High Court Rules On Native Title Compensation

The High Court in Canberra has handed down a decision on a native title compensation claim that will provide clarity for traditional owners seeking payment for the loss of their native title rights.

The court has ordered the Northern Territory Government make a once off payment of $2.53m in compensation to the Ngaliwurru and Nungali people for loss of native title rights on a part of their determination area where public works had been undertaken.

Mr Jamie Lowe, Chairperson of the National Native Title Council, the peak body for Australia’s native title organisations says that the decision is significant and welcome.

“Today’s decision constitutes an important step in the struggle for land justice for Australia’s Traditional Owners. There remains though much work to do in bringing applications, in accordance with the principles clarified by the Court, to deliver just compensation for native title holders whose lands have been taken since 1975 and to attempt to achieve justice for those lands taken before then.”

In a judgement on an appeal against the previous outcomes of the claim around the town of Timber Creek in the Northern Territory, the High Court ruled on three components of calculating compensation for loss of native title rights.

Those components are the freehold value of the land in question, the interest due on that land and the non-economic loss from having the land used for other purposes.

The High Court has ruled that in this case where that the Ngaliwurru and Nungali people held non-exclusive native title rights, a rate of 50% of the estimated freehold value of the land  was a reasonable figure to use. 

It decided that in calculating interest due on that land, simple interest calculation should be the basis.

Significantly, the High Court upheld the estimation of the original trial judge, now retired Justice Mansfield in calculating non-economic, spiritual loss. Justice Mansfield  determined that $1.3 million was fair compensation for the distress, anxiety and hurt caused to the Ngualiwurru and Nungali people by the loss of connection to their land.

Lead plaintiff, now deceased Ngualiwurru representative Mr Griffiths, had told the court that works were done 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 original 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” he said.

The High Court decision endorsed the approach taken in the original trial concerning non-economic or cultural and spiritual loss.

“His Honour had the substantial benefit of hearing, and seeing, first-hand the evidence from the Claim Group of their connection to the land; the effects, under their laws and customs, when country is harmed; and, then, the effects of the compensable acts on their connection to and relationship with country. That is reflected in the trial judge’s detailed treatment of that evidence”

Mr Lowe called on all Australian governments to work cooperatively with traditional owners in this task of assessing compensation in each claim. 

“Today’s decision means that each compensation application will have to be assessed on its individual merits: the value of the land; the acts that were done to it; and, the sense of cultural loss that flowed from those acts.

“This is an important clarification, but it does mean that there are many years of work left in resolving the large number of compensation applications that will come.

Northern Land Council lawyer Tamara Cole, who has been overseeing the case with the claim group for almost a decade told the ABC that the decision was long awaited by traditional owners nationally.

“Native title holders around Australia have been waiting for the High Court to deliver its decision in Timber Creek, so they can get on with their negotiations with state and territory governments to arrive at fair amounts of compensation,”

Further information:

Full High Court decision here

Aboriginal Way Story on original trial here

ABC story on High Court decision hereBy 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.