Compensation For Tjayiwara Unmuru Peoples

Late in 2017 the Federal Court awarded compensation to the Tjayiwara Unmuru Peoples for the extinguishment of native title over a small area of land around the Stuart Highway in the far north of South Australia.

The Tjayiwara Unmuru Peoples’ ownership over the land surrounding that area was first recognised in a determination by the Court in July 2013. That determination granted recognition of non-exclusive native title rights and interests over approximately 4500 square kilometres of pastoral land in the central northern part of the state.

In the case, the Tjayiwara Unmuru Peoples have been compensated for the loss of a small parcel of land which was excluded from their 2013 native title determination due to government development on the land. The compensation was for a relatively small portion of the Stuart Highway corridor, which crosses through the Tjayuwara Unmuru determination area and also land where a Digital Radio Concentrator (DRC) Tower now sits.

Deputy Principal Legal Officer Osker Linde, who represented the Tjayuwara Unmuru people in the application said that it was a complex negotiation for all involved.

“The compensation case was a complicated one, because the evidence was largely restricted men’s evidence. It had never been written down by anyone, and no ethnographic information was available to substantiate the evidence prior to conducting field work with the compensation claim group in 2013.

“For this reason, we commissioned an independent anthropological report, undertaken by Associate Professor Jon Willis, who himself has been through western desert law ceremonies. The State got their own anthropologist to
test the veracity of the claimant evidence” he said.

During the negotiations over the claim, the Nguraritja (traditional owners) provided the State with testimony about the impact of the extinguishment.

The Tjyiwara Unmuru People said that the Stuart Highway has cut their tjukurpa (creation stories and laws) in three different places, causing irreversible damage to the cultural landscape and to practices, laws and customs. They also said that the Digital Radio Concentrator tower was built in a sacred area and
is an impediment to the tjukurpa track, as it travels from one site in the determination area to another.

The Tjyiwara Unmuru people said that the road and tower have interfered with the pathway of a particular highly restricted men’s tjukurpa. There is a ceremony associated with this tjukurpa which is of the highest importance which only men of high seniority can participate. The details of the tjukurpa and its association with the determination area have never been recorded publicly.

Mr Linde says that the State accepted the evidence of the traditional owners and both sides worked to resolve the claim through agreement.

“In the end, the State did not challenge the evidence of the claim group that the relevant act being compensated did relate to the law that the men were describing” he said.

“The claimant group and the State both made significant compromises to reach a mutually agreeable settlement of the issue.

The amount of compensation paid remains confidential. Both the State and the Tjayiwara Unmuru People asked the Court for this information to be suppressed. This request was made to the Court partly because of the complexity of the negotiations and partly because of the applicant’s desire to avoid further disclosure of the highly secret men’s law.

“No doubt front and centre in the minds of the claim group was the desire to not put their senior men through what could potentially be an open hearing in relation to their restricted men’s evidence” Mr Linde said.

Justice White told the Court that the order for suppression was appropriate given the policy of the Native Title Act to encourage the resolution of matters by agreement, and that this being an early compensation case, the parties had conducted their negotiations on the basis of an expectation of confidentiality.

According to Mr Linde, he also made it clear that in future, when principles of native title compensation become more settled, the Court may not consider it appropriate to supress compensation settlement amounts.

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.