Research Seminar Series with Professor Brendan Edgeworth, UNSW – Thursday 21 November 2019
At the Hon John Dowd Boardroom, Lismore (LIS-L2.30), via Zoom link to the Law Meeting Room, Gold Coast (C6.03 Gold Coast), and remotely via Zoom.
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 his books such including 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.