SLJ Research Seminar Series

Economic Value, Surplus Value, Cultural Value: Native Title after Northern Territory v Griffiths [2019] HCA 7

This paper analyses the recent Australian High Court’s decision in Northern Territory v Griffiths.

Arguably the court’s most important native title pronouncement since Wik Peoples v Queensland (Wik), the ruling has established for the first time clear criteria for quantifying the compensation payable where native title is, according to the Native Title Act, subject to “loss, diminution, impairment or other effect”. In a significant development, unlike Wik, and indeed the Mabo (No 2) decision before it, all eleven judges who heard the case were in agreement as to the amount of compensation for non-economic loss, the most contentious yet most substantial component of the Indigenous plaintiffs’ claim.

The paper will commence with an overview of the litigation and proceed to draw out some difficulties in the reasoning by reference to the criteria for compensation in cases of compulsory acquisition of non-Indigenous land. It will argue that while the decision is overall a just one for the Indigenous plaintiffs and native title holders generally, the High Court might have reached the same result by a more conventional application of those principles to the native title context both in relation to economic loss, and cultural loss. The article concludes by examining the role and extent of the notion of non-economic ‘cultural loss’ that formed the key element in the largest component of the overall compensation amount. Finally, it will seek to locate the decision in the context of the broader development of native title law. The conclusion drawn is that the case can be seen as a watershed moment in the way the legal system has reached, albeit belatedly, an accommodation with the legacy of settler state dispossession, at least in the domain of Indigenous land rights and the Indigenous estate.

Professor Brendan Edgeworth has been a member of the academic staff at the UNSW Law School since 1989. His research interests span most of his teaching areas, as is reflected in my books such as:

— The Precarious Home: Socio-Legal Perspectives on the Home in Insecure Times, Hart Publishing, Oxford (2018) (with Helen Carr, and Caroline Hunter, eds);

— Butt’s Land Law, 7th ed, Thomson Reuters, (2017);

— Law and Poverty in Australia: 40 Years after the Poverty Commission, Federation Press, Leichhardt, NSW (2017) (with Andrea Durbach and Vicki Sentas);

— Native Title from Mabo to Akiba: A Vehicle for Change and Empowerment?, Federation Press, Leichhardt, NSW (2015) (with Sean Brennan, Megan Davis and Leon Terrill);

— Sackville and Neave: Australian Property Law, 10th ed, LexisNexis, Sydney (2016) (with Chris Rossiter, Pam O’Connor and Andrew Godwin), the most widely prescribed property law text in Australian law schools; and

— Law, Modernity, Postmodernity: Legal Change in the Contracting State, Ashgate, Aldershot, UK (2003).

Research and publications cover the areas of law and social theory, and legal history. Professor Edgeworth’s research is also directed to the reform of housing law and property law.

Date/Time:

• Thursday 21 November 2019
  


• 12:00pm – 1.00pm (AEDT/NSW) 
  


• 11:00pm – 12.00pm (AEST/QLD) 
  

RSVP appreciated but not essential.

The conference will explore the intersection of legality, temporality and eschatology, the normatively uncertain and yet inherently creative space originated by the conflicting encounter between the orderly desire of law and the entropic tendency of apocalyptic narratives, with both forces cast against the backdrop of the ever-­deferred notion of time itself.

LLHAA conference registration automatically entitles you to become a member of the Law, Literature and the Humanities Association of Australasia (LLHAA) for a period of 12 months. Your contact information will be supplied to the LLHAA in order to receive Association communication. This includes information about prizes and upcoming relevant events. Your contact information is not given out to a third party except those institutions hosting LLHAA associated events. If you do not want this to happen then tick the box (below) asking to opt out of communications. You can also opt out of Association membership per se but you cannot opt to eliminate the membership fee from your conference registration. You can choose to opt out of LLHAA membership at checkout. 

Download the 2019 LLHAA Conference Postcard

Survive, Thrive, Die. Law in End Times. 5-7 December 2019

Additional Information

Visit the website: sljresearch.net.au/lawinendtimes

• Submission of Abstracts opens on 1 March 2019.


• Closing date for submission of Abstracts is 30 September 2019.


• Presenters must register by 15 September 2019.

For each conference:

• Early Bird $390 until 15 September 2019


• Full Price $450 from 16 September – 15 November 2019


• Conference Dinner $80

Attend BOTH conferences

• Early Bird $580 until 15 September 2019


• Full Price $680 from 16 September – 15 November 2019

The School of Law and Justice are pleased to extend a warm invitation to the 3rd Annual Greta Bird Lecture in Legal Theory and Critique, to be held on 4 December 2019 at Southern Cross University Gold Coast campus. 

Light refreshments will be provided after the Lecture. Tickets are free but RSVP by 29 November is essential for catering purposes, thank you!

Keynote speaker: Professor Karin van Marle

Thoughts on a jurisprudence of doubt

Drawing on a number of perspectives and ideas, I want to consider the notion of the Constitution as a living document, the (im)possibility of politics and the (in)capacity of a constitution to allow for a politics that is not always already limited by its own structure. What is crucial for me is the idea of ‘resistibility’ that could keep potential for politics, ‘community’ and with it world making, open. The drawings and technique of drawing followed by South African artist William Kentridge serve as inspiration for my reflections, in particular his embrace of hesitation, provisionality and doubt.

Karin van Marle teaches legal philosophy and interpretation at the Department of Public Law of the University of the Free State in Bloemfontein, South Africa. Her research involves critical theory, legal philosophy and jurisprudence. Her work engages the crisis of modernity and a rethinking of legal theory along lines of fragility, finitude and a ‘giving up of certitudes’.

She is an ethical feminist and her research and writing are inspired by and embedded in feminist theory. Recent publications include ‘Ubuntu-feminism – Tentative reflections’ (with D Cornell) (2015) Verbum et Ecclesia; ‘Post-1994 jurisprudence and its coming of age stories’ (2015) No foundations; ‘Mandela in/ and Pretoria’ Image and text (2015); ‘ ‘Welcoming’other ways of being and knowing’ (2017) Feminists@law; ‘Modernities and the making of worlds’ (2018) Law and Literature 11-27; ‘”Life is not simply fact”: Aesthetics, atmosphere and the neolibeal university’ Law and critique.

Adjunct Professor Greta Bird is a founding member of the School of Law and Justice, and scholar in the fields of multiculturalism and the law, Indigenous studies, law and society, feminist critique, and critical race theory.  She was an Australian Law Reform Commissioner on the Multiculturalism and Law reference, which reported in 1992 (Multiculturalism and the Law, Report 57), and Director of the National Centre for Cross-cultural Studies in Law. Her work has consistently broken new ground in Australian legal scholarship. Greta is the author of numerous works, including The Civilizing Mission: Race and the Construction of Crime (1987), and The Process of Law in Australia: Intercultural Perspectives (1993).