Consideration
368 These arguments call for consideration of four issues relating to the overall appropriateness of the award of compensation for non-economic loss, namely, whether the primary judge failed to take account of the Claim Group's ability to exercise rights in adjoining and nearby land, whether a principle of fairness and moderation applies to the assessment of compensation for non-economic loss, whether aside from any error of principle or fact the amount of the award was manifestly excessive and whether this Court should fix the amount of compensation.
369 Each of these issues will now be considered in turn.
The Claim Group's rights in surrounding lands
370 A matter of some difficulty facing the primary judge was the circumstance that the lots in question covered about 1.27 square kilometres whilst the Claim Group held rights in a large area of land surrounding the subject lots. The land within Timber Creek in which the Claim Group was found to hold exclusive native title rights and interests amounts to 20.53 square kilometres. The area in which some of the Claim Group hold freehold title under the ALRA is 1,425 square kilometres and a further area of 36 square kilometres. The relatively small area of the subject lots compared with the neighbouring lands over which the Claim Group, or some of them, have rights and interests gave rise to the enquiry whether the loss of rights over the subject land was significant.
371 The primary judge recorded that the Claim Group held exclusive native title rights and interests within the town area as a result of Griffiths SJ and Griffiths FC. He also recorded at [29] - [31] that the Claim Group held rights under the ALRA in country surrounding Timber Creek and encompassing the former Fitzroy Pastoral Lease, Stokes Range Pastoral Lease and Kidman Springs and Jasper Gorge Pastoral Leases. Then, at [302] - [304] the primary judge set out the argument of the Northern Territory that the effect of the compensable acts "would be quite slight" because the compensation must be assessed having regard to the spiritual and usufructuary significance and area of the land affected, but relative to other land that remained available to the Claim Group for the exercise of the native title rights and interests".
372 At [319] the primary judge accepted in principle the approach now contended for by the Northern Territory and the Commonwealth. Whilst it is true that, as the Commonwealth contended, the primary judge did not set out the relative sizes of the subject land and the other land in which the Claim Group held rights and interests, from what was recorded in the reasons for judgment he was obviously aware of the facts. The primary judge was also aware of, and dealt with, the Northern Territory contention that the impact of the extinguishment on such a small area would be slight. He properly approached the matter as an intuitive evaluation on the basis of the evidence and arguments before him.
373 It follows that the criticism that the primary judge failed to take account of the Claim Group's rights in surrounding lands is not established.
Is there a principle of fairness and moderation?
374 A passage in Skelton v Collins (1966) 115 CLR 94; [1966] HCA 14 (Skelton) was the foundation for the Northern Territory's contention that there exists a principle of fairness and moderation which governs the award of solatium.
375 The non-economic loss claim was to compensate for the effects of the loss or diminution in the Claim Group's native title rights and interests in land. It was for anguish and distress caused by the extinguishment of their rights. Losses of that nature cannot be measured in terms of money. The basis on which such assessments are made has been explored in the assessment of loss of amenities of life in cases of personal injury. Skelton involved a person who suffered a brain injury in a vehicle accident which left him permanently unconscious. In respect of the approach of the assessment of damages for the loss of amenities of life, Windeyer J said at 129 - 132:
The next matter depends upon very different considerations. It turns upon the plaintiff's being deprived of something that he could not have sold, his ability to enjoy in the way that he formerly could whatever life should offer. A man whose capacity for activity, mental or physical, is impaired, so that no longer can he get satisfaction and enjoyment from the things that he was accustomed to do and cannot do what he had planned or hoped to do, has not lost a thing the value of which for him can be measured in money by any process of calculation or estimation that I could understand. This consequence of an injury may be called by the convenient phrase, "loss of amenities", or be described more elaborately and in more elegant words. However, described, it is not a loss of something in the same sense that loss of a possession or of earning capacity is. A man who loses a limb, his eyesight, or his mind, does not lose a thing that is his, as his ox or his ass or his motor car is his, but something that is a part of himself, something that goes to make up his personality. … I am unable myself to understand how monetary compensation for the deprivation of the ability to live out life with faculties of mind and body unimpaired can be based upon an evaluation of a thing lost. It must surely be based upon solace for a condition created not upon payment for something taken away.
