High Court rules Decision on The Landmark Native Title Compensation

On Wednesday 13 March 2019, the High Court passed a landmark decision on native title compensation claims. The Court has ordered state and territory governments to compensate indigenous groups owing to public works on their ancestral lands and the associated loss.

It happened for the first time where the high court had examined the Native Title Act’s compensation provisions which could have an impact on the state as well as the federal budget. In Australia, the native holdings spread in the area around 2.8 million km2. Also, under the Native Title Act established by Paul Keating in 1994, around 375 indigenous title groups can now file a claim and can seek compensation for the same.

For those companies which belongs to the mining sector and who own tenements on the land, there is also a possibility that the compensation will pass on them. The state government at NSW and West Australia have started taking steps to cover their potential losses in the future by bringing legislation into the picture to make sure that those companies who are holding long-term leases will also take the responsibility of native title compensation.

Jackie Trad, who is the Treasurer at Queensland stated that there should be a comprehensive federal approach where steps are taken to prioritize methods to settle native title compensation in the form of negotiation instead of expensive or extended hearing in the courts. Further, she also commented that before any immediate implication for Queensland, an assessment to the Court’s decision would be done.

In the decision, the high court reduced the compensation from $3 million to $2.5 million that is payable by the Northern Territory government to the traditional owners in the remote town of Timber Creek. But there is reportedly bundle of looming compensation claims.

Since the Native Title Act got legislated by the Federal Parliament, the compensation for the cancellation of native title started recently to be decided by the court. In 2016, Justice John Mansfield (Darwin’s Federal Court) awarded $3.3 million to the residents of Ngaliwurru and Nungali for 60 land grants or public works.

The Native groups at Timber Creek had applied for compensation of $4.7 million – $22 million. However, the Commonwealth valued it to be $1.4 million. In the judgement passed by Justice

Mansfield, a compensation worth $3.3 million was passed whose breakdown consisted of economic loss worth $512,000, $1.48 million in the way of interest and another $1.3 million for the pain and suffering. To protect the losses of the Aboriginal common law property rights, the compensation was passed. While doing so, he also ensured to set a precedent and determined the methods for future cases that will come on court.

The Northern Territory and the Commonwealth in the high court claimed that the economic losses claimed by the native group did not exceed 50% of the freehold value of the affected land. Based on this, they claimed an excessive award for cultural loss.

Based on this, in the judgement passed on Wednesday 13 March 2019, the high court reduced the cost related to the economic losses to $320,250 and interest to $910,100. However, the court supported the loss of $1.3 million for spiritual suffering.

The court stated that the award to the claim group was not strikingly excessive and wasn’t inappropriate with tolerable community standards.

The ruling of the High Court for the native title compensation claims might be used as a methodology in future cases.


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