The decision at first instance
The Federal Court of Australia found the claimants were entitled to an award for economic loss at 80% the freehold value of the land, with simple interest, and compensation for cultural loss of 1.3 million. On appeal, the Full Court reduced the assessment of compensation for economic loss from 80% to 65% the freehold value of the land. It affirmed the rest of the trial judge’s decision. The Claim Group appealed to the High Court, arguing that it should be awarded compensation for economic loss equating to the freehold value of the land without reduction. The NT and Commonwealth cross-appealed, arguing that the Claim Group’s economic loss was no greater than 50% of the freehold value of the land and that the award granted by the Full Court for cultural loss was manifestly excessive.The High Court decision
The High Court allowed the appeals by the NT and the Commonwealth. It dismissed the Claim Group’s appeal.Economic loss
A majority of the High Court bench found that the economic value of the Claim Group’s rights and interests must be determined via a percentage reduction from full exclusive native title to non-exclusive native title rights and applying that percentage reduction to the freehold value of the land. The Court found that the Claim Group’s non-exclusive native title rights were no more than 50%. It rejected the argument that the claimants were entitled to compound interest and awarded simple interest.Cultural loss
The High Court upheld the Full Court’s award of $1.3 million for cultural loss. The Court held that the assessment of cultural loss required an assessment of the spiritual relationship the group has with country and the extent of the spiritual hurt inflicted by the compensable acts. The court noted that spiritual loss'is something over and above and separate from "enjoyment" in the sense of the ability to engage in activity or use. Spiritual connection identifies and refers to a defining element in a view of life and living. It is not to be equated with loss of enjoyment of life or other notions and expressions found in the law relating to compensation for personal injury. Those expressions do not go near to capturing the breadth and depth of what is spiritual connection with land.'The court heard evidence of developments being commenced without the permission of traditional owners, destruction of Dreaming used in the initiation of young men and obstruction of access to hunting grounds and areas used to gather bush tucker. It held that the amount to be awarded for cultural loss varies depending on the identity of the native title holders, their connection with the land or waters and the effect of compensable acts on that connection. The Court found the award for cultural loss was not manifestly excessive.