After-class graffiti. My students know me too well.
As anyone who follows this blog consistently must understand by now, perhaps our favorite courtroom scene in a law-related movie is The Castle's closing argument by Dennis Denuto, Esq.
In summing up, it's ... the [Australian] constitution, it's Mabo, it's justice, it's law, it's the vibe, and ... ah ... no, that's it, it's the vibe.I rest my case.
The "Mabo" case he refers to is the famous decision by the High Court of Australia, Mabo v. Queensland (No. 2), (1992) 175 CLR 1 (1992), in which the court held that Australia was not terra nullius (land owned by no one) when westerners arrived, but that the aboriginal people recognized the concept of property ownership and therefore possessed certain property rights.
As part of learning about Eminent Domain and Property Rights in William and Mary Law School's Law 608 course last fall, we watched (and analyzed) The Castle, and discussed what Mabo might mean down the road.
Last week, one of our sharp-eyed students sent the recent opinion by the High Court of Australia in Northern Territory v. Griffiths [2019] HCA 7 (Mar. 13, 2019), a follow-up to Mabo. This case is about how compensation is to be calculated for the losses under the Native Title Act, the statute adopted after Mabo which recognized the obligation to pay compensation.
In Griffiths, the court "has decided, for the first time, the approach that should be taken to resolving native title compensation claims. In a previous article, we said it would be 'the most significant case concerning Indigenous land rights since the Mabo and Wik decisions'," according to this story ("Landmark High Court decision guides how compensation for native title losses will be determined.").
The various opinions are a daunting read (133 single-spaced footnoted pages), and we couldn't digest the entire thing in detail due to pressing work, but here are the issues which the court set out:
1. How the objective economic value of the affected native title rights and interest is to be ascertained.2. Whether and upon what basis interest is payable on or as part of the compensation for economic loss.3. How the plaintiffs' sense of loss of traditional attachment to the land or connection to the country is to be reflected in the award of compensation.
A mighty big analytic bite to take, we'd say.
The various opinions did just that, detailing how compensation is to be calculated in this and future cases, affirming the lower court's award of AUS $2.5 million. The amount was so modest because, according to the above-linked story, "[t]he Native Title Act’s recognition of rights to compensation extends back only to losses of title that have occurred since October 31 1975 (when the Racial Discrimination Act 1975 commenced)."
Worth checking out, in our opinion. While squarely based in Australian law and not ours, the "vibe" of the opinion certainly sheds some light on how similar claims under U.S. law may be considered if and when they come up in our courts.
Northern Territory v. Griffiths [2019] HCA 7 (High Ct. of Aus., Mar. 13, 2019)