opinion, relevant to the circumstances of the claimant.

40    The compensation application claimed compensation under two heads. One head of claim was the economic loss caused by the acts which deprived the Claim Group of their native title rights and interests or impaired those rights and interests. The other head of claim was the non-economic effect of those acts on the Claim Group. The Northern Territory and the Commonwealth did not contest that general framework. The primary judge adopted that framework for his assessment for the amount of compensation.

41    For the purpose of fixing the amount of compensation, s 51(4)(b) of the NTA allows the Court to have regard to the principles in any relevant compulsory acquisition legislation. That is probably because there are points of similarity between a compulsory acquisition of land and the deprivation or impairment of native title rights and interests without the agreement of the native title holders.

42    The basis for distinguishing between the two elements of compensation was said to flow from the different nature of each element. The economic element reflects the loss of the material asset which flows from the acts of extinguishment. The non-economic element reflects the effects on the connection of the native title holders with their country. The assessment of the non-economic impact of the acts of extinguishment requires an understanding of the intense bond between Indigenous people and their country. The evaluation of that element presents difficulty because of the unique nature of the spiritual link between the people and the land and the need to place a monetary value on the disruption to that connection. In this respect it must be remembered that the compulsory acquisition legislation is concerned with valuing land, whereas assessing compensation for the loss or impairment of native title rights and interests requires an evaluation of emotional rather than pecuniary impact. Later in these reasons for judgment at [140] we point to an alternative approach and raise the question whether the bifurcated approach adopted by the parties in this proceeding to the assessment of compensation under the NTA is the preferable approach.

THE ISSUES IN THE APPEAL

43    Within the framework adopted by the parties and the primary judge there are six major issues raised by the appeals.

44    The first issue concerned the primary judge’s assessment of the economic loss element of the award of compensation. Each of the parties made a different challenge to the economic value of the Claim Group’s native title rights and interests as determined by the primary judge. He assessed that element at 80% of the freehold value of the land, namely, the sum of $512,400. The Northern Territory contended that the appropriate measure is the sum of the usage value and the negotiation value. That method yields a value of $248,764 using the same land valuation as used by the primary judge. The Commonwealth contended that if all relevant factors were taken into account the native title rights and interests would have been assessed at about 50% of the freehold value of the land. The Claim Group contended that the appropriate measure of the value of their native title rights and interest was equal to the freehold value of the land.

45    The second issue concerned the assessment of the value of some of the freehold lots. The Northern Territory contended that the primary judge should have preferred the valuation of Mr Wotton over the valuation of Mr Copland in respect of the two hectare lots (lots 20 – 23 and 26 – 32) and the large rural lots over four hectares (lots 16, 47, 75 and 79).

46    The third issue concerned the prejudgment interest payable on the compensation awarded for economic loss. The primary judge held that the interest was part of the compensation and was to be calculated on the basis of simple interest at the rate set out in the Federal Court Practice Note CM 16, the practice note rate. The Claim Group contended that interest should be calculated on a compound basis, either on the risk-free rate or the superannuation rate. The Commonwealth contended that the interest should have been awarded on, rather than as part of, the award of compensation. The Commonwealth also contended that interest in respect of lot 47 (act 34) should have ceased on 28 August 2006 when Griffiths SJ made a determination that the Claim Group hold exclusive native title over most of the town including lot 47.

47    The fourth issue concerned the calculation of non-economic loss which the primary judge fixed at $1.3 million. The Northern Territory and the Commonwealth both challenged this amount and the reasoning by which the primary judge arrived at it. The Northern Territory contended that the amount should be 10% of the value of the land proposed by the Northern Territory producing a final figure of $93,848. The Commonwealth contended that, having regard to all the circumstances of the case, the amount of non-economic loss should have been assessed at $5,000 for each parcel of land, yielding a lump sum amount of $215,000.

48    The fifth issue concerned [6] of the orders made by the primary judge which provides for the Prescribed Body Corporate (PBC) to allocate the award monies within the Claim Group and to determine any disputes about entitlements to the monies. The Commonwealth contended that s 94 of the NTA did not empower the Court to make that order.

49    The sixth issue concerned three invalid future acts. The Northern Territory contended that there was no basis for the making of orders for the payment of damages for those acts. Alternatively, if there was a basis, the Northern Territory contested the calculation of damages at 80% of the freehold value of the land. The Commonwealth contended that there was no basis for the primary judge to grant relief of any kind that does not have as its premise the continuing existence of the Claim Group’s non-exclusive native title rights and interests.

50    These reasons for judgment will now consider each of the six issues in turn.

DID THE PRIMARY JUDGE ERR IN ASSESSING ECONOMIC LOSS AT $512,400?

The primary judge’s reasons

51    The primary judge reasoned as follows:

(1)    The starting point is s 51(1) of the NTA which provides for compensation on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.

(2)    The conventional approach to the valuation of interests in land established in Spencer v Commonwealth (1907) 5 CLR 418; [1907] HCA 82 (Spencer) seems inappropriate. It is artificial to focus on a willing but not anxious purchaser when the only purchaser could be the Northern Territory or the Commonwealth, and the interest could not be sold to a third party. It is also artificial to consider the price which the native title holders would be prepared to sell their rights when the rights are not able to be sold.

(3)    It is not appropriate to seek to compare the bundle of rights held by the native title holders with the bundle of rights held by others holding interests in land without taking account of the true character of the native title rights.

(4)    The value of exclusive native title rights and interests is equivalent to the value of freehold. To reduce the value of such rights because they are inalienable would fail to have regard to the real character of the native title rights and interests. That was the accepted starting point in Geita Sebea v Territory of Papua (1941) 67 CLR 544; [1941] HCA 37 (Geita Sebea) and Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399 (Amodu Tijani). To treat exclusive native title rights and interests as less valuable than freehold would fail to reflect the purposes of the NTA and the recognition of the Aboriginal peoples as the original inhabitants of Australia.

(5)    Where rights are removed or diminished by an act of the Crown it makes sense to focus on what has been obtained by the presumed willing but not anxious buyer even though there cannot be a willing but not anxious seller. Thus, in Geita Sebea the focus was on the benefit to the Crown of the acquisition rather than the detriment to the holders of indigenous rights where those rights were inalienable save to the Crown.

(6)    In Geita Sebea the value of the native title rights was not regarded as less valuable because they were inalienable. By valuing the rights in that way shows that it was not appropriate to approach the valuation as an exercise of the valuation of rights of a conventional land holder. What the Crown acquired as a result of the transaction was different from what the indigenous rights holders enjoyed but, nonetheless, indicated that the rights surrendered had an economic value.

(7)    It is necessary to start with a fuller understanding of the native title rights and interests. Native title is a sui generis right or interest. To describe it as a proprietary right is artificial and capable of misleading. It is a communal bundle of rights not an individual proprietary right. It depends for its existence on the continuing acknowledgement and observance of relevant traditions, custom, and practices of the community. It is principally usufructuary in nature and inalienable except by surrender to or acquisition by the Crown.

(8)    Just as it is not appropriate to treat exclusive native title as valued at less than freehold, it is not routinely appropriate to treat non-exclusive native title rights and interests as valued in the same way as if those rights and interests were held by non-Indigenous persons, or to reduce the value of the right because they are inalienable, even though that might be a proper analysis if the rights were held by a non-Indigenous person.

(9)    The non-exclusive native title rights held by the Claim Group were rights to travel over, move about and have access to the area; to hunt, fish and forage on the area; to gather and to use the natural resources of the area; to have access to and use the natural water of the area; to live on the land, to camp, to erect shelters and other structures; to engage in cultural activities; to maintain and protect sites of significance on the area; and to share or exchange subsistence and other traditional resources obtained on or from the land or waters (but not for any commercial purposes).

(10)    It is not appropriate to value these interests as equivalent to freehold on the basis that the Northern Territory acquired a freehold title on the extinguishment of those interests.

(11)    Geita Sebea does not lead to that conclusion, but it does establish that the mere fact that the indigenous rights are inalienable does not mean that they have a value less than freehold.

(12)    His Honour then said at [227] – [228]:

227.    Consequently, whilst I do not accept the contention of the Claim Group that their non-exclusive native title rights should be valued as if they were the equivalent of exclusive native title rights, it is necessary to arrive at a value which is less than the freehold value and which nevertheless recognises and gives effect to the nature of those rights.

228    That is reflected in the contention of the Claim Group that their native title rights, even as the non-exclusive rights existed as a real impediment to any other grants of interest in the subject allotments, or more generally. The Territory, in this case, needed to acquire those rights before it could proceed to treat the land or the allotments as part of its radical title to enable it to grant freehold or leasehold interests over those lots. I note the contention on behalf of the Claim Group that, apart from the previous acts which in Griffiths SJ and in Griffiths FC were held partially to extinguish native title rights, there were no meaningful restrictions on their use and enjoyment of the relevant allotments. The only valid extinguishing acts prior to the determination acts were, it is said, the grants of pastoral leases which removed the right to exclusive possession, but in reality in relation to Timber Creek Township itself, that restriction or limitation was not a major restricting factor.

(13)    His Honour then concluded at [231] – [232]:

231    But for the invalid determination acts, the native title rights which were held which [sic] were permanent, and in a practical sense very substantial. To accommodate the fact that they were non-exclusive, clearly some reduction from the freehold value is necessary. If that were not so, they would have the same value as exclusive native title rights when plainly they do not. However, in my view, the deduction should not be great in the present circumstances.

232    The rights the Claim Group in fact enjoyed were in a practical sense exercisable in such a way as to prevent any further activity on the land, subject to the existing tenures. If the appropriate test were as to the price at which the claim group would have been prepared to surrender their non-exclusive native title rights, the answer would be not at all. If the appropriate test was to see what was the value to the Territory of acquiring those rights, as the Territory would not then be restricted by the nature of those rights which were surrendered, the answer is that that would be a figure close to the freehold value. In my view, the appropriate valuation should be 80% of the freehold value.

52    The primary judge accepted the land valuations of Mr Ross Copland, an expert land valuer called by the Commonwealth, and used those valuations as the basis for the compensation to be awarded.

53    The amounts of compensation for each lot affected by each compensable act was tabulated in annexure B to the reasons for judgment of the primary judge as follows:

The grounds of appeal

54    Grounds 1 and 2 of the Northern Territory’s Notice of Appeal read as follows:

1.    The trial judge was wrong to find that the economic value of the native title rights and interests which were extinguished or impaired by the compensable acts for which compensation was claimed was 80% of the market value of freehold estates in the land the subject of the compensable acts.

1.1.    There was no evidence that the economic value of the native title rights and interests was 80% of the market value of freehold estates in the land. Further, the finding is contrary to the expert evidence relied upon by the Appellant to the effect identified in Ground 2 below.

1.2.    The trial judge erred in finding that the native title rights and interests were in a practical sense exercisable in such a way as to prevent any further activity on the land, subject to the existing tenures (Reasons, [232]). This equates to a finding that the native title rights and interests were equivalent to, or closely equivalent to, freehold rights and such a finding is erroneous because the native title rights and interests did not include the right to exclude others, to control access or to make decisions about the use of the land.

1.3.    The trial judge erred in finding that the native title rights and interests existed as a real impediment to any other grants of interest in the subject allotments, or more generally, because the Appellant needed to acquire those rights before it could proceed to treat the land as part of its radical title and grant freehold or leasehold interests (Reasons, [228]). This finding erroneously disregards:

1.3.1.    the prior partial extinguishment of native title which enlarged the Crown's radical title sufficiently to enable grants which had no greater effect on native title;

1.3.2.    further or alternatively, that, prior to the enactment of the Native Title Act 1993 (Cth), the Crown could and did make grants of interests in land without acquiring the native title rights and, upon the enactment of that Act and the Validation (Native Title) Act (NT), those grants would have been and were validated and taken always to have been valid.

1.4.    The trial judge erred in finding that the value to the Appellant of acquiring the native title rights and interests would be a figure close to the freehold value (Reasons, [232)) The finding was erroneous:

1.4.1.    for the reasons identified in Ground 1.3 above; and

1.4.2.    further or alternatively, in light of his Honour's finding that compensation is not properly assessed simply on the basis that the Crown acquired radical or freehold title unencumbered by native title so freehold value is the appropriate measure (Reasons, [224]).

1.5.    The trial judge erred in reaching the figure of 80% by focussing on the nature of the rights held (Reasons, [233]) because that finding encompasses his Honour's erroneous findings that it is not appropriate to (Reasons, [220]):

1.5.1.    treat non-exclusive native title as valued in the same way as if those rights were held by a non-Indigenous person; or

1.5.2.    reduce the value of non-exclusive native title because it is inalienable even though that may be the proper analysis if the rights were held by a non­Indigenous person.

Those findings are erroneous because they focus, not on the nature and incidents of the rights held, but on:

1.5.3.    the identity (specifically the race) of the persons holding them; and

1.5.4.    further or alternatively, the cultural or ceremonial significance of the land and/or the attachment to the land which the Claim Group as an Indigenous community has, despite disavowing having done so (Reasons, [234]).

2.    The trial judge erred in failing to find that the economic value of the native title rights and interests which were extinguished or impaired by the compensable acts for which compensation was claimed was the sum of:

(a)    the usage value, comprising the market value of the freehold estate in Lot 16, Town of Timber Creek calculated at the time of each compensable act and applied on a square metre basis to each parcel of land the subject of the compensable acts; and

(b)    the negotiation value, comprising 50% of the difference between the market value of the freehold estate in each parcel of land the subject of the compensable acts and the usage value of each parcel of land the subject of the compensable acts.

2.1.    The trial judge erroneously rejected the expert economic evidence of Mr Wayne Lonergan (who assessed the economic value of the native title rights and interests on the above basis), erroneously finding that it was inappropriate to assess the economic value of the non-exclusive native title rights of usage in conventional economic terms by expressing the content of each of the native title rights in terms which would be used if each right existed in an entirely different context (such as under a lease or contract) and then to value them as a bundle with the practical and legal constraints they would carry with them (Reasons, 243]). The finding is erroneous because such an economic approach is entirely appropriate to the assessment of the economic value of a bundle of rights which is, as his Honour held (Reasons, [219]), principally usufructuary in nature.

2.2.    The trial judge erred in finding that an economic approach was inappropriate because that finding encompasses his Honour's erroneous findings that it is not appropriate to (Reasons, [220]):

2.2.1.    treat non-exclusive native title as valued in the same way as if those rights were held by a non-Indigenous person; or

2.2.2.    reduce the value of non-exclusive native title because it is inalienable even though that may be the proper analysis if the rights were held by a non­ Indigenous person.

Those findings are erroneous because they focus, not on the nature and incidents of the rights held, but on:

2.2.3.    the identity (specifically the race) of the persons holding them; and

2.2.4.    further or alternatively, the cultural or ceremonial significance of the land and/or the attachment to the land which the Claim Group as an Indigenous community has, despite disavowing having done so (Reasons, [234]).

2.3.    The trial judge erred in finding that the conventional valuation approach to the assessment of compensation for land compulsorily acquired as expressed in Spencer v Commonwealth (1907) 5 CLR 418 at 432 is inappropriate to the valuation of native title rights and interests (Reasons, [211]). The finding is erroneous because:

2.3.1.    the conventional valuation approach is commonly adopted in determining the economic value of rights or interests in circumstances where those rights or interests cannot be sold or transferred at all, or can only be sold or transferred to limited parties, or would not be willingly sold or transferred by the holder;

2.3.2.    further or alternatively, the conventional valuation approach is prescribed by item 2(a) of Schedule 2 of the Lands Acquisition Act (NT), and is thereby a relevant matter to which the Court may have regard in assessing compensation under the Native Title Act 1993 (Cth), by virtue of s51(4) of that Act.

55    Grounds 1 and 2 of the Commonwealth’s Supplementary Notice of Appeal read as follows:

1. The primary judge erred in finding that the economic value of the non-exclusive native title rights in question should be assessed at 80 percent of the freehold market value of the relevant land (Reasons [232]). The core reasoning underpinning the primary judge’s selection of 80 percent of freehold market value is found in Reasons at [231]-[232], and is infected by the following errors:

(a) the primary judge was wrong to characterise the non-exclusive native title rights as being “in a practical sense very substantial” (Reasons [231]);

(b) the primary judge was wrong to find that the non-exclusive native title rights “were exercisable in such a way as to prevent any further activity on the land” (Reasons [232]);

(c) the primary judge was wrong not to apply the test formulated in Spencer v Commonwealth (1907) 5 CLR 418 (Spencer test) to ascertain the economic value of non-exclusive native title rights in circumstances where his Honour had found that the economic value of exclusive native title rights would be the equivalent of the freehold market value of the land, and the freehold market value had been determined in accordance with the Spencer test (Reasons [211], [213]-[214]);

(d) the primary judge was wrong to find that, if the appropriate test for determining the economic value of the non-exclusive native title rights was the price at which the native title claim group would have been prepared to surrender their non-exclusive native title rights, the answer would be not at all (Reasons [232]), because:

(i) there was no or no sufficient evidentiary basis to support a finding that the native title claim group would not have been prepared to surrender their non- exclusive native title rights for any price at all, or for not less than a particular price; and

(ii) the primary judge failed to consider the fact that, and terms upon which, the native title claim group had voluntarily surrendered their native title rights over 15 parcels of land in the Town of Timber Creek to the Northern Territory by way of an Indigenous Land Use Agreement on 10 November 2009;

(e) the primary judge was wrong to find that, if the appropriate test for determining the economic value of the non-exclusive native title rights was the value to the Northern Territory of acquiring those rights, as the Northern Territory would not then be restricted by the nature of those rights which were surrendered, the answer would be a figure close to the freehold value of the land (Reasons [232]), because there was no or no sufficient evidentiary basis to support a finding that the Northern Territory would have paid, or been prepared to pay, a figure close to the freehold value of the land in order to acquire the non-exclusive native title rights by voluntary surrender or otherwise.

2. A legally correct selection of the percentage of freehold market value to represent the economic value of the non-exclusive native title rights would have been in the order of 50 percent, and would have taken into account and given weight to the following considerations:

(a) the Spencer test;

(b) that the non-exclusive native title rights did not include a right to say who could or could not come onto the land in question, or a right to make decisions about how the land could or could not be used;

(c) that the non-exclusive native title rights were not exercisable in such a way as to control who could come onto the land in question;

(d) that the economic value of the non-exclusive native title rights did not depend upon whether there was a valid co-existing interest in the land at the time the compensable act was done because, at all material times, the Northern Territory could have granted valid interests in the land that co-existed with the non-exclusive native title rights;

(e) that, prior to the date of any of the compensable acts, the Northern Territory’s radical title to the land had already been enlarged or expanded commensurately with the extinguishment of a native title right to control access to and use of the land.

56    Ground 1 of the Claim Group’s Notice of Cross Appeal reads as follows:

1.    When having regard to the freehold market value of the land in determining compensation for the entitlement under Pt 2 Divs 2-2B of the Native Title Act 1993 (Cth) (the NTA), being an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the acts on their native title (ss 51(1), (4), 51A; reasons [229]), the trial Judge erred in not holding that it was appropriate to adopt an amount equivalent to the freehold market value at the time a compensable act occurred, and erred in adopting 80% of that value (reasons [232]), because:

(1)    the compensable:

(a)    past and intermediate period acts (grants and public works) the subject of order 3 were invalid by the operation of the Racial Discrimination Act 1975 (Cth) (the RDA);

(b)    future acts (grants) the subject of order 9 were invalid by the operation of the NTA (and the criteria for the compensable effects of those acts ought not be materially different) ;

(2)    at the time of the compensable acts:

(a)    there were no valid interests in relation to the subject land other than the native title interests, save for the bare radical title of the Northern Territory constrained by the statutory provisions at (b) and (c);

(b)    the RDA constrained the power of the Northern Territory to deal with and grant interests in the land unless that could be done where the land was held under a non-native title (as too did the NTA in the case of the future acts) ;

(c)    the combined effect of the RDA and Crown Lands Acts 1931/1992 (NT) was that the Northern Territory could not deal with or grant interests in the land, being town land for the purposes of those Territory laws, save possibly for the grant of a miscellaneous licence under those laws (which could be done in relation to land held under a Crown lease);

(3)    the extinguishment of the native title on validation of the compensable past and intermediate period acts freed and discharged the radical title of the Northern Territory of the burden of the native title and enlarged the title of the Territory as an absolute or beneficial fee simple estate (and for the invalid future acts that occurs on an award of damages in lieu of an injunction).

Consideration

Introduction

57    The Claim Group is entitled to compensation on just terms for any loss, diminution, impairment or other effect of the compensable acts on their non-exclusive native title rights and interests (s 51(1) NTA).

58    The non-exclusive native title rights and interests held by the Claim Group before those rights and interests were extinguished by grants made by the Northern Territory were the rights set out in the Joint Statement and extracted at [11] of these reasons for judgment.

59    The Northern Territory argued that the primary judge made a number of errors which meant that his conclusion that the economic value of the Claim Group’s native title rights and interests was 80% of the freehold value of the land could not be sustained. It then set out what it said was the proper approach to the assessment of the award of compensation and submitted that this Court should assess the economic value of the Claim Group’s native title rights and interests by reference to the evidence before the primary judge.

60    In most, but not in all, significant respects the Commonwealth’s submissions reflected the same approach as the submissions of the Northern Territory.

61    The Commonwealth agreed with the primary judge that, as a matter of logic, the non-exclusive native title rights and interests were to be valued at an amount less than exclusive native title rights and interests. The issue is how much less.

62    The Claim Group contended that the primary judge erred in holding that the economic value of their native title rights and interests was only 80% of the freehold value. They argued that their native title rights and interests were equivalent to freehold and should have been valued at 100% of the freehold value.

63    The arguments of the Northern Territory, the Commonwealth and the Claim Group broadly address three main elements in the primary judge’s reasoning, namely, the extent of the Claim Group’s non-exclusive native title rights and interests, whether in assessing the value of the rights and interests it is open to take into account the value to the acquiring authority, and the effect of the inalienability of the Claim Group’s non-exclusive native title rights on the economic value of those rights.

64    In this section of these reasons for judgment, the parties’ arguments regarding each of these elements are outlined and considered. Then, the Northern Territory’s proposed method for determining the economic value of the Claim Group’s native title rights is considered. Finally, this section raises an alternative approach to the valuation of the Claim Group’s native title rights and interests.

The extent of the Claim Group’s non-exclusive native title rights and interests

The submissions of the Parties

65    In the way the reasons of the primary judge are expressed it seems that one factor was of primary importance in his assessment of the value of the Claim Group’s native title rights and interests at 80% of the freehold value of the land. That factor was that the rights and interests “in fact enjoyed were in a practical sense exercisable in such a way as to prevent any further activity on the land, subject to existing tenures” ([232]) [emphasis added].

66    The Northern Territory argued that the primary judge was wrong to reach that conclusion. The finding, so it was argued, elevated non-exclusive native title rights and interests to the status of exclusive native title rights and interests. It was wrong to so elevate those rights because the historical grant of pastoral lease PL366 over all the land in question was effective, save in respect of lot 47 affected by act 34, at common law to extinguish the native title right to exclusive possession, and thus to remove the right to control access to the land and to make decisions about the use of the land. Once extinguished, the right to exclusive possession was permanently lost to the Claim Group. As a result, the Claim Group’s non-exclusive native title rights and interests did not permit them to exclude third parties from the land, or to take action to prevent activities on the land by third parties consistent with the existence of those rights. Further, the particular incidents of the Claim Group’s native title rights and interests were themselves not exclusive. Thus, the Claim Group did not have a right to camp, to erect shelters on the land, or to hunt and fish to the exclusion of all others. Although some activities might be inconsistent with the Claim Group’s native title rights and interests, there was a broad range of activities which could be undertaken on the land consistently with those rights and interests: Western Australia v Brown [2014] 253 CLR 507, [2014] HCA 8 (Brown) at [46], [55], and [57].

67    The Northern Territory also contended that the primary judge was wrong to find at [228] that the Claim Group’s native title rights and interests “existed as a real impediment to any other grants of interest in the subject allotments” [emphasis added]. The Northern Territory further submitted that the primary judge was wrong to also find at [228] that the Northern Territory needed to acquire those rights before it “could proceed to treat the land or the allotments as part of its radical title to enable it to grant freehold or leasehold interests over those lots”. The Northern Territory argued that at the time when the compensable acts were done, the native title rights and interests were not an impediment to the grant of further interests in the land. At common law, native title rights and interests were exposed to extinguishment by a valid exercise of sovereign power inconsistent with the native title rights and interests. The passing of the RDA did not prevent the grant of interests which were consistent with the remaining non-exclusive native title rights and interests. The RDA did not prevent the grant of estates or interests which were not discriminatory between native title holders and non-native title holders. And, finally, despite the protection afforded by s 10(1) of the RDA, the very purpose of the NTA and VNTA was to retrospectively remove the impediment to the grant of inconsistent estates and interests through the past acts regime. That regime validated those acts and required them to be regarded as having always been valid.

68    The Commonwealth made a similar submission to the Northern Territory regarding the operation of the RDA. It contended that the RDA protects native title from racially discriminatory extinguishment including extinguishment on terms less favourable than those enjoyed by non-native title holders. The RDA does not invalidate a Crown grant which has no extinguishing effect on native title. The historical grant of pastoral lease PL366 extinguished native title rights to control access and the use of the lands at common law. The Northern Territory could have granted valid interests in the lands which did not have any greater extinguishing effect on native title. Therefore, the non-exclusive native title rights and interests should be valued on the basis that the land may be shared with others. The native title rights and interests did not amount to exclusive rights. For instance, the Northern Territory could have validly granted a miscellaneous licence, occupation licence or grazing licence over the land under the Crown lands legislation. These licences would not have had a greater extinguishing effect than the historical pastoral lease.