…
I do not for a moment doubt that a man who has been deprived of the opportunity to live his life as he would have wished, and for as long as he might have expected, may, if he retains sufficient intellectual capacity to know his misfortune, feel distressed and frustrated. He is, I do not doubt, entitled to compensation for what he suffers. Money may be a compensation for him if having it can give him pleasure or satisfaction. If his expected years of life have been made less, money may enable him to cram more into the time that remains. If he has been deprived of the ability to do some things that he had enjoyed doing or had hoped to do, then money may enable him to enjoy other things instead. But the money is not then a recompense for a loss of something having a money value. It is given as some consolation or solace for the distress that is the consequence of a loss on which no monetary value can be put. I have, for convenience, used the word "recompense" to make this contrast. There is really no one word that I know which is sufficiently explicit. "Reparation" is unsuitable because in the law of Scotland, and of France, it is used to cover all forms of damages. The words do not matter however, for the distinction between a loss of a thing on which a money value can be put and the distress of mind and sense of loss for which money is only a solace is, I consider, basic and real. … But I confess to knowing no real measure that can be used. The only guide suggested is fairness and moderation, whatever those may denote.
[Emphasis added.]
376 Fairness and moderation are useful touchstones in the assessment of compensation. But in view of the last phrase used by Windeyer J in the above passage it might be ambitious to describe fairness and moderation as constituting a principle. Rather they provide a restraint on extravagant awards. That was explained by Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8 in respect of cases in which money cannot heal the wounds of the injury experienced. They said at 585 "recognition of this fact is no occasion for any instinctive response that no amount is too large to atone for the plaintiff's suffering". Their Honours also indicated that, in the personal injury context, where amounts are awarded under other heads of damage and those amounts provide some freedom from economic uncertainty, the amount for loss of amenities of life might be consequentially reduced. It is in these senses that a sensible approach should be taken to the fixing of the level of compensation. The primary judge was not bound to approach the assessment with any particular restraint or limitation, but rather was required to make an assessment of just terms as provided for by the NTA.
377 In support of an approach of moderation and restraint the Northern Territory referred to the limits on awards for solatium fixed by compulsory acquisition statutes in some States. In Victoria solatium is capped at 10% of the market value of the land (Land Acquisition and Compensation Act 1987 (Vic) s 44(1)). In New South Wales $15,000 is specified (Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 60(2)) and in Western Australia 10% of the market price is specified (Land Administration Act 1997 (WA) ss 241(8) and (9)). But, in both New South Wales and Western Australia there are override provisions which, if engaged, would lead to higher awards. Thus, the pattern of legislative limitations, when they exist, is varied. More importantly, the context in which those provisions regularly apply are far removed from the case of the deprivation or impairment of native title rights and interests. As emphasised by the primary judge throughout his reasons for judgment, there exists between Aboriginal people and their country a unique and powerful bond unlike the relationship which non-Indigenous people have with land. The primary judge was justified in setting the amount for solatium without a restraint derived from the statutory provisions.
378 It follows that the contention that the primary judge erred by failing to have regard to a principle of fairness and moderation in fixing the amount of the award of solatium is not established.
Was the award of solatium manifestly excessive?
379 The entitlement to compensation under the NTA is not at large. Various provisions create limitations on the amount and categories of the award. The compensation is to be on just terms. It is to compensate the native title holders for any loss, diminution, impairment or other effect on their native title rights and interests. And those results must have flowed from the act in question. These limitations flow from s 51(1) of the NTA. Further, the compensation may only, subject to s 51(6), consist of the payment of money: s 51(5). The upper limit of an award is, subject to s 53, fixed by s 51A.
