.

  • Written by William Isdale, Postgraduate Research Student, T.C. Beirne School of Law, The University of Queensland
The High Court has awarded the Ngaliwurru and Nungali peoples just over A$2.5 million for the loss of 1.27sqkm of non-exclusive native title at Timber Creek, Northern Territory. Shutterstock

The High Court has decided, for the first time, the approach that should be taken to resolving native title compensation claims. In a previous article, we said it would be “the most significant case concerning Indigenous land rights since the Mabo and Wik decisions”.


Read more: How will Indigenous people be compensated for lost native title rights? The High Court will soon decide


The High Court’s decision yesterday certainly stands up to that description, and provides a degree of certainty for native title holders and governments. However, it also leaves a number of important issues unresolved. There will no doubt be further significant decisions in the future.

The significance of the decision

The decision is significant for Indigenous people because it confirms the substantial awards that may be made for past losses of native title. In this case, the High Court awarded the Ngaliwurru and Nungali peoples just over A$2.5 million for the loss of 1.27 square kilometres of non-exclusive native title, in and around the remote Northern Territory township of Timber Creek. The loss of that title occurred incrementally, by various acts of the NT government in the 1980s and ’90s.

The decision is significant for state and territory governments because the financial liabilities they owe to many Indigenous peoples have been clarified. Governments have known about the potential for compensation claims since the Native Title Act was passed in 1993. But because the Act expresses the right to compensation in vague terms (being an entitlement “on just terms to compensate the native title holders”), the amounts were unquantifiable. For example, the Commonwealth government’s 2007-08 budget papers noted:

The Australian Government’s liability cannot be quantified due to uncertainty about the number and effect of compensable acts, both in the past and in the future, and the value of native title affected by those acts.

The Native Title Act’s recognition of rights to compensation extends back only to losses of title that have occurred since October 31 1975 (when the Racial Discrimination Act 1975 commenced). However, as explained below, it is possible that claims for compensation for some losses of title prior to that date could succeed.

What the High Court said

Unlike conventional interests in land – like freehold title – it is not possible to sell or lease native title rights. That made it especially difficult to determine what the economic value of those rights would be.

Secondly, there was the question of how a native title party’s cultural or religious ties to country would be compensated for. The High Court’s decision has provided the first inkling of clarity on these questions.

The High Court said the economic component of native title rights was to be valued by assessing those rights in comparison to a freehold title. A freehold title sets the upper limit for economic value because it provides the most extensive set of property rights known to the law. The court confirmed that the task is essentially intuitive.

The first decision of the Federal Court, in 2016, had said that the rights in this case were worth 80% of the freehold value of the land. The Full Court of the Federal Court reduced that amount to 65%. The High Court whittled it down further in this decision, to 50%.

As to the cultural or religious loss caused by the loss of native title rights, the High Court said:

… what, in the end, is required is a monetary figure arrived at as the result of a social judgment, made by the trial judge and monitored by appellate courts, of what, in the Australian community, at this time, is an appropriate award for what has been done; what is appropriate, fair or just.

The court considered that the amount awarded by the courts below – A$1.3 million – was an appropriate award for this aspect of the loss.

Why we can expect more judgments on this topic

The court’s judgment still leaves a lot intuitive work to be done by those trying to determine native title compensation awards. In our view, that is not to the benefit of either native title parties or governments.

What is needed is further guidance about the criteria or principles that will guide the exercise of what is, essentially, an evaluative, or intuitive, decision. Further clarity about these principles will make it easier for compensation claims to be resolved by agreement, rather than by expensive (and time-consuming) litigation. Because the common law is worked out incrementally by the courts, it is likely that future decisions will go some way towards providing further guidance.


Read more: FactCheck: can native title 'only exist if Australia was settled, not invaded'?


The High Court’s decision also leaves unanswered a number of significant questions. The most significant of these concerns the requirement in the Australian Constitution, section 51, that certain acquisitions of property be on “just terms”.

High Court judges have, over the years, expressed different views as to whether native title would enjoy the protection of this provision. If it does, then it is possible that certain restrictions on compensation provided for under the Native Title Act are unconstitutional.

Further, it may be possible for compensation claims to be successfully made outside of the Native Title Act and for losses that occurred before October 31 1975. If that were the case, for example, actions by the Commonwealth in the Northern Territory (which achieved self-government only in 1978) that extinguished or affected native title, all the way back to Federation in 1901, could be compensable.

What the decision means

For governments around the country that are beginning to quantify their native title liabilities, the amounts could be eye-wateringly large. It is unlikely that many governments have prepared financially for the wave of potential compensation claims.

The greater certainty about the amounts that may be available is likely to accelerate the making of such claims. As the Federal Court noted in its 2016-17 annual report:

A significant number of compensation claims are anticipated when the legal processes in Griffiths [the formal name of this High Court decision] conclude.

Overall, the decision will mark a shift in Australia’s native title journey from determining claims about the existence of native title (phase one) into determining compensation for past losses of native title (phase two).