69    The Claim Group submitted that it is not particularly illuminating to characterise the native title rights and interest as non-exclusive without ascertaining the nature of the rights and interests in question. The rights and interests in this case were in practical terms exclusive. The Claim Group argued that there were no competing rights in the land. No other persons held concurrent rights with the Claim Group. The Claim Group relied upon the observation of the Full Court in Griffiths FC at [128] that the evidence showed that the Claim Group as a community had exclusive possession, use and occupation of the application area.

70    The native title rights and interests involved the full use of the land to live, forage, move about and use its resources. The Claim Group argued that the NTA recognises these rights and the recognition carries with it the right of the Claim Group to utilise the legal system to enforce those rights against others who do not hold the rights.

71    The Claim Group further contended that offences under the Crown lands legislation prohibiting unlawful occupation of the land prevented others from occupying the land.

72    Further, the RDA protected the native title rights from diminution by the grant of competing rights. The RDA also protected the enjoyment by the Claim Group of the use of the land: Western Australia v Commonwealth (1995) 183 CLR 373; [1995] HCA 47 (Native Title Act Case) at 438. Differential treatment of native title from other forms of title because of its different characteristics and because it derives from a different source is contrary to the RDA. The Claim Group contended that the effect of the RDA and the Crown Lands Act (NT) was that it would be impermissible to value native title less than freehold.

73    Neither the Northern Territory nor the Commonwealth pointed to any non-native title to benchmark the affected native title except freehold.

74    The historical pastoral lease PL366 which included the area of the lands in question, partly extinguished native title. The effect was that the Claim Group’s right to control access to the land was extinguished. However, the question for the purpose of valuation is how the remaining rights held by the Claim Group related to the rights held by others. The loss of the right to control access was not a matter of consequence because no others had rights of access to the lands.

75    The Claim Group submitted that Geita Sebea and Amodu Tijani established that the value of their rights are equivalent to the freehold value of the land.

76    The Claim Group contended that the operation of the Crown Lands Act (NT) limited the Northern Territory’s power to create co-existing rights to the grant of miscellaneous licences and the reservation of the power of resumption in leases granted by the Crown. When comparing the native title rights and interests with freehold it must be remembered that freehold itself is subject to statutory controls, for instance, for planning purposes. Yet it is not suggested that their economic worth is less because of their vulnerability to statutory controls or impairment. Further, the Claim Group could seek relief to prevent the creation of derogating inconsistent rights on the land.

77    South Australia submitted that the extinguishment of the right to control and determine the use of the land and to exclude others from the land effected by the grant of pastoral lease PL366 had more than an insubstantial impact on the rights and interests held and exercisable by the Claim Group.

Consideration

78    There is force in the arguments of the Northern Territory, the Commonwealth and South Australia that the primary judge overvalued the Claim Group's native title rights and interests by holding that those rights and interests “existed as a real impediment to any other grants of interests in the subject allotments, or more generally” [228], were “in a practical sense very substantial” [231], and were “in a practical sense exercisable in such a way as to prevent any further activity on the land, subject to existing tenures” [232].

79    Those assessments were likely to lead to overvaluing the Claim Group’s native title rights and interests because there were significant limits on the extent of those rights and interests which were not reflected in the descriptions used by the primary judge.

80    The grant of pastoral lease PL366 in 1882 extinguished the Claim Group’s exclusive native title. That meant that the right to control access to and make decisions about the lands was lost to the Claim Group and did not revive. It was open to the Northern Territory to make valid grants of rights and interests which were no greater than the rights and interests conveyed by pastoral lease PL366. The remaining non-exclusive native title rights and interests held by the Claim Group did not prevent the Northern Territory from making grants of rights and interests which were not inconsistent with those rights and interests. The scope of the capacity to grant rights and interests consistent with the non-exclusive rights and interests held by the Claim Group was wide.

81    Thus, for instance in Brown the High Court (French CJ, Hayne, Kiefel, Gageler, and Keane JJ) held that Western Australia could grant mineral leases over land in which the Ngarla people held non-exclusive native title rights and interests. The mineral leases allowed for the development of the large Mount Goldsworthy iron ore mine and associated town. At [57] the High Court explained:

[T]he mineral leases in issue in this case did not give the joint venturers a right of exclusive possession. In this respect, the mineral leases were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward. The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land.

[Emphasis added.]

82    In this case, the Northern Territory had the statutory power to grant licences to graze stock, licences to occupy the land for up to five years, and miscellaneous licences to take from the land substances or articles, such as timber, belonging to the Crown (ss 107, 108 and 109 Crown Lands Ordinance (NT) respectively). Although the Claim Group could take legal action to enforce their non-exclusive native title rights and interests, they had no power to exclude others from accessing the land or using the land in a way which was consistent with the existence of their native title rights and interests. The value to be ascribed to a resumed interest consists of all future advantages and potentialities, but it is the present value of such advantages or potentialities that fall to be determined: Turner v Minister of Public Instruction (1955-1956) 95 CLR 245; [1956] HCA 7 at 268 per Dixon CJ; Cedars Rapids Manufacturing and Power Company v Lacoste (1914) AC 569 at 576.

83    These limits on the Claim Group’s native title rights and interests mean that it was inaccurate to describe those rights as “a real impediment to the grant of any other grants of interests”, or that they were “exercisable to prevent any further activity on the land”. The description of the Claim Group’s native title rights and interests as “very substantial” is imprecise, but does suggest an overestimation of their value in view of the limits described.

84    It is well established that, for the purpose of determining whether native title rights and interests have been extinguished by the grant of inconsistent rights, it is necessary to compare the legal content of the rights rather than the way in which the rights have been exercised. The High Court has rejected the test of practical inconsistency: Brown at [59]. There is no reason why the same approach would not be applied in ascertaining the extent of native title rights and interests for the purpose of compensation claims. The reference by the primary judge to the practical sense in which the native title rights and interest were exercisable is not explained. However, that reference suggests that the primary judge assessed the extent of the native title rights and interests by reference to the way in which rights were exercisable rather than by reference to the legal content of the rights. Such an approach would be an impermissible basis upon which to make the assessment of the extent of the Claim Group’s native title rights and interests.

The value to the Northern Territory of acquiring the land

The submissions of the parties

85    The Northern Territory contended that the primary judge at [232] misapprehended the value of the Claim Group’s native title rights and interests by taking into account the value to the Northern Territory of acquiring the rights and interests, rather than looking to the value of the rights to the Claim Group. The primary judge said:

If the appropriate test was to see what was the value to the Territory of acquiring those rights, as the Territory would not then be restricted by the nature of those rights which were surrendered, the answer is that that would be a figure close to the freehold value.

86    That approach was inconsistent with the primary judge’s correct view, expressed earlier in his reasons for judgment, that what is to be assessed is the value to the owner of the rights and interests in question not the value to the acquirer. The primary judge said at [224]:

I accept that compensation on just terms for the extinguishment of non-exclusive native title rights and interests is not properly assessed simply on the basis that, upon the extinguishment of such native title, the Crown acquired radical or freehold title unencumbered by native title so that freehold value is the appropriate measure of compensation.

87    The Commonwealth submitted that the primary judge’s statement at [224] was a correct statement of principle, but his statement at [232] extracted above in [85] of these reasons for judgment was wrong in principle. The value to be assessed is the value of the interest acquired. But, in any event, there was no evidence that the Northern Territory would have paid near the freehold value to acquire the non-exclusive native title rights and interests. The evidence demonstrated what the Northern Territory paid for exclusive native title rights and interests acquired under the 2009 ILUA, but there was no evidence of what the Northern Territory would have paid for non-exclusive rights and interests.

88    The Claim Group contended that it is relevant to take into account that when the native title rights and interests were extinguished the Northern Territory acquired a full beneficial fee simple estate. The Northern Territory did not acquire the native title rights and interests, but the effect of the extinguishment was to vest an unencumbered freehold title in the Northern Territory. The Claim Group further submitted that the primary judge’s reference at [232] to “value to the Territory”, in the context of the reasoning set out at [228], indicated the consideration that the Territory would be prepared to pay for a notional surrender of the native title. That was an appropriate adaptation of the Spencer approach for assessing the market value of the rights and interests.

Consideration

89    It seems that the primary judge took into account the value to the Northern Territory of acquiring the Claim Group’s non-exclusive native title rights and interests as part of the assessment of the value of those rights. For instance at [217] he said:

The individual bundle of rights which the Territory received by the determination acts was different in character from the bundle of rights which the holders of native title enjoyed and exercised up to the time of the determination, but it was capable of indicating the economic value of the exclusive native title rights.

[Emphasis added.]

90    What the primary judge said at [232], extracted above at [85] of these reasons for judgment, also suggests that the value of the rights and interests to the Northern Territory was a factor in his reasoning.

91    The entitlement to compensation under s 51(1) of the NTA is for the loss, diminution, impairment or other effect of the compensable acts on the native title rights and interests. The loss to the holder of the rights is not fixed by reference to the value of the acquisition to the acquirer. In The Commonwealth v Reeve (1949) 78 CLR 410; [1949] HCA 22 at 418 Latham CJ said:

It is often said in compensation proceedings that that which is to be assessed is the value of the land to the owner, and this expression is sometimes understood and applied as if the proposition meant that the owner is entitled to recover whatever loss he may suffer from losing his land. But the point of the phrase “value to the owner” is not that the owner is entitled to damages for all his loss consequent upon acquisition of his land, but that the value to the acquiring authority is not the measure of compensation.

[Emphasis added.]

92    To the extent that an allowance for the benefit of the acquisition to the Northern Territory influenced the assessment of the value of the loss to the Claim Group, that allowance was not available. Any such allowance was prone to inflate the figure for compensation.

Inalienability of the rights

The submissions of the parties

93    The primary judge held that the value of the Claim Group’s non-exclusive native title rights and interests should not be reduced because the rights and interests were inalienable.

94    The Commonwealth and South Australia agreed with that conclusion and contended that Geita Sebea supported the view.

95    On the other hand, the Northern Territory argued that the Claim Group’s inability to alienate their rights and interests was a significant discounting factor and contended that Geita Sebea was distinguishable.

96    Although the Northern Territory and the Commonwealth differed regarding the effect of the inalienability of native rights and interests, both the Northern Territory and the Commonwealth contended that the primary judge erred in finding that he should depart from the Spencer approach to valuing those rights and interests.

97    The Northern Territory submitted that the economic value of the Claim Group’s native title rights and interests should have been valued by reference to the nature and incidents of the rights and interests, not by reference to the identity, and in particular the race, of the rights holders. The primary judge was therefore wrong where at he said at [220] that “it is not routinely appropriate to treat non-native title rights as valued in the same way as if those rights were held by a non-indigenous person”. This error in approach, so it was argued, was also reflected in the primary judge’s further conclusion at [220] that it was not routinely appropriate “to reduce the value of those rights because they are inalienable even though that may be the proper analysis if the rights were held by a non-indigenous person.”

98    The Northern Territory also submitted that the inalienability of the native title rights and interests was a commercially significant consideration requiring a substantial reduction in value. The inalienability of indigenous title in Geita Sebea was held not to reduce the value of the rights acquired, but that case was decided in a statutory and factual context so different to the present as to have no application. Further, the native title rights and interests could not be mortgaged, leased, subdivided or sold. Freehold with any of these restrictions would be worth less than unencumbered freehold title. A reduction of only 20% for these factors was clearly inadequate.

99    The purpose of the framework for determining the loss suffered on acquisition, so it was argued, is to provide for the determination of the value to the owner of the interests acquired. The conventional method of assessing the value to the owner is by determining the market value of the rights and interests acquired and supplementing that by taking into account matters subjective to the owner. The parties approached the proceeding in that way. It was common ground that the economic value of the native title rights and interests would be assessed by reference to their market value. That approach was consistent with the statutory framework in Sch 2 to the LAA to which the primary judge was entitled to have regard (s 51(4) NTA).

100    The Northern Territory then argued that, in assessing the economic loss, the primary judge was bound to determine the market value of the native title rights and interests by identifying the price a hypothetical willing buyer would pay to a hypothetical but not anxious seller to obtain the rights and interests. That is the test for market value formulated in Spencer and expressed in r 2(a) of sch 2 of the LAA. The test for market value is objective. It focuses on the nature and incidents of the rights acquired. The primary judge failed to apply this approach when he had regard to the race of the native title holders. There was no basis for that approach. The Claim Group did not claim any special economic value of the land and there was no evidence that the land had any economic value beyond its market value. It follows that by taking into account the race of the Claim Group the primary judge must have included in the economic loss assessment an element of the Claim Group’s subjective attachment to the land notwithstanding that such an element was to be included exclusively in the non-economic loss component. The primary judge thereby overvalued the economic loss.

101    The Northern Territory contended that the reasons given by the primary judge to depart from the conventional approach of valuing the acquired interest by reference to market value did not justify his approach. The primary judge said at [211]:

It is obviously artificial to focus upon the amount which a willing but not anxious purchaser might have been prepared to pay for the non-exclusive native title rights which were affected adversely by each of the determination acts. That is because, apart from the Territory and arguably the Commonwealth, those rights and interests cannot be sold, or transferred to a third party. It is also artificial, because the rights are not capable of alienation, to inquire as to the price at which the Claim Group might have been prepared to sell those rights. The conventional valuation approach expressed in Spencer therefore seems inappropriate.

The restrictions on alienation were no reason to depart from the Spencer approach. Rule 2(a) of Sch 2 of the LAA mandates the use of the Spencer approach and s 51(4) of the NTA expressly permits reference to this provision. Further, s 51A of the NTA sets freehold value as the upper limit for compensation and thereby provides some indication that a market approach should be adopted. The Spencer approach has been used in cases in which the right to sell was restricted: Corrie v MacDermott [1914] AC 1056; [1914] HCA 38 (Corrie) and Sydney Sailors’ Home v Sydney Cove Redevelopment Authority (1977) 36 LGRA 106 (Sydney Sailors’ Home).

102    The primary judge also rejected the Spencer approach because, as the native title rights and interests were inalienable, it was artificial as to enquire as to the price the Claim Group would have sold the rights and interests. That was not a basis, so it was argued, for the primary judge to depart from the Spencer approach because the approach is based on an hypothetical transaction. In a compulsory acquisition situation the vendor is unlikely to be willing, yet it is the position of the willing vendor which provides one of the reference points for the valuation process. Where land is subject to restrictions on alienation which will not apply to the acquiring authority, the value to be assessed is still the value to the owner. Where there is no established market because the subject matter is inalienable or has unique characteristics the market value may be assessed by analogy.

103    The Commonwealth submitted that the primary judge was wrong not to apply the Spencer test. The primary judge said that the test seemed inappropriate and explained at [217]:

As was pointed out in Geita Sebea, the perspective of the willing but not anxious seller and the perspective of the willing but not anxious buyer is a contrived analysis where there is no willing but not anxious seller, and the only willing but not anxious buyer (in that case the Crown) was acquiring rights which the indigenous people (because their inherent rule in alienability) did not themselves have. The individual bundle of rights which the Territory received by the determination acts was different in character from the bundle of rights which the holders of native title enjoyed and exercised up to the time of the determination, but it was capable of indicating the economic value of the exclusive native title rights.

104    The Commonwealth submitted that in this passage the primary judge misread Geita Sebea because in that case the High Court applied the conventional approach and did not reduce the value of indigenous rights because of restrictions on alienability.

105    The Commonwealth argued that there was no compelling reason based on the “true character” [212] of the native title rights and interests not to apply the Spencer test because the economic component was confined to the loss of rights of use of the land from a utilitarian perspective. That component was not to reflect an allowance for native title “related to the cultural or ceremonial significance of the land or the very real attachment to the land” which the Claim Group obviously has ([234]). Yet, the primary judge made such an allowance at [232] where he referred to the price at which the Claim Group would surrender their native title rights and interests, and said that they would not surrender the rights and interests at all. The Commonwealth argued that the Spencer test requires an objective value to be placed on the rights in question. It is an error to make the assessment by reference to the subjective view of the seller.

106    In any event, the primary judge was wrong in fact to conclude that the Claim Group was not prepared to relinquish their native title rights and interests at any price. There was evidence that the Claim Group entered into an ILUA in 2009 whereby they voluntarily surrendered their exclusive native title rights over 15 town blocks in Timber Creek for $6000 per lot, being the market value assessed by the Northern Territory Valuer-General.

107    The Claim Group contended that it is erroneous to conflate the primary judge’s licence to have regard to market value pursuant to s 51(4) of the NTA in conjunction with r 2(a) of Sch 2 of the LAA with a requirement to apply market value as the measure of economic loss.

108    The Claim Group further contended that the statutory scheme recognises the need for modification of the approach for assessing land value because of the reality that native title cannot be transferred outside of the native title holding community. The approach of the primary judge, so it was argued, was a permissible adaptation of rule 2(a) of Sch 2 of the LAA regarding market value. That approach was not inappropriate in view of the circumstance that native title may be surrendered to the Crown and was consistent with the decision in Geita Sebea.

Consideration

109    There is force in the argument that the primary judge did not apply the conventional approach to the valuation of the economic loss in that he included in the assessment some allowance for the loss of deep spiritual attachment to the land which was to be included only in the assessment of the non-economic component of the compensation.

110    At the point at which the primary judge fixed the value of the Claim Group’s non-exclusive native title rights and interests at 80% he stated at [232]:

If the appropriate test were as to the price at which the claim group would have been prepared to surrender their non-exclusive native title rights, the answer would be not at all.

111    It is unclear whether this statement reflects a consideration which led the primary judge to his conclusion. It may have been a check designed to verify by an alternative, but not utilised, path of reasoning. If that statement reflects part of the primary judge’s reasoning then it injects a factor which should not have been part of the assessment of the economic value of the rights and interests. That is to say, the reason the Claim Group was unprepared to surrender their native title rights and interests was not for economic reasons but because of their deep spiritual attachment to the land. That aspect was to be addressed in the assessment of the non-economic value of the claim for compensation. By including in the assessment of the economic value of the rights and interests a recognition of the non-economic element the primary judge overvalued the economic value of the rights and double counted the non-economic factors.

112    Even if that process did not occur at [232], there are indications elsewhere that the primary judge included in his assessment of the economic value of the Claim Group’s non-exclusive native title rights and interests an amount reflecting their deep spiritual attachment to the land. For instance, at [220] the primary judge said that it “is not routinely appropriate to treat non-exclusive native title rights as valued in the same way as if those rights were held by a non-indigenous person”. Similarly at [212] the primary judge said:

I also do not think it is appropriate simply to proceed on the basis of a comparison of the bundle of rights held by the native title holders, remote from their true character, for the purposes of assessing the extent to which they might equate to, or partially equate to, the bundle of rights held by a freehold or other owner or person having an interest in land.

113    What is meant by the true character of the bundle of rights of the native title holders is left unexplained. It seems to encompass both economic and non-economic aspects of the rights and interests, or possibly only the latter. In the following paragraph, [213], the primary judge concluded that exclusive native title rights should not necessarily be valued at less than freehold for the reason that the native title rights are inalienable. He continued “such an assumption would fail to have regard to the real character of native title held by Indigenous Australians” [emphasis added]. Again, the notion of the real character of native title rights is not explained, but appears to encompass the totality of the native title rights and interests, that is to say, both the economic and non-economic elements.

114    In the result, there are indications that the primary judge did not separate the economic and non-economic elements of the native title rights and interests in assessing the solely economic value of those rights and interests even though he directed himself at [234] to keep the components separate.

115    Contrary to the approach taken by the primary judge, it was necessary to discount the value of the Claim Group rights and interests because those rights were inalienable. Geita Sebea does not warrant a different approach. In that case a group of indigenous Papuans held a communal usufructuary right to occupy certain land with a perpetual right of succession. The Government leased the land from them and built an aerodrome on it. The Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939 vested the land in the Crown for an estate in fee simple free from all encumbrances and provided for compensation to be determined under the general Land Acquisition Ordinance 1914. That Ordinance provided that the measure of compensation was to be the value of the land acquired. Section 3 of the Land Ordinance 1911-1935 provided that native Papuans shall have no power to sell, lease or otherwise deal with the land. The High Court (Rich ACJ, Starke and Williams JJ) rejected the argument that the restriction on the indigenous Papuan’s right to sell or otherwise deal with the land affects its value. Williams J (with whom Rich ACJ agreed) said at 557:

[T]he appellant’s title to the land was a communal usufructuary title equivalent to full ownership of the land, so that they were entitled to be compensated on this footing (Amodu Tijani v Secretary, Southern Nigeria). The Land Ordinance 1911-1935, sec, 3, prohibits the disposal of land owned by natives by sale, lease or any other dealing and any contract made by them to dispose of land is void, but this restriction could have no detrimental effect upon the determination of the value of the land when compulsorily acquired, because in the hands of the Crown it would be freed therefrom. Indeed, the reference in the Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939, sec 3, to the Lands Acquisition Ordinance 1914 is sufficient to show that the appellants as full owners of the land are entitled to have the compensation assessed upon as ample a basis as though it had been acquired from a European.

116    Starke J said at [555]:

The question whether the provision of the Land Ordinance restricting the rights of the appellants to sell or otherwise deal with the land affects its value should be answered in the negative. The Ordinance, sec. 3, provides that save as thereinafter provided a native shall have no power to sell, lease, or otherwise deal with, or dispose of, any land, and any contract made by him to do so shall be void. But the Government may in certain cases purchase or lease native lands (sec. 5). The Lands (Kila Kila Aerodrome) Acquisition Ordinance 1939, however, disposes of the matter. It enables the Government to acquire the lands in question here and prescribes for payment of compensation to the natives or persons entitled thereto.

[Footnotes omitted.]

117    The general principle applicable was expressed in Corrie as follows:

The value which has to be assessed is the value to the old owner who parts with his property, not the value to the new owner who takes it over. If, therefore, the old owner holds the property subject to restrictions, it is a necessary point of inquiry how far these restrictions affect the value.

[Emphasis added.]

118    In Sydney Sailors’ Home Hope JA (with whom Moffitt P and Glass JA agreed) explained that Geita Sebea did not alter that principle. Hope JA said at 118, “it is rather a case concerned with the construction of three Papuan ordinances, and the application of those ordinances to particular circumstances”.

119    The general principle was applicable in the present case and meant that the inalienability of the Claim Group’s non-exclusive native title rights and interests should have been taken into account in the valuation of the economic worth of the rights and interests.

120    Again, contrary to the view taken by the primary judge, the Spencer approach was applicable even though the Claim Group’s native title rights and interests were inalienable. Critical to the understanding of the way the Spencer approach applies in circumstances such as the present is the recognition that it postulates an hypothetical marketplace. Griffiths CJ in Spencer explained at 431 the way the test operates thus:

There is, no doubt, much land in many places the value of which per acre is as definitely fixed as the price of wheat or sugar. But in the case of a new port, in a new State [referring to Fremantle], where the area of land is limited, and each piece differs in many of its characteristics from the rest, it is impossible to apply any such rule. Bearing in mind that value implies the existence of a willing buyer as well as of a willing seller, some modification of the rule must be made in order to make it applicable to the case of a piece of land which has any unique value. It may be that the land is fit for many purposes, and will in all probability be soon required for some of them, but there may be no one actually willing at the moment to buy it at any price. Still it does not follow that the land has no value. In my judgment the test of value of land is to be determined, not by inquiring what price a man desiring to sell could actually have obtained for it on a given day, ie, whether there was in fact on that day a willing buyer, but by inquiring “What would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?” It is, no doubt, very difficult to answer such a question, and any answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have to offer for the land to induce such a willing vendor to sell it, or, in other words, to inquire at what point a desirous purchaser and a not unwilling vendor would come together.

121    A clear example of the way in which the Spencer approach postulates an hypothetical market is found in Commonwealth v Arklay (1952) 87 CLR 159; [1952] HCA 76. The question was how to assess the value of land for the purpose of compensation for acquisition where wartime controls fixed the price at which the land could be sold. As to the application of Spencer, Dixon CJ, Williams and Kitto JJ said at 170-171:

This test requires considerable adaptation when the compulsory acquisition occurs in a period of controls. The test presupposes that a vendor can ask any price which it would be reasonable to expect the purchaser to pay. This price would usually exceed the price fixed by a controller; for there would be no necessity to fix prices if they were intended to represent market prices. It would be unreasonable to impute to a vendor a willingness to sell his property at the controlled price to a purchaser who was likely, if he held the land until controls were abolished, to be able to sell the land at an enhanced price. An owner, though otherwise willing to sell, would himself prefer to wait, if guided by ordinary prudence, in the hope that the regulation of land sales requiring the consent of the controller would terminate.

