THE SECOND MAIN ISSUE
175 The Applicant in the course of final submissions encapsulated the proposition contended for in the following way:
Compensation for economic loss by the extinguishment of the native title rights is to be assessed by reference to the market value of a freehold estate in the land …
(a) The native title involved rights to live on the land and to gain material, cultural and religious sustenance from the land and its resources that were perpetual and held communally. The rights were recognised and enforceable by the common law, including on terms that on surrender (or acquisition) the radical title of the Crown would be freed of that burden or qualification, and enlarged as an absolute or beneficial fee simple estate. On validation, the Territory acquired that interest (not the native title), and those claiming through the Territory acquired valid freeholds (or leaseholds convertible to freehold).
(b) The land affected by the native title was unalienated Crown land set aside as town lands (enabling the grant of leases convertible to freehold) under the Crown Lands Act 1931 (NT). The powers under that Act to grant rights and interests in relation to the land (including the invalid freehold and leasehold grants comprising the compensable acts) could not be exercised if the land were held under other titles (relevantly, freehold or leasehold).
(c) The incidents of the native title rights affected included their protection by the RDA by which the native title holders had security in the possession and enjoyment of their native title rights to the same extent as the holders of other titles. The native title holders were protected from the exercise of powers by the Crown (including by grants to others) that would be inconsistent with the continued existence or enjoyment of the native title rights, unless the powers could be so exercised in relation to other titles. The native title holders could restrain invalid dealings in and uses of the land. At the time of the grant, the acts (grants and rights) were invalid by the overriding operation of the RDA. There were no other valid co-existing non-native title interests in the land (save for the radical title of the Territory, constrained by the Crown Lands Act and RDA).
(d) Any assessment of compensation for loss or diminution of native title on terms involving lesser compensation than that assessable for other titles is inconsistent with the RDA. The NTA sets ordinary (freehold) title as the benchmark for the treatment of native title and the assessment of compensation for acts that affect native title for the purposes of the NTA.
(e) The practical effect of (1) to (4) is that the market value of the native title rights reflects the consideration that the native title holders and the Territory (and those claiming through the Territory) would agree upon the surrender of the native title as a condition to the freeholds and leaseholds convertible to freehold to enable the valid grant of those titles, and in circumstances where there was a scarcity of tradable valid pre-RDA titles in the Town.
176 In support of those propositions, but fundamentally the proposition that the value of the diminution or impairment of the native title rights is the freehold value of the land affected by the invalid (but validated) act, reference was made to several decisions.
177 It is appropriate first to consider the High Court decision in Geita Sebea v Territory of Papua (1941) 67 CLR 544 (Geita Sebea).
178 In that case, the High Court considered the compulsory acquisition of Indigenous traditional rights to land in the then Australian Territory of Papua. The Indigenous rights possessed by the people of Kila Kila were accepted by the High Court as "a communal or usufructuary occupation with a permanent right of possession in the community" per Starke J at 551, and as "a communal usufructuary title equivalent to full ownership of the land" per Williams J at 557. No individual community member could alienate that land.
179 In 1937, the subject land had been leased by the Indigenous community to the Crown for a 10 year term at an annual rental. The Crown as lessee then developed the land by constructing an aerodrome and supporting buildings and facilities on the land. In 1939, an Ordinance was passed authorising the compulsory acquisition of the land by a gazetted notice. That notice was then gazetted in February 1940.
180 The Ordinance required the payment of compensation in an amount determined "as nearly as possible" in the manner prescribed by the general Ordinance authorising the compulsory acquisition of land, and requiring payment by the Territory of Papua of the value of the land.
181 One issue before the Court arose from the fact that the primary judge had valued the acquired land on the basis that he should exclude the value of the improvements and structures on the land at the date of valuation, because they were not fixtures but chattels: see per Starke J at 552. The High Court indicated that that was incorrect, because the proper inquiry was not the value of the improvements to the Indigenous owners or whether they might be removed from the land, but the degree of attachment or annexation of the improvements to the land and the object of those attachments or annexures: see per Starke J at 553.
182 The High Court also addressed the question of how the valuation was to be made where there was no other market for the land. Starke J at 544 said that it should be the value of the land and improvements, with some deduction for the existing leasehold interest. That part of the decision is not contentious.