380 Notwithstanding these provisions the task of fixing the amount of compensation is one calling for the exercise of discretion. The grounds of review on appeal of the exercise of a discretion are well established. A judge exercising a discretion falls into error if the judge acts on a wrong principle, allows extraneous or irrelevant matters to guide or affect the exercise of discretion, mistakes the facts, or does not take into account some material consideration. And there is a residuary category where it may not appear how the judge reached the result embodied in the order, but, if upon the facts it is unreasonable or plainly unjust, the appeal court may infer that in some way there has been a failure properly to exercise the discretion. Although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred: House v the King (1936) 55 CLR 499; [1936] HCA 40 at 505 (per Dixon, Evatt and McTiernan JJ) (House).
381 The Northern Territory and the Commonwealth did not identify the way in which their arguments fell within the House categories. So far in these reasons for judgment the grounds of appeal have not been dealt with on the basis that they fell within the residuary category. However, in the way the grounds of appeal were expressed, particularly in the case of the Northern Territory, and in the way the appeals have been argued, it is at least an implicit complaint that the award for solatium is manifestly excessive within the residuary category articulated in House.
382 The primary judge at [302] explained that there was a step between making findings on each of the matters relevant to the assessment of the award and the fixing of the figure of compensation that involved an intuitive judgment.
383 The role of intuitive judgment is familiar in the process of sentencing in criminal law, where the cognate term 'instinctive judgment' is often used. In Markarian v the Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) Gleeson CJ, Gummow, Hayne and Callinan JJ said at 374:
[T]he task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
384 The genesis of the expression 'intuitive/instinctive synthesis' appears to have been in the judgment R v Williscroft, Weston, Woodley and Robinson [1975] VR 292 (Williscroft) (Adam, Starke and Crockett JJ). At 300 the Court explained the process involved in arriving at an intuitive judgment as follows:
Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was thought to be in Kane's Case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination. It is sufficient to say that in our opinion the learned Judge did not in the cases before him give to the aspects other than reformation the weight that ought to have been allotted to them. Or, in other words, he has undervalued the nature and circumstances and gravity of the offences of armed robbery and attempted armed robbery with the result that we are persuaded that his discretion has miscarried.
We are aware that such a conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate. Indeed, in R v Geddes (1936) 36 SR (NSW) 554, Sir Frederick Jordan, CJ, was sufficiently oppressed by the problems of seeking a rational principle for determining whether a sentence was inadequate, that he was able to find a solution only in the employment of an epigrammatic device. After pointing out that it was easier to see when a wrong principle has been applied than to lay down rules for solving particular cases, the learned Chief Justice observed that "...the only golden rule is that there is no golden rule" (at p. 555). But it is not sufficient for a sentence to avoid subsequent review that it can be said of it that it is the product of what is admittedly a wide discretion conferred upon a judge who can be shown to have given some consideration to all relevant elements. There must be some recognition of and accord with "the moral sense of the community" in the selection of the appropriate penalty. No matter how ephemeral that phrase may be or how elusive the task of evaluation of such a concept may prove in a given case, the task must nevertheless be essayed. The problem really is little different from and no less difficult than that of ascertaining "community standards" for the purposes of assessing damages in a civil case. In this connexion it is helpful to observe that in Tzouvelis v Victorian Railways Commissioners, [1968] VR 112, at pp. 154-5 Gowans, J, speaking as a member of the Full Court, said: "Whatever may be the difficulties of ascertaining the 'general standards prevailing in the community', and whatever may be the practical problem involved in an appeal court determining whether a jury has observed those standards, it is not permissible, as I understand the law, for an appeal court charged with the function of exercising a supervisory jurisdiction in respect of the verdicts of juries to say in any particular case that the jury had set their own standard and it was all a matter for them. The appeal court must measure the verdict against some standard and the various phrases used to describe the standard (see Australian Iron and Steel Ltd. v Greenwood (1962) 107 CLR 308, at p. 327; [1963] ALR 710, at pp. 722-3) do not really disguise the fact that the judges sitting on appeal must depend upon their own knowledge of awards in other cases, whether derived from personal experience or otherwise, and pronounce upon the question as to whether the award is 'substantially beyond the highest figure, which in their view could reasonably have been awarded'."
[Emphasis added.]