The very regulation imposing the condition that the consent of the delegate of the Treasury must be obtained supposes that the amount which a willing vendor would demand and would obtain exceeds the price to which, as a matter of economic policy, they would be limited by the controller. The reason why value for the purpose of compensation is measured by what an owner prepared to sell would demand and what a buyer desirous of obtaining the land would give is that this ascertains the value in money contained in the land. Once the notion is introduced of an external authority forbidding the parties or one of them to require or give so much, it ceases to evidence the value contained in the land, the value to the owner, and becomes no more than a figure permitted as an expression of government economic policy. An inquiry into the figure which, on the hypothesis that on a given date an application was made to the Treasury, the Treasury control would have sanctioned may not, having regard to the administrative practice that grew up, be impossible, but after all it is but an inquiry into what an administrator would have done in an event that did not take place and is far away from a measure of value to the owner. On the other hand the existence of a regulation of land sales would be calculated itself to affect what a buyer would be prepared to give. He himself would be buying an asset of which he could not, if need arose, freely dispose at the price he would demand from a buyer free to give it. It would not be right therefore to say that the existence of a regulation of land sales must be disregarded. It must be taken into account as it affects what a buyer would be prepared to give to obtain the land, not as limiting his freedom to offer what he likes or his freedom to buy at what he is prepared to offer, but as it operates on his judgment in determining what he is prepared to give, that is to say, as a consideration affecting the value of the land to him as a buyer. It may be remarked that it necessarily affects what a prudent man in the position of the dispossessed owner would have been willing to give for the land sooner than fail to obtain it: Pastoral Finance Association v The Minister. What has to be ascertained as a measure of value is what the willing seller would demand, on the assumption that the consent of the controller would be forthcoming, and what a willing buyer who must himself submit to the controls if and when his turn came to sell, should they not in the meantime be terminated. The least price at which a vendor could be reasonably expected to sell in these circumstances would be a price which would include, in addition to the price fixed by the controller if it could be ascertained, a sum to compensate him for the present value of the enhanced price which the purchaser might expect ultimately to obtain. This would be an ordinary business consideration which no vendor could be expected to overlook: McMahon v The Housing Commission of New South Wales; McMahon v The Valuer-General. This sum might be difficult to estimate but difficulty of estimation should never deter a Court from allowing in the assessment of compensation every item of value which should properly be taken into account.

[Footnotes omitted.]

122    The economic value of the Claim Group non-exclusive native title rights and interests should have been assessed by reference to the Spencer test even though those rights and interests were inalienable. The primary judge was in error to regard the Spencer test as inappropriate for that purpose. That conclusion did not recognise that the Spencer test postulates an hypothetical transaction. To have applied the Spencer test would have reduced the economic value of those rights and interests, although not necessarily significantly. It should also be noted that although the inalienability of the rights and interests would have reduced the economic value of those rights and interests, inalienability would probably have the opposite effect in the valuation of the loss of the deep spiritual attachment to the land because an inalienable right would, but for extinguishment, last forever. We return to the treatment of inalienability below when dealing with non-economic loss.

The preferred approach of the Northern Territory

123    The Northern Territory argued that the primary judge had no basis upon which to reject the approach taken in a valuation report by Wayne Lonergan, an expert called by the Northern Territory.

124    Mr Lonergan said that a fair value for the Claim Group’s non-exclusive native title rights and interests could be established by reference to two components. The first is the usage value of remote land in the area. That reflects the value to the native title holders of the use of the land for the purpose of the exercise of their native title rights and interests. The second element is the negotiation value. That arises because the value of the land may be greater in an alternative use not directly available to the native title rights holders, so a potential purchaser would be willing to share some of the gains in order to capture the balance. A fair outcome of the negotiation between the hypothetical purchaser and the Claim Group would be an equal sharing of the difference between the usage value and the freehold value (Lonergan report [59]). That formulation was said to be consistent with economic models which value property that produces no cash flow.

125    The Northern Territory contended that Mr Lonergan’s approach was to be preferred to a valuation based on intuitive determination of a percentage of the freehold value as adopted by the primary judge because it uncouples the economic value of the native title rights and interests from those aspects of the freehold title which bear no correlation with the desirability, utility or enjoyment of the native title rights and interests. Specifically, the Northern Territory contended that while freehold value is increased by infrastructure, public works and amenities around the land, those factors do not contribute to greater enjoyment of native title. That would be the result of any direct percentage comparison of native title with freehold. The Northern Territory further contended that Mr Lonergan’s approach employed conventional economic theory which has been routinely adopted by courts in other contexts to determine economic value. Mr Lonergan calculated the value of the Claim Group’s native title rights and interests at $248,764 if the valuation made by Wayne Wotton, the valuer called by the Northern Territory, was used as a basis. Mr Lonergan did not calculate the value of the Claim Group’s native title rights and interests on the basis of the valuation made by Ross Copland, the valuer called by the Commonwealth.

126    The primary judge said at [243] about Mr Lonergan’s methodology for the evaluation of the economic value of the Claim Group’s non-exclusive native title rights and interests:

The reason why I have not accepted the Territory’s case on this issue is because it is, in essence, based upon Mr Lonergan’s assumption that it is appropriate simply to value the usage rights of the Claim Group in conventional economic terms. That is, he has assumed it is appropriate to express the context of each of the native title rights in terms which would be used if that right came to exist in an entirely different context (eg under a lease or other contract) and then to value them as a bundle with the practical and legal constraints they would carry with them. For the reasons I have given, I do not consider that that is an appropriate starting assumption. Once that assumption is not accepted, the analysis of the usage value by Mr Lonergan becomes an inappropriate foundation for the valuation exercise as proposed by the Territory.

127    The basis upon which Mr Lonergan’s methodology was rejected by the primary judge was not justified, because the assessment of the economic value of the rights and interests was meant to exclude any amount for the Claim Group’s loss of deep spiritual attachment to the land. The result is that the economic value of the Claim Group’s non-exclusive native title rights and interests should be assessed in conventional economic terms.

128    That is not to say that Mr Lonergan’s approach should be accepted. Each of the two components used by Mr Lonergan, namely, the usage value and the negotiation value, relied on assumptions which involved a certain degree of conjecture or judgment. For instance, the usage value was based on the freehold value of remote land because it was said that the more valuable town land with access to road and other services did not add to the native title holders’ ability to use the land. Land without road access or services was as valuable for the exercise of the Claim Group’s non-exclusive native title rights and interests as land with those services. That judgment is contestable. Perhaps more so is the assessment of the negotiation value as 50% of the difference between the usage value and the freehold value. Mr Lonergan said in respect of this choice “there is no definite basis for deciding what outcome within the relatively wide negotiating range will be achieved” (Lonergan report [78]). Those uncertainties mean that the methodology is not particularly more attractive than the evaluative judgment of the comparative rights which is expressed as a percentage of the freehold value of the land.

Reassessment of the economic value of the Claim Group’s non-exclusive native title rights and interests

129    As just explained in these reasons for judgment, the primary judge made a number of errors of principle which affected the valuation of the Claim Group’s non-exclusive native title rights and interests.

130    The assessment did not take into account the extent of the limitations on those rights of the 1882 grant of pastoral lease PL366 and the consequences of the loss of the right to control access to and make decisions for the land. The assessment included elements which should have properly been part of the valuation of the non-economic component of loss. It wrongly valued the rights by reference to the practical exercise of the rights rather than the legal content of them. By regarding the Spencer approach as inappropriate, the assessment wrongly failed to take into account the inalienability of the rights as a discounting factor and wrongly took into account the value to the Northern Territory of the surrender of the rights.

131    The Northern Territory and the Commonwealth submitted that if the Court found that the primary judge had made errors of principle then the Court should assess the value of the economic loss on the basis of the evidence before the primary judge. We now address that task.

132    Each of the errors identified had the effect of overvaluing the economic loss of the Claim Group.

133    The approach adopted by the parties to the assessment of economic loss was to apply the provisions of Sch 2 of the LAA with such adaptation as was required by the nature of the rights and interests involved. For present purposes that approach will be followed.

134    The starting point is an analogy of freehold with exclusive native title. Then, the value of non-exclusive native title can be derived by adjusting freehold value to account for the restrictions and limitations applicable to the non-exclusive native title rights.

135    The grant of the historical pastoral lease PL366 had the result that the right to control access to the lands was extinguished. The Northern Territory had the right to grant co-existing rights and interests to others such as grant grazing licences, occupation licences, and miscellaneous licences. The Claim Group had limited ability to remove unlawful users from the land. The offences for unlawful use of the land under the Crown lands legislation did not prevent people accessing the land for purposes such as recreation. And finally, the Claim Group did not have the right to confer permission on non-native title holders to enter upon and use the land. A willing but not anxious purchaser would take into account the ability of the Northern Territory to grant co-existing interests even if none had been granted at the time of extinguishment. A purchaser would pay less for a bundle of rights which did not include a power to exclude others or invite others onto the land. The economic value to the Claim Group was reduced because their rights were inalienable and they did not have the right to exploit the land for commercial purposes.

136    At the same time, the Claim Group had extensive rights to use the land. They could live on it and utilise its resources for sustenance. They could conduct ceremonies, meetings and cultural activities on the land.

137    In this process of comparing the rights of the Claim Group with the rights of a holder of freehold title, no allowance is made for the attachment of the Claim Group to the land. The assessment of the economic element is confined to the material nature of the native title rights and interests.

138    Having identified the differences between the nature of the native title rights held by the Claim Group and the rights held by a holder of freehold title it is necessary to make an evaluative judgment of the reduction from freehold value which properly represents the comparative limitations on the native title rights and interests. In its notice of appeal, and in argument, the Commonwealth submitted that a value “in the order of fifty per cent” would have been legally correct. The central proposition in the Commonwealth’s submissions on reaching this figure was based on the Spencer test: namely, that a purchaser would pay “significantly less” for a bundle of rights that did not include a power to exclude others from the land or invite others onto the land. The Commonwealth accepted that

The selection of this value for a figure known to range somewhere between 0 and 1 is a broad-brush but not arbitrary valuation on the evidence before the Court.

139    We agree that is the nature of the task. Contrary to the Commonwealth’s submissions, we consider the legal content of the non-exclusive native title rights and interests is not so insubstantial as to represent only half of the freehold value of the land in question. Balancing the nature of the restrictions on the Claim Group’s non-exclusive native title rights and interests, the economic value of those interests is 65% of the value of freehold title.

An alternative approach

140    Later in these reasons for judgment at [237] there is reference to the adoption by the High Court in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 (Ward) of the observation by Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (Milirrpum) that the relationship of Aboriginal people to land is, whatever else, a spiritual relationship in which ancestors, the people and all else are organic parts of one indissoluble whole.

141    The primary judge referred to the passage in relation to the non-economic loss claim. However, in the course of evaluating the economic loss claim at [212] and [213] respectively he referred to the need to take account of the true or real character of native title rights and interests. Those references were likely meant to reflect something of what was captured in the words of Blackburn J.

142    Section 51(1) should be construed in a manner which reflects the nature of the subject matter with which it deals and when that is done, it is by no means clear that Parliament intended there to be the kind of binary approach to compensation adopted by the parties in this proceeding. The central concern of s 51(1), in its terms, is with the effect of the compensable act. The use of the phrase “loss, diminution, impairment or other effect” suggests that Parliament contemplates there may be more than one effect, and that the effects may vary in nature, quality and significance. The effects, however they be established, are on the bundle of rights that constitute the “native title rights and interests”. That bundle of rights has the unique, indissoluble character to which we have referred elsewhere in these reasons, and of which the primary judge was acutely conscious. It is in relation to that bundle of rights and interests that the terms of the compensation must, as s 51(1) states, be “just”. The statute does not ask in terms what is the “effect” on the land in relation to which rights and interests are held; nor on its value. Nor does the statute confine the effect to the use or exercise in any particular way of the bundle of rights constituting native title. Properly construed, s 51(1) contemplates compensation to native title holders of a more holistic nature.

143    In seeking to formulate the proper approach to the assessment of compensation for the loss of native title rights and interests it is useful to note what the High Court said in Ward at [95]:

Further, recognising that the rights and interests in relation to land which an Aboriginal community may hold under traditional law and custom are not to be understood as confined to the common lawyer's one dimensional view of property as control over access reveals that steps taken under the sovereign authority asserted at settlement may not affect every aspect of those rights and interests. The metaphor of "bundle of rights" which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.

144    Once it is seen that Aboriginal rights and interests in land have dimensions remote from the notions enshrined in Australian land law, the question arises as to whether any real assistance can be found in applying provisions of land compensation statutes to the task of assessing compensation for the loss of native title rights and interests. The primary judge in the present case did so at the joint invitation of the parties. As has been explained, that led him into error in a number of respects. The problem concerning the use of such provisions, even with adaptation, is that they are designed to address the value of land as a material object traded in a market for a like or analogous commodity. Native title rights and interests are of such a different type and significance to the holders that it may well be appropriate to loose the assessment from the shackles of Australian land law and approach the compensation exercise without dividing value into economic and non-economic components. It might rather be more appropriate to seek to place a money value as best as can be done on the one indissoluble whole. Such an approach would not render the market value of freehold irrelevant to the exercise, but would avoid the arguments, as just considered, about whether there has been double counting as the result of including factors in both the economic and non-economic categories. We elaborate on this matter later in these reasons for judgment at [280].

DID THE PRIMARY JUDGE ERR IN ADOPTING THE COPLAND FREEHOLD VALUATIONS?

145    The Northern Territory contended that, whatever methodology was used to assess the economic loss, the primary judge was in error in respect of the valuations of some of the lots. Ground 3 of the Northern Territory’s Notice of Appeal reads as follows:

3.    The trial judge erred in finding that the market value of freehold estates in various Lots the subject of the compensable acts was as valued by Mr Ross Copland, the expert land valuer called on behalf of the Commonwealth of Australia, and not as valued by Mr Wayne Wotton, the expert land valuer called on behalf of the Appellant (Reasons, [411], [412], [414], [429]).

3.1.    The trial judge failed to give adequate reasons for adopting the valuations of Mr Ross Copland in the Lots identified below (Reasons, [422], [425]).

3.2.    The trial judge should have adopted the valuations of Mr Wayne Wotton in the Lots identified below because Mr Wotton's valuations more accurately reflected comparable sales and the proximity of the lots to provision of access and services:

3.2.1.    the lots comprising approximately 2 hectares, namely:

3.2.2.    the lots comprising large rural lots over 4 hectares, namely:

146    Ross Copland was a valuer who wrote a report and was called by the Commonwealth to provide expert evidence of the freehold value of each lot in question. Wayne Wotton was a valuer who wrote a report and was called by the Northern Territory to provide expert evidence of the freehold value of each lot in question.

147    A third valuation was provided by Brian Dudakov and Les Brown, valuers called by the Claim Group. The primary judge rejected the evidence of Dudakov and Brown at [406]. There is no challenge to that finding on appeal or cross-appeal.

148    The primary judge found both Mr Copland and Mr Wotton impressive witnesses. However, their valuations differed in respect of certain lots and the primary judge had to make a choice between some of their differing valuations. The primary judge explained the reason for his choice as follows:

411.    Where the valuation of particular lots is in issue, I have generally preferred the evidence given by Copland to that given by Wotton. His evidence was given in a clear and coherent manner and I found his evidence of the method and cross checks he had undertaken to be comprehensive and rigorous. He was able to rely on data he had collected from detailed inspection of allotments and inquiries which he made in Timber Creek and search certificates for the lots obtained from the Northern Territory. He also had the benefit of particular experience in the Northern Territory which enabled him to draw on his experience valuing properties in other remote rural towns with similar economies.

412    Whilst I have no particular adverse reason to not act on the evidence of Wotton, I have preferred the evidence of Copland because I was impressed with his thoroughness, and by his more detailed knowledge of Timber Creek and related or potentially comparative areas in the Northern Territory and the common sense way in which he made use of that knowledge as he considered appropriate.

[Emphasis added.]

149    Lot 16 is a large rural block adjacent to the airstrip. It is surrounded on the other three sides by other lots. Mr Copland assessed the value of Lot 16 as $70,000 and Mr Wotton assessed the value of Lot 16 at $15,000.

150    At [425] the primary judge set out the contending positions concerning large rural allotments such as Lot 16 thus:

Copland considered large, rural lots from other jurisdictions within the Northern Territory, a schedule of which was annexed to his report. He explained that he considered that larger lot size alone would have to attract a significantly higher price than a 2 ha block. Wotton stated that he adopted prices for the parcels of land containing areas greater than 20,000 sq m at rates lower than the rates which were paid for parcels containing area around 20,000 sq m, to reflect the fact that the larger parcels of land, particularly to the north of the airstrip and to the north east of Timber Creek, lack direct access and provision to services. It was his evidence that he did not consider the market would pay double the value of a rural residential lot even where the land size was double, because they would get additional area not no [sic] real advantage in terms of use.

151    The Northern Territory argued that the primary judge’s general preference for the evidence of Mr Copland did not justify the acceptance of his valuation of Lot 16. Mr Copland recorded in his report that it was a critical assumption in his valuations that “standard services, including town power, water and access would be available to each of the allotments”.

152    The Northern Territory argued that there was evidence that Lot 16 did not have town water or power connections. It does not have road access and does not have a river frontage.

153    Mr Wotton’s valuation was based on the allotment being “a remote rural parcel lacking services, lacking direct road frontage”. Thus, it was argued that Mr Wotton’s valuation was based on assumptions consistent with the established facts.

154    The Northern Territory argued that Mr Copland’s valuations were based on assumptions not supported by the evidence. However, in his oral evidence Mr Copland explained the basis of his valuation thus:

By inference [in reference to a grazier who took a grazing licence on the property], there would have had to have been access to the property in some form in terms of an easement or some other way of accessing the property over that time.

Further, there must have been – which is typical for Norther Territory properties fronting a river – access by a licence or agreement to take water from the river. It’s a significant parcel. It’s far larger than any of the rural residential parcels in that locality that were normally 2 hectares. And I took the approach that yes, it was – there’s a – it would have been a sought after property in terms of its river frontage and size, and made the assessment of $95,000 in 1994 based on the sales which is $2750 a hectare and then placed a modest discount on it back to 1980, which is when Mr Fogarty took the lease, down to $70,000 which represents $2500 a hectare. And it’s on that basis that I made the valuations.

[Emphasis added.]

155    Thus, it can be seen that Mr Copland addressed the issues of access and water. Mr Copland’s reference to river frontage may be understood as a reference to the proximity of lot 16 to the Victoria River, as shown in the map at [8] of these reasons for judgment. The way in which he did so reflected his “particular experience in the Northern Territory” to which the primary judge referred when explaining his preference for the evidence of Mr Copland. There is no basis for the Northern Territory’s ground of appeal in relation to the valuation of lot 16. The primary judge was entitled to accept the evidence of Mr Copland. No separate argument was raised in respect of the other lots over four hectares, namely lots 47, 75 and 79.

156    The Northern Territory also contested the valuations accepted by the primary judge for the 2 hectare allotments. It did so firstly in respect of lot 21.

157    Mr Copland and Mr Wotton valued lot 21 as of 16 April 1987. Mr Copland assessed the value at $28,000. Mr Wotton assessed the value at $15,000.

158    There was sales evidence available for this lot. On 8 January 1993, it sold as vacant land for $25,000. On 18 July 1996, it sold for $35,000.

159    Mr Wotton depreciated the 1993 sale back to 1987. Mr Copland depreciated the 1996 sale back to 1987. The Northern Territory argued that the primary judge should have preferred Mr Wotton’s approach because it reconciled both later sales. However, Mr Copland explained that the 1993 sale was probably below market value. It was thus open to the primary judge to accept Mr Copland’s evidence on the issue in preference to Mr Wotton’s.

160    In respect of the other two hectare lots (lots 20, 22, 23, and 26 – 32) the Northern Territory similarly relied on the argument that the primary judge should have preferred the way Mr Wotton analysed the limited sales data which included the prior sales of lot 21. The primary judge was entitled to accept the evidence of Mr Copland. Apart from lot 20 where the difference between the valuers was $20,000 the differences range from $1,000 to $4,000 per lot. In context such differences reflect no more than understandable variations within the range of professional judgments.

DID THE PRIMARY JUDGE ERR BY FAILING TO AWARD COMPOUND INTEREST?

The ground of appeal

161    The second ground of the Claim Group’s cross-appeal read as follows:

When determining that the entitlement on just terms to compensate the native title holders for any loss, diminution, impairment and other effect of the acts on their native title (NTA s 51 (1)) included, as part of the compensation, an award of interest from the time a compensable act occurred (reasons [254]), the trial Judge erred in not holding that interest be awarded on a compound basis at the "risk free rate" (equivalent to the borrowing costs of the Northern Territory calculated in reports by an economist tendered by the Commonwealth), and erred in allowing instead statutory interest (reasons [279]), because:

(1)    in accordance with compensatory principles in compulsory acquisition law to which regard may be had in determining the compensation (NTA s 51 (4)) interest is allowed (statute apart) because as it is inequitable for the acquiring authority to acquire or have occupation of the land in place of the former owner or occupier (the native title owners) and to retain the compensation money without paying interest from the time of acquisition;

(2)    in equity land is presumed to be an income producing asset, such that it is not necessary for the native title holders to prove that had they been paid the compensation money at the time a compensable act occurred they would have made what the trial Judge termed as "the most beneficial use of the money open" to them through profitable commercial or investment activities (reasons [267], [277]);

(3)    the compensable:

(a) past and intermediate acts the subject of order 3 were invalid at the time of their occurrence by operation of the RDA;

(b) future acts the subject of order 9 were invalid at the time of their occurrence by operation of the NTA;

(4) the compensable past and intermediate period acts were validated pursuant to Pt 2 Divs 2, 2B of the NTA and the Validation (Native Title) Act 1994 (NT) with statutory provision that relates validation (acquisition) back to the date of the act (and for the invalid future acts that practically occurs · on an award of damages in lieu of an injunction for the act);

(5) the trial Judge wrongly disregarded the benefits accruing to the Northern Territory (reasons [259]), because those benefits are relevant to the standard of fair dealing between the Northern Territory and the native title holders that forms part of the entitlement to compensation on just terms; those benefits accruing to the Northern Territory being that:

(a) the Northern Territory occupied and used the land under colour of the invalid acts and received rents and profits from the land (including receipt of payment under the invalid grants), and

(b) the Northern Territory retained the compensation money without paying interest from the time the acts occurred out of its borrowing costs that are compounded at the risk free rate;

(6) allowing, as the trial Judge did, pre-judgment interest pursuant to s 51 A of the Federal Court of Australia Act 1976 (Cth) in the rates fixed by Federal Court Practice Note CM 16 is to apply interest on compensation and does not allow for interest to be awarded as part of an entitlement to compensation on just terms.

The primary judge’s reasons

162    The primary judge said that it was common ground that the function of an award of interest was to compensate a party for the loss suffered by being kept out of money for the relevant period. The question to be determined was whether interest was to be awarded on a simple or compound basis.

163    At common law pre-judgment interest is routinely awarded on a simple interest basis. Compound interest is only allowed based on the principles in Hungerfords v Walker (1989) 171 CLR 125; [1989] HCA 8. The Claim Group did not argue for compound interest on that basis.

164    Rather, the Claim Group argued that where, as in the present case, the payment of compensation had been delayed for a considerable time, equity assumes an entitlement to interest on a compound basis.

165    The primary judge held that the authorities relied on by the Claim Group did not support that approach. The Commonwealth v Huon Transport Pty Ltd (1945) 70 CLR 293; [1945] HCA 5 (Huon Transport) and Marine Board of Launceston v Minister for the Navy (1945) 70 CLR 518; [1945] HCA 42 (Marine Board) per Dixon J at 531-533 allow for interest to be paid in compulsory acquisition cases by operation of an equitable assumption that the right to receive interest on the compensation takes the place of the right to retain possession. The equitable right to interest developed by analogy to the entitlement which would arise in relation to specific performance of a contract to buy and sell land where there is no statutory provision for an entitlement to interest. The primary judge held that those cases did not mandate that the interest be paid at a compound rate.

166    The cases in which compound interest had been awarded in equity were where money was obtained or withheld by fraud or defaulting fiduciaries, Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285; [1998] HCA 20 (SCI), or to oblige a trustee or defaulting fiduciary to account for the profit wrongly made by the misuse of funds: West Deutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669 (West Deutsche).

167    The primary judge said that, on the other hand, the authorities did not preclude the Court from awarding compound interest if it thought that such an award was appropriate in order to secure the Claim Group fair compensation or compensation on just terms. Thus, if on the facts the funds had been received at or about the time of the compensable acts and had been applied by the Claim Group as working capital in a business or trade and that business or trade would have been successful to a significant degree, the Court could award compound interest on the market value of the acquired property. The primary judge addressed each of these possible foundations for the award of compound interest.

168    As to the fairness of an award for compound interest, the primary judge rejected the Claim Group’s argument that the delay in payment was especially prolonged in native title cases in comparison with compulsory acquisition cases. He said that the fact that there was no statutory entitlement to compensation until the NTA was introduced in 1993, and that there was no statutory process for the exchange of offers as there was in the LAA, were not directly relevant to the determination of the appropriate basis on which to assess interest on the compensation. Similarly, the fact that the Northern Territory received payments for the use of the affected land and, if it was the fact, had the benefit of borrowing at market rates compounded over the period were not directly relevant to the assessment, particularly where the validation provisions meant that the compensable acts were to be treated as lawful. The appropriate starting point was not by reference to the potential or actual gain made by the Northern Territory from acquiring the native title rights and interests.

