A Lawyers Picnic !

A recent ruling by the High Court of Australia has given approval to the principle that the original inhabitants of this continent are entitled to compensation for the loss of the land that occurred when a penal colony was established here in 1788. The High Court recognised  "the people, the ancestral spirits, the land and everything on it are organic parts of one indissoluble whole ".

In its judgement, the High Court applied a compensation figure to a parcel of land described as Timber Creek in the Northern Territory and should that rate apply to the 2.8 million square hectares of Australian land and water subject to native title claims it will represent a very large sum of money awaiting distribution.

That award was $ 20,000 per hectare and should that be extended to the one percent of Australia's total determined native title area it would yield a compensation payout figure of $ 56 billion.  How and where that would be distributed will be settled in the lower courts.

This looks to have all the mystery and drama that can be described as a "lawyer's picnic ".   Each case is likely to be argued and determined on its merits and could ramble on in the courts for many decades.  Such is the outcome of decisions by the High Court.  Those decisions provide a guiding principle and leaves the nitty gritty to be worked out by the lower courts.

Once a decision is reached in individual claims, the distribution of that pot of money opens the Pandora's box of who is entitled to what ?   It could be argued that native title is a tribal claim but that needs to resolve the identity of those who can legitimately claim to be members of that tribe, something certain to result in dispute.

It also leaves undecided the matter of Aboriginality.  The moment money comes into the equation the issue of blood lines comes to the fore.   It can be argued that the many full blood Aboriginal people should have claim preference over those of mixed blood.  At present, Aboriginality is untested and the benefits available to all of claimed Indigenous blood are granted on demand.

Fortunately, the resolution of that question is as available as a simple blood test. or the taking of a DNA swab from the mouth of the person being tested.  DNA delivers an accurate record on lineage going back untold generations.  It is the perfect tool for establishing eligibility for native title compensation.

What it leaves undecided is the question of whether compensation should be restricted to full blood Aborigines, or whether compensation should be graded according to the degree of Aboriginality present in those who claim to be of Indigenous stock.

It seems that this High Court decision will keep the lower courts busy for years.  There is nothing like a money issue that keeps the litigation mill rolling at full speed.