385 A process determined by intuition is open to criticism as lacking in predictability and transparency and governed by subjectivity, personal proclivity, arbitrariness and lack of confined boundaries. These were, in substance, the criticisms directed to the way the amount of compensation for solatium was arrived at by the primary judge.
386 In an article recently published in the Harvard Law Review, HLA Hart identified that in the exercise of a discretion based on intuition there is a "leap" between the assembling of the factors relevant to the exercise of discretion and the determination as to the way in which the discretion is to be exercised: 'Discretion', (2013-2014) 127 Harv. L. Rev. 652. He also referred to the guidance offered by past experience of similar circumstances. At 665 he wrote:
I have myself concentrated attention in this admittedly introductory paper on the "leap" necessarily involved in the exercise of discretion after we have done all we can to secure the optimum conditions for its exercise. This is important because phrases often used to describe the exercise of discretion, such as "intuition" [and] "recognition of an implicit guiding purpose', may encourage the illusion that we never reach the point where we have to reconcile conflicting values or choose between them without some more ultimate principle to guide us. I think the suggestion that we never reach the "leap" is just as wrong as a description of discretion as a mere arbitrary choice would be. It seems to me clear that just because there is a point at which we can no longer be guided by principles and at the best can only ask for the confirmation of our judgment by persons who have submitted themselves to a similar discipline before deciding, that we have in discretion the sphere where arguments in favour of one decision or another may be rational without being conclusive. No doubt we learn through successive exercises of discretion in a similar field and discovering what in the sense explained above appears to be vindicated to identify factors attention to which will be necessary if further decisions are to be justified.
[Emphasis added.]
387 In Markarian, McHugh J drew attention to the role of previous cases in the exercise of what might otherwise be regarded as an unconstrained exercise as follows:
76. [A]lthough a sentencing judge does ultimately select a number, it is not from thin air that the judge selects it. The judicial air is thick with trends, statistics, appellate guidance and, often enough these days, statutory guidance.
77. [T]he sentencing judge almost never imposes a sentence of an offence that has been committed for the first time.
388 In searching for an explanation why the exercise of a wide discretion is not simply an exercise in arbitrary subjective power, HLA Hart suggested at 664:
I think it not too much to say that decisions involving discretion are rational primarily because of the manner in which they are made, but of course the word "manner" here must be understood to include not only narrowly procedural factors and the deliberate exclusion of private interests, prejudice, and the use of experience in the field but also the determined effort to identify what are the various values which have to be considered and subjected in the course of discretion to some form of compromise or subordination.
389 A homely touchstone for the exercise of discretion in fixing general damages for personal injuries was captured by Lord Devlin in West v Shephard [1964] AC 326 at 357 where he said that the award should be such that the defendant "can hold up his head among his neighbours and say with their approval that he has done the fair thing".
390 Lest it be thought that recognition of the leap is a new phenomenon some comfort is gained from the consideration of the same issue making due allowance for the role of juries in the assessment of non-economic loss in tort cases in the 1st edition of Mayne on Damages. Writing in 1856, John D Mayne said:
On the other hand, where the person or character are injured, it is difficult, if not quite impossible to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires. It must not be supposed, however, that even cases of this sort are quite beyond rule. If it were so, there could be no such things as new trials for excessive damages. The difference is, that in cases of contract, and in some cases of tort to the property, a rule can be applied to the facts so accurately as to make the amount a mere matter of calculation. In the other class of offences, the rule goes no further than to point out what evidence may be admitted, and what grounds of complaint may be allowed for. But when this is done, the amount of damages is entirely in the disposition of the jury. A new trial will only be granted when the verdict is so large as to satisfy the Court that it was perverse, and the result of gross error; and to prove that the jury have acted under the influence of undue motives, or misconception.
391 The development of the law of damages reflects a growth in the trust and confidence reposed in judges. In the latter part of the 6th Century the laws of Ethelbert, an Anglo-Saxon King, specified damages, or "weres" for wrongs in minute detail. Thus it specified that:
If an ear be cut off, let compensation be made by payment of twelve shillings.
If a piece of the ear be cut off, let compensation be made by payment of six shillings.