169    As to whether the Claim Group would have made the most beneficial use of the compensation monies, the primary judge assessed the evidence of a number of occasions on which the Claim Group had received payments. In 2003 $370,000 was paid by the Department of Defence in respect of the construction of an army bridge and road, and in 2009 a substantial payment was made for the acquisition of native title rights in the Wilson Street development. In both cases the funds were distributed to members of the Claim Group. Then in 2008, Bradshaw Contracting was formed. In 2013/2014 it had a turnover of $1 million. The profit has been used in the business and not distributed. There was also evidence of three leases made around 2011 – 2013 by Aboriginal corporations comprising members of the Claim Group and involving annual rental payments of $2,000, $3,000 and $7,200 per year. There was also evidence of a ten year lease commencing in 1990 with a final annual rental of $1,900.

170    The primary judge said that the evidence of commercial activity was not extensive and was comparatively recent. He said that the substantial delay in undertaking such activities was readily explained and he would have been prepared to infer that the activity would have been taken at an earlier time on the basis of evidence of more contemporary commercial activity. However, he was not persuaded that the Claim Group would have used the compensation money had it been paid earlier by investing without any expenditure and accumulating the interest year by year to the present.

171    The primary judge then determined that simple interest was the appropriate basis for the award of interest and fixed the rate as in the Federal Court Practice Note CM16 or equivalent for the period in which the practice note was not in operation.

Consideration

172    The argument of the Claim Group on the appeals, although not a model of clarity, concerning compound interest seems to fall into three parts. The Claim Group first argued that they were entitled to compound interest on the award for economic loss without proof of what they would have used the compensation for had it been paid earlier on the basis of the equitable principle that a fiduciary is not permitted to profit from the improper withholding of trust funds. Then, the Claim Group argued that, even if the Northern Territory was not a fiduciary, the primary judge took a constricted view of the authorities concerning the equitable jurisdiction to award compound interest because those authorities now allow for the award of compound interest without the need for the Claim Group to show the loss suffered by being kept out of money by demonstrating how they would have used the compensation money if it had been paid at the time of the compensable acts. Finally, the Claim Group argued that the only way to arrive at just terms or fair compensation was by awarding the Claim Group the interest which the Northern Territory saved on its borrowings by retaining the compensation money over a very long period. Each of those arguments will now be addressed.

173    As to the jurisdiction in equity, the Claim Group argued that the equitable principle applicable in the case of vendor and purchaser of land applied by analogy. When payment of the purchase price is delayed, it is inequitable for the purchaser to have both possession and to retain the purchase money. In equity the purchaser holds the price on behalf of the vendor and the vendor is entitled to interest on the outstanding purchase price. In Marine Board and Huon Transport the High Court held that the entitlement to interest on this basis applied to the compulsory acquisition of property other than land, in those cases, where the Commonwealth compulsorily acquired tugboats and ships in wartime. The primary judge was correct to conclude that these cases did not require the payment of compound interest.

174    The primary judge concluded at [250] that equity has intervened to award compound interest in a limited class of cases, namely, where money was obtained or withheld by fraud or defaulting fiduciaries, or to oblige a trustee or defaulting beneficiary to account for the profit wrongly made by the misuse of funds. That conclusion is supported by the cases. In SCI McHugh and Gummow JJ said at [74]:

It is true that in the administration of its remedies, equity followed a different path to the common law with respect to the award of interest. In cases of money obtained and retained by fraud and money withheld or misapplied by a trustee or fiduciary, the decree might require payment of compound interest. However, in Westdeutsche Bank v Islington London Borough Council, the House of Lords answered in the negative the question whether, where statutes, of which s 51A(2)(a) is a local example, provide for orders for payment of simple but not compound interest upon common law claims, equity, in its auxiliary jurisdiction, will supplement the statute by providing for an award of compound interest.

[Footnotes omitted.]

175    In West Deutsche Lord Browne-Wilkinson said at 701C – 702D:

In the absence of fraud courts of equity have never awarded compound interest except against a trustee or other person owing fiduciary duties who is accountable for profits made from his position. Equity awarded simple interest at a time when courts of law had no right under common law or statute to award any interest. The award of compound interest was restricted to cases where the award was in lieu of an account of profits improperly made by the trustee. We were not referred to any case where compound interest had been awarded in the absence of fiduciary accountability for a profit.

    …

In President of India v La Pintada Compania Navigacion S.A. [1985] A.C. 104, 116 Lord Brandon of Oakbrook (with whose speech the rest of their Lordships agreed) considered the law as to the award of interest as at that date in four separate areas. His third area was equity, as to which he said:

“Thirdly, the area of equity. The Chancery courts, again differing from the common law courts, had regularly awarded simple interest as ancillary relief in respect of equitable remedies, such as specific performance, rescission and the taking of an account. Chancery courts had further regularly awarded interest, including not only simple interest but also compound interest, when they thought that justice so demanded, that is to say in cases where money had been obtained and retained by fraud, or where it had been withheld or misapplied by a trustee or anyone else in a fiduciary position … Courts of Chancery only in two special classes of case, awarded compound, as distinct from simple, interest.”

These authorities establish that in the absence of fraud equity only awards compound (as opposed to simple) interest against a defendant who is a trustee or otherwise in a fiduciary position by way of recouping from such a defendant an improper profit made by him.

See also Lord Goff at 692D, Lord Slynn at 718F, Lord Woolf at 726B-E, and Lord Lloyd at 739H.

176    The Claim Group then addressed the question whether the Northern Territory occupied a fiduciary relationship to the Claim Group for the purpose of the application of this limited jurisdiction in equity. The Claim Group accepted that the tendency of High Court authority is against the existence of a fiduciary duty that constrains the statutory power to alienate land. In Wik Brennan CJ (Dawson J at 100 and McHugh J at 167 agreeing) said at 96-97:

In the present case the only relevant function performed by the Crown is the exercise of the power of alienation. That is the only power the exercise of which relevantly affects native title. With all respect for the opposing view, I am unable to accept that a fiduciary duty can be owed by the Crown to the holders of native title in the exercise of a statutory power to alienate land whereby their native title in or over that land is liable to be extinguished without their consent and contrary to their interests.

The exercise of statutory powers characteristically affects the rights or interests of individuals for better or worse. If the exercise of a discretionary power must affect adversely the rights or interests of individuals, it is impossible to suppose that the repository of the power shall so act that the beneficiary might expect that the power will be exercised in his or her interests. The imposition on the repository of a fiduciary duty to individuals who will be adversely affected by the exercise of the power would preclude its exercise. On the other hand, a discretionary power - whether statutory or not - that is conferred on a repository for exercise on behalf of, or for the benefit of, another or others might well have to be exercised by the repository in the manner expected of a fiduciary. Thus in Guerin v The Queen, the Crown accepted a surrender by an Indian band of native title to land in order that the land be leased by the Crown to a third party. The statutory scheme which provided for the surrender to the Crown and its subsequent dealing with the land imposed on the Crown the duty to act "on the band's behalf", as "the appointed agent of the Indians ... and for their benefit" or for their "use and benefit". Similarly, in the United States the statutory scheme for dealing with Indian land requires the sanction of a "treaty or convention entered into pursuant to the Constitution". The scheme has its origin in the Indian Nonintercourse Act 1790 (US) which, in its successive forms, has been held to impose on the Federal Government "a fiduciary duty to protect the lands covered by the Act".

The power of alienation conferred on the Crown by s 6 of the 1910 Act is inherently inconsistent with the notion that it should be exercised as agent for or on behalf of the indigenous inhabitants of the land to be alienated. Accordingly, there is no foundation for imputing to the Crown a fiduciary duty governing the exercise of the power.

[Footnotes omitted.]

177    However, the Claim Group argued that equity attaches to the extinguishment of native title in the same way that it attaches to the voluntary surrender of native title. However, as the passage extracted in the previous paragraph indicates, Brennan J indicated that a fiduciary relationship would only arise where the fiduciary has acted in such a way that it is reasonable for the beneficiary to believe and expect that the fiduciary will act in the interests of the beneficiary to the exclusion of the interest of any other person. That does not suggest that equity attaches to the voluntary surrender of native title per se.

178    In any event, the position outlined at common law has been overtaken by the NTA which provides for the validation of the compensable acts. That validation means that the power of the Northern Territory was unrestricted by any obligation that it be exercised for the benefit of native title holders and to the exclusion of all others. It is a necessary consequence that the Northern Territory did not have a fiduciary relationship with the Claim Group in respect of the acquisition of the native title rights and interests.

179    Further, the Claim Group’s argument relies upon some element of wrongdoing on the part of the Northern Territory. In oral submissions, counsel for the Claim Group put the argument as follows:

The underlying equitable principle is not to do with what the landowner does with his or her land; it’s the inequity brought upon by the acquiring authority’s conduct. It’s not in the category of defaulting fiduciary whose flagrant disregard or anything like that and it’s a more limited thrust [sic].

…

…we don’t have to put our case as a wrongdoing any higher than the wrongdoing is not paying.

That argument is not sustainable in light of the primary judge’s finding that at no time have the acts done by the Northern Territory been invalid. That finding was not challenged. Thus, even if the Northern Territory had been in a fiduciary relationship with the Claim Group, no relevant wrongdoing was established on the part of the Northern Territory.

180    The Claim Group next argued that, even in the absence of a fiduciary relationship, there was an equitable jurisdiction to award compound interest in the circumstances of this case. The Claim Group argued that the primary judge took a constricted view of the equitable jurisdiction by his reference to West Deutsche.

181    In West Deutsche, the Bank and the Islington Borough Council entered into an interest swap transaction. That type of arrangement was later held to be beyond the power of the Council. The Bank sued for the return of money paid under the agreement and also sought compound interest on the amount outstanding. Before the House of Lords only the claim for compound interest was in contention. The Bank relied on a cause of action in equity, namely, that the council held the money on trust and that the Bank was entitled to trace the money in the hands of the Council. The Bank also relied on a common law claim of money had and received. It was common ground that compound interest could not be awarded at common law. The question was whether compound interest could be awarded in equity.

182    The Bank argued that the Council was a fiduciary and the claim for compound interest fell within the limited category of cases in which a fiduciary was held accountable for profits made by the fiduciary. The House of Lords held that the Council did not stand in a fiduciary relationship with the Bank. Thus, the remaining issue was whether the rule in equity should be extended to allow compound interest on the common law claim for the return of the money.

183    The House of Lords split three / two on that issue. Lord Browne-Wilkinson, Lord Slynn and Lord Lloyd determined that the equitable rule should not be extended. That was because in the way the case unfolded there had been only limited argument on the point. Also, Parliament had legislated recently to limit interest to simple interest in respect of certain proceedings. To alter the equitable rule would usurp the function of Parliament. Lord Woolf and Lord Goff, however, were prepared to extend the scope of the equitable jurisdiction to allow for the award of compound interest on common law claims for restitution.

184    Each of the Law Lords accepted the existing rule in equity allowed for compound interest in two cases only.

185    Lord Goff explained the rationale for extending the equitable rule at 697B-F:

I recognise that, in so holding, the courts would be breaking new ground, and would be extending the equitable jurisdiction to a field where it has not hitherto been exercised. But that cannot of itself be enough to prevent what I see to be a thoroughly desirable extension of the jurisdiction, consistent with its underlying basis that it exists to meet the demands of justice. An action of restitution appears to me to provide an almost classic case in which the jurisdiction should be available to enable the courts to do full justice. Claims in restitution are founded upon a principle of justice, being designed to prevent the unjust enrichment of the defendant: see Lipkin Gorman v Karpnale Ltd. [1991] 2 A.C. 548. Long ago, in Moses v Macferlan (1760) 2 Burr. 1005, 1012, Lord Mansfield C.J. said that the gist of the action for money had and received is that “the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.” It would be strange indeed if the courts lacked jurisdiction in such a case to ensure that justice could be fully achieved by means of an award of compound interest, where it is appropriate to make such an award, despite the fact that the jurisdiction to award such interest is itself said to rest upon the demands of justice. I am glad not be forced to hold that English law is so inadequate as to be incapable of achieving such a result. In my opinion the jurisdiction should now be made available, as justice requires, in cases of restitution, to ensure that full justice can be done. The seed is there, but the growth has hitherto been confined within a small area. That growth should now be permitted to spread naturally elsewhere within this newly recognised branch of the law. No genetic engineering is required, only that the warm sun of judicial creativity should exercise its benign influence rather than remain hidden behind dark clouds of legal history.

186    Lord Woolf said at 722F-H:

There may be no clear previous authority to support this conclusion but this is not surprising where the relatively new jurisdiction of ordering restitution is involved. What is more important than the absence of clear support in the authorities for the grant of compound interest is the absence from the existing authorities of any statement of principle preventing the natural development of a salutary equitable jurisdiction enabling compound interest to be awarded. The jurisdiction is clearly desirable if full restitution in some cases is to be achieved. It is relevant here to repeat what is stated at the outset in the bank’s case under the heading “The Position in Principle:”

“1. ‘… any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep:…’

[Authorities omitted.]

187    The Claim Group contended that the reliance by the primary judge on West Deutsche was too limited in that it failed to take account of the development which had occurred later in the House of Lords in Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2008] 1 AC 561 (Sempra Metals). Sempra Metals Limited was a company engaged in group litigation against the Inland Revenue Commissioners. Sempra had been required to pay tax under UK legislation which the Court of Justice of the European Communities found contravened the European Communities Treaty. The vice of the UK legislation lay in the requirement on some companies to pay tax earlier than was required of other companies. European Community law required that Sempra have an effective remedy for the breach of the treaty. That required the UK courts to consider the circumstances in which UK law permitted the award of interest. For reasons not central to this discussion, the question ultimately determinative in the House of Lords was whether the UK law provided for an award of interest on a common law claim for restitution.

188    A significant step in the reasoning of the House of Lords was the way in which it dealt with common law claims for damages for breach of contract to pay a debt. Lord Nicholls explained the issue at [74]:

I start with the broad proposition of English law that as a general rule a claimant can recover damages for losses caused by a breach of contract or a tort which satisfy the usual remoteness tests. This broad common law principle is subject to an anomalous, that is, unprincipled, exception regarding one particular type of loss arising in respect of one particular type of claim. The exception comprises claims for interest losses by way of damages for breach of contract to pay a debt. The general common law principle does not apply to such claims. Damages are not recoverable in cases falling within this exception.

189    Lord Nicolls then explained that the exception should no longer apply. He said at [92]:

92    … The common law should sanction injustice no longer. The House should recognise the remnant of the restrictive common law exception for what it is: the unprincipled remnant of an unprincipled rule. The House should erase the remains of this blot on English common law jurisprudence.

…

94    … the House should now hold that, in principle, it is always open to a claimant to plead and prove his actual interest losses caused by late payment of a debt. These losses will be recoverable, subject to the principles governing all claims for damages for breach of contract, such as remoteness, failure to mitigate and so forth.

Lord Hope at [17], Lord Scott at [132] and Lord Walker at [165] took the same view.

190    As the claim for restitution devolved from the common law action for money had and received, and the latter was subject to the exception just removed, the way was clear for the House of Lords to hold that compound interest was available at common law in a claim for restitution.

191    Lord Hope said at [22]:

[T]he time has come to recognise that the court has jurisdiction at common law to award compound interest where the claimant seeks a restitutionary remedy for the time value of money paid under a mistake.

192    In respect of the remedy, Lord Hope said at [28]:

So the remedy of restitution differs from that of damages. It is the gain that needs to be measured, not the loss to the claimant. The gain needs to be reversed if the claimant is to make good his remedy.

193    Lord Nicholls agreed that the common law should allow compound interest on a claim for restitution at [112] and said in respect of the remedy in that case at [103]:

In the ordinary course the value of having the use of money, sometimes called the “use value” or “time value” of money, is best measured in this restitutionary context by the reasonable cost the defendant would have incurred in borrowing the amount in question for the relevant period. That is the market value of the benefit the defendant acquired by having the use of the money. This means the relevant measure in the present case is the cost the United Kingdom Government would have incurred in borrowing the ACT [ Advance Corporations Tax] for the period of prematurity. Like all borrowings in the money market, interest charges calculated in this way would inevitably by calculated on a compound basis.

194    Lord Scott agreed that the law of restitution should be developed so as to allow for interest including compound interest. But the present case did not allow for an award of compound interest because there was no evidence of the rate at which the government would have borrowed money. Sempra was entitled to recover damages in tort for a claim analogous to breach of statutory duty. It was entitled to compensatory damages, namely, the interest it would have earned if the money prematurely paid had been placed on deposit or for interest saved if money was used to repay borrowings.

195    Lord Walker and Lord Mance both also favoured the outcome that compound interest be available in claims for restitution, but would achieve that result by extending equity’s jurisdiction to apply to the common law remedy of restitution in the manner preferred by the minority (Lord Goff and Lord Woolf ) in West Deutsche. Lord Mance said at [239] – [240]:

239    … Lord Goff and Lord Woolf in the Westdeutsche case considered that the equitable jurisdiction to award compound interest extended to personal claims where there was no question of failure to account as a fiduciary: see eg per Lord Goff, at pp 693H-695E, and Lord Woolf, at pp 726H-730H. In my view, the House can and should now adopt this approach. The courts of equity developed the equitable jurisdiction to award interest. There is no sustainable reason in modern conditions for continuing to limit it artificially in a way which may prevent the court doing equity.

240    I would in these circumstances respond to Sempra’s invitation to revisit the Westdeutsche case [1996] AC 669 by adopting the minority approach in preference to that of the majority and also by determining that in appropriate circumstances equity can go further and provide relief in respect of any actual interest benefit received from any principal sum paid by mistake, even though such principal may be recouped before action brought. However, while the basic aim should be to restore any actual benefit received, I emphasise that I regard equity’s jurisdiction in these respects as discretionary, as, it is clear, did the minority in the Westdeutsche case.

Lord Walker at [185] took the same approach.

196    So far as Sempra Metals is useful for the purposes of the present appeal it is only in relation to the views expressed about extending the jurisdiction of equity to award compound interest beyond the two exceptional categories previously recognised. That is because the Claim Group’s claim for compound interest was made in reliance on an analogy with the equitable jurisdiction. For instance, in their written submissions dated 2 December 2016 the Claim Group stated at [90]:

The case here for interest on a compound basis did not rest on proof of damages as an exception to the general absence of a common law power to make an order for the payment of interest. Here, the obligation rests upon the dispossessed owner of the land being treated in equity as the (beneficial) owner of the compensation money and the acquiring authority as trustee. The obligation being imposed, it does not depend on what the claimant would have in fact done had the price for acquisition been paid at the earlier time. Equity awards interest when money is used by a trustee or anyone else in a fiduciary position who misapplies the money or makes use of it for his or her own benefit. The claimant’s financial position is irrelevant. The material issue is the use or presumed use of the money by the respondent. It is simply not necessary to establish that the claimant would have applied the funds in a profitable way: cf. Reasons [253].

197    However, in Sempra Metals only Lord Walker and Lord Mance favoured the extension of the equitable jurisdiction. Thus, the state of authorities on the precise point in issue before the primary judge remained as stated by McHugh and Gummow JJ in SCI referred to in the extract in [174] of these reasons for judgment. Thus, the primary judge correctly concluded at [251]:

In my view, the authorities do not support the more general proposition put by the applicant that equity will assume, as the basis for awarding compound interest, that in circumstances such as the present the fact of the claim group having not received their entitlement to compensation for a considerable period means that the entitlement should be assessed on a compound basis.

198    However, this conclusion does not demonstrate, as the Claim Group alleged, a constricted view of the equitable jurisdiction. The primary judge went on to say at [252]:

On the other hand, I do not think that there are any authorities directly applicable and which would preclude the Court, if it decided that the award of compound interest was an appropriate course to adopt to secure for the Claim Group fair compensation or compensation on just terms, from granting compound interest. The NTA is silent on the topic. That does not foreclose the conclusion for which the Applicant contends: cf Federal Commissioner of Taxation v Interhealth Energies Pty Ltd (No 2) (2012) 204 FCR 423 at [13]. The absence of any prescription in the NTA as to the manner of calculating interest leaves that to the Court. It does not preclude, where appropriate, the imposition of compound interest.

199    We agree with the primary judge that the scheme for the payment of compensation under the NTA does not exclude an award of compound interest in an appropriate case.

200    In any event, the extension of the equitable jurisdiction proposed by Lord Walker and Lord Mance does not support the Claim Group’s argument for compound interest in the present case. The basis for the award of interest on the amount awarded for economic loss is to compensate the Claim Group for the extinguishment of their non-exclusive native title. Whether equity should intervene in common law restitutionary cases has no bearing on the question of compensation.

201    The so called constricted view was a description used in Ben v Suva City Council [2008] FJSC 17 (Suva SC) relied upon by the Claim Group. The Supreme Court of the Fiji Islands (Mason, Handley and Sackville JJ) decided that the Court had power to award compound interest in a compulsory acquisition case where there was no statutory provision for interest. However, although the award in that case included compound interest, the approach taken by the Court was in substance no different from the approach taken by the primary judge in the present case.

202    The question before the Supreme Court of the Fiji Islands was whether there was jurisdiction to award compound interest under the State Acquisition of Lands Act (SALA). At [9] the Supreme Court of the Fiji Islands noted that the SALA is silent on the matter of interest on compensation awarded, before concluding that nothing in the SALA “precludes the Court from making a proper allowance for the impact of delay or inflation upon the provision of a just compensation.”

203    The Court then said at [12] –[13]:

[12]    The respondent accepted in this Court, as it had below, that an interest component was properly due. However, it disputed the High Court’s "jurisdiction" or "power" to award compound interest. When confronted with the undoubted proposition that there are circumstances in which a court of equity has awarded compound interest, the respondent retreated to the proposition that the types of case in which such power has been exercised in the past involve defaulting fiduciaries, especially those who have or are presumed to have profited from their breaches.

[13]    There is no longer any basis for taking such a constricted view. Both the common law and equity have abandoned lingering objections in principle to the award of interest, including compound interest, where it is just to do so in order to provide a proper remedy for an established entitlement. For example, compound interest may be awarded if this is appropriate to provide compensatory damages according to general principles in contract (see eg. Hungerfords v. Walker (1988) 171 CLR 125) or to provide restitution for unjust enrichment (see Sempra Metals Ltd. (formerly Metallgesellschaft Ltd.) v. Inland Revenue Commissioners [2007] UKHL 34, [2007] 3 WLR 354). These developments are, in part, the working out of general principles freed from any lingering hostility to interest as usury and, in part, the consequence of recognising the ravages of inflation since the Second World War. In Sempra, Lord Hope stated (at [41]) that "the obvious reason for awarding compound interest is that it reflects economic reality." See also Miliangos v George Frank (Textiles) Ltd. [1976] AC 443.

204    In the same way the primary judge accepted that the Court was free in the present case to award compound interest if the circumstances justified that outcome. The Supreme Court of the Fiji Islands recognised at [16] that the ways and means of compensating for long delay may vary depending on the case and the evidence.

205    Significantly, nothing in Suva SC suggests that in determining whether to award compound interest, the Court should have regard to the gain made by the acquiring council. Rather, the Supreme Court of the Fiji Islands took the same approach as the primary judge in the present case, namely, that the amount of the compensation should be determined by the loss to the claimant.

206    The final argument of the Claim Group came closest to addressing the real issue. The central focus must be on the requirement of the NTA. It requires that the compensation provide just terms. It is difficult to see the justification for the lengthy and complex arguments about the equitable jurisdiction which have taken so much time. In the end, the test to be met under the statute is straightforward notwithstanding that the application to the facts in a particular case might be complicated.

207    On this aspect the Claim Group argument was narrow. It argued that it was unjust for the Northern Territory to have the benefits of the Claim Group native title rights and interests over a very long period without paying the compensation award and thereby saving borrowing costs of that amount. The Claim Group said that only an award of compound interest would answer that unfairness. An award of simple interest would not do so. Such an award reflected the amount of the benefit gained by the Northern Territory.

208    The primary judge said at [259] that it was not clear that the benefits obtained by the Northern Territory were directly relevant to the assessment of compensation under s 51 and s 53 of the NTA. Rather, the primary judge examined what use the Claim Group would have made of the compensation money had it been paid earlier. The approach of the primary judge reflected the terms of the NTA. It requires that compensation be provided to the Claim Group. That involved an examination of the loss incurred by the Claim Group, not the gain made by the Northern Territory. Section 51 does not provide for restitution to the Claim Group of the profit made by the Northern Territory from the delay in payment of compensation. Compensation is not the same as restitution.

209    It is noteworthy that the Claim Group argument dealt with the point of principle alone. That is to say, there was no contention that, if it were appropriate for the primary judge to examine what the Claim Group would have done with the compensation monies had they been paid earlier, then the primary judge came to the wrong conclusion on the facts. That conclusion on the facts may not have been the conclusion we would have reached. It may have been open to regard the operation of Bradshaw Contracting as evidence sufficient to justify compound interest at least for a limited period in the recent past. But a court of appeal should not interfere with a primary judge’s findings of facts unless they are demonstrated to be glaringly improbable or contrary to compelling inferences: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43] per French CJ, Bell, Keane, Nettle and Gordon JJ. The findings of the primary judge do not fall into those categories.

210    Furthermore, even if the Claim Group was correct that the proper inquiry was about the advantage to the Northern Territory of the delay in payment, that success would not have assisted the Claim Group because there was no evidence of the benefit, if any, the Northern Territory gained by saving on its borrowing costs.