183 Importantly, however, his Honour said at 555 that, notwithstanding the inability of the Kila Kila People to alienate the land, their interest in the land "should be valued on the footing that an estate in fee simple freed and discharged from all trusts and encumbrances whatsoever was acquired" by Papua. Williams J (with whom Rich ACJ agreed) said at 557 that:
… the restriction would 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.
His Honour added that the compensation should be assessed upon as ample a basis as though it had been acquired from a European.
184 In the course of that decision, reference was made to Amodu Tijani v Secretary, Southern Nigeria [1921] 2AC 399 (Amodu Tijani). In that case, the Privy Council overturned a decision of the Supreme Court of Nigeria, and declared that the entitlement to compensation for the compulsory acquisition of land held by a White Cap Chief (but belonging to the community as a whole) was on the footing that the Chief was transferring the land in full ownership, and not merely a right of control and management: see at 408 and 411. Viscount Haldane, delivering the advice of the Privy Council, described the:
… real character of the title to the land occupied by a native community [as] a communal usufructuary occupation, which may be so complete as to reduce any radical title in the Sovereign to one which only extends to comparatively limited rights of administrative interference: [at 409-410]
185 As the Commonwealth pointed out in its helpful submissions, American Indians are not recognised as having general property rights in lands, the extinguishment of which is compensable as an acquisition under the Fifth Amendment: Tee-hit-Ton Indians v United States (1955) 348 US 272. The only particular decision in the United States which might be of assistance arises from the particular scheme or the terms of the treaty addressed in Shoshone Tribe of Indians v United States 299 US 476 (1937) referred to above. Because there had been an appropriation of property granted under a treaty by reason of the co-settling of another tribe without consent, the right to damages was established. It was said at 497 that the damages were to include such additional amounts beyond the value of the tribe's property rights, when taken by the government, as may be necessary to ensure an award of just compensation, and the increment was "to be measured" either by interest on the value or by such other standard as may be suitable in the light of all the circumstances.
186 The assessment of damages was then determined by the Court of Claims, and again reviewed in the US Supreme Court: United States v Shoshone Tribe of Indians 304 US 111 (1938). The Supreme Court upheld the decision of the Court of Claims that the right of the Shoshone Tribe included the timber and mineral resources within the reservation, for the purposes of assessing those damages.
187 Subject to that correction, the process of the Court of Claims did not attract adverse comment from the Supreme Court. It determined the value of the tribe's right at the time of taking, and added an additional amount for interest to produce the present worth of the money equivalent of the property value, as if paid contemporaneously with the taking. Its starting point was, therefore, the "fair and reasonable value" of a one-half undivided share in the reservation as at 19 March 1878. Simple interest was then added at a rate of 5% per annum on that value from the date of taking to the date of judgment: see Shoshone Tribe of Indians of the Wind River Reservation in Wyoming v United States 85 Ct.Cl. 331 (1937) at 379381.
188 The Supreme Court at 117 said:
For all practical purposes, the tribe owned the land … The right of perpetual and exclusive occupancy of the land is not less valuable than full title in fee.
At 118, it said:
Although the United States retained the fee, and the tribe's right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and securely safeguarded as is fee simple absolute title.
189 The Commonwealth pointed out that in neither of Geita Sebea or Amodu Tijani was there any additional claim made for, nor consideration given, to compensation for loss of the spiritual or religious attachment to the land.
190 The Applicant draws from those two authorities that the proper focus should be on what the Territory acquired by reason of the relevant determination acts, in essence restoring its radical title to the full fee simple entitlement or its equivalent. And, it is said, the analysis of the nature of the right held by the Claim Group should not be measured in the conventional way of assessing the bundle of rights which were possessed against the totality of rights which represent a fee simple title, so as to arrive, as the Commonwealth (and to a lesser extent the Territory) asserted is appropriate at a particular percentage which reflects that measuring).
191 As noted above, the Commonwealth says that that is an appropriate process, and would result in an assessment that the value of the native title at the time of the determination acts should be assessed at 50% of the rights of a fee simple holder of those lots, so that the proper valuation is 50% of the freehold value.
