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High Court Rules on Timber Creek Native Title Compensation

Written by Fernanda Dahlstrom

Fernanda Dahlstrom holds a Bachelor of Laws, a Bachelor of Arts and a Master of Arts. She also completed a Graduate Diploma in Legal Practice at the College of Law in Victoria. Fernanda practiced law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practiced in family law after moving to Brisbane in 2016. Fernanda has strong interests in Indigenous and refugee law, human rights and law reform.

On 13 March 2019 the High Court handed down its decision in a native title compensation matter where it considered the entitlements of the Ngaliwurru and Nungali peoples to compensation for the extinguishment of their native title rights and interests. The decision marks the first time the High Court has considered a native title compensation matter and will have significant implications for future such claims.

The Northern Territory government was responsible for 53 acts that impaired or extinguished the claimants’ native title rights and interests, giving rise to an entitlement to compensation under Section 51 of the Native Title Act. The Claim Group were native title holders in relation to an area of 1.26 square kilometres in the remote Northern Territory community of Timber Creek. The area was first explored by non-Aboriginal people in the mid-nineteenth century. During the 1980s and 90s, the NT government carried out grants of tenure and construction of public works, which impaired or extinguished native title rights.

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.

Implications of the decision

The judgment delivered in this case is the first assessment by the High Court of a native title compensation case. The appeal hearing last year was the first time the High Court has sat in the Northern Territory.

The large amount of compensation awarded in this case is expected to have strong implications for native title claims in respect of the 2.8 million square kilometres of native title land holdings across Australia. The judgment has provided some clarity on how courts might quantify the compensation owed to native title holders for activities that impact their native title.

The decision has been hailed as the most significant native title decision since Mabo because of its vindication of cultural loss as lasting and attracting significant monetary compensation.

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