Whoever fractures the chin bone, let him forfeit twenty shillings for the offence.
For each of the front teeth, six shillings.
392 The development after the Norman conquest is described in Sedgwick and Beale A Treatise on the Measure of Damages 8th edition 1891 at 14 - 15:
In the laws of Alfred, the rates are higher, whether owing to a better appreciation of personal rights, or to the increased and consequent depreciation of the currency. In the laws of the Conqueror, the weres become very few. Perhaps this is evidence of a civilization gradually increasing, and a jurisprudence slowly improving; for feeble certainly, and unreliable, must be the tribunal charged with the task of imposing damages in civil suits, if the legislator considers it unsafe to be trusted with the assessment of the amount. This elaborate and minute specification, therefore, though on its face it appears to indicate the care and watchfulness of the lawgiver, on a closer examination furnishes stronger proof of his distrust of the judiciary. Arbitrary rules, which do not bend to the justice of the particular matter, especially when used to fix values, are always a misfortune and a defect in jurisprudence: they should never be tolerated, unless on account of some peculiar and extraordinary difficulty in arriving at the truth of the individual case.
393 The unusual challenge presented by this case to the application of the principles relevant to the exercise of discretion on an intuitive basis is that, unlike in sentencing cases or in cases involving awards of damages, there is no history in Australia of analogous awards of compensation for non-economic loss from the extinguishment of native title rights and interests.
394 As explained earlier in this section of these reasons for judgment, the primary judge considered matters relevant to the assessment of solatium. He did not make any errors in the selection or evaluation of those matters. The principal factor extensively detailed by the primary judge was the nature of the Claim Group's relationship with their country. Against that background he considered the effect of the interference with their land on the Claim Group. He found that the effects could not be seen as limited to the precise geographical area of the lots in question. He excluded effects which did not derive from the compensable acts. He also took into account that some acts on the land had been approved by the Claim Group. He accepted that the Claim Group had rights in adjacent and nearby lands upon which they could exercise some of their cultural practices. He found that the area in question was a significant area. The primary judge found that awards in cases involving damage to Aboriginal cultural rights were not useful as guidance for the fixing of compensation in the present circumstances. He did not find any useful guidance in the agreed amounts for compensation in some commercial agreements made by the Claim Group.
395 These findings were the foundation for the intuitive leap taken to reach the figure for solatium. The ultimate touchstone is provided by the NTA, namely, that the compensation reflect just terms. The question for this Court is whether the figure is substantially beyond the highest figure which could reasonably have been awarded (Williscroft). The moral sense of the community is a relevant touchstone particularly where, as here, there are no previous cases to provide guidance. Parliament declared in the preamble to the NTA that it enacted the NTA to address the dispossession of Aboriginal people from their lands without compensation with the result that they have become the most disadvantaged group in society. The mechanisms adopted by parliament including the requirement for compensation on just terms must be seen in the light of the aim of the statute to remedy historical injustice visited upon a group by reason of their race. The question then is whether the award for solatium would be judged by the Australian community as fair to the Claim Group. Whilst the loss of rights so intertwined with the identity of a people cannot be valued in money, the award must signify by its amount a recognition of the level of the impact on the Claim Group. The findings of the primary judge demonstrate that the impact on the Claim Group was at a very high level. What amount is required to recognise a severe and lasting impact on the loss of such rights?
396 In order to provide appropriate recognition, the Court must draw on knowledge of the value of money in the community. It must look to the buying power of money in the community to fix on an amount sufficient to recognise the severity of the impact of the loss and impairment. Thus, an award of $1000 would not satisfy the moral sense of the community because most people would spend more than that on groceries in a year. On the other hand, $1 million is seen by most in the community as a substantial sum, in some major cities close to the median house price. The figure of $1.3 million fixed by the primary judge reflects in money terms recognised by the community a substantial acknowledgement of a high level of damage done to the Claim Group.
397 The only assistance from previously decided cases outside Australia which we have been able to find are a number of cases from the Inter-American Court of Human Rights.