192 The Territory has a more nuanced position, but broadly agrees as a starting point with the comparative analysis of the rights held by the native title holders at the time of the determination acts, with the extent of rights which would be represented by a full freehold title.
193 The Territory made a comparison between the rights attaching to freehold title and the non-exclusive native title rights and interests of the Claim Group.
194 It emphasised the certain differences said to be material to the question of market value.
195 Firstly, it said that native title rights and interests cannot be "sold" but can only be surrendered to or acquired by the Territory for a price, so they have no value on the open market. As a further feature, it is said that native title rights and interests cannot be mortgaged, or leased to a third party as that term is understood in Australian property law. Native title holders who hold exclusive native title rights and interests over land could license a third party to occupy that land for a limited duration (ie something like a lease) but, it is pointed out, non-exclusive native title rights and interests cannot in any practical sense be dealt with in that manner, as they do not carry the right of exclusive possession. As noted above, the non-exclusive native title rights and interests presently under consideration do not permit the subject land to be utilised commercially. The Claim Group holding the non-exclusive native title rights and interests also cannot exclude others from the land, or otherwise control the use to which the land may be put. An additional feature is that the native title right "to live on the land, to camp, to erect shelters and other structures" is said not to permit native title holders to construct a permanent residence, or at least to discourage the construction of a permanent residence. Finally, it is pointed out that the land cannot be subdivided in the exercise of non-exclusive native title rights and interests.
196 The Territory moved from that analysis to the submission that the Court's first task is to determine the market value of the interest in the land, the several lots affected by the determination acts, by reference to the conventional test expressed in Spencer v Commonwealth (1907) 5 CLR 418 at 432 per Griffith CJ (Spencer). That is to determine the value which would be paid by a willing but not anxious purchaser from a willing but not anxious vendor. That is the orthodox measure of value.
197 If it is assumed that exclusive native title may or should be valued at about the same as freehold title, a conclusion which in my view can properly be drawn from Geita Sebea, it follows that the market value of non-exclusive native title rights and interests over a particular lot or lots must be less than the market value of that freehold title.
198 The Territory then contended that the selection of a notional percentage of freehold title to represent the extent to which non-exclusive native title rights and interests relate to freehold title, or to exclusive native title rights and interests, is artificial in the case of small urban lots. That is because it may mean that native title rights and interests over small urban lots may be more valuable than native title rights and interests over larger remote lots, in circumstances where the general nature of native title rights and interests - focusing upon their ceremonial and usufructuary purposes - would suggest the contrary.
199 Consequently, the Territory contended that the appropriate starting point for the measurement of value is to assess the usage available to the holder of non-exclusive native title rights and interests and identify the closest conventional comparator in terms of usage value, and to adopt the market value of the comparator. That is the methodology adopted by Wayne Lonergan in his Report of 20 November 2015 (Lonergan First Report).
200 To determine usage value, it is then said that the appropriate comparators are the large parcels of undeveloped and unserviced range lands, as that is the nature or type of area in which the relevant native title rights and interests have their greater usage value. The next step in the process, as submitted, is to adjust the usage value to add the value of potential uplift from future negotiated exit value above future usage value (the negotiation value). That is said to be the proportion of the additional value of land in an alternative use, not available due to the existence of native title, that a freehold owner would be willing to pay to make that use available. Lonergan says that that uplift or negotiation value is reasonably assessed at 50% of the excess of market (freehold) value over usage value.
201 The Territory submitted that that assessment reflects the fact that the owner of a freehold (or lesser) interest in land would not rationally pay the full freehold value in order to acquire or buy out native title over the land, and similarly that a prospective purchaser would not rationally pay the full freehold value to acquire or buy out native title over the land.
202 As noted, the Commonwealth's contention is different. In effect, its contention is that it is appropriate and necessary to value the native title rights and interests which have been adversely impaired by the determination acts, and then to value the bundle of those rights so affected. As it is closely analogous to a comparable bundle of non-native title rights, to undertake that exercise (it is said) it is necessary to strip the native title rights of any spiritual or cultural dimension, which are separately accounted for through other components of the compensation package.
203 The analogy called for, then, is the value of common law rights to the possession, use and occupation and enjoyment of an area by analogy with a fee simple estate. No particular analogy has been suggested.
