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On solatium: towards a rethinking of compensation

Author/s: John Sheehan, Jasper Brown, Kenneth Rayner

Date Published: 04/05/2021

Published in: Volume 27 - 2021 Issue 2 (pages 75 - 88)

Abstract

Sovereign governments generally benefit from the capacity to commute private property rights to public ownership in order to undertake projects for the public benefit. When private property rights are compulsorily acquired by Australian governments, the criteria for the assessment of compensation accruing to the dispossessed landowner ordinarily requires consideration of a raft of heads of possible compensation. The primary aim of this paper is to canvass how those elements of traditional concepts of solatium as one of the heads of compensation ought now be viewed in the light of the defining High Court decision in Northern Territory v Griffiths [ ] HCA 7. However, a secondary aim (of the authors) is also to give consideration as to how the notion of solatium now fits in the broader Constitutional framework of the heads of compensation for private property rights compulsorily acquired. NSW legislation is used in this paper as a general exemplar of the Australian legal milieu regarding compulsory acquisition law and practice.

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Keywords

Compensation - Just Terms - Native Title - Solatium

References

  • (1987) Robertson v Commissioner for Main Roads (1987) 63 LGRA 420 at 426. (1987)
  • (2016) Griffiths v Northern Territory of Australia (No.3) [2016] FCA 900
    • 337 ALR 362. (2016)
    (2017) Northern Territory of Australia v Griffiths [2017] FCAFC 106. (2017)
    (2019) Northern Territory v Griffiths [2019] HCA 7. (2019)
    Attwood, B. (2000) Deciphering messages from another culture on the legacy of an unconventional student of the Aboriginal way of life, The Australian Financial Review. 4,.The Australian Financial Review.
    Australian Anthropological Society. (1998) Compensation for native title: Anthropological issues and challenges – Compensation workshop papers February 19–20, 1998, Canberra: (1998).
    Bregman, R. (2020) Humankind: A hopeful history. London: (: )Bloomsbury Publishing.
    Brennan, T. (1997) Wik – Why there will be no quick answers, Australian Property Law Bulletin. 11(9), –.p:77-80. Australian Property Law Bulletin.
    Commission of Inquiry into Land Tenures. (1976) Commission of inquiry into land tenures: Final report, Canberra: (February-1976).Australian Government Publishing Service.
    Coper, M. (1987) Encounters with the Australian constitution. North Ryde:CCH Australia Ltd. Encounters with the Australian constitution.
    Davies, P. (2019) The Demon in the machine: How hidden webs of information are solving the mystery of life. London:Allen Lane. The Demon in the machine: How hidden webs of information are solving the mystery of life.
    Davis, M. (2021) The Sydney Morning Herald. (24–25-July-2021).Spectrum, “The counter-balance to Pascoe”10. The Sydney Morning Herald.
    Edgeworth, B. (2019) Just compensation and ‘Solatium’: Comparative approaches in common law systems, European Property Law Journal. 8(2), –.p:192-210. European Property Law Journal.
    Flannery, T. (1996) Why foreign culture is not at home in Werrong, The Sydney Morning Herald. (16-July-1996). ,.p:15. The Sydney Morning Herald.
    Flynn, L. (2017) Native title: Full court upholds most findings in timber creek native title compensation case, Law Society of NSW Journal. 37, –.p:71-73. Law Society of NSW Journal.
    Gammage, B. (2011) The biggest estate on earth; how aborigines made Australia. Sydney:Allen & Unwin. The biggest estate on earth; how aborigines made Australia.
    Gittins, R. (2019) Economics isn’t as highfalutin as the jargon makes it sound, The Sydney Morning Herald. (25–26-January-2019). ,.Business 2. The Sydney Morning Herald.
    Gobbo, J. (1993) Mabo: Compensation for extinguishment of native title, Law Institute Journal. 67(12)(December), –.p:1163-1169. Law Institute Journal.
    Goodall, J. T. (2019) The politics of the common good: Dispossession in Australia. Sydney:NewSouth Publishing. The politics of the common good: Dispossession in Australia.
    Hansard. (1991) NSW Legislative Assembly, 11 April, at 1974–1979. (1991).
    Hassing, C.Quayle, C. (2019) Trauma informed practice: Working with communities affected by intergenerational trauma and managing vicarious trauma, Native Title Newsletter (Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies). 1, p:15-17. Native Title Newsletter (Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies).
    Neate, G. (1998) Compensation for native title: Some legal issues, Compensation for Native Title: Anthropological Issues and Challenges – Compensation Workshop Papers February 19–20, 1998. (pp. –)p:1-79. Australian Anthropological Society.
    Neate, G. (1999) Determining compensation for native title: Legislative issues and practical realities, National Native Title Tribunal, Compensation for Native Title: Issues and challenges. (pp. –).p:3-95.
    Newton, G.Conolly, C. (2017) Land acquisition. (7th ed.). Chatswood: LexisNexis Butterworths. Land acquisition.
    Ostby, H.Ostby, Y. (2018) Diving for seahorses: The science and secrets of memory. Sydney: New South Publishing. Diving for seahorses: The science and secrets of memory.
    Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund (PJC). (1997) Tenth report of the Parliamentary Joint Committee on Native title and the aboriginal and Torres Strait Islander Land Fund: The native title amendment Bill 1997, Canberra: (October-1997).
    Pascoe, B. (2014) Dark Emu- Black seeds: Agriculture or accident?. Broome.Magabala Books. Dark Emu- Black seeds: Agriculture or accident?.
    Raff, M. J. (2002) Planning law and compulsory acquisition in Australia, Taking land: Compulsory purchase and regulation in Asian-Pacific countries. Honolulu: In (Eds.), (pp. –)p:27-74. University of Hawaii’ Press. Taking land: Compulsory purchase and regulation in Asian-Pacific countries.
    Russell, D. (2014) Review of the land acquisition (Just terms compensation) Act 1991. Sydney:Submission to the Minister for Finance and Services. Review of the land acquisition (Just terms compensation) Act 1991.
    Seneca, L. A. (2018) De Brevitate Vitae (On the shortness of life), New Philosopher. 19, –.p:84-87. (trans. Basore, J. 1932). New Philosopher.
    Sheehan, J. (2000) Calculating the incalculable: Compensation for the compulsory acquisition of indigenous rights and interests, Journal of Australian Indigenous Issues. 3(2), –.p:4-11. Journal of Australian Indigenous Issues.
    Smith, D. (2001) Valuing native title: Aboriginal, statutory and policy discourses about compensation, Discussion Paper No. 222/2001. Canberra: (2001) (CAEPR, ANU.
    Sutton, P.Walshe, K. (2021) Farmers or hunter-gatherers?The Dark Emu Debate. Carlton: Melbourne University Press. Farmers or hunter-gatherers?The Dark Emu Debate.
    Sutton, P. (1998) Icons of country: Topographic representation s in classical aboriginal traditions, The history of cartography: Cartography in the traditional African, American, Artic, Australian, and Pacific Societies. Chicago: In (Eds.), (pp. –)p:353-386. The University of Chicago Press. The history of cartography: Cartography in the traditional African, American, Artic, Australian, and Pacific Societies.
    The Law Reform Commission. (1980) Land acquisition and compensation, Report No. 14. Canberra: (1980). Australian Government Publishing Service.
    Winnett, C. (2010) ’Just terms’ or just money? Section 51(xxxi), native title and non-monetary terms of acquisition, UNSW Law Journal. 33(3), –.p:776-807. UNSW Law Journal.
    );