398 Yakye Axa Indigenous Community v Paraguay (IACHR, 17 June 2005) concerned the Yakye Axa, a community of about 319 people divided into 90 families. They are indigenous people who live in the Paraguayan Chaco or western region. That region is very sparsely populated and semi-arid. The Yakye Axa were hunter/gatherers who wandered across the area west of the Paraguay River in the vicinity of Concepción. Towards the end of the 19th century their lands were sold through the London stock exchange to private ranchers. At the same time the Anglican Church established a number of missions in the area. The Yakye Axa were shifted onto the missions. In 1993 they took steps under the Paraguayan legal system to reclaim their lands. That system recognised their right to their traditional lands but proved ineffectual to return the lands to them. In the Inter-American Court of Human Rights the Yakye Axa relied on the right to property under Article 21 of the American Convention to make various claims. At [135] the Court described the relationship of the indigenous people with their lands as follows:
The culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity.
399 The Court found that Paraguay had violated Art 21 as follows:
154. To guarantee the right of indigenous peoples to communal property, it is necessary to take into account that the land is closely linked to their oral expressions and traditions, their customs and languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art, customary law, dress, philosophy, and values. In connection with their milieu, their integration with nature and their history, the members of the indigenous communities transmit this non-material cultural heritage from one generation to the next, and it is constantly recreated by the members of the indigenous groups and communities.
155. While Paraguay recognizes the right to communal property in its own legal order, it has not taken the necessary domestic legal steps to ensure effective use and enjoyment by the members of the Yakye Axa Community of their traditional lands, and this has threatened the free development and transmission of their traditional practices and culture, in the terms set forth in the previous paragraph.
400 One of the various forms of relief granted by the Court was non-pecuniary damages under Art 63(1) which provided for "fair compensation be paid to the injured party".
401 The Court explained the award of compensation as follows:
202. This Court notes that when it orders reparation for non-pecuniary damages, it must consider the fact that the right to communal property of the members of the Yakye Axa Community has not been made effective, as well as the grave living conditions to which they have been subjected as a consequence of the State's delay in making their territorial rights effective.
203. Likewise, the Court notes that the special significance of the land for indigenous peoples in general, and for the Yakye Axa Community in particular …, entails that any denial of the enjoyment or exercise of their territorial rights is detrimental to values that are very representative for the members of the said peoples, who are at risk of losing or suffering irreparable damage to their cultural identity and life and to the cultural heritage to be passed on to future generations.
…
205. … [T]he Court, in fairness and based on a judicious assessment of the non-pecuniary damage, deems it pertinent for the State to create a community development fund and program that will be implemented on the lands that will be given to the members of the Community, … The community program will consist of the supply of drinking water and sanitary infrastructure. In addition to said program, the State must allocate US $950,000.00 (nine hundred and fifty thousand United States dollars), to a community development program that will consist of implementation of education, housing, agricultural and health programs for the benefit of the members of the Community.
402 The aspects which make that case similar to the present are the nature of the people as hunter/gatherers, the central importance of their land, and the history of dispossession. What is different about the case is that the Court also ordered that the land be returned to the Yakye Axa and further that the award included an element for the grave living conditions which they had been forced to endure. Nonetheless, the general similarity of the amount of the award and the important features of the case provide some, albeit limited, validation of the appropriateness of the solatium award in the present case. The fact that the Yakye Axa were to get their land back means that the award was significantly higher than the award in the present case. In the present case the award included an element for loss of the land for all time and yet was only equivalent in money terms with the amount awarded to the Yakye Axa. On the other hand, the area awarded to the Yakye Axa was about 18,000 hectares, considerably more than the area on which the compensable acts took place in the present case. That factor may not have as much significance as appears at first sight. On the approach taken by the primary judge the impact of compensable acts on a larger number of lots may not have added significantly to the award because of the collateral detriment of the compensable acts which the primary judge took into account when fixing the amount of the award for solatium.