204 The question of what a purchaser wishing to obtain a freehold interest in land the subject to those non-exclusive native title rights would pay to get the surrender of their native title is, it is said, an inappropriate question because that would be valuing the price of the purchaser was prepared to pay for the freehold title, rather than valuing what the Claim Group has lost by the determination acts. Nor, it is said, is it appropriate to ask what price the Claim Group would be prepared to accept for the surrender of their native title, taking account of their special attachment to the land, in order to obtain a grant of freehold. That is incorrect, it was argued, because it reflects a special value not related to some special economic suitability of the land to the Claim Group, which is a value which should be separately accounted for as solatium or some similar label.
205 Alternatively, it was argued that that would reflect a peculiar bargaining or leveraging position of the Claim Group over the holder of other interests, when that should not be permitted. That, it was said, is contrary to the concept of market value as explained by Latham CJ in The Commonwealth v Reeve (1949) 78 CLR 410 at 418 in the following terms:
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. The principle excludes any increase in value due to the necessities of the authority which acquires the land. Where, for example, a large enterprise is in contemplation on a block of land and a single allotment in the middle of the block is required and accordingly is acquired, it may well be that the value of that allotment to the acquiring authority is tremendously greater than the value which it would possess if it were not included within the area which the acquiring authority was about to use. Such a circumstance, however, is excluded in computation of value.
206 The Commonwealth supports the Court having regard to the principles or criteria for assessing compensation set out in the LAA, as it is a "just terms statute", although the Court is not bound to do so.
207 Schedule 2 of the LAA provides for relevant heads of compensation, including market value. The Commonwealth contention was that, if the view of Mr Lonergan as to the value of the non-exclusive native title rights is not accepted, that it would be open to, and appropriate for, the Court to determine the value of non-exclusive rights as a proportion of the value of fee simple, and that a 50% apportionment would be justifiable in the circumstances.
208 The Commonwealth then accommodates "special value" incidental to the Claim Group's ownership or occupation of the acquired land only if it is shown that there is some special quality of the land of particular economic value to the Claim Group. Ultimately it contended that there is no such entitlement. Nor is there any basis for an allowance for the natural and reasonable consequences of the acquisition for which provision is not otherwise made (disturbance).
209 However, it accepts that r 9(1) of the LAA Rules permits an additional sum to reasonably compensate the Claim Group for the intangible disadvantages resulting from the acquisition (solatium) and that that provision - supported or required by s 51(4) of the NTA - accommodates the Court compensating for the loss of the use of the land itself, derived from the breaking of the spiritual relationship and disruption to that relationship with the land.
210 In my view, the starting point is s 51(1) of the NTA. It provides for the compensation entitlement as 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.
It is for the effect of the determination acts on the native title rights and interests of the Claim Group for which compensation is to be assessed. It is for that purpose that reference may, but not must, be made under s 51(2) to the principles or criteria for determining compensation set out in the LAA.
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.
212 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.
213 While s 51(A) sets an upper limit for the economic compensation representing the direct value of the estate or interest in land or waters which has been acquired by the Territory, it does not follow that the value of exclusive native title is necessarily less than that freehold value because it is not inalienable, and is not transferrable. Such an assumption would fail to have regard to the real character of native title held by Indigenous Australians. Indeed, in the case of exclusive native title rights, where they are lost, I see no reason why their value should not be taken as the equivalent of freehold value. That appears to have been the undebated premise in Geita Sebea and in Amodu Tijani.
214 Indeed, having regard to the express purposes of the NTA, and the recognition of the Aboriginal peoples as the original inhabitants of Australia, it would be erroneous to treat the nature of their original interests in land as other than the equivalent of freehold and the economic value of those interests as other than the equivalent of freehold interests.
215 In Geita Sebea, the focus was on the benefit to the Crown of the acquisition, rather than on the extent of the detriment to the holders of the Indigenous rights, where the existing native title rights are inalienable, save to the Crown. Where those rights are removed or diminished by an act of the Crown (here, the Territory), there is a sensible reason to focus on what has been obtained by the (presumed) willing but not anxious buyer even though there is not, and by definition of the rights held cannot be a willing but not anxious seller.
