Compensation For Loss Of Native Title Rights

A recent Federal Court judgement for the Ngaliwurru and Nungali people in the Northern Territory (NT) has provided a potential precedent and method for calculating compensation for loss of native title rights for the first time in Australia’s history. It’s a decision has real significance for South Australian native title groups, according to SA Native Title Services Deputy Principal Legal Officer, Osker Linde.

In the decision, Federal Court Justice Mansfield granted the Ngaliwurru and Nungali people compensation of $3.3 million from the Territory Government. However the NT Government has appealed some parts of the judgment, leaving the basis for compensation claims still not finally determined.In 2006, the Ngaliwurru and Nungali people won their claim for native title in some parts of the town of Timber Creek, but the Federal Court found those rights had been lost in areas where government infrastructure, including a bridge and a water tank, had been built. Then in 2011, the native title group launched their compensation claim which has now been decided, setting an important precedent for similar claims across Australia.

The Timber Creek claim covers a small area of land – just 23 square kms and many other potential native title compensation claims cover much larger areas.

To arrive at the $3.3 million, dollar figure, Justice Mansfield made calculations on three different types of loss – economic loss, interest on that economic loss and non-economic loss. Economic loss, the value of the land, was estimated at $512,000. $1.48 million was the interest calculated on that loss since extinguishment.

Justice Mansfield also determined that $1.3 million was fair compensation for non economic loss – the distress, anxiety and hurt caused to the Ngualiwurru and Nungalia people by the loss of connection to their land.

Compensation for loss of connection to land

Lead plaintiff, Ngualiwurru representative Alan Griffiths, had told the court that the concrete bridge was built without consultation, and had disrupted a sacred dingo Dreaming site. He also spoke about his responsibility to look after the land.

“I got all those sites, all that Dreaming, I have to make sure people don’t make a mess of it,” he told the court, according to NITV.

“That’s how I look after country. My grandpa, Lamparangana, taught me to look after country and now I teach my kids. My kids follow me for country.”

Justice Mansfield recognised the connection of the claimants to their land in his decision.

“The issue before the Court was how to quantify the essentially spiritual relationship which Aboriginal people, and particularly the Ngaliwurru-Nungali People, have with country and to translate the spiritual or religious hurt into compensation,” Justice Mansfield said.

Significance for compensation in South Australia

SA Native Title Services Deputy Principal Legal Officer Osker Linde said that the decision has real significance for South Australian native title groups,

“I think the decision is of extreme importance to native title compensation claimants in South Australia – particularly as much of the native title land here involves pastoral lease where non exclusive native title rights and interests only have been recognised” he said.

“If the decision stands, it enables us all to understand some of the parameters to compensation including that it can include economic and non economic loss and that damages will be calculated from the date of extinguishment, not validation” Mr Linde added

“This is relevant to interest components which may feature in compensation orders. It is unclear at this stage to what extent the decision will influence the State of South Australia in its approach to native title compensation settlement negotiations” he concluded.

Decision being appealed

It was the method used to calculate non-economic loss that is at the centre of the Northern Territory Government’s appeal against the finding. The NT Attorney General Natasha Fyles released a statement on the reasons for the appeal.

“The Territory accepts some aspects of the decision; however it is seeking clarity in relation to others including the valuation of non-economic loss”

Ms Fyles told The Guardian Australia that the Government was seeking more certainty in the area.

“This appeal was lodged so that there can be more certainty around valuing non-economic loss which, will in turn provide guidance and assistance to those negotiating the settlement of other native title claims.”

Joe Morrison, Chief Executive of the Northern Land Council, told the ABC he wasn’t surprised by the appeal and expected it would go to the High Court.

However, “it’s just the fact that there’s going to be further work and litigation and also a longer wait we believe for traditional owners”.

By Lucy Kingston

SANTS acknowledges that the land on which our office is based is the traditional lands for the Kaurna people and we respect their spiritual and cultural relationship with their country.