403 Following the Yakye Axa case, a similar case was brought on behalf of the Sawhoyamaxa, an indigenous community also from the Paraguayan Chaco: Sawhoyamaxa Indigenous Community v Paraguay (IACHR, 29 March 2006). In almost identical circumstances to the Yakye Axa, the Sawhoyamaxa were awarded US $1,000,000 for non-pecuniary damage, in addition to the return of their traditional lands.
404 Then in 2007, a case was brought on behalf of the Saramaka, an indigenous community from Suriname: Saramaka People v Suriname (IACHR, 28 November 2007). In that case, in addition to ordering the return of communal title to the Saramaka people, the Court awarded US $600,000 compensation for non-economic loss. That compensation was in part awarded for the effect on the spiritual connection of the Saramaka people to their land, which the Court described at [82] as follows:
[M]embers of the Saramaka people maintain a strong spiritual relationship with the ancestral territory they have traditionally used and occupied. Land is more than merely a source of subsistence for them; it is also a necessary source for the continuation of the life and cultural identity of the Saramaka people. The lands and resources of the Saramaka people are part of their social, ancestral, and spiritual essence. In this territory, the Saramaka people hunt, fish, and farm, and they gather water, plants for medicinal purposes, oils, minerals, and wood. Their sacred sites are scattered throughout the territory, while at the same time the territory itself has a sacred value to them. In particular, the identity of the members of the Saramaka people with the land is inextricably linked to their historical fight for freedom from slavery, called the sacred "first time".
[Footnotes omitted.]
405 In passing we note that unlike the cases before the Inter-American Court of Human Rights, the present case did not include any claim for compensation for the effect of social disadvantage suffered as a result of the compensable acts. That may well be a further basis for the award of compensation for non-economic loss resulting from the extinguishment or impairment of native title rights and interests in view of the reference in the preamble to the NTA to the social disadvantage suffered by Indigenous people.
406 Another broad validation of the amount of the award comes from a 2002 discussion paper entitled, "How can judges calculate native title compensation?" commissioned by the Native Title Research Unit of the Australian Institute for Aboriginal and Torres Strait Islander Studies and authored by Paul Burke (the Burke report).
407 The Burke report proposed three broad aspects of non-economic loss namely the insult associated with the loss of important rights without consent, the disruption to cultural practices caused by the loss, and mental distress associated with the loss of traditional lands. The "insult" aspect of non-economic loss was taken from the definition of solatium in compulsory acquisition cases. It was intended to respond to the lack of control and essential arbitrariness of compulsory acquisition, and was directed to the affront to the native title holders in their capacity as the holders of distinct rights to land. The "disruption" aspect of non-economic loss was directed to the physical inconvenience, practical annoyance, and discomfort or vexation caused by the loss of rights to the land. It could be compared to loss of amenities of life in personal injuries and inconvenience in relation to injury to property. The "mental distress" aspect of non-economic loss was separate from the "disruption" aspect because of the particular characteristics of native title. The evidence would be taken from a selection of senior native title holders, and would cover the reasons for any feelings of distress and apprehension. The Burke report suggested that a comparison to the average scale of non-economic compensation for injury to property in tort law could provide a suitable lower limit. The initial figure for compensation for non-economic loss would have to be modified in two ways. First, by calculating an "uplift factor" to reflect the adjustment from scales of loss for individuals in analogous torts to the communal nature of native title. The Burke report suggested that that uplift factor would be roughly based on the number of claim group members with the full traditional rights claimed. That "uplift factor" would be further adjusted to take into account claim group members with less than full traditional rights, whether because they are children or are connected to the claim area tangentially, i.e. through marriage. Second, the initial figure would have to be modified to take into account compensation for the younger generation. The Burke report suggested that that could be achieved by adding an additional amount which would, if invested in low-risk investments, reproduce the original amount of compensation for the children in the native title group when they become the senior generation, i.e. in 25 or 30 years.
408 Using this methodology, the Burke report assessed a number of hypothetical claims. The one which bore some similarity to the present circumstances yielded a figure of just under $5.2 million for non-economic loss. The obvious differences between the hypothetical case and the present were that the group affected in the hypothetical case was larger and the loss was of exclusive native title rights rather than non-exclusive native title rights. Nevertheless, those factors would not have produced a reduction to less than the award in the present case.