216 The value of the native title rights was not regarded as less in value because they were inalienable. To have taken that step is to recognise that, for the purposes of determining the economic value of native title rights, it is not appropriate to treat them as if they were rights conventionally held by a land holder. Otherwise, necessarily, the starting point would have been different.
217 It is necessary to start with a fuller understanding of the nature of native title rights and interests in land. 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.
218 Native title is a sui generis right or interest. To describe native title as a proprietary right (or as equating with a proprietary right) is "artificial and capable of misleading": Mabo at 178 per Toohey J.
219 Native title, as the jurisprudence now clearly accepts, is a communal bundle of rights, and not an individual proprietary right. It depends for its existence on the continuing acknowledgment and observance of the relevant traditions, customs and practices of the community. Its content is principally usufructuary in nature. It is inalienable, except by surrender to or acquisition by the Crown, and in respect of a particular community's estate, has boundaries which may not be precisely defined (except by a determination by the Court under the NTA). It is not necessary to go beyond the Native Title Act case (1995) 183 CLR 373 at 437, and Ward HC to support that step.
220 Non-exclusive native title confers on the holder a bundle of rights in relation to the area. The nature of the interest in land denoted by the term non-exclusive native title is both defined and limited by this collection of rights. But just as it is not appropriate to treat exclusive native title as valued at less than freehold, so 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, or 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.
221 The non-exclusive native title rights and interests presently under consideration are the matters described at para 3 of the Interim Statement of Agreed Facts dated 30 April 2012 and set out above in detail. They include the right 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; the right to engage in cultural activities; to maintain and protect sites of significance on the area; and 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).
222 At a general level, it is clear that the grant of freehold title in land conveys the fullest interest in land recognised by law. It is the equivalent of full ownership of the land.
223 A fee simple is the most extensive in quantum of rights, and the most absolute in respect to the right which it confers, of all estates known to the law. It confers the lawful right to exercise over, upon, and in respect to, the land, every act of ownership subject to specific legislative constraints or exclusions.
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. For reasons which are apparent, Geita Sebea does not lead to that conclusion simply because in that case the indigenous rights acquired were equivalent to "full ownership of the land", including the right of perpetual and exclusive occupation. Nevertheless, I consider that Geita Sebea recognises that inalienability is not necessarily a factor which means the exclusive or non-exclusive native title rights would have a value less than freehold value.
225 In my view, the freehold value is an appropriate starting point because s 51A puts it as the upper limit. However, where the native title holders did not have, at the relevant time, the right to exclusive possession the freehold value is not the appropriate end point. Nevertheless, I consider that the decision in Geita Sebea does support the proposition that the applicants' inability to dispose of the subject native title rights and interests on the open market is not necessarily a significant discounting factor. I have reached that view independently of that decision, but it provides affirming reasons.
226 Under the statutory regime presently in consideration, compensation is to be paid for the loss, diminution or impairment or other effect of the determination acts on the particular native title rights and interests in question.
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.
229 In the light of those conclusions, it is of course necessary to determine the freehold value of the various lots. That is simply because that sets the upper limit, subject to the question of interest, of the economic component of the entitlement so as to ensure that the just terms requirement is met.
230 I have addressed separately, and later in these reasons, the freehold value of the various lots.
231 But for the invalid determination acts, the native title rights which were held which 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.
233 As each of the submissions recognised, that is not a decision as a matter of careful calculation. It is an intuitive decision, focusing on the nature of the rights held by the claim group which had been either extinguished or impaired by reason of the determination acts in the particular circumstances. It reflects a focus on the entitlement to just compensation for the impairment of those particular native title rights and interests which existed immediately prior to the determination acts.
234 I have been careful, in reaching that intuitive figure, not to reflect in that percentage an allowance for the elements which are related to the cultural or ceremonial significance of the land, or of the very real attachment to the land which the Claim Group as an Indigenous community obviously has, and which is acknowledged by both the Territory and the Commonwealth. That is a separate and significant element of the entitlement to compensation. It is separately discussed later in these reasons. However, it is necessary to note it at this point to avoid any suggestion that the percentage arrived at represents a form of double compensation, by putting a particular value on the rights by reason of the cultural and spiritual significance of the land to the Claim Group.