211    The Claim Group also relied upon the preamble to the NTA to argue that an award of compound interest would better serve the purpose of the NTA to address the disadvantage faced by Aboriginal peoples and Torres Strait Islanders as a group. However, no evidence was led demonstrating that the failure to receive the compensation money at the time of the compensable acts was the cause of particular social disadvantage for members of the Claim Group. That is not to say that the matters referred to in the preamble might not justify an award of compound interest where there is evidence of disadvantage and a causal link between it and the failure to receive compensation earlier.

212    Thus, in summary, the Claim Group has not established that the Northern Territory was in a fiduciary relationship with the Claim Group. The argument regarding Sempra Metals is also not established. The extension of the equitable jurisdiction relied upon was a minority view, which in any case related to a cause of action not brought by the Claim Group. Finally, the Claim Group failed to establish that the award of simple interest was unfair or did not amount to just terms.

213    It follows that the Claim Group has failed to establish that the primary judge erred in awarding simple, rather than compound, interest.

214    Some of the Claim Group’s arguments addressed the applicable rate of interest that they argued the primary judge should have awarded. However, the Claim Group did not submit that, if simple interest were found to have been correctly awarded, the interest rate should have been anything other than the Practice Note rate. In light of the conclusion reached above regarding the appropriateness of the award of simple interest, it is not necessary to consider the Claim Group’s arguments regarding the rate of interest.

215    It follows that the second ground of the cross appeal has not been made out.

Form of the order for interest

216    Ground 5 of the Supplementary Notice of Appeal for the Commonwealth read as follows:

Grounds 1-4 of the appeal will not require an alteration to the manner in which, or the rate at which, interest is calculated in this case (Reasons [279]). However, in order to establish the correct legal principle: the primary judge erred in finding that the interest to be awarded on the economic value of the non-exclusive native title rights in question is awarded as part of the compensation under s 51(1) of the NTA, rather than as interest on the compensation (Reasons [254]).

217    At [254] the primary judge said:

To that extent, I have accepted the Applicant’s contention that the interest to be awarded is awarded as part of the compensation, rather than interest on the compensation. That is, the entitlement to interest in circumstances where the market value is to be determined at the date of the compensable acts necessarily includes interest on that market value to provide for compensation on fair terms, or compensation which is in a just amount.

218    Paragraph 3 of the orders made by the primary judge was as follows:

3.    The compensation payable to the native title holders by reason of the extinguishment of their non-exclusive native title rights and interests arising from the said act is:

(a)    Economic value of the extinguished native title rights: $512,400;

(b)    Interest on the said sum of $512,400 assessed in accordance with the reasons for judgment: $1,488,261;

(c)    Allowance for solatium of $1,300,000;

Totalling $3,300,661.

219    The Commonwealth contended that the primary judge erred in holding that interest was part of the compensation. He should have held that interest was an amount payable on the compensation and the orders should have reflected that conclusion.

220    The Commonwealth acknowledged that the outcome of the argument would not alter the amount of interest awarded, but would require that the order for interest be differently expressed.

221    The Commonwealth relied on the judgments of a majority of the judges in Marine Board. The issue was whether a regulation providing for the Court to order “compensation which it thinks just” granted jurisdiction to the Court to order interest. Dixon J said at 532 – 533:

The difference, I think, is quite clear between the sum awarded or assessed as compensation as at the date of acquisition for loss of property and a sum awarded for interest or compensation because the acquisition deprived the claimant of the profitable occupation or use of the property without any immediate recoupment of capital in money. But, where a legislative instrument empowers a court or tribunal to deal with the question of compensation, it is a question of interpretation whether its jurisdiction is extensive enough to cover incidental matters and so to enable the court or tribunal to order that interest shall be paid on the compensation assessed and awarded, where according to legal or equitable principles it is payable. Though in America the reparation expressed by the word compensation is considered incomplete unless pending payment it includes interest on the capital sum arrived at, in English law I should not think that without context the primary meaning of the word would go so far. But the jurisdiction to determine compensation may be readily interpreted as extending to what is consequential upon or incidental to the award. Where the sum awarded carries interest according to the substantive law, including in that expression the doctrines of equity, it is no great step to say that the tribunal dealing with the matter may so declare.

…

...the Court may include in its order a provision for the payment of interest where, as in this case, interest is independently payable under the principles of equity. In other words, it may dispose of the particular matter in its entirety by doing complete justice instead of dividing the question involved between two proceedings.

222    McTiernan J said at 535:

If in the case of any property compulsorily acquired there would be a right in equity to receive interest on the compensation, it would be a partial compensation to deny that right. In my opinion, according to the proper construction of reg. 60G, it is an incident of the jurisdiction which it confers upon the Court to determine and award just compensation, to order payment of interest on the compensation.

223    Williams J considered that the power to order just compensation or compensation included the power to award interest. He held that even if that were not so there was power to order interest in equity. He then referred to two cases which involved the exercise of that power and said at 537:

In the Toronto Case, Viscount Cave said that "the general rule under which a purchaser who takes possession is charged with interest on his purchase money from that time until it is paid is well established, and has on many occasions been applied to compulsory purchases." This statement is couched in slightly different terms to that of Lord Warrington of Clyffe in Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission that "the right to receive interest takes the place of the right to retain possession and is within the rule." The former statement refers to the interest as interest on the compensation, whereas the latter statement includes the interest in the compensation. But the two statements are alike in all substantial respects. The former is perhaps more appropriate to the form of the present question than the latter. Both statements make it clear that, if there is a compulsory purchase of property of such a nature that, if it had been purchased under a contract, the court of equity could have ordered specific performance, then the court, in assessing compensation, can, in the absence of a statutory prohibition, by analogy to the general equitable rule, without any statutory authority, order the payment of interest on the amount awarded from the date that the resuming authority entered into possession.

[Footnotes omitted]

224    Latham CJ, in dissent, said at 526-527:

The cases which show that interest may be allowed when specific performance of a contract relating to the acquisition of a chattel (e.g. a ship) can be ordered are, I consider, only illustrations of the principle that it is equitable to give compensation for delay in the payment of money. It remains true, in my opinion, that a sum so awarded for interest is allowed, not as compensation for acquisition of property, but as compensation for delay in making payment for property. It was said in Inglewood Pulp and Paper Co. v. New Brunswick Electric Power Commission that “the right to receive interest takes the place of the right to retain possession.” But surely a sum representing the full value of the property at the time of acquisition takes the place of the right to retain possession during all future time, so that any addition by way of interest must represent compensation for delay in payment and not compensation for the taking of the property.

225    The rationale provided by the primary judge for including interest as part of the award of compensation was that interest constituted an element of the award under s 51 of the NTA. That is why [3(b)] was included in [3] of the orders.

226    In Marine Board the majority drew a distinction between the different elements comprising the jurisdiction to award compensation. They regarded interest as within the jurisdiction of the Court but regarded it as separate from the element representing the value of the property acquired. Similarly, in the present case, the order for interest was within the jurisdiction of the Court to order compensation. The allowance for interest was separately specified in [3(b)] of the orders. In that respect it was identified as a separate element of the award. In its terms [3(b)] did not offend the views expressed by the majority in Marine Board. Ground 5 of the Commonwealth’s cross-appeal is therefore not sustained.

Lot 47

227    Ground 4 of the Commonwealth’s supplementary notice of appeal read as follows:

4.    In relation specifically to Lot 47 (act 34), the primary judge erred in awarding interest on the sum representing the economic value of that land up to the date of judgment (Reasons [282]). The award of interest should have ceased as at 28 August 2006 for the following reasons:

(a)    on and from that date, as a result of the making of a determination of native title in Griffiths v Northern Territory of Australia (2006) 165 FCR 300, as varied on appeal in Griffiths v Northern Territory of Australia (2007) 165 FCR 391, the native title claim group was once again able to enjoy exclusive native title rights in full in relation to Lot 47;

(b)    on and from that date, the native title claim group were able to earn income from Lot 47 and had in fact been earning income from Lot 47 since 2011.

228    Lot 47 is a five hectare piece of land located on the Victoria Highway in the southern part of the township of Timber Creek. It was the subject of ten year Crown lease 624 to LL Fogerty made on 21 November 1986. The grant of the Crown lease constitutes act 34. Lot 47 was one of the lots considered in the Griffiths SJ and FC judgments. On 28 August 2006, when the native title determination was made in that proceeding, the Claim Group was recognised as holding exclusive native title rights and interests in lot 47 by reason of the operation of s 47B of the NTA.

229    The primary judge held in Compensation Decision Part 1 that s 47B does not apply to compensation applications. Thus, although s 47B applied in the determination proceedings with the effect that the Claim Group was entitled to a determination that they hold exclusive native title rights and interests in lot 47 from the date of the determination, the extinguishment by act 34, the grant of the Crown lease, was not to be ignored for the purpose of the compensation application. As a result of this view the primary judge made order [1(6)] as follows:

(6)    notwithstanding the approved determination of native title made on 28 August 2006, as varied on 22 November 2007 and 21 December 2007, that exclusive native title exists in relation to the land affected by act 34 (Lot 47) by virtue of the application of s 47B of the Act, for the purposes of the Compensation Application, act 34 is to be treated as a previous exclusive possession act attributable to the Respondent and as extinguishing non-exclusive native title at the time of the grant the subject of the act and compensation is payable by the Respondent under s 23J of the Act.

230    The primary judge at [282] rejected the Commonwealth’s argument that from 28 August 2006 the Claim Group ceased to suffer any loss and should not receive interest from that time on that part of the compensation referable to act 34. The primary judge said that that was because s 47B does not apply to compensation applications as he had determined in Compensation Decision Part 1at [67] and [74].

231    The Commonwealth accepted the primary judge’s view that s 47B does not apply to compensation applications. However, it argued that s 47B applied in the determination proceedings and that, as a result, the Claim Group had been restored to their rights and interests following the making of the determination. The argument in the compensation application does not depend on s 47B. It depends on the fact that the native title has been determined to exist over lot 47. The equitable rule allowing for interest is derived from vendor and purchaser transactions and applied to compulsory acquisition transactions on the basis that the acquiring authority should not keep both the property and the money. The other side of that coin is that when the property is returned there is no basis for the further allowance of interest.

232    The Claim Group contended that the Commonwealth’s argument contradicted the primary judge’s order in Compensation Decision Part 1 that s 47B does not apply in relation to a compensation application. The Commonwealth did not appeal from that order.

233    The argument of the Commonwealth should be accepted. From the making of the determination on 28 August 2006 the exclusive native title rights and interests of the Claim Group in lot 47 were recognised. The Claim Group ceased to suffer any loss from the compensable act. Indeed, as the Commonwealth pointed out, the Claim Group used lot 47 to earn income when it made a stock agistment agreement in October 2011 with a third party.

234    As a result the order for interest should not include interest in respect of lot 47 beyond 28 August 2006.

DID THE PRIMARY JUDGE ERR IN ASSESSING NON-ECONOMIC LOSS AT $1,300,000?

The primary judge’s reasons

235    The primary judge dealt with the claim for compensation for non-economic loss in a section of his reasons for judgment entitled “Consideration: non-economic loss”. Following some introductory comments that section was divided into sub-sections entitled “Principles”, “Findings and Evidence” and “Consideration”.

236    In the introductory comments the primary judge at [291] stated the nature of the essential question to be resolved as follows:

The issue before the Court was how to quantify the essentially spiritual relationship which Aboriginal people, and particularly the Ngaliwurru-Nungali People, have with country and to translate the spiritual or religious hurt into compensation.

237    The primary judge referred to what the High Court said about the relationship of Aboriginal people to the land in Ward at [14]:

[T]he connection which Aboriginal peoples have with “country” is essentially spiritual. In Milirrpum v Nabalco Pty Ltd, Blackburn J said that: “the fundamental truth about the aboriginals' relationship to the land is that whatever else it is, it is a religious relationship… There is an unquestioned scheme of things in which the spirit ancestors, the people of the clan, particular land and everything that exists on and in it, are organic parts of one indissoluble whole”. It is a relationship which sometimes is spoken of as having to care for, and being able to “speak for”, country. “Speaking for” country is bound up with the idea that, at least in some circumstances, others should ask for permission to enter upon country or use it or enjoy its resources, but to focus only on the requirement that others seek permission for some activities would oversimplify the nature of the connection that the phrase seeks to capture. The difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests is evident. Yet that is required by the NTA. The spiritual or religious is translated into the legal.

[Footnotes omitted.] [Emphasis added.]

238    Then the primary judge concluded the introductory comments with a reference at [294] to “the remark of Professor Stanner in his 1968 Boyer Lectures that a non-Aboriginal way of thinking can leave us ‘tongueless and earless towards this other world of meaning and significance’.”

239    In the sub-section which followed, entitled “Principles”, the primary judge set out the contentions of the parties, but, importantly, in view of the arguments on appeal, also recorded certain conclusions of both fact and law which were significant to the outcome.

240    The primary judge recorded that the claim by the Claim Group was made on two bases, namely, for loss from the diminution or disruption in traditional attachment to country and the loss of rights to live on, and gain spiritual and material sustenance from the land.

241    The Claim Group claimed that compensation should be assessed as special value of the land under sch 2 r 2 of the LAA and for intangible disadvantage under sch 2 r 9 of the LAA as well as by adaptation of the principles applicable to awards of general damages for cultural loss and injury to feelings and reputation.

242    The primary judge accepted the positon of the Northern Territory and the Commonwealth that in regard to the LAA it was preferable to assess compensation for intangible disadvantage to avoid the danger of double counting if compensation was assessed on the basis of special value.

243    At [300] the primary judge said:

It is also appropriate to adopt the description “solatium” to describe the compensation component which represents the loss or diminution of connection or traditional attachment to the land. To the extent to which the LAA principles apply, both the Territory and the Commonwealth accepted that adaptation of that principle would accommodate an appropriate allowance for solatium. The Applicant was also content with using that expression. In my view, it provides a suitable focus for ensuring also that there is no overlap of the compensation awarded for the economic loss discussed above, and for this element of the compensation to which the Claim Group is entitled.

244    The primary judge said that regard should be had to the communal and collective nature of the Claim Group’s rights and interests. Solatium must be assessed taking into account that the native title rights and interests were non-exclusive.

245    Further, solatium must be assessed by reference to the loss or diminution of the native title rights and interests from the extinguishment in question and not from earlier or subsequent events. That required an assessment of the effect of the passage of history whereby the Claim Group was impaired from enjoying their traditional lands by the founding of stations in the late 1880s, and the establishment and growth of the town of Timber Creek.

246    The primary judge then referred to a number of judgments in which compensation was awarded to Aboriginal people for intangible losses from the rupture of traditional relationships with land. The primary judge found little assistance in those cases of breach of copyright, defamation, and other like claims primarily because those awards were for personal rather than communal loss.

247    The primary judge then accepted that the loss should be calculated on an in globo basis rather than lot by lot. He also accepted that the apportionment or distribution as between members of the Claim Group was an intramural matter.

248    The primary judge said that the effects on the Claim Group’s native title rights and interests could not be separated from the laws and customs from which the rights and interests derive.

249    He said that the assessment of intangible disadvantage could include loss of amenities, pain and suffering, and reputational damage.

250    At [319] the primary judge referred to the significance of the existence of adjoining lands over which the Claim Group was able to exercise native title rights and interests.

251    The primary judge rejected the submissions of the Northern Territory that the test for causation required that the effect of the acts on native title rights and interests had to be direct. He said that the question was simply what, if any, non-economic effects there were on the pre-existing native title by the compensable acts. He said that in making that assessment, the previous acts affecting native title generally and specifically in the lots under consideration were relevant. He then said at [323]:

Consequently, as the Territory said, the claimants are only entitled to compensation for the “hurt feeling” evoked or caused by the determination acts. Any sense of loss generally derived from a loss of access to country in the town of Timber Creek and the inability to exercise native title rights on that country lies outside the parameters of s 51(1) of the NTA. I accept that proposition to confine the compensation under this heading to solatium, and to avoid the consequence of double compensation.

252    Next, in this sub-section, the primary judge said that it was not possible to establish the comparative significance of one compensable act over another. The effect of the acts must be understood in terms of the pervasiveness of the Dreaming.

253    Finally, the primary judge said at [326]:

I have earlier noted that the loss or impairment of significant sacred places nearby to land affected by the compensable acts must necessarily have caused a loss or impairment of spiritual/traditional attachment in respect of that land and in Timber Creek generally at the time of that loss or impairment. Any award of compensation for loss or [sic] spiritual attachment in respect of land affected by the compensable acts must properly take into account the extent to which the spiritual attachment to that land has already been impaired or affected by the loss or destruction of significant places on nearby land or in Timber Creek. In my view, it is open to the Court to infer from the evidence which does not specifically relate to an act or parcel of land, that a further sense of loss is felt in consequence of the determination acts. The inferences to be drawn in the circumstances will necessarily depend on the direct and indirect evidence before the Court.

254    The next sub-section of the primary judge’s reasons for judgment dealing with non-economic loss was entitled “Findings and Evidence”.

255    The primary judge referred to parts of the judgments in Griffiths SJ and Griffiths FC which established the ancient and continuing link of the Claim Group with the land in and around Timber Creek. That was not really disputed. For instance, at [331] the primary judge referred to the finding in Griffiths SJ that:

The rituals and ceremonies signal a right to a country which stems from the Dreamings. There is in place, in Timber Creek, a system of normative rules that governs a continuing ritual tradition which articulates and [sic] “owner’s” right to country.

256    At [332] the primary judge also referred to the findings of Griffiths FC “that the native title holders are the gatekeepers for the purpose of preventing harm to others and avoiding injury to country”.

257    Those findings were supported by the expert evidence of anthropologists Kingsley Palmer and Wendy Asche (Palmer and Asche) to which the primary judge referred. For instance, at [334] he referred to the following from their 2004 report:

Country is understood to comprise a spirituality with which people are believed to be intimately connected. This we have explained in the foregoing by reference to the ways in which the applicants’ beliefs and dependant practices develop from the land and its Dreaming spirituality. Protection of the land is concomitant of this relationship. Protecting the land is a way of protecting yourself. Protection of the land and particularly of those places within it which are regarded as being potent sources of spirituality is a duty of a Yakpalimululu, while other consociates are required to work with him (or her) in this endeavour.

258    In a passage referred to by the primary judge at [336] Palmer and Asche also explained the significance of Dreaming trails thus:

In our view sites are a pivotal Dreaming reference and represent, in the applicants’ belief an important attestation of the powerful spirituality of the Dreaming. …the power…underpins the system whereby the applicants’ [sic] consider their willing to be ordered. …Sites are then far more than places or lists of names or locations. They should also be understood as meta-place, that is a reference to a place and is [sic] also a reference to a whole range of spirituality and associated imperatives that inform social exchanges, cultural activity and determine priorities.

The primary judge then said that Palmer and Asche documented the Dreaming tracks which travelled through the town of Timber Creek.

259    Next, the primary judge referred to evidence of the Claim Group, particularly Alan Griffiths and Jerry Jones, about the rights and interests under traditional laws and customs to look after and speak for country. The witnesses gave four instances of the nature of their duty to protect country and the effects under traditional laws and customs when country is harmed. The instances were the building of a causeway which interfered with the Dingo Dreaming, the building of an army bridge first proposed near the Dingo Dreaming, the scraping of gravel from a part of the Dingo Dreaming, and the proposed mining for diamonds on a hill which was, under traditional beliefs, considered to be dangerous.

260    Then, the primary judge said:

348    The Applicant also led evidence in the present hearing about the effects of loss of country and the effects of acts on the exercise of rights to country in these proceedings. The evidence given by the traditional owners was strong and compelling. The beliefs expressed were genuinely held and demonstrated a deep connection to country. Expert anthropological evidence was given by Palmer and Asche (for the Applicants) and Professor Sansom (for the Territory).

…

350    The evidence from the Claim Group, supported by Palmer and Asche, was that loss of and damage to country caused emotional, gut-wrenching pain and deep or primary emotions. In translating an Aboriginal word used by Alan Griffiths for such feeling when giving evidence at wirip ngalur katpan (the rear of Lot 20), his son Chris Griffiths explained that it was “a bad stomach feeling” and:

… your stomach turns around and around inside when you know and feel that something bad has happened to you, and you can feel it in your stomach that…you don’t feel right.

351    Alan said that “other Aboriginal people don’t like it, …they get angry”. This was because, as Chris Griffiths explained, elders had told his father to look after the country, and to keep it as a place to teach his children.

352    This gut wrenching feeling was accompanied by anxiety. As Alan Griffiths later said when giving evidence at kulungra (which includes the water tanks on Lot 70):

Well, everything happening here on Timber Creek on my site, I always feel real bad. You know I had a big operation for my heart just over the country worrying too much. The (mulkimundy) [sic] didn’t let anybody doing those things. They told me to look after them. And I too looking after them. But somebody’s doing something behind that’s hurting me.

261    The primary judge at [355] extracted the following passage from the Palmer and Asche report concerning the relationship between an Aboriginal person and the Dreaming:

Dreaming beings (sometimes called ‘Dreamings’ or puwaraj) are essentially and powerfully spiritual. While they often metamorphosed and became places or sites, they may also be understood to have continued their travels. Their spirituality remains potent to this day and the areas with which they are directly associated are considered inviolable. The concept of puwaraj is therefore not limited to past events but it [sic] a continuing presence in the landscape.

The relationship between an individual and the Dreaming is characterised as a personal one. Alan Griffiths told one of us (KP) that you can say, ‘puwaraj ngarkina’. This means literally, ‘Dreaming talk to me’. He went on to explain that the idea of ‘talk to me’ means that it is your own, that it is in sympathy with you and in accord with you, perhaps even a part of you and your own property…The Dreamings that talk to you are then those within your country of which you are a part. This exegesis neatly sums up both the immediacy and the intense personal relationship that is believe [sic] to exist between a person and the Dreaming, in its many manifestations.

262    The primary judge at [356] referred to the following evidence of Jerry Jones as to the responsibility on native title holders following unauthorised use of the country:

Each group has to look after its bit of the Dreaming. If something goes wrong of our part, others think we are no good. That’s what happened when all of these things have been built in the town. Other Aboriginal people will complain about it and say that we are letting them down.

263    The primary judge referred to the evidence of Professor Sansom that the circumstances of this case demonstrated the emotional effects of dispossession on the Claim Group. Professor Sansom gave evidence that unless the dispossession ends, the land is restored and things are put back in order, the hurt feelings continue and are persistently aggravated.

264    The primary judge referred to evidence of the impact of the effect of various of the compensable acts on the exercise of native title rights and interests. Access to hunting grounds was impeded, the conduct of rituals was prevented, and some sites were damaged by construction including by the building of the water tanks.

265    The primary judge said at [363]:

The evidence was that for the Ngaliwurru-Nungali Peoples, ancestral spirits, the people, the country and everything that exists on it, are viewed as organic parts of one indissoluble whole and that the evidence of loss was significant and keenly felt. The evidence of the effects of those acts is particularly significant in circumstances where the acts took place some thirty years ago, and where the effects of those acts have ongoing present day repercussions.

266    Notwithstanding the impact of extinguishment, the primary judge accepted that the Claim Group’s attachment to country was not entirely lost. He said at [364]:

In particular I note that Alan Griffiths said that he retained a connection to, and responsibility for, country despite development of the Town and the fencing of some lots, and that there were still places to go hunting and fishing and that stories about country were still passed down to younger generations. Josie Jones also gave evidence about hunting and fishing as well as the capacity to obtain white ochre used in ritual near the cemetery

267    The primary judge acknowledged that the Claim Group had accepted some developments in Timber Creek. He said at [365]:

There was also evidence which suggested that some developments in the Town of Timber Creek were acceptable under Indigenous law. That included the evidence of Josie Jones that certain developments did not create a sense of grievance, including the purchase of land in 2009 by Lorraine Jones and the construction of the houses on Wilson Street. Alan Griffiths said in relation to the construction of the Army Bridge in 2003 that the construction was okay under Indigenous law, and Jerry Jones gave evidence that approval was given to erect the Ngaringman Resource Centre where indigenous law and custom recognised the helmet or headdress of the Wirip was located.

268    The final sub-section of the primary judge’s reasons for judgment dealing with non-economic loss was entitled “Consideration”.

269    The primary judge accepted that he should have regard to the criteria set out in r 9(2)(a) – (f) in sch 2 of the LAA which is extracted at [39] of these reasons for judgment.

270    The primary judge then said that the evidence of Alan Griffiths and the expert anthropological evidence showed that all of the land was important to Aboriginal people. No area is devoid of spirituality. In the context of the structure of this subsection of the reasons for judgment, this finding seems to address the Claim Group claim under r 9(2)(a) of sch 2 of the LAA in respect of the nature of the interest affected, including its spiritual component which is a deeply religious connection to country of which the claim area is an integral and inseparable part of an indissoluble whole.

271    The primary judge then found that the injury to feelings from dispossession has occurred over generations of ongoing but impaired connection. It has an immediate effect on native title holders as illustrated by the impact on Josie Jones’ mother who felt that the opening up of Wilson Street was “damaging our place”. Again, from the structure of this subsection of the reasons for judgment, that finding appears intended to address the Claim Group claim under r 9(2)(b) of sch 2 of the LAA in respect of the length of time through which the claimants and their ancestors have maintained their connection to the land, by legal definition at least since sovereignty, but long before that.