409 It is important to emphasise that, just as with the selection of a particular penalty or sentence, and just as with the selection of a particular damages figure in tort, the selection of a figure as compensation for what might (not entirely accurately) be called "non-economic loss" or "solatium" under s 51(1) of the NTA is a matter for individual judicial determination. Reasonable judicial minds may differ, on the same evidence, about what the appropriate figure for such compensation should be.
410 In all cases, there will be a range of possible figures at which an individual judge may arrive rationally and reasonably, on the basis of the evidence before her or him. As Kirby P said in Moran v McMahon (1985) 3 NSWLR 700 at 707:
Because of the large element of evaluation and the necessary latitude for human reaction to the assessment of money damages for the imponderables compensated by an award of general damages, appeal courts should acknowledge the very large scope that must be left by the law to the trial judge. As in other discretionary decisions, appeal courts should be extremely cautious before interfering and this, precisely because of a recognition of the inevitably unscientific nature of the task committed to the trial judge…
This quote from Kirby P has been cited with approval in a number of appellate decisions, most recently in Cook v Karden Disability Support Foundation [2016] VSCA 263 (Tate, Osborne, Beach JJA).
411 The primary judge selected the figure of $1.3 million. It might be the case that another judge, on the same evidence and acting rationally and reasonably, could have selected a figure less than $1 million, or more than $1.3 million. The selection of such figures is not based on any algorithm which can be prescribed and applied.
412 Having determined that the primary judge's reasoning was not affected by error in any of the ways identified in the grounds of appeal, including that it was not manifestly excessive, it is no part of the Court's function on appeal to cavil with his Honour's selection of $1.3 million, where we consider (as we do) that figure to be within the permissible range on the evidence before him, taking into account the nature of the rights and the nature of the loss as his Honour articulated them.
413 Thus the contention that the award for solatium was manifestly excessive was not established.
414 Contrary to the usual position described by McHugh J in Markarian at [76]-[77], and which we have extracted at [385] of our reasons, the primary judge's orders were the "first time" an order for compensation was made under s 51(1) of the NTA. In those circumstances, we consider it is appropriate to emphasise one feature of native title rights and interests which is critical to the assessment of compensation under s 51(1), and which we consider is intertwined in the primary judge's reasoning, although not explicitly referred to.
415 The feature is the inalienability, under general law, of native title rights and interests. We found earlier in these reasons that the primary judge had erroneously failed to take that feature into account in assessing the economic loss component of the compensation due to the Claim Group. Nevertheless, the inalienable character of native title rights and interests informs the nature and extent of the loss suffered as a result of compensable acts.
416 In Mabo v State of Queensland (No.2) (1992) 175 CLR 1; [1992] HCA 23 at 59 and 60, Brennan J explained the inalienability of native title:
Native title, though recognized by the common law, is not an institution of the common law and is not alienable by the common law…
It follows that a right or interest possessed as a native title cannot be acquired from an indigenous people by one who, not being a member of the indigenous people, does not acknowledge their laws and observe their customs; nor can such a right or interest be acquired by a clan, group or member of the indigenous people unless the acquisition is consistent with the laws and customs of that people. Such a right or interest can be acquired outside those laws and customs only by the Crown.
[Footnote omitted.]
417 Unless extinguished, these rights and interests endure for all time within the native title holding group. They constitute, as the Canadian Supreme Court recognised in Tsilhqot'in Nation v. British Columbia [2014] 2 SCR 257; 2014 SCC 44 at [74] (Chief Justice McLachlin, with LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ agreeing):
collective title held not only for the present generation but for all succeeding generations.
418 Once extinguished, they cannot be revived. No similar rights can be acquired from others. The loss is permanent, and intergenerational.
419 As we have explained earlier in these reasons for judgment, the primary judge erroneously held that the inalienability of native title rights and interests did not reduce the amount of economic loss. The primary judge's approach to non-economic loss generally indicates that he properly recognised that inalienability formed part of the assessment of non-economic loss.