High Court awards Timber Creek native title holders $2.5m, partly for 'spiritual harm'

By Felicity James

The High Court has ruled native title holders from the remote Northern Territory town of Timber Creek will receive $2.5 million in compensation for loss of their rights, including spiritual connection to the land.

Key points:

·         The dispute has been about how to calculate compensation for extinguishment of native title rights

·         The Timber Creek claimants will get $2.5 million, down from the $3.3 million originally awarded

·         The High Court rejects claims that $1.3 million for "spiritual harm" is excessive

The test case — described as one of the biggest since Mabo — brought the High Court to the Northern Territory last September for the first time in its history.

It was the first time the High Court had examined the Native Title Act's compensation provisions, including how to put a price on intangible harm caused by disconnection with country.

The claim by Ngaliwurru and Nungali native title holders was about rights that were extinguished through the building of roads and infrastructure by the Northern Territory Government in the 1980s and 1990s.

The final amount of $2.5 million in compensation settled on by the High Court is divided into three components — economic loss, interest and non-economic loss related to the "spiritual" harm caused by disconnection.

It includes $1.3 million for the non-economic loss. The court rejected the argument from the NT and Federal Governments that the amount was "manifestly excessive".

"The compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land is the amount which society would rightly regard as appropriate for the award for the loss," the majority judgement said.

The decision has set a precedent for similar claims across the country.

Queensland, Western Australia and South Australia were "interveners" or interested parties in the case, supporting the NT and Federal Governments' position.

Governments win argument about 'economic loss'

The appeal process began after the Timber Creek native title holders were awarded a total of $3.3 million in compensation for extinguishment of their native title rights in 2016.

That decision by Federal Court Justice John Mansfield was challenged by the NT and Federal Governments.

The Full Federal Court then reduced the compensation amount to $2.9 million.

Both the NT and Federal Governments appealed again to the High Court, along with the Ngaliwurru and Nungali claim group.

The Federal and NT Governments argued the native title rights were "overvalued" and the economic loss should not be worth any more than 50 per cent of the freehold value of the land.

The High Court agreed with that argument and awarded $320,250 for that component.

That was partly because Timber Creek was covered by a pastoral lease in the 1880s, which meant native title holders did not have the right under Australian law to exclude people from the land but kept "non-exclusive" rights to hunt, fish and practice their law and culture.

The Ngaliwurru and Nungali people had argued the loss of their native title rights was worth the entire freehold market value of the land.

An end to unfinished business

The lead claimants Lorraine Jones and Chris Griffiths spent several years in court, finishing a job that their late fathers started in 1999, when the native title applications were first filed.

PHOTO: Lorraine Jones and Chris Griffiths continued the fight begun by their late fathers. (ABC News: Mitchell Woolnough)

Ms Jones said loss of culture was the most important part to be recognised, describing it as "like a tangle in the tummy".

"It hurts like something happens to your family," she said.

Mr Griffiths said he was disappointed the economic loss component of the compensation was reduced, but that recognition of their spiritual connection was "what our old people wanted".

"To prove that our culture is still alive, our law is still in the land, our blood is still running in the country, our tears will fall on the land," he said. 

Mr Griffiths and Ms Jones said the Ngaliwurru and Nungali people will decide as a family group how they will use the compensation.

Northern Land Council lawyer Tamara Cole, who has been overseeing the case with the claim group for almost a decade, said the NT Government would be responsible for paying the compensation.

"Native title holders around Australia have been waiting for the High Court to deliver its decision in Timber Creek, so they can get on with their negotiations with state and territory governments to arrive at fair amounts of compensation," Ms Cole said.

First posted 13 Mar 2019, 4:36pm

My anger with George Pell has been replaced by immense sadness

 by

Christos Tsiolkas

I don’t see a monster. I see all the women and children and men and nuns and priests destroyed by shame, fear and lies.

I have been angry with Cardinal George Pell for a long time. That anger was first stirred by his absolute disdain for extending compassion to people living with Aids, and also by his refusal to accept queer people into Catholic fellowship. I was also made furious by his perverting of the teachings of the Gospels, most clearly visible in his prioritising of political alliances with the rich and the powerful rather than offering ministry and care to those most in need. So I understand the righteousness that many people are feeling and expressing, now that he has been convicted of the sexual abuse of two young boys. A hypocrite has been caught out and is being punished. Of course we are going to exalt in that.

Except, on seeing him being led out of the courthouse and into the media scrum, my anger fell away and all I felt was an immense sadness.

The ugly story of sexual and physical abuse in the Catholic church is one of the defining stories of our age. As we all do, I know many people who were raised in that church who now find it impossible to remain loyal to the faith. The betrayal, especially for those who have suffered the abuse, is too great.