235 It follows that I did not regard the evidence of Mr Lonergan as of no particular significance to that determination. I have already indicated that the freehold value of the various allotments is the defined starting point. I have had regard to the land valuers' expert evidence of course in reaching that starting point.
236 This is a convenient point to address, to a degree, the respective objections to the various expert evidence and to make some general observations about it.
237 It is not at all surprising that such objections arose in this matter, where the issues have previously not been substantively addressed. Although the parties were agreed about the nature of the issues to be addressed, it was entirely appropriate for them to consider ways in which evidence might be procured to assist the Court in determining how those issues might properly be determined so far as they concern land valuation or economic or commercial considerations, and to present evidence in support of it. Having regard to the nature of this application, and in particular in the light of the especial nature of native title rights and interests in land which the common law recognises, it was inevitable that issues would give rise to debate about the applicability or otherwise of the expertise of anthropologists, economists, and land valuers not specifically in their particular fields of endeavor but insofar as their fields of endeavor might usefully inform the Court about how to properly resolve the issues in the proceeding.
238 I have taken the view, in those circumstances, that I should receive each of the expert reports, and have regard to the oral evidence of the experts who gave evidence, as admissible and potentially relevant material to the determination of the issues in this proceeding. I have no doubt that each recognised the complexity of the task confronting the Court, and had considered the extent to which their respective areas of expertise might usefully assist in that process. I have no doubt that each of the experts accepted that the issues confronting the Court did not readily involve the routine application of their expertise, in all respects, to the issues which they were asked to comment on. I have no doubt that each genuinely sought to apply their acknowledged expertise to address the resolution of each of those issues, insofar as each considered that their expertise might be useful in doing so.
239 Each of the experts provided reports which represented an endeavor, within the complexities of this case, to comply with the Practice Note relating to the giving of expert evidence. Each, either in a report or as elicited in the course of oral evidence, clearly identified the nature of their respective instructions, the material upon which they had relied, and so far as then considered appropriate, the assumptions which underlay the application of their expertise to that material and to the questions before the Court. In the course of oral evidence, it emerged that certain additional assumptions had been made relevant to the weight which I have placed on their respective evidence. I shall refer to that, to the extent necessary, in dealing with the separate issues.
240 It is convenient, therefore, at this point to indicate that I have received each of the expert reports tendered by each of the parties as representing expert evidence of the respective persons who presented those reports, and as material potentially relevant to the resolution of the issue which arise. I have explained in the course of the reasons, progressively, the extent to which I have taken or placed weight upon the respected views which are expressed.
241 The immediate issue concerns the weight to be given to the views of Mr Lonergan in his oral evidence and in his reports of 20 November 2015 (Lonergan First Report) and 19 February 2016 (Lonergan Second Report). His reports provided a substantial part of the foundation of the contentions of the Territory with respect to valuation on a usage value plus the uplift referred to.
242 There is no dispute that Mr Lonergan has an extensive and broad range of valuation experience and expertise. In the course of his exercising that expertise, he has had to address issues identifying the appropriate conceptual framework for a wide variety of commercial and other interests in a large number of commercial or social contexts. He has explained his methodology in detail. It is rational, carefully thought out, and thorough. His conclusion is that the usage value in economic terms of the bundle of rights represented by the non-exclusive native title rights of the claim group is "relatively low".
243 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.
244 Although Mr Dudakov and Mr Brown in their joint opinion sought also to give expert evidence concerning the value of non-exclusive native title rights and interests compared to freehold value, I did not form the view that that opinion was based upon a careful and full understanding of the nature of exclusive or non-exclusive native title rights and interests as explained in the Native Title Act case and in Ward HC. It was an opinion expressed without those witnesses demonstrating in a persuasive way their reasoning process or their conceptual understanding of the nature of the native title rights and interests.
245 In the result, I have reached the conclusion referred to above for the reasons given. To a degree, it reflects part of the evidence of Mr Houston, also an expert economist, who in the course of his evidence acknowledged the particular and especial character of native title rights and interests, without professing the expertise properly to evaluate or assess it in economic terms. He did not assume or profess that such an evaluation is within the scope of the expertise of an expert economist, or at least of himself as an expert economist who did seek to undertake that comparison. In respect of the evidence of the experts who did seek to undertake that comparison to which I have referred, I do not consider their evidence persuasive.