272    The primary judge then found at [372], on the basis of the expert anthropological opinion, that the emotional effect of the loss of country was not simply about the loss of access to and use of the land, but must be understood “in view of the bond understood to exist between a person and the spirituality of country”. Again, that finding appears to address the Claim Group claim under r 9(2)(c) of the sch 2 of the LAA for the distress and anxiety caused by reason of loss of part of their country, which is manifested by deep or primary emotions of hurt, shame and worry, and also for the special value of the land to the Claim Group referred to in r 9(2)(f) of sch 2 to the LAA.

273    The primary judge then said that the assessment of appropriate compensation is a complex undertaking.

274    The primary judge said that the Aboriginal relationship to the land extends to all the country not just sacred sites. Sacred sites, however, may have an influence beyond their physical location. The Claim Group relationship with the land cannot be assessed on a lot by lot basis because the relationship is not confined in that way. There are some areas of particular significance and others, like the Wilson Street development, where the connection is less significant.

275    The primary judge then referred to the intrusion on the Claim Group’s traditional rights and interests outside the town area which had occurred prior to the compensable acts. Some Dreaming lines had been impaired or destroyed in previous times. The primary judge said at [376] that “the appropriate level of compensation must take account of that pre-existing state of affairs”.

276    The primary judge accepted that the compensable acts did not remove all of the native title within the town of Timber Creek but that the native title rights and interests were progressively impaired from the early 1980s. The area affected by the compensable acts was not insignificant.

277    Then followed [378] – [383] which, because of their central importance in the arguments on appeal are set out in full as follows:

378    With those general observations, in my view, there are three particular considerations of significance to the assessment of the appropriate amount of compensation. The first is the construction of the water tanks on the path of the dingo Dreaming. That is along a line of particular spirituality, and has caused clearly identified distress and concern.

379    The second is the extent to which certain of the compensable acts effected [sic] not simply the precise geographical area of the lot over which that act specifically related, but in a more general way to related area so as to have impaired the native title rights and interests more generally; in particular, I refer to certain of the evidence briefly referred to above concerning the effect of a particular act upon the capacity to conduct ceremonial and spiritual activities on that area and on adjacent areas.

380    I have considered whether that is a legitimate factor to take into account. If the immediately adjacent area were now to be compulsorily acquired by the Territory, it would be inappropriate for the Territory to be able to say that the Claim Group could not recover non-economic compensation for that acquisition because the capacity to carry out that activity on that allotment had already been significantly impaired by its earlier act, and at the same time to say that the earlier act should not lead to compensation for its effect upon the enjoyment of native title rights and interests on that adjoining area. Such an approach would also be inconsistent with the generally accepted proposition that native title is a feature of a wider area of country than any of the particular and individual acts now under consideration.

381    Thirdly, and more generally, is the fact that each of the compensable acts to some degree have diminished the geographical area over which native title rights within the Township of Timber Creek, and more generally, may be exercised, and each in an imprecise way has adversely affected the spiritual connection with the particular allotments, and more generally, which the Claim Group have with their country. Again, the point should be made that that connection is not divisible geographically, but each chipping away of the geographical area necessarily must have some incremental detriment to the enjoyment of the native title rights over the entire area. Associated with that collective diminution of the cultural and spiritual connection with land, is the sense of failed responsibility for the obligation, under the traditional laws and customs, to have cared for and looked after that land. Again, that is not geographic specific, save for the more important sites, but it is a sentiment which was quite obvious from the evidence led from the members of the Claim Group. That evidence, understandably, was more focused on the area of the town water tanks, as that is clearly a more significant area, and in other areas in the vicinity of Timber Creek which were also of significant importance. That does not enable the Court simply to ignore the sense of responsibility for looking after country which, in relation to the compensable acts were regarded as a failure properly to look after the country and to preserve it for future generations. Those matters of cultural sensitivity should be compensable.

382    Those three elements have now been experienced by the Claim Group for some three decades. The evidence given by the members of the Claim Group shows that the effect of the acts has not dissipated over time. I have referred to that evidence above. The compensation, therefore, should be assessed on the basis of the past three decades or so of the loss of cultural and spiritual relationship with the lots affected by the compensable acts in the manner I have identified, and for an extensive time into the future.

383    The selection of an appropriate level of compensation is not a matter of science or of mathematical calculation. Having regard to the matters to which I have referred, in my view, the appropriate award for the non-economic or solatium component of the compensation package should be assessed at $1.3m. I have not broken up that assessment by reference to the three elements to which I have referred above. I have listed the three elements in what I regard at [sic] descending order of spiritual significance. That does not mean that the first act should account for more than one third of the total sum awarded, as the cumulative effect of all the acts (putting aside the first two elements) is in my view a significant matter.

[Emphasis added.]

The grounds of appeal

278    Ground 5 and 6 of the Northern Territory’s Notice of Appeal reads as follows:

5.    The trial judge erred in assessing the compensation for non-economic loss in respect of the compensable acts at $1,300,000 (Reasons, [383]).

5.1.    The trial judge erred in failing to give any or adequate reasons for fixing the assessment at that amount.

5.2.    The trial judge erred in fixing the assessment at that amount by placing improper emphasis upon the consequences of a single compensable act (act 46) in the context of an in globo award in relation to 59 compensable acts (Reasons, [378], [383]).

5.3.    The trial judge erred in fixing the assessment at that amount by placing improper emphasis upon the consequences of an unidentified compensable act for the exercise of certain native title rights and interests on land (a ritual ground) other than the land the subject of the compensable act (Reasons, [379]-[380]).

5.4.    The trial judge erred in failing to find that the consequences of the uncompensable general development of the town of Timber Creek over time, the uncompensable general development of land near the ritual ground, and the ongoing uncompensable increase in the presence of non-Aboriginal people in the town of Timber Creek, were indistinguishable from any consequences from the unidentified compensable act referred to in Ground 5.3 above.

5.5.    The trial judge erred in failing to fix the assessment of the non-economic loss at 10% of the compensation amount assessed for the economic loss, which is consistent with the principles of fairness and moderation which apply to awards of solatium.

5.6.    The trial judge erred in fixing the assessment at that amount, which amount was extravagant and excessive and not consistent with the principles of fairness and moderation which apply to awards of solatium.

5.7.    The trial judge erred in fixing the assessment at that amount because he failed to place sufficient emphasis upon the matters set out in Ground 6 below.

6.    The trial judge erred in assessing the total compensation at $3,300,661 because he failed to place sufficient emphasis upon:

(a)    the total area of land the subject of the 59 compensable acts, which is approximately 1.26313 km2; and/or

(b)    the total area of land in respect of which the First Respondent holds native title rights and interests in the town of Timber Creek pursuant to determinations made by the Court, which is approximately 20.5368 km2 ; and/or

(c)    the total area of land in respect of which the First Respondent (or members of the First Respondent) has (or have) interests in land, as traditional Aboriginal owners, or other Aboriginals interested in, granted pursuant to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the Timber Creek locality, which includes:

(i)    land held by the Ngaliwurru / Nugali Aboriginal Land Trust (NT Portion 4497), which is approximately 1,425 km2; and

(ii)    land held by the Mayat Aboriginal Land Trust (NT Portion 3122), which is approximately 36 km2.

279    Grounds 6 to 8 of the Commonwealth’s supplementary notice of appeal read as follows:

6.    In awarding a lump sum as a solatium in the amount of $1.3 million (Reasons [383]), the primary judge erred by including within that lump sum components for:

(a)    loss of the capacity to conduct ceremonial and spiritual activities on a particular area of land and areas adjacent thereto (Reasons [379]-[380]), because that loss was caused at an earlier point in time and, as a result, was not and is not to any extent an effect of the compensable acts on native title within the meaning of s 51(1) of the Native Title Act 1993 (Cth) (NTA);

(b)    a sense of failed responsibility for the obligation under traditional laws and customs to have cared for and looked after the land in question (Reasons [381]), when there was no or no sufficient evidentiary basis to support a finding that members of the native title claim group experienced such feelings other than in relation to the construction of the water tanks on the path of the Dingo dreaming;

(c)    a sense of failed responsibility for the obligation under traditional laws and customs to have cared for and looked after the land in question (Reasons [381]) to the extent that such feelings were caused by the loss of recognition at common law of a traditional right to control access to and use of the land, because that loss was the effect of the grant of a pastoral lease in 1882 and was not and is not to any extent an effect of the compensable acts on native title within the meaning of s 51(1) of the NTA;

(d)    three decades or so of past loss, and loss for an extensive time into the future, of cultural and spiritual relationship with the lots affected by the compensable acts (Reasons [382]), when that was not an appropriate characterisation of the loss suffered by the native title claim group as a whole.

7.    In determining that $1.3 million was an appropriate award in the form of solatium (Reasons [383]), the primary judge erred in failing to find or consider:

(a)    the geographical extent of the areas of land over which the compensable acts were done in comparison to:

(i)    the overall area of land within the Town of Timber Creek;

(ii)    the overall area of land within the Town of Timber Creek over which exclusive native title exists;

(iii)    the overall area of land in relation to which members of the native title claim group possess rights and interests as “traditional owners” under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth);

(b)    that Lots 16, 47 and 64 are, and have always been, vacant land;

(c)    that the native title claim group had voluntarily agreed to permit third parties to conduct grazing activities on Lots 47 and 109;

(d)    that, and the terms upon which, the native title claim group had voluntarily surrendered their native title rights over 15 parcels of land in the Town of Timber Creek to the Northern Territory by way of an Indigenous Land Use Agreement on 10 November 2009;

(e)    that, and the terms upon which, the native title claim group entered into voluntary agreements permitting certain activities to be carried out on land in the Town of Timber Creek subject to conditions including a solatium-type payment of a prescribed sum without the need for specific assessment in the event a sacred site is damaged;

(f)    that, for the reasons set out in paragraph 4(a) above, on and from 28 August 2006, the native title claim group was once again able to enjoy exclusive native title rights in full in relation to Lot 47.

8.    On an appropriate assessment of all of the evidence, a sum for solatium     should have been awarded in the order of $215,000.

Consideration

Introduction

280    The Northern Territory and Commonwealth challenged the primary judge’s assessment of the appropriate compensation for the Claim Group’s non-economic loss on several grounds.

281    The Northern Territory contended that the three particular considerations of significance referred to at [378] were expressed by the primary judge to be determinative of the assessment of compensation.

282    The Northern Territory and the Commonwealth then challenged the primary judge’s reasoning in respect of each of those three particular considerations of significance, namely, the building of the water tanks on part of the Dingo Dreaming, finding that the compensable acts caused collateral detrimental effect, and the finding that each compensable act contributed to the overall erosion of the Claim Group’s connection to the land.

283    The Commonwealth then criticised the primary judge’s findings regarding the temporal aspects of the Claim Group’s non-economic loss.

284    The Northern Territory and the Commonwealth raised arguments that were addressed to the Claim Group’s alleged approval of acts on land over which they claimed native title rights.

285    Finally, the Northern Territory and the Commonwealth criticised the figure awarded by the primary judge as compensation for non-economic loss, and argued for their own preferred approach to assessing the non-economic loss component of the compensation. Those arguments raised four issues for consideration, namely, whether the primary judge failed to take account of the Claim Group’s rights in surrounding lands, whether a principle of fairness and moderation applies to the assessment of compensation for non-economic loss, whether the amount of the award was manifestly excessive, and whether this Court should fix the amount of compensation.

286    In this section of these reasons for judgment, each of those issues will be considered in turn.

The three particular considerations

Were the three particular considerations in [378] determinative?

287    Where the primary judge said at [378] that “there are three particular considerations of significance to the assessment to the appropriate amount of compensation”, the Northern Territory argued that these considerations were treated by the primary judge as determinative of the assessment of compensation. That argument was then the springboard to challenge the whole foundation of the primary judge’s reasoning by attacking the reasoning in respect of those three particular considerations. If the three particular considerations were determinative, and none of those considerations were justified, the entire reasoning of the primary judge was undermined.

288    It must be said in support of the argument of the Northern Territory that there is confusion in the way [378] – [383] are expressed. A natural reading of [383] taken alone creates the impression that the three factors were the only foundations of the primary judge’s conclusions.

289    However, the title of the subsection “Principles” is telling. The primary judge addressed a number of issues in that subsection which he obviously meant to apply to the assessment generally. For instance, he considered whether the assessment should be made on a lot by lot basis or rather on an in globo basis, what was the significance of the Claim Group holding rights in adjoining country over which they could exercise rights and interests, what test of causation of loss should be applied and how to treat the comparative effect of different compensable acts. Then, in the subsection “Findings and Evidence”, the primary judge addressed the central issue of the nature of the bond between the Claim Group and their country. He surveyed the evidence of the Claim Group’s lay witnesses and of the expert witnesses in order to make an assessment of the meaning of the country to the people and the effect of the loss or impairment of their rights from the compensable acts.

290    Despite the unfortunate form of expression in [378] it cannot be thought that the primary judge meant that this earlier elaborate and comprehensive discussion was to be put aside and that he intended his reasoning to rest only on the matters traversed in [378]. The arguments of the Northern Territory to that effect should not be accepted.

Consideration of the construction of the water tanks on the Dingo Dreaming

291    The first of the three considerations of significance referred to in [378] was the construction of the water tanks on the path of the Dingo Dreaming on lot 70, act 46. The Northern Territory observed that the primary judge had to consider 53 compensable acts relating to 39 lots and 4 roads. By placing particular attention on act 46, the primary judge, so it was said, erroneously overestimated the extent of the effects caused by the compensable acts in total. The other compensable acts did not cause the same degree of loss or grievance and did not interfere with other Dreaming tracks or sacred sites.

292    That criticism is pitched at a high level of generality and does not take account of the primary judge’s acknowledgement that different places had different significance in the Claim Group’s cultural and spiritual landscape. The primary judge found that there were areas that were less important than others. Acts which could not be authorised on more important sites could be authorised on less important sites. The development of Wilson Street was an example. This argument of the Northern Territory should not be accepted

Consideration of the collateral detrimental effect

The submissions of the parties

293    The second consideration of significance relied on by the primary judge in [378] was the effect of the compensable acts on lots other than those in relation to which the act occurred.

294    The Northern Territory argued that any collateral detrimental effect was outside the pleaded case because the Claim Group’s Points of Claim on Quantum referred to non-economic loss by reference to specific lots and roads. Next, s 23J of the NTA, which provides for the entitlement to compensation for previous exclusive possession acts, stipulates that compensation is for extinguishment “of their native title rights and interests by an act”. The Northern Territory submitted that in this context, native title rights and interests cannot be understood more broadly than those extinguished by the act in question.

295    The Northern Territory further submitted that, whilst such an effect may be possible, there was no evidence of such a collateral effect in this case. The conclusion cannot be established in the abstract. The primary judge was in error to rely on the unsupported notion that the compensable acts had an effect beyond the lot in question.

296    The Commonwealth focused on the primary judge’s reference to evidence concerning the effect of the compensable acts on an adjacent area which was previously used as a ritual ground. The Commonwealth argued that the evidence was that the use of the particular area for ritual ceased before the compensable acts occurred. The Commonwealth contended that the primary judge necessarily reasoned that had the ritual ground not been moved then it would have been affected by the compensable acts and, on that basis, the Claim Group was entitled to compensation for the inability to conduct ritual in the original place. The Commonwealth contended that this reasoning was not supported by the practical test of causation adopted in March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506; [1991] HCA 12 (March), which the primary judge purported to apply. The Commonwealth submitted that, in any event, March had to be read in the light of what the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) said in Comcare v Martin [2016] HCA 43 at [42] (Comcare v Martin) as follows:

Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.

[Footnotes omitted.]

The test for causation applied by the primary judge did not properly reflect the text, context and purpose of s 51(1) of the NTA as required by Comcare v Martin. The Commonwealth argued that the NTA requires a close connection between the loss and the compensable act. Compensation is payable for the “loss, diminution, impairment or other effect of the act” on the native title rights and interests. In relation to previous exclusive possession acts, s 23J(1) limits compensation “only to the extent (if any) that native title rights and interests were not extinguished otherwise than under the Act”. The necessary connection was missing in the case of the relocation of the ritual ground relied upon by the primary judge.

297    The Claim Group argued, in relation to the relocation of the ritual ground, that the primary judge heard evidence and saw the location of the place where the ritual was conducted. The primary judge reasoned that the place was still important to the Claim Group. The compensable acts limited the use which could be made of the area at the time of the compensable acts.

298    The Claim Group submitted that the primary judge adopted the proper test for causation and correctly rejected the contention of the Northern Territory that compensation was limited to loss which arose directly from the compensable acts.

299    The NTRB interveners submitted that an act which interfered with a site or a Dreaming track or rendered an adjoining area unsuitable for ceremony would, according to the Claim Group’s system of law and custom, have ramifications over a wider geographical area. It is by those laws and customs, not by common law principles of causation, that the nature and extent of the loss should be assessed.

Consideration

300    The evidence in respect of which these arguments were mounted was that the ritual ground adjacent to one of the lots in question had not been used since 1975. Nonetheless, the primary judge found that there was an effect from a later compensable act on the use of the ritual ground. Contrary to the argument of the Northern Territory and the Commonwealth, the effect relied on by the primary judge was not related to the discontinuance of use as a ritual ground in 1975. The submission of the Northern Territory and the Commonwealth that the compensable act did not have the effect of discontinuing the ceremonial practices misunderstands the reasoning of the primary judge. The reason he took into account the effect on the adjacent ritual ground of a compensable act occurring on one of the lots in question was because “Chris Griffiths gave evidence as to why the place remains important” [emphasis added]. It was the character of the location of the ritual ground at the time of the compensable act and the effect of that act on the then current status of the ritual ground as a site of importance that caused the primary judge to take the effect into account.

301    As to the approach which the primary judge took to the question of causation in response to a submission of the Northern Territory that the effect of the compensable act on native title rights and interests had to be direct, he said at [321]:

I do not consider that it is useful or appropriate to incorporate into a statutory formula, such as s 51(1) of the NTA, such an element, particularly as it may carry some overtones of causative requirements beyond the statutory prescription. Whilst March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 may have been decided in the context of apportionment legislation, I see no reason why the practical test for causation there approved is not appropriate to s 51(1) of the NTA. It does not support the ignoring of an appropriate relationship between the compensable act and its consequences. Indeed, it is the effect of the particular compensable act or acts which is to be measured or assessed, upon the whole of the evidence and in the context of the historical and geographical background referred to.

[Emphasis added.]

302    As almost all of the compensable acts were previous exclusive possession acts, the entitlement to compensation derives from s 23J(1) of the NTA. There were, so it was submitted, textual factors which pointed to the need for a close relationship between the compensable act and the effect on native title rights and interests. The section requires that the effect on native title rights and interests be “by the act”. Further, compensation is available for extinguishment “only to the extent, if any, that the native title rights and interests were not extinguished otherwise than under this Act”. In rejecting a requirement that the effect must be direct, the primary judge did not misdirect himself. He rejected the requirement for the very reasons referred to in Comcare v Martin, namely, that it might go “beyond the statutory prescription” ([321]).

303    The Commonwealth submission that the primary judge was wrong to apply the practical test of causation found in March is also not made out. As stated by the primary judge, there is nothing in the terms of the NTA to suggest that such a test would go beyond the statutory prescription. Indeed, the test contended for by the Commonwealth, that there must be a close connection between the loss and the compensable act, is not incompatible with the test found in March.

Consideration of the overall erosion of the Claim Group’s connection to the land

The submissions of the parties

304    The third consideration of significance relied on by the primary judge in [378] was the overall erosion of the Claim Group’s cultural and spiritual connection not limited to the subject lots.

305    The Northern Territory submitted that that finding did not take proper account of the uncompensable impact of the historical development of Timber Creek. Cattle stations were established in the late 1800s in the area. At that time Timber Creek became an important port. Indigenous people were excluded from their land by the cattle station owners. Pastoral leases were granted over the whole area which became the town. The subject lots total 1.27 square kilometres in area. The impact on the relatively small parcels of land constituting the subject lots could not have given rise, so it was argued, to any appreciable incremental erosion of the cultural and spiritual connection to country. The Northern Territory submitted that because the primary judge did not descend to any consideration of the impact or loss caused by individual compensable acts, except act 46, it was impossible for the primary judge to distinguish between loss caused by compensable acts and loss caused by other non-compensable town development. The evidence of the sense of personal loss was not directed to specific lots but was drawn from the evidence in Griffiths SJ which related to a determination area of 20.53 square kilometres including the town of Timber Creek. Then, the evidence was not directed to the compensable acts, but to various actions which were not compensable acts, such as the building of the causeway behind lot 20. Further, the evidence did not distinguish between the time before and the time after the compensable acts were done and was thus not directed to the time when the compensable acts were done.

306    The Commonwealth did not dispute that compensation is payable for the adverse effect of the compensable acts on the Claim Group’s spiritual connection with the relevant land but said that the primary judge wrongly went further at [381] by awarding compensation in part for “the sense of failed responsibility”. The Commonwealth argued that the finding was against the evidence in respect of the land other than the land affected by the construction of the water tanks. The Commonwealth referred to the finding of the primary judge at [365]:

There was also evidence which suggested that some developments in the Town of Timber Creek were acceptable under Indigenous law. That included the evidence of Josie Jones that certain developments did not create a sense of grievance, including the purchase of land in 2009 by Lorraine Jones and the construction of the houses on Wilson Street. … Jerry Jones gave evidence that approval was given to erect the Ngaringman Resource Centre where indigenous law and custom recognised the helmet or headdress of the Wirip was located.

[Emphasis added by the Commonwealth.]

That passage referred to the Wilson Street development which included 26 of the 39 lots, excluding roads, the subject of the claim for compensation. The passage properly reflected the evidence of Josie Jones and Jerry Jones to that effect. Indeed, the primary judge found at [375] that there are areas of the land, such as in Wilson Street, where “the traditional rights and interests and the spiritual connection to the country is less significant”. The Commonwealth contended that there was no other evidence that supported the finding that the Claim Group experienced a sense of failed responsibility in relation to the land in question. There was no proper foundation, it was argued, for the inference that the sentiment expressed by the Claim Group in relation to instances of damage or interference, such as the building of the water tanks, applied to all of the lots.

307    The Commonwealth further contended that by compensating the Claim Group for the sense of failed responsibility to protect the land, the primary judge wrongly allowed an amount for the Claim Group’s loss of the right to control access to and use of the land. From the primary judge’s discussion of the Claim Group’s responsibility to care for and protect the land it was clear that the responsibility involved the Claim Group’s right to control access to and use of the land. No allowance should have been made on that basis because the loss of the right to control access to the land arose from the operation of the common law on the grant of the historic pastoral lease and was not compensable under the NTA.

308    The Claim Group argued that the primary judge took into account that the Claim Group might have interests in land outside the town. He also took into account that some areas of the land had more significance to the Claim Group than others.

309    It was appropriate to take into account the effect of other non-compensable acts because, based on the opinion of the anthropologists, the pervasiveness of the Dreaming cannot be understood in relation to a particular place in isolation.

310    The Claim Group then contended that the duty of the Claim Group to care for country under traditional law and custom exists independently from the right to control access to country. Thus, the primary judge was justified in taking into account the effect of the compensable acts on the duty to care for country.

311    The NTRB interveners submitted that the Indigenous concept of ‘speaking for country’ encompasses more than simply a legal right to control access. It includes a right to engage in cultural activities, conduct ceremonies, hold meetings, teach the physical and spiritual attributes of places and areas of importance and to access, maintain and protect sites of significance. The Claim Group’s sense of failed responsibility described by the primary judge at [381] could equally have come from the loss of these subsisting native title rights.

Consideration

312    The task of evaluating the non-economic loss was a complex and difficult one because the lots in question comprised a small part of a larger area of country in which the Claim Group had interests, and further because the history of the area in and around Timber Creek involved acts and activities which interfered with the Claim Group’s native title rights and interests before the extinguishing acts in question occurred.

313    The criticism that the primary judge did not untangle these threads in a way which focused on the particular lots in question and on the effects of the compensable acts on those lots is surprising in view of the complexity of the task facing the primary judge and the detailed explanation he gave on many occasions throughout the discussion concerning non-economic loss about the place which country occupies in the Claim Group world view, and the consequential particular effects of interference with the country on the Claim Group.

314    There are numerous examples of the insight of the primary judge into the Claim Group’s way of viewing the place of country. The following examples illustrate the point.

315    For instance at [325] the primary judge said:

It is not possible to establish the comparative significance of one act over another. That is simply not how things are viewed according to the traditional laws and customs, in particular by the Ngaliwurru-Nungali people. As the evidence of Palmer and Asche shows, one cannot understand hurt feelings in relation to a boxed quarter acre block. Rather, the effects of acts have to be understood in terms of the pervasiveness of Dreaming.

316    And at [363], extracted above at [265] of these reasons for judgment, the primary judge again captured the essence of the Claim Group’s connection to country where he explained that everything that exists, people, land, ancestral spirits are organic parts of one indissoluble whole.

317    The primary judge explained in detail how the Claim Group’s beliefs about the significance of country in the system of laws and customs led him to the conclusions that the effects of the compensable acts could not be assessed on a parcel by parcel basis but needed to be reflected by an in globo assessment, that connection was not divisible geographically, that acts taken in one place may affect other places, and that although no area of land is unimportant, there are some places that have a special power and significance. In other words, it was not possible when trying to establish the effect of the compensable acts to deconstruct the Aboriginal belief system so as to fit into distinct title boundaries of each separate lot. The nature of the Claim Group belief system required the primary judge to make a judgment about the impact of the compensable acts on particular lots where in many instances those lots were not seen as differentiated by the Claim Group in respect of the impact of interference with the country.