The first phase has been with us since Mabo in 1992, and new claims for the recognition of native title continue to be made. The second phase is only just beginning. We will see claims before the courts for many years to come.

Given that compensation claims will be payable in most cases by governments, it is likely the decision will trigger political debate about the economic, budgetary and social implications. This debate will deserve close scrutiny.

The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.

Authors: William Isdale, Postgraduate Research Student, T.C. Beirne School of Law, The University of Queensland

Read more http://theconversation.com/landmark-high-court-decision-guides-how-compensation-for-native-title-losses-will-be-determined-113346

Cost of Not Validating An Email Database

Email marketing is not as easy as it sounds, lots of email marketing campaigns are not able to generate the returns as expected. The most common failures of email marketing campaigns are mentioned bel...

Ali Burhani - avatar Ali Burhani

Build Your Six-Pack with SIT

Pretty much everyone values being in good shape, even though commitment to actually putting in the work varies greatly. Though it may be difficult to hear, you’re not going to get into shape and...

Nicholas Rizzo - avatar Nicholas Rizzo

VIDEO: Michelle Grattan on the next sitting week - and Scott Morrison's relationship with Trump

University of Canberra Vice-Chancellor Professor Deep Saini discusses the week in politics with Michelle Grattan – one with a reduced pace, despite the 24 hour news cycle. They talk about whethe...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

Ministers fiddle while buildings crack and burn

The Building Ministers’ Forum (BMF) met yesterday yet again to discuss implementing the February 2018 Shergold-Weir Report they commissioned in mid-2017. The BMF is responsible for overseeing t...

Geoff Hanmer, Adjunct Lecturer in Architecture, UNSW - avatar Geoff Hanmer, Adjunct Lecturer in Architecture, UNSW

Why is nursing home food so bad? Some spend just $6.08 per person a day – that's lower than prison

If residents are given poor quality foods that don't meet their needs or preferences, they're less likely to eat it. ShutterstockThe Royal Commission into Aged Care Quality and Safety this week turne...

Cherie Hugo, Teaching Fellow, Nutrition & Dietetics, Bond University - avatar Cherie Hugo, Teaching Fellow, Nutrition & Dietetics, Bond University

What's not to like? Instagram's trial to hide the number of 'likes' could save users' self-esteem

Not enough likes? Not a nice feeling. Shutterstock.comInstagram is running a social media experiment in Australia and elsewhere to see what happens when it hides the number of likes on photos and othe...

Joanne Orlando, Researcher: Children and Technology, Western Sydney University - avatar Joanne Orlando, Researcher: Children and Technology, Western Sydney University

The waterwheel plant is a carnivorous, underwater snap-trap

The whaterwheel plant can snap up its prey in milliseconds. The ConversationSign up to the Beating Around the Bush newsletter here, and suggest a plant we should cover at batb@theconversation.edu.au. ...

Adam Cross, Research Fellow, Curtin University - avatar Adam Cross, Research Fellow, Curtin University

What's the next 'giant leap' for humankind in space? We asked 3 space experts

Today, we're asking two astrophysicists and a planetary scientist: what's the likelihood we'll be living on Mars or the Moon in future? Pixabay/WikiImages, CC BYYou’ve probably heard that this w...

Sunanda Creagh, Head of Digital Storytelling - avatar Sunanda Creagh, Head of Digital Storytelling

It's a new era for Australia's whistleblowers – in the private sector

Whistleblowing will always take some type of toll, but it need not be career suicide. www.shutterstock.comAs strange as it might sound, whistleblowers in Australia have reason to rejoice – so lo...

Dennis Gentilin, Adjunct Fellow, Macquarie University - avatar Dennis Gentilin, Adjunct Fellow, Macquarie University

Explainer: what is leptospirosis and how can it harm us and our pets?

When a game of fetch can harm: leptospirosis can be transmitted to dogs (and humans) from stagnant water contaminated with rat urine. from www.shutterstock.comRecently reported cases of the often fata...

Christine Griebsch, Specialist and Senior Lecturer in Small Animal Medicine, University Veterinary Teaching Hospital Sydney, Sydney School of Veterinary Science, University of Sydney - avatar Christine Griebsch, Specialist and Senior Lecturer in Small Animal Medicine, University Veterinary Teaching Hospital Sydney, Sydney School of Veterinary Science, University of Sydney

Domestic abuse or genuine relationship? Our welfare system can't tell

Financial abuse can be misinterpreted as 'sharing finances', which can indicate a relationship in the criteria of the couple rule. ShutterstockIn Australia’s social security laws, the “co...

Lyndal Sleep, Research Fellow, Griffith University - avatar Lyndal Sleep, Research Fellow, Griffith University

Friday essay: why old is new again - the mid-century homes made famous by Don's Party and Dame Edna

A Royal Victorian Small Homes House, designed in conjuction with The Age newspaper, 1955. Photo: Wolfgang Sievers. Pictures Collection, State Library VictoriaOf all the mantras for modernism, the