Yet in acknowledging the horror I don’t want to forget the many Catholics I have met who have remained true to what I believe is the most profound of Jesus’s teachings. I am thinking of the Catholic nurses I met during the worst years of the Aids epidemic, who cared for sick and dying friends even when their church had seemingly turned its back on the ill. During the height of the economic rationalist slashing of social services by Premier Jeff Kennett in Victoria, I witnessed the same care extended to the homeless and to those most affected by recession and poverty. And most recently, I have been humbled by the Catholics I have seen fight for the rights and dignity of the asylum seekers.

I’ve been to the Vatican and there is nothing of the wisdom of Jesus there. I’ve witnessed it on the streets, the detention centres and hospital wards of my city.

George Pell will appeal his conviction and he has every right to do so. But for the purposes of trying to understand why my anger has been replaced by sadness, let us assume that he is indeed guilty of those crimes. The real tragedy is then the abuse visited on the boys. But I can’t help also wondering what it has meant for this man, once we strip him of the aura of his cardinalship and priestly authority, to have clearly led a life as a lie? For years Pell has publicly and vehemently pronounced against the evil of homosexual behaviour. He has been one of the key figures in the institutional church fighting against any leniency or change to Catholic teachings on sexuality. Has he, then, in part, been fighting against himself?

I count myself lucky. I only had a few years where I lived inside the lie of hiding my sexuality. I can write that now, with almost a cavalier objectivity, but in my adolescent years living that lie nearly destroyed me. I did believe myself shameful and I did believe myself monstrous, and I thought that if God did not cure me of my affliction, then the only course left open to me was to take my own life. I loved my family, I loved my friends, I loved my God, but I feared that if I revealed this one truth about myself then I would be cut off from their love for eternity.

Where I was fortunate was that my family and friends did not turn away from me, and that in high school I had two teachers who clearly understood the nature of my struggle against the lie, and who steered me towards books and films that offered me glimpses of how to live an honourable and truthful life. I was also fortunate in coming of age in a time when Gay Liberation had already challenged the laws that made my sexuality illegal, and had started dismantling the social stigmas that made that sexuality shameful.

Maybe I was lucky too that I was raised Orthodox Christian and not Catholic. Unlike many of my peers who were raised in the Catholic church the promise of the priesthood was never an option for extending the lie. The Orthodox priests can marry. Beyond that, the almost idolatrous revering of the priest that has always puzzled me about Irish-Catholicism was never a part of my Orthodox heritage. Both my parents had faith but they also had a strong suspicion of the clergy. “They are men, a few are good, the rest are a pack of wankers!”

At 18, after coming out to Mum, she pleaded with me to go to confession. I didn’t believe I needed to confess anything but to please her I went along. I told the priest that I was there because my mother was distressed that I was homosexual. He pulled up a chair next to me, and placed his hand alarmingly near my crotch. He told me that God loved all the creatures he had created. I firmly smacked his hand away and left. When I told my mother she groaned and said, “You should have bashed the Bible across his head!” But I wasn’t angry at that priest. In truth, I pitied him. He was just a man, just a closeted gay man. I was thankful I didn’t have to lead that life anymore.

Many years later I had a night getting drunk with a group of Catholic priests. They were good men, people I had met who worked in social justice and on the streets. I helped one of the priests, now very drunk, up to his room in the seminary, and put him to bed. He fell asleep immediately, and I looked around the tiny room, at his single bed, the icons and the crucifix on the walls. He was in his late fifties but it reminded me of a schoolboy’s room. It was a cruel thought but I had it: these men have never grown up.

I wonder sometimes what would have happened if I had been born a generation earlier, before Gay Liberation? Would I have married and had children? And in doing so, would my own self-loathing at living a lie have turned into a bitter hate that would have betrayed family, friends and community; would I have never known what it is to love and be loved? I too might have never grown up.

So, when I saw the media images of Pell’s haggard face as he was led out of the courthouse, when I heard the abuse hurled at him, I felt that great sadness. And that spark of empathy. I wondered whether this was a man who had led a lie for decades, and in leading that lie, did he even forget what it was to be human outside it? I know that none of this excuses his hypocrisy, his vainglory, and the perversion of the Gospel teaching that the “last shall be first and the first last”; and it certainly doesn’t excuse his own abusing, and the shameful covering-up of abuse within the church he led. But it may be that even though I no longer profess to be a Christian, some of the foundational tenets of the faith remain vital for me.

I have returned to the Christian Bible many times throughout my life and I am always struck by how there is only a scattering of references or teachings to do with sexual morality. It is compassion, charity, love and humility that are at the centre of the New Testament Gospels. Shame and fear of sex and the body – and the hypocrisy and perversion that arises from this – have compromised Catholicism for centuries. When I observe this tragic mess, when I truly look at the face of George Pell, I don’t see a monster and I don’t see an ogre and I don’t see Satan and I don’t see the Devil. I see the children and the women and the men and the nuns and the priests who have been destroyed by this shame, and this fear, and this living of lies.

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It is long past the time for the church to grow up.

Christos Tsiolkas is an Australian fiction author. He wrote the books The Slap, and Barracuda