318    At the same time the primary judge at [376] was alert to the need to “take account of that pre-existing state of affairs”, namely, the diminution or impairment of significant sites “in previous times”. He said at [301] that the award “must reflect the loss or destruction of traditional attachment to land arising from the extinguishment or impairment in question (rather than from earlier or subsequent events or effects)”. And at [323] the primary judge recognised that the Claim Group was only entitled to compensation for the effects of the compensable acts: “Any sense of loss generally derived from a loss of access to country in the town of Timber Creek and the inability to exercise native title rights in that country lies outside the parameters of s 51(1) of the NTA”.

319    There was no error in the approach of the primary judge. He had to determine the nature and extent of the impact of the compensable acts from the evidence about the Claim Group connection to country generally and the evidence concerning the general effect on the Claim Group of interference with country. The evidence of the nature of the Claim Group’s connection with land did not allow for the type of exercise for which the Northern Territory argued whereby reactions were specific to particular lots.

320    In somewhat different ways the Northern Territory and the Commonwealth contended that the primary judge failed to give due regard to the effect of non-compensable acts on the loss or impairment of the Claim Group’s native title rights and interests.

321    The Northern Territory’s argument that the lengthy historical development of the town of Timber Creek and the relatively small area of the parcels of land in question meant that the compensable acts could not have given rise to an appreciable incremental erosion of cultural and spiritual connection is not made out.

322    The primary judge at [24] outlined the history of the development of Timber Creek in the very same terms as propounded by the Northern Territory. In a number of places the primary judge accepted that the pre-existing history of intrusion had to be taken into account in assessing the non-economic loss from the compensable acts. For instance, at [376] he said:

I have referred above to the general picture as to the intrusion, at least de facto, upon the traditional rights and interests of the Claim Group in the wider area than the Township itself prior to the compensable acts. Clearly, that was a significant intrusion, and causing significant cultural and spiritual pain and anxiety to the Claim Group. Much of the evidence of Palmer and Asche concerned significant Dreaming lines or sacred sites, outside Timber Creek itself, which had been destroyed or impaired in previous times. The appropriate level of compensation must take account of that pre-existing state of affairs.

[Emphasis added.]

See also [323] and [326].

323    The way in which the Commonwealth argued that the primary judge had awarded compensation for non-compensable acts was that the primary judge wrongly held that the Claim Group should be compensated on the basis that they felt a sense of failed responsibility for damage to the land and that included compensation for the loss of control of access to and use of the land. Those losses occurred at common law and were not compensable under the NTA.

324    The primary judge confronted the issue directly at [372] as follows:

These effects are not simply about access and use of land. As Palmer and Asche explain, those with whom they worked in the field expressed a variety of emotions regarding damage and loss of their cultural places. This is to be understood, in their expert opinion, in terms of the spiritual integrity of the landscape as being fundamental to the native title holders. The response of the native title holders to any interference or damage to that spirituality must therefore be understood in view of the bond understood to exist between a person and the spirituality of country.

[Emphasis added.]

325    On the whole, the references in the reasons for judgment relied on by the Commonwealth deal with the Claim Group’s failed sense of responsibility to protect the land and are not directed to the control of access to it. One example is at [334] which is reproduced at [257] of these reasons for judgment.

326    The high point of the Commonwealth’s argument is perhaps found in its reliance on [330] which reads as follows:

I also adopt the findings of the trial Judge that the Ngaliwurru-Nungali share a set of beliefs that govern the rights and obligations of Indigenous persons who wish to have access to, and use, the land and waters of the region: at [587] and that those who were Yakpalmululu (senior owners of country) could deny access to certain foraging areas, and that if a white person wished to go on to Yakpali (country), that person would be expected to ask for permission; the purpose of such a request being to enable the protection of sites of importance to the Ngaliwurru-Nungali: at [615].

Here, the reference to the ability to control access is unrelated to the question of the sense of failed responsibility. It is included for the more general description reiterated in [334] of the nature of the Claim Group’s connection to country. Connection is, of course, central to the existence of native title rights and interests (s 223(1)(b) NTA).

327    Any doubt about the primary judge’s understanding of the need to exclude the effects of prior extinguishment is put to rest by the primary judge’s express recognition of that requirement on a number of occasions in his reasons for judgment such as [323], [326] and [376].

Conclusion

328    Thus, the challenges by the Northern Territory and the Commonwealth to the reasoning of the primary judge in respect of each of the three particular considerations in [378] is not established.

The temporal aspects of the loss

The submissions of the parties

329    The primary judge found that the Claim Group’s sense of loss had been experienced for three decades and the effect of the loss had not dissipated over time. He further held at [382] that the loss of the cultural and spiritual relationship should be assessed on the basis that it would continue for an extensive time into the future. The Commonwealth argued that the primary judge erred in his assessment of the temporal aspects of the loss occasioned to the Claim Group.

330    As to the past loss, the Commonwealth contended that the primary judge did not make any allowance for the fact that some of the people who were alive when the compensable acts were done had died, and some living at the time of the application were not yet born when the compensable acts were done. Further, it could not be said that the effect of the compensable acts dissipated over time when some of the acts, such as those involved in the Wilson Street development, were approved by the Claim Group. Finally, the four acts which took place 30 years ago on which the primary judge relied to conclude that the acts generally had an enduring effect, namely, the building of the causeway, the construction of the army bridge, the scraping of gravel, and the establishment of a diamond mine, were not compensable acts because the army bridge, the gravel scraping and the diamond mine were outside the town area, and the causeway was on Timber Creek and extended into lot 109 which was not the subject of a claim for compensation.

331    In relation to future loss, the Commonwealth argued that apart from the construction of the water tanks, the evidence did not support the conclusion that the effects would endure into the future. The Commonwealth relied on the evidence referred to at [365] of the primary judge’s reasons and reproduced in [267] of these reasons for judgment that those acts were in effect approved by the Claim Group. Further, the Commonwealth contended that by allowing for compensation for loss suffered for an extensive time into the future, the primary judge allowed for compensation for persons not yet born thereby wrongly applying principles applicable to a judgment in rem to an award of compensation which is a judgment in personam. Rather, the primary judge should have awarded compensation fixed on the basis that it is compensating the community as composed at the time for loss that is finite.

332    The Claim Group submitted that all parties accepted that the primary judge was justified in applying Sch 2 of the LAA. Rule 9(2)(b) and (e) of Sch 2 provide that the assessment include consideration of the time a claimant has resided on the land and the period during which the claimant would be likely to reside on the land in the future. The entitlement to compensation in this case is communal. There is no basis, so it was said, to treat the position differently because the claim group changes by births and deaths.

Consideration

333    The findings made by the primary judge related to the time over which the effects were felt rather than to the particular group of people within the Claim Group who experienced that hurt and distress. Although expressed at a level of generality, the duration of the effect of the compensable acts was a proper factor for the primary judge to take into account. The Commonwealth did not suggest that the primary judge was called upon by the way the case was conducted to consider whether some of the Claim Group members were alive or not at the time when the compensable acts were done or whether there was any issue between the parties that the effects of the acts had a lasting effect.

334    To the extent that the primary judge relied on the four particular acts of interference they were illustrative of the general point. The primary judge at [338] explained:

The nature of Ngaliwurru-Nungali traditional law and custom in relation to duties to look after country, and the effects, under their laws and customs, when country is harmed, was illustrated by the Applicant by reference to four events that occurred in Timber Creek that were the subject of evidence at the earlier trial.

335    The four illustrative incidents took place before the compensable acts occurred. The primary judge said on a number of occasions including at [323], [326] and [376] that pre-existing effects on native title rights and interests had to be excluded from the consideration of the amount of compensation. There is no reason to think that the primary judge failed to exclude consideration of the effects of the four illustrative incidents when assessing the amount of compensation.

336    The criticisms of the way in which the primary judge approached the question of the duration of the effects of the compensable acts are not established.

The Claim Group’s approval of acts on the land

The submissions of the parties

337    Several arguments of the Northern Territory and the Commonwealth relied on evidence that the Claim Group had approved a number of acts relating to the subject lots.

338    The Northern Territory submitted that there was evidence that the Claim Group had agreed to various developments such as the subdivision and sale of lots in Wilson Street, the construction of the army bridge, the construction of the Ngaringman Resource Centre on part of the dingo Dreaming and the establishment of a diamond mine. As these actions were acceptable to the Claim Group and the compensable acts were of a similar type, the only inference available was that the sense of grievance experienced by the Claim Group was a result of not being consulted about the compensable acts and not being able to negotiate the terms of the interference with country rather than a sense of grievance about losing more extensive rights and interests. In particular, there was no basis for compensation in respect of the Wilson Street development because the Claim Group was consulted and agreed to the development.

339    The Commonwealth used the evidence of Claim Group approval of certain actions to challenge the primary judge’s finding that the Claim Group suffered a sense of failed responsibility when developments occurred. In relation to the Wilson Street development the Commonwealth pointed out that it included 26 of the 39 parcels of land in question, excluding the four roads.

340    The Commonwealth argued that the primary judge should have taken into account, even if only as a check measure, the amounts agreed by the Claim Group in various commercial agreements, including a 2003 ILUA, a stock agistment agreement, and a gravel extraction agreement which fixed an agreed minimum compensation figure for distress, worry and anguish following damage to sacred sites. These agreements generally fixed the amount of compensation at between $5,000 and $10,000. The Commonwealth contended that the primary judge erred by failing to give any consideration to the agreements.

341    The Claim Group said that the primary judge did not fail to take into account the extent to which the Claim Group considered acts acceptable or not. The Claim Group contended that the evidence relied upon by the Northern Territory and the Commonwealth was too vague to establish that the Claim Group approved of the Wilson Street development.

342    The Claim Group further argued that the primary judge was correct not to rely on negotiated agreements for the measure of the compensation because they did not provide a measure for what reasonable compensation would be. Further, the agreements referred to by the Commonwealth included provisions which recognised the continuance of native title rights and interests.

Consideration

343    The evidence that the Claim Group had accepted certain developments on the land was referred to and considered by the primary judge particularly at [365] which is reproduced at [267] of these reasons for judgment. Alan Griffiths gave evidence that he stopped the building of the army bridge on one site and a diamond mine on another. He agreed to those developments on other sites because the other sites did not have the same significance to the Claim Group. Jerry Jones gave evidence that the resource centre for Aboriginal people was built on the site of the headdress of the Dingo. Jerry Jones and Josie Jones gave evidence that the development on Wilson Street was accepted by the Claim Group. Jerry Jones explained “we had to get that Wilson Street because the CDEP came up”. Josie Jones explained that some places are special places where building is not allowed, but the development of Wilson Street was okay.

344    The primary judge considered the evidence as a whole. That disclosed that the Claim Group’s acceptance of certain acts on certain lots did not diminish the general sense of loss. The primary judge said at [375] with direct reference to the Wilson Street development:

[T[he relationship of the claim group to their country, including Timber Creek, is a spiritual and metaphysical one which is not confined, and not capable of assessment, on an individual small allotment basis. Nevertheless, it is also clear that there are areas of country which are of particular significance, and areas of country of Aboriginal people (including the Claim Group) where their traditional rights and interests and the spiritual connection to the country is less significant. Some of the evidence addressed the process leading to the Wilson Street development, for example.

345    There is also force in the Claim Group contention that the evidence about the Claim Group acceptance of developments on some of the lots in question such as in Wilson Street was not explored by the Northern Territory and the Commonwealth in a way which established that the approval by the Claim Group signified a reduced feeling of loss.

346    In his assessment of the extent of the loss of the Claim Group, the primary judge took into account that certain parts of the land, including parts of the lots for which compensation was sought, were less significant than others. The primary judge gave proper and balanced consideration to the evidence that the Claim Group had accepted certain actions which interfered with their rights and interests in the subject lots in the context of the evidence as a whole. There was no error in taking that approach.

347    As to the Commonwealth’s submission regarding the need to have regard to the Claim Group’s commercial agreements, the first thing to be said is that this submission at trial received the briefest of passing reference in the closing submissions. It occupied 14 lines of transcript. Furthermore, the submission accepted that the agreements provided only an initial predetermination of the damages involved. The agreements did not provide final figures for the level of compensation.

348    The earliest agreement was an ILUA made with the Commonwealth on 16 July 2003, which seems to concern the construction of the bridge and associated access to the military training area known as the Bradshaw Field Training Area. Clause 15.7.2 of the agreement provided that compensation for anxiety, distress and the like caused as a result of damage to sacred sites or objects was to be agreed, but was to be no less than $5,000. Clause 15.7.1 required the Commonwealth to remedy the damage or reimburse the traditional owners for the cost of remedial action.

349    There were two agreements made with Bradshaw and Timber Creek Contracting and Resource Company Pty Ltd (Bradshaw Contracting) in 2013. One was for gravel extraction and included provision for $10,000 compensation for anxiety, distress and the like caused by damage to sacred sites (cl 7.6). The other was a lease of lots 97, 98 and 114 for a works depot. The compensation was set at the higher of $10,000 or the amount assessed by the CEO of the Aboriginal Areas Protection Authority (cl 25.4). Both agreements provided for the damage to be remedied in addition to the payment of compensation. The lease expressly provided that it was not to extinguish native title rights.

350    Quite apart from the lack of emphasis given to these agreements by the Commonwealth at trial, there is no substance in the criticism that the primary judge should have referred to the agreements. The main reason is that the agreements do not provide compensation for the permanent loss of rights. In this respect they operate in an area of discourse quite remote from the present circumstances which involve extinguishment of native title rights and interests.

351    Further, in the case of two of the agreements the nominated figures are, as the Commonwealth pointed out to the primary judge in final submissions, initial predeterminations rather than fixed amounts of compensation. There is no way of telling whether the final figures would be much greater than the starting points. These agreements thus provide no useful points of reference for the assessment undertaken by the primary judge. Furthermore, although Bradshaw Contracting is a separate legal entity, it is a company formed by and operated by the Claim Group. The directors are Claim Group people and Bradshaw Contracting employs local Claim Group people. In these circumstances, the compensation provisions could well be templates taken from precedent agreements in which the parties were oppositional. Those provisions might not be truly reflective of the circumstances in which the Claim Group members were essentially dealing with themselves.

352    The criticisms of the way in which the primary judge approached the question of the Claim Group’s approval of acts on the land are not established.

The appropriateness of the award in all the circumstances

The submissions of the parties

353    The Northern Territory contended that awards for solatium are guided by principles of fairness and moderation. That is reflected in some of the compulsory acquisition statutes which limit solatium to 10% - 15% of the value of the economic loss. From these principles the solatium in this case should be fixed at 10% of the economic loss. Using Mr Lonergan’s formulation of economic loss based on Mr Wotton’s land valuations, with the primary judge’s assessment of pre-judgment interest, the appropriate award for solatium would be $93,848 (10% of $938,482). Using the primary judge’s assessment of the economic loss, the appropriate award for solatium would be $200,066 (10% of $2,000,661). That would be fair compensation for the effect of act 46 and the grievance caused by the failure to consult and negotiate before the compensable acts occurred. In respect of the right to be consulted, the Claim Group have no claim for non-economic loss in respect of the compensable acts done in the development of Wilson Street which they approved. Most of the compensable acts concern lots in Wilson Street, but the evidence is not clear precisely which of those acts were approved. There is also no evidence that if consulted the Claim Group would have done otherwise than seek remuneration for the economic loss of their rights in the land. Further, as the compensation for economic loss was substantial, the solatium award should be moderated to account for the benefits achieved by that part of the award.

354    The Northern Territory submitted that the relative advantages of the primary judge over this Court on the issue of non-economic loss are moderate. No issues of witness credibility arise, and a significant portion of the evidence before the primary judge going to this issue was transcript and witness statements from other proceedings. Further, much of the dispute on appeal is directed towards the principles governing awards of compensation rather than the evidence of loss. Thus, this Court should fix the compensation for solatium in accordance with the approach suggested by the Northern Territory.

355    Both the Northern Territory and the Commonwealth argued that the amount of the solatium award was excessive when viewed in the wider context. The lots involved covered an area of 1.27 square kilometres. The Claim Group hold native title rights in the area of the township of Timber Creek amounting to 20.53 square kilometres. Further, the area of 1.27 square kilometres should be seen in the wider context of the total land area of 1,425 square kilometres in which the Claim Group and other traditional owners hold interest under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). The total area held by some members of the Claim Group under the ALRA in the Mayat Aboriginal Land Trust was about 36 square kilometres. The Commonwealth also submitted that while the Claim Group consist of five estate groups, the compensable acts affected land falling within only one estate. The primary judge failed to have regard to the fact that the estates of the other four groups fall outside the town.

356    The Commonwealth then argued that the primary judge erred in the approach to making an in globo assessment of the loss resulting from the compensable acts. While it was not necessary for the primary judge to make an individual assessment of the loss specific to each lot, where particular evidence was led about the circumstances reflecting on the effect of the compensable act on a specific lot, the primary judge was obliged to consider that evidence and then stand back and assess the loss on a global basis. The evidence referred to earlier in these reasons for judgment to the effect that the Claim Group accepted the Wilson Street development should have been treated in that way. However, the primary judge did not consider that evidence when making the in globo assessment.

357    The Commonwealth contended that the same approach which an appellate court takes to the assessment of general damages applies to the determination of the amount of solatium in this case. Thus, the appellate court will not interfere with an assessment unless the trial judge acted on a wrong principle of law or misapplied the facts or arrived at a figure which was a wholly erroneous measure of the loss. The appellate court will not disturb the assessment merely on the ground that it would not have assessed the loss in the same amount. When an appellate court decides to intervene it may assess the loss for itself if the material before it allows it to do so and if the trial judge did not enjoy a particular advantage not available to the appellate court. Where the assessment turns on or is significantly influenced by the view formed by the trial judge of witnesses or the view formed as a result of assimilating all the evidence and circumstances of the trial proceeding, the appellate court will remit the matter to the trial judge for further determination. The Commonwealth submitted that any of the errors made by the primary judge which it identified justify this Court intervening. The Commonwealth further argued that this Court is in as good a position to determine the amount of solatium as the primary judge, and that it should do so. The Commonwealth then set out the elements of the proper approach to the fixing of compensation for solatium which this Court should include. Those elements are as follows.

358    Compensation should be fixed having regard to the communal and collective nature of the rights and interests. It should reflect the fact that the rights and interests were non-exclusive. The relevant loss is the loss from the compensable acts, not loss resulting from prior or subsequent acts which are not compensable under the NTA. At the same time, the Court need not separate out in a mathematical sense the effect of the compensable acts from the effect of other circumstances, that is to say, a multifactorial approach is appropriate. The construction of the water tanks damaged a significant Dreaming place and caused considerable distress. But the balance of the land did not have the same level of spiritual significance and attracts a lesser level of compensation. The land affected by the compensable acts is a small part of the town of Timber Creek, over most of which the Claim Group hold exclusive native title. Further, Timber Creek is within a large area of freehold land in which the Claim Group have rights as traditional owners under the ALRA. Solatium is assessed at the date of judgment, but is not calculated in respect of future members of the group. The amounts awarded in general law cases to Aboriginal people for cultural loss provides some assistance in the calculation in the present case and range from $1,000 to $20,000. Further, the amounts of between $5,000 and $10,000 agreed by the Claim Group in commercial transactions in the event of destruction of spiritually significant places provide a check measure. These figures display some parity. It would distort the amount of the assessment to simply multiply such a figure by the number of people in the claim group. But the same problem does not arise if that figure is applied to the number of parcels of land in question. The claim relates to 53 compensable acts in respect of 43 parcels of land of which four are roads. It would be appropriate to apply a figure of $5,000 to each lot other than the lot affected by the construction of the water tanks. Because of the heightened sense of distress over that act, it would be appropriate to assess the loss in respect of that parcel as $20,000, a total of $230,000.

359    The Commonwealth also submitted that it did not intend to suggest that a range of $5,000 to $20,000 per parcel of land was appropriate in this case. Rather, the higher figure represented only an appropriate measure of cultural loss in a case where there has been a significant level of spiritual damage or destruction.

360    South Australia, intervening, adopted the approach of the Commonwealth for the assessment of non-economic loss. South Australia further submitted that it is not appropriate to adopt a mathematical or formulaic approach, and that an in globo assessment was warranted. The incremental and cumulative effect of the compensable acts on the native rights and interests in land could only be ascertained by considering the nature of the whole of the native title rights and interests in the determination area, including those exercisable as a consequence of ss 47, 47A and 47B of the NTA. Finally, it was submitted that any assessment of compensation for non-economic loss should take into account any mitigating actions taken by the party liable to pay the compensation, including steps taken to consult, negotiate, and avoid or minimise impact on important sites.

361    The Claim Group sought to uphold the primary judge’s assessment of the non-economic loss. The Claim Group contended that the nature of the task of assessment of non-economic loss called for restraint on the part of an appellate court. The assessment of the amount of non-economic loss involves an evaluative judgment which depended on the primary judge’s observation of the Claim Group witnesses and the effects of the compensable acts on them including an assessment derived from inference. The divergence between the Northern Territory and the Commonwealth in the amounts which they suggested were appropriate from about $94,000 to between $230,000 and $860,000 (presuming that the upper range for non-economic loss for each parcel of land is $20,000) respectively shows that the assessment is not amenable to a mathematical calculation. That the appeal court might have made a different assessment is not a sufficient reason to interfere. There must be a material error which demonstrates that the assessment is wholly erroneous.

362    In the present case the primary judge heard evidence from six Indigenous Claim Group witnesses on-country including restricted men’s evidence and the primary judge inspected the parcels of land in question. Under s 86 of the NTA the primary judge also received evidence given in Griffiths SJ including evidence from the senior Claim Group witnesses who also gave oral evidence before the primary judge in this proceeding. The primary judge also heard concurrent evidence from Palmer and Asche, for the Claim Group, and Professor Samson, for the Northern Territory, who had also given evidence in Griffiths SJ.

363    The Claim Group argued that the primary judge had an advantage gained from hearing the oral evidence, visiting the site, and from his immersion on the totality of the evidence called in the proceeding. The Northern Territory and the Commonwealth did not identify findings made by the primary judge which are glaringly improbable or contrary to compelling inferences, the necessary foundation for an allegation of error sufficient for appellate intervention.

364    The Claim Group argued that there was no clear evidence of the extent of the Claim Group’s native title interests outside the town. In any event, so it was argued, the primary judge at [319] and [364] took into account that the Claim Group might have native title interests outside town.

365    The Claim Group denied that there was any principle of moderation in fixing the amount of compensation as proposed by the Northern Territory. The compensation is for incalculable imponderables. Consequently, reckoning the figure by adopting a percentage of the economic value of the land as proposed by the Northern Territory or by adopting a dollar range per parcel, is inappropriate. In the end, compensation for distress and anguish is the result of a social judgment. It is a solatium not a material recompense for harm measurable in money.

366    The Claim Group submitted that the mere fact that a different amount of compensation might have been justified does not warrant disturbance of the primary judge’s assessment in the absence of any error of principle or fact.

367    The NTRB interveners submitted that because the Claim Group’s spiritual relationship with the physical world is one indissoluble whole, it would be inappropriate to isolate and quantify the significance of the connection to each parcel of land. The NTRB interveners further submitted that analogies to general damages for loss of amenities of life are inapposite to the assessment of compensation for loss of native title, as the right to compensation arises under the NTA and the relevant principles are those and only those to be found in the legislation properly construed. Finally, the NTRB interveners submitted that there is no necessary relationship between economic and non-economic loss. This is particularly the case in remote areas where there are few, if any freehold titles to provide comparison. Furthermore, in such remote areas the economic value of the land is likely to be minimal because of its distance from centres of economic activity. Yet it cannot be said that such remote areas are of less cultural or spiritual significance.

Consideration

368    These arguments call for consideration of four issues relating to the overall appropriateness of the award of compensation for non-economic loss, namely, whether the primary judge failed to take account of the Claim Group’s ability to exercise rights in adjoining and nearby land, whether a principle of fairness and moderation applies to the assessment of compensation for non-economic loss, whether aside from any error of principle or fact the amount of the award was manifestly excessive and whether this Court should fix the amount of compensation.

369    Each of these issues will now be considered in turn.

The Claim Group’s rights in surrounding lands

370    A matter of some difficulty facing the primary judge was the circumstance that the lots in question covered about 1.27 square kilometres whilst the Claim Group held rights in a large area of land surrounding the subject lots. The land within Timber Creek in which the Claim Group was found to hold exclusive native title rights and interests amounts to 20.53 square kilometres. The area in which some of the Claim Group hold freehold title under the ALRA is 1,425 square kilometres and a further area of 36 square kilometres. The relatively small area of the subject lots compared with the neighbouring lands over which the Claim Group, or some of them, have rights and interests gave rise to the enquiry whether the loss of rights over the subject land was significant.

371    The primary judge recorded that the Claim Group held exclusive native title rights and interests within the town area as a result of Griffiths SJ and Griffiths FC. He also recorded at [29] - [31] that the Claim Group held rights under the ALRA in country surrounding Timber Creek and encompassing the former Fitzroy Pastoral Lease, Stokes Range Pastoral Lease and Kidman Springs and Jasper Gorge Pastoral Leases. Then, at [302] – [304] the primary judge set out the argument of the Northern Territory that the effect of the compensable acts “would be quite slight” because the compensation must be assessed having regard to the spiritual and usufructuary significance and area of the land affected, but relative to other land that remained available to the Claim Group for the exercise of the native title rights and interests”.

