On 20 July 2017 the Full Court of the Federal Court handed down its judgment in Northern Territory of Australia v Griffiths (per North ACJ, Barker & Mortimer JJ). It concerned claims by the Ngaliwurru and Nungali peoples for compensation for loss of native title under the Native Title Act 1993 (Cth)(“NTA”) as a result of compulsory acquisition of land in the vicinity of the town of Timber Creek in the Northern Territory. An appeal in the matter is currently awaiting judgment in the High Court.
The judgment of the Full Court involved many complicated arguments concerning such compensation, most of which there is no space in this piece to address. However, the primary judge (Mansfield J) set out his reasons in relation to two separate factors of economic and non-economic loss virtually exclusively on the basis of the NTA. The construction of s51(xxxi) of the Constitution, which requires just terms in relation to the acquisition of property by the Commonwealth, was not dealt with in detail. Indeed, the primary judge equated the relevant amount to be awarded under the NTA with such just terms. This approach was continued in the judgment of the Full Court of the Federal Court. That lacuna will be the subject of brief comment.
Such an approach is curious given the terms of s53 of the NTA, which provides:
“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.”
It is also curious given that s 50 of the Northern Territory (Self-Government) Act 1978 (Cth) essentially reproduces s51(xxxi) of the Constitution so as to restrain the Northern Territory from compulsory acquisition of property except on just terms. It would thus seem that no matter whether the relevant acquisitions were said to be governed by the NTA, the Constitution or the Self Government Act the issue squarely arises.
The most interesting effect of the jurisprudence on just terms under s 51(xxxi) on the issues in Griffiths concerns the amount calculated by the primary judge for non-economic loss. The failure of the primary judge and the Full Court to consider such just terms jurisprudence in detail in the author’s view may have led to an under-valuation of the non-economic component of the compensation for the appellant.
In that regard it is useful to consider the passages in the judgments of Heydon and Kirby JJ in Wurridjal v Commonwealth(“Wurridjal”). That matter concerned the validity of provisions of the Northern Territory National Emergency Response Act 2007 (Cth) in relation to leases and other interests in land and whether they resulted in acquisitions of property otherwise than on just terms as required by s 51 (xxxi).
In Wurridjal itself the plurality of French CJ, Gummow, Hayne, Heydon and Kiefel JJ held that the Act was sufficient to satisfy the Constitutional requirement of just terms. In his comments, however, Heydon J at  made the following remarks about what the situation might be in relation to the acquisition of native title rights in circumstances other than those in Wurridjal:
“In a section of their written argument dealing with just terms, the plaintiff submitted that ‘[t]raditional Aboriginal rights and interests in land cannot be adequately replaced, nor readily compensated for by the payment of money’. This submission would prima facie have considerable force where the relevant rights and interests were related to spiritual matters, for example use of scared sites. It might also be thought prima facie to have some force in relation to matters which are not strictly spiritual…”.
Justice Kirby also made the following comments at - in that regard:
“At least arguably, ‘just terms’ imports a wider inquiry into fairness than the provision of ‘just compensation’ alone… [His Honour put forward an example of a limited and temporary acquisition]…By contrast, however, an acquisition of legal interests in property belonging to traditional Aboriginals, even if only temporary is not of such a character. Such interests are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned. The evidence might ultimately show in this case that they do indeed love their traditional ‘property’ interests in a way that conventional ‘property’ is rarely if ever cherished in the general Australian community…”
The above comments of Heydon and Kirby JJ were in response to arguments that the s 51(xxxi) requirement for just terms may in some circumstances actually prevent compulsory acquisition of land or at least require some forms of extra consultation with indigenous people.
That is obviously not exactly the same question that was considered by the Federal Court in Griffiths. However, in the author’s view, those comments do have some persuasive value in relation to the question of the proper constitutional approach to the compensation for loss of native title.
The comments of both Heydon and Kirby JJ both suggest that the proper constitutional approach to compensation for acquisitions of native title should be significantly different than that which would traditionally be employed for non-indigenous property and should be informed by the special value that such land has for indigenous value.
Given that Heydon J was willing to countenance that the requirements of just terms could frustrate in some circumstances an acquisition of native title and Kirby J appeared to think that extra consultation could be required, the suggestion appears to be that the value of native title was to be given great weight (seemingly greater weight than freehold) in considerations of what just terms in s 51(xxxi) required.
Given that comments such as those of Heydon and Kirby JJ in constitutional cases are often appeals to future courts as to the proper way that constitutional jurisprudence should develop they appear to lay the basis for a reasonable argument that, contrary to what the Commonwealth and Northern Territory have argued, the primary judge’s valuation of compensation for loss of native title in Griffiths in relation to non-economic loss was in fact too low to comply with the just terms requirement in s 51(xxxi) and required to be increased pursuant to s 53 of the NTA.
Given that losses of native title for the Ngaliwurru and Nungali peoples in the Griffiths matter as Kirby J remarked “are, or may be, essential to the identity, culture and spirituality of the Aboriginal people concerned” and that a loss of native title is permanent and irreversible, in the author’s view the Ngaliwurru and Nungali peoples deserve the High Court, unlike the primary judge and the Full Court of the Federal Court, to squarely address the fairness question in relation to just terms and native title. Such consideration would also require that the suggested reasoning put forward by Heydon and Kirby JJ in Wurridjal be considered.
Anything less may amount to a failure of the proper application of the Constitution in an area in which it applies though omission. It could also amount to a failure to address a matter of considerable importance to the national maintenance of the Rule of Law and human rights.
 (2017) 346 ALR 247;  FCAFC 106.
 Griffiths v Northern Territory of Australia  FCA 900 at .
 Wurridjal v Commonwealth (2009) 237 CLR 309.