372    At [319] the primary judge accepted in principle the approach now contended for by the Northern Territory and the Commonwealth. Whilst it is true that, as the Commonwealth contended, the primary judge did not set out the relative sizes of the subject land and the other land in which the Claim Group held rights and interests, from what was recorded in the reasons for judgment he was obviously aware of the facts. The primary judge was also aware of, and dealt with, the Northern Territory contention that the impact of the extinguishment on such a small area would be slight. He properly approached the matter as an intuitive evaluation on the basis of the evidence and arguments before him.

373    It follows that the criticism that the primary judge failed to take account of the Claim Group’s rights in surrounding lands is not established.

Is there a principle of fairness and moderation?

374    A passage in Skelton v Collins (1966) 115 CLR 94; [1966] HCA 14 (Skelton) was the foundation for the Northern Territory’s contention that there exists a principle of fairness and moderation which governs the award of solatium.

375    The non-economic loss claim was to compensate for the effects of the loss or diminution in the Claim Group’s native title rights and interests in land. It was for anguish and distress caused by the extinguishment of their rights. Losses of that nature cannot be measured in terms of money. The basis on which such assessments are made has been explored in the assessment of loss of amenities of life in cases of personal injury. Skelton involved a person who suffered a brain injury in a vehicle accident which left him permanently unconscious. In respect of the approach of the assessment of damages for the loss of amenities of life, Windeyer J said at 129 – 132:

The next matter depends upon very different considerations. It turns upon the plaintiff’s being deprived of something that he could not have sold, his ability to enjoy in the way that he formerly could whatever life should offer. A man whose capacity for activity, mental or physical, is impaired, so that no longer can he get satisfaction and enjoyment from the things that he was accustomed to do and cannot do what he had planned or hoped to do, has not lost a thing the value of which for him can be measured in money by any process of calculation or estimation that I could understand. This consequence of an injury may be called by the convenient phrase, “loss of amenities”, or be described more elaborately and in more elegant words. However, described, it is not a loss of something in the same sense that loss of a possession or of earning capacity is. A man who loses a limb, his eyesight, or his mind, does not lose a thing that is his, as his ox or his ass or his motor car is his, but something that is a part of himself, something that goes to make up his personality. … I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created not upon payment for something taken away.

…

I do not for a moment doubt that a man who has been deprived of the opportunity to live his life as he would have wished, and for as long as he might have expected, may, if he retains sufficient intellectual capacity to know his misfortune, feel distressed and frustrated. He is, I do not doubt, entitled to compensation for what he suffers. Money may be a compensation for him if having it can give him pleasure or satisfaction. If his expected years of life have been made less, money may enable him to cram more into the time that remains. If he has been deprived of the ability to do some things that he had enjoyed doing or had hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put. I have, for convenience, used the word “recompense” to make this contrast. There is really no one word that I know which is sufficiently explicit. “Reparation” is unsuitable because in the law of Scotland, and of France, it is used to cover all forms of damages. The words do not matter however, for the distinction between a loss of a thing on which a money value can be put and the distress of mind and sense of loss for which money is only a solace is, I consider, basic and real. … But I confess to knowing no real measure that can be used. The only guide suggested is fairness and moderation, whatever those may denote.

[Emphasis added.]

376    Fairness and moderation are useful touchstones in the assessment of compensation. But in view of the last phrase used by Windeyer J in the above passage it might be ambitious to describe fairness and moderation as constituting a principle. Rather they provide a restraint on extravagant awards. That was explained by Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8 in respect of cases in which money cannot heal the wounds of the injury experienced. They said at 585 “recognition of this fact is no occasion for any instinctive response that no amount is too large to atone for the plaintiff’s suffering”. Their Honours also indicated that, in the personal injury context, where amounts are awarded under other heads of damage and those amounts provide some freedom from economic uncertainty, the amount for loss of amenities of life might be consequentially reduced. It is in these senses that a sensible approach should be taken to the fixing of the level of compensation. The primary judge was not bound to approach the assessment with any particular restraint or limitation, but rather was required to make an assessment of just terms as provided for by the NTA.

377    In support of an approach of moderation and restraint the Northern Territory referred to the limits on awards for solatium fixed by compulsory acquisition statutes in some States. In Victoria solatium is capped at 10% of the market value of the land (Land Acquisition and Compensation Act 1987 (Vic) s 44(1)). In New South Wales $15,000 is specified (Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 60(2)) and in Western Australia 10% of the market price is specified (Land Administration Act 1997 (WA) ss 241(8) and (9)). But, in both New South Wales and Western Australia there are override provisions which, if engaged, would lead to higher awards. Thus, the pattern of legislative limitations, when they exist, is varied. More importantly, the context in which those provisions regularly apply are far removed from the case of the deprivation or impairment of native title rights and interests. As emphasised by the primary judge throughout his reasons for judgment, there exists between Aboriginal people and their country a unique and powerful bond unlike the relationship which non-Indigenous people have with land. The primary judge was justified in setting the amount for solatium without a restraint derived from the statutory provisions.

378    It follows that the contention that the primary judge erred by failing to have regard to a principle of fairness and moderation in fixing the amount of the award of solatium is not established.

Was the award of solatium manifestly excessive?

379    The entitlement to compensation under the NTA is not at large. Various provisions create limitations on the amount and categories of the award. The compensation is to be on just terms. It is to compensate the native title holders for any loss, diminution, impairment or other effect on their native title rights and interests. And those results must have flowed from the act in question. These limitations flow from s 51(1) of the NTA. Further, the compensation may only, subject to s 51(6), consist of the payment of money: s 51(5). The upper limit of an award is, subject to s 53, fixed by s 51A.

380    Notwithstanding these provisions the task of fixing the amount of compensation is one calling for the exercise of discretion. The grounds of review on appeal of the exercise of a discretion are well established. A judge exercising a discretion falls into error if the judge acts on a wrong principle, allows extraneous or irrelevant matters to guide or affect the exercise of discretion, mistakes the facts, or does not take into account some material consideration. And there is a residuary category where it may not appear how the judge reached the result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure properly to exercise the discretion. Although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred: House v the King (1936) 55 CLR 499; [1936] HCA 40 at 505 (per Dixon, Evatt and McTiernan JJ) (House).

381    The Northern Territory and the Commonwealth did not identify the way in which their arguments fell within the House categories. So far in these reasons for judgment the grounds of appeal have not been dealt with on the basis that they fell within the residuary category. However, in the way the grounds of appeal were expressed, particularly in the case of the Northern Territory, and in the way the appeals have been argued, it is at least an implicit complaint that the award for solatium is manifestly excessive within the residuary category articulated in House.

382    The primary judge at [302] explained that there was a step between making findings on each of the matters relevant to the assessment of the award and the fixing of the figure of compensation that involved an intuitive judgment.

383    The role of intuitive judgment is familiar in the process of sentencing in criminal law, where the cognate term ‘instinctive judgment’ is often used. In Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) Gleeson CJ, Gummow, Hayne and Callinan JJ said at 374:

[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.

384    The genesis of the expression ‘intuitive/instinctive synthesis’ appears to have been in the judgment R v Williscroft, Weston, Woodley and Robinson [1975] VR 292 (Williscroft) (Adam, Starke and Crockett JJ). At 300 the Court explained the process involved in arriving at an intuitive judgment as follows:

Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was thought to be in Kane's Case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination. It is sufficient to say that in our opinion the learned Judge did not in the cases before him give to the aspects other than reformation the weight that ought to have been allotted to them. Or, in other words, he has undervalued the nature and circumstances and gravity of the offences of armed robbery and attempted armed robbery with the result that we are persuaded that his discretion has miscarried.

We are aware that such a conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate. Indeed, in R v Geddes (1936) 36 SR (NSW) 554, Sir Frederick Jordan, CJ, was sufficiently oppressed by the problems of seeking a rational principle for determining whether a sentence was inadequate, that he was able to find a solution only in the employment of an epigrammatic device. After pointing out that it was easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, the learned Chief Justice observed that "...the only golden rule is that there is no golden rule" (at p. 555). But it is not sufficient for a sentence to avoid subsequent review that it can be said of it that it is the product of what is admittedly a wide discretion conferred upon a judge who can be shown to have given some consideration to all relevant elements. There must be some recognition of and accord with “the moral sense of the community” in the selection of the appropriate penalty. No matter how ephemeral that phrase may be or how elusive the task of evaluation of such a concept may prove in a given case, the task must nevertheless be essayed. The problem really is little different from and no less difficult than that of ascertaining “community standards” for the purposes of assessing damages in a civil case. In this connexion it is helpful to observe that in Tzouvelis v Victorian Railways Commissioners, [1968] VR 112, at pp. 154-5 Gowans, J, speaking as a member of the Full Court, said: "Whatever may be the difficulties of ascertaining the 'general standards prevailing in the community', and whatever may be the practical problem involved in an appeal court determining whether a jury has observed those standards, it is not permissible, as I understand the law, for an appeal court charged with the function of exercising a supervisory jurisdiction in respect of the verdicts of juries to say in any particular case that the jury had set their own standard and it was all a matter for them. The appeal court must measure the verdict against some standard and the various phrases used to describe the standard (see Australian Iron and Steel Ltd. v Greenwood (1962) 107 CLR 308, at p. 327; [1963] ALR 710, at pp. 722-3) do not really disguise the fact that the judges sitting on appeal must depend upon their own knowledge of awards in other cases, whether derived from personal experience or otherwise, and pronounce upon the question as to whether the award is 'substantially beyond the highest figure, which in their view could reasonably have been awarded'."

[Emphasis added.]

385    A process determined by intuition is open to criticism as lacking in predictability and transparency and governed by subjectivity, personal proclivity, arbitrariness and lack of confined boundaries. These were, in substance, the criticisms directed to the way the amount of compensation for solatium was arrived at by the primary judge.

386    In an article recently published in the Harvard Law Review, HLA Hart identified that in the exercise of a discretion based on intuition there is a “leap” between the assembling of the factors relevant to the exercise of discretion and the determination as to the way in which the discretion is to be exercised: ‘Discretion’, (2013-2014) 127 Harv. L. Rev. 652. He also referred to the guidance offered by past experience of similar circumstances. At 665 he wrote:

I have myself concentrated attention in this admittedly introductory paper on the “leap” necessarily involved in the exercise of discretion after we have done all we can to secure the optimum conditions for its exercise. This is important because phrases often used to describe the exercise of discretion, such as “intuition” [and] “recognition of an implicit guiding purpose’, may encourage the illusion that we never reach the point where we have to reconcile conflicting values or choose between them without some more ultimate principle to guide us. I think the suggestion that we never reach the “leap” is just as wrong as a description of discretion as a mere arbitrary choice would be. It seems to me clear that just because there is a point at which we can no longer be guided by principles and at the best can only ask for the confirmation of our judgment by persons who have submitted themselves to a similar discipline before deciding, that we have in discretion the sphere where arguments in favour of one decision or another may be rational without being conclusive. No doubt we learn through successive exercises of discretion in a similar field and discovering what in the sense explained above appears to be vindicated to identify factors attention to which will be necessary if further decisions are to be justified.

[Emphasis added.]

387    In Markarian, McHugh J drew attention to the role of previous cases in the exercise of what might otherwise be regarded as an unconstrained exercise as follows:

76.    [A]lthough a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance.

77.    [T]he sentencing judge almost never imposes a sentence of an offence that has been committed for the first time.

388    In searching for an explanation why the exercise of a wide discretion is not simply an exercise in arbitrary subjective power, HLA Hart suggested at 664:

I think it not too much to say that decisions involving discretion are rational primarily because of the manner in which they are made, but of course the word “manner” here must be understood to include not only narrowly procedural factors and the deliberate exclusion of private interests, prejudice, and the use of experience in the field but also the determined effort to identify what are the various values which have to be considered and subjected in the course of discretion to some form of compromise or subordination.

389    A homely touchstone for the exercise of discretion in fixing general damages for personal injuries was captured by Lord Devlin in West v Shephard [1964] AC 326 at 357 where he said that the award should be such that the defendant “can hold up his head among his neighbours and say with their approval that he has done the fair thing”.

390    Lest it be thought that recognition of the leap is a new phenomenon some comfort is gained from the consideration of the same issue making due allowance for the role of juries in the assessment of non-economic loss in tort cases in the 1st edition of Mayne on Damages. Writing in 1856, John D Mayne said:

On the other hand, where the person or character are injured, it is difficult, if not quite impossible to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires. It must not be supposed, however, that even cases of this sort are quite beyond rule. If it were so, there could be no such things as new trials for excessive damages. The difference is, that in cases of contract, and in some cases of tort to the property, a rule can be applied to the facts so accurately as to make the amount a mere matter of calculation. In the other class of offences, the rule goes no further than to point out what evidence may be admitted, and what grounds of complaint may be allowed for. But when this is done, the amount of damages is entirely in the disposition of the jury. A new trial will only be granted when the verdict is so large as to satisfy the Court that it was perverse, and the result of gross error; and to prove that the jury have acted under the influence of undue motives, or misconception.

391    The development of the law of damages reflects a growth in the trust and confidence reposed in judges. In the latter part of the 6th Century the laws of Ethelbert, an Anglo-Saxon King, specified damages, or “weres” for wrongs in minute detail. Thus it specified that:

If an ear be cut off, let compensation be made by payment of twelve shillings.

If a piece of the ear be cut off, let compensation be made by payment of six shillings.

Whoever fractures the chin bone, let him forfeit twenty shillings for the offence.

For each of the front teeth, six shillings.

392    The development after the Norman conquest is described in Sedgwick and Beale A Treatise on the Measure of Damages 8th edition 1891 at 14 – 15:

In the laws of Alfred, the rates are higher, whether owing to a better appreciation of personal rights, or to the increased and consequent depreciation of the currency. In the laws of the Conqueror, the weres become very few. Perhaps this is evidence of a civilization gradually increasing, and a jurisprudence slowly improving; for feeble certainly, and unreliable, must be the tribunal charged with the task of imposing damages in civil suits, if the legislator considers it unsafe to be trusted with the assessment of the amount. This elaborate and minute specification, therefore, though on its face it appears to indicate the care and watchfulness of the lawgiver, on a closer examination furnishes stronger proof of his distrust of the judiciary. Arbitrary rules, which do not bend to the justice of the particular matter, especially when used to fix values, are always a misfortune and a defect in jurisprudence: they should never be tolerated, unless on account of some peculiar and extraordinary difficulty in arriving at the truth of the individual case.

393    The unusual challenge presented by this case to the application of the principles relevant to the exercise of discretion on an intuitive basis is that, unlike in sentencing cases or in cases involving awards of damages, there is no history in Australia of analogous awards of compensation for non-economic loss from the extinguishment of native title rights and interests.

394    As explained earlier in this section of these reasons for judgment, the primary judge considered matters relevant to the assessment of solatium. He did not make any errors in the selection or evaluation of those matters. The principal factor extensively detailed by the primary judge was the nature of the Claim Group’s relationship with their country. Against that background he considered the effect of the interference with their land on the Claim Group. He found that the effects could not be seen as limited to the precise geographical area of the lots in question. He excluded effects which did not derive from the compensable acts. He also took into account that some acts on the land had been approved by the Claim Group. He accepted that the Claim Group had rights in adjacent and nearby lands upon which they could exercise some of their cultural practices. He found that the area in question was a significant area. The primary judge found that awards in cases involving damage to Aboriginal cultural rights were not useful as guidance for the fixing of compensation in the present circumstances. He did not find any useful guidance in the agreed amounts for compensation in some commercial agreements made by the Claim Group.

395    These findings were the foundation for the intuitive leap taken to reach the figure for solatium. The ultimate touchstone is provided by the NTA, namely, that the compensation reflect just terms. The question for this Court is whether the figure is substantially beyond the highest figure which could reasonably have been awarded (Williscroft). The moral sense of the community is a relevant touchstone particularly where, as here, there are no previous cases to provide guidance. Parliament declared in the preamble to the NTA that it enacted the NTA to address the dispossession of Aboriginal people from their lands without compensation with the result that they have become the most disadvantaged group in society. The mechanisms adopted by parliament including the requirement for compensation on just terms must be seen in the light of the aim of the statute to remedy historical injustice visited upon a group by reason of their race. The question then is whether the award for solatium would be judged by the Australian community as fair to the Claim Group. Whilst the loss of rights so intertwined with the identity of a people cannot be valued in money, the award must signify by its amount a recognition of the level of the impact on the Claim Group. The findings of the primary judge demonstrate that the impact on the Claim Group was at a very high level. What amount is required to recognise a severe and lasting impact on the loss of such rights?

396    In order to provide appropriate recognition, the Court must draw on knowledge of the value of money in the community. It must look to the buying power of money in the community to fix on an amount sufficient to recognise the severity of the impact of the loss and impairment. Thus, an award of $1000 would not satisfy the moral sense of the community because most people would spend more than that on groceries in a year. On the other hand, $1 million is seen by most in the community as a substantial sum, in some major cities close to the median house price. The figure of $1.3 million fixed by the primary judge reflects in money terms recognised by the community a substantial acknowledgement of a high level of damage done to the Claim Group.

397    The only assistance from previously decided cases outside Australia which we have been able to find are a number of cases from the Inter-American Court of Human Rights.

398    Yakye Axa Indigenous Community v Paraguay (IACHR, 17 June 2005) concerned the Yakye Axa, a community of about 319 people divided into 90 families. They are indigenous people who live in the Paraguayan Chaco or western region. That region is very sparsely populated and semi-arid. The Yakye Axa were hunter/gatherers who wandered across the area west of the Paraguay River in the vicinity of Concepción. Towards the end of the 19th century their lands were sold through the London stock exchange to private ranchers. At the same time the Anglican Church established a number of missions in the area. The Yakye Axa were shifted onto the missions. In 1993 they took steps under the Paraguayan legal system to reclaim their lands. That system recognised their right to their traditional lands but proved ineffectual to return the lands to them. In the Inter-American Court of Human Rights the Yakye Axa relied on the right to property under Article 21 of the American Convention to make various claims. At [135] the Court described the relationship of the indigenous people with their lands as follows:

The culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity.

399    The Court found that Paraguay had violated Art 21 as follows:

154.    To guarantee the right of indigenous peoples to communal property, it is necessary to take into account that the land is closely linked to their oral expressions and traditions, their customs and languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and values. In connection with their milieu, their integration with nature and their history, the members of the indigenous communities transmit this non-material cultural heritage from one generation to the next, and it is constantly recreated by the members of the indigenous groups and communities.

155.    While Paraguay recognizes the right to communal property in its own legal order, it has not taken the necessary domestic legal steps to ensure effective use and enjoyment by the members of the Yakye Axa Community of their traditional lands, and this has threatened the free development and transmission of their traditional practices and culture, in the terms set forth in the previous paragraph.

400    One of the various forms of relief granted by the Court was non-pecuniary damages under Art 63(1) which provided for “fair compensation be paid to the injured party”.

401    The Court explained the award of compensation as follows:

202.    This Court notes that when it orders reparation for non-pecuniary damages, it must consider the fact that the right to communal property of the members of the Yakye Axa Community has not been made effective, as well as the grave living conditions to which they have been subjected as a consequence of the State’s delay in making their territorial rights effective.

203.    Likewise, the Court notes that the special significance of the land for indigenous peoples in general, and for the Yakye Axa Community in particular …, entails that any denial of the enjoyment or exercise of their territorial rights is detrimental to values that are very representative for the members of the said peoples, who are at risk of losing or suffering irreparable damage to their cultural identity and life and to the cultural heritage to be passed on to future generations.

…

205.    … [T]he Court, in fairness and based on a judicious assessment of the non-pecuniary damage, deems it pertinent for the State to create a community development fund and program that will be implemented on the lands that will be given to the members of the Community, … The community program will consist of the supply of drinking water and sanitary infrastructure. In addition to said program, the State must allocate US $950,000.00 (nine hundred and fifty thousand United States dollars), to a community development program that will consist of implementation of education, housing, agricultural and health programs for the benefit of the members of the Community.

402    The aspects which make that case similar to the present are the nature of the people as hunter/gatherers, the central importance of their land, and the history of dispossession. What is different about the case is that the Court also ordered that the land be returned to the Yakye Axa and further that the award included an element for the grave living conditions which they had been forced to endure. Nonetheless, the general similarity of the amount of the award and the important features of the case provide some, albeit limited, validation of the appropriateness of the solatium award in the present case. The fact that the Yakye Axa were to get their land back means that the award was significantly higher than the award in the present case. In the present case the award included an element for loss of the land for all time and yet was only equivalent in money terms with the amount awarded to the Yakye Axa. On the other hand, the area awarded to the Yakye Axa was about 18,000 hectares, considerably more than the area on which the compensable acts took place in the present case. That factor may not have as much significance as appears at first sight. On the approach taken by the primary judge the impact of compensable acts on a larger number of lots may not have added significantly to the award because of the collateral detriment of the compensable acts which the primary judge took into account when fixing the amount of the award for solatium.

403    Following the Yakye Axa case, a similar case was brought on behalf of the Sawhoyamaxa, an indigenous community also from the Paraguayan Chaco: Sawhoyamaxa Indigenous Community v Paraguay (IACHR, 29 March 2006). In almost identical circumstances to the Yakye Axa, the Sawhoyamaxa were awarded US $1,000,000 for non-pecuniary damage, in addition to the return of their traditional lands.

404    Then in 2007, a case was brought on behalf of the Saramaka, an indigenous community from Suriname: Saramaka People v Suriname (IACHR, 28 November 2007). In that case, in addition to ordering the return of communal title to the Saramaka people, the Court awarded US $600,000 compensation for non-economic loss. That compensation was in part awarded for the effect on the spiritual connection of the Saramaka people to their land, which the Court described at [82] as follows:

[M]embers of the Saramaka people maintain a strong spiritual relationship with the ancestral territory they have traditionally used and occupied. Land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people. The lands and resources of the Saramaka people are part of their social, ancestral, and spiritual essence. In this territory, the Saramaka people hunt, fish, and farm, and they gather water, plants for medicinal purposes, oils, minerals, and wood. Their sacred sites are scattered throughout the territory, while at the same time the territory itself has a sacred value to them. In particular, the identity of the members of the Saramaka people with the land is inextricably linked to their historical fight for freedom from slavery, called the sacred “first time”.

[Footnotes omitted.]

405    In passing we note that unlike the cases before the Inter-American Court of Human Rights, the present case did not include any claim for compensation for the effect of social disadvantage suffered as a result of the compensable acts. That may well be a further basis for the award of compensation for non-economic loss resulting from the extinguishment or impairment of native title rights and interests in view of the reference in the preamble to the NTA to the social disadvantage suffered by Indigenous people.

406    Another broad validation of the amount of the award comes from a 2002 discussion paper entitled, “How can judges calculate native title compensation?” commissioned by the Native Title Research Unit of the Australian Institute for Aboriginal and Torres Strait Islander Studies and authored by Paul Burke (the Burke report).

407    The Burke report proposed three broad aspects of non-economic loss namely the insult associated with the loss of important rights without consent, the disruption to cultural practices caused by the loss, and mental distress associated with the loss of traditional lands. The “insult” aspect of non-economic loss was taken from the definition of solatium in compulsory acquisition cases. It was intended to respond to the lack of control and essential arbitrariness of compulsory acquisition, and was directed to the affront to the native title holders in their capacity as the holders of distinct rights to land. The “disruption” aspect of non-economic loss was directed to the physical inconvenience, practical annoyance, and discomfort or vexation caused by the loss of rights to the land. It could be compared to loss of amenities of life in personal injuries and inconvenience in relation to injury to property. The “mental distress” aspect of non-economic loss was separate from the “disruption” aspect because of the particular characteristics of native title. The evidence would be taken from a selection of senior native title holders, and would cover the reasons for any feelings of distress and apprehension. The Burke report suggested that a comparison to the average scale of non-economic compensation for injury to property in tort law could provide a suitable lower limit. The initial figure for compensation for non-economic loss would have to be modified in two ways. First, by calculating an “uplift factor” to reflect the adjustment from scales of loss for individuals in analogous torts to the communal nature of native title. The Burke report suggested that that uplift factor would be roughly based on the number of claim group members with the full traditional rights claimed. That “uplift factor” would be further adjusted to take into account claim group members with less than full traditional rights, whether because they are children or are connected to the claim area tangentially, i.e. through marriage. Second, the initial figure would have to be modified to take into account compensation for the younger generation. The Burke report suggested that that could be achieved by adding an additional amount which would, if invested in low-risk investments, reproduce the original amount of compensation for the children in the native title group when they become the senior generation, i.e. in 25 or 30 years.

408    Using this methodology, the Burke report assessed a number of hypothetical claims. The one which bore some similarity to the present circumstances yielded a figure of just under $5.2 million for non-economic loss. The obvious differences between the hypothetical case and the present were that the group affected in the hypothetical case was larger and the loss was of exclusive native title rights rather than non-exclusive native title rights. Nevertheless, those factors would not have produced a reduction to less than the award in the present case.

409    It is important to emphasise that, just as with the selection of a particular penalty or sentence, and just as with the selection of a particular damages figure in tort, the selection of a figure as compensation for what might (not entirely accurately) be called “non-economic loss” or “solatium” under s 51(1) of the NTA is a matter for individual judicial determination. Reasonable judicial minds may differ, on the same evidence, about what the appropriate figure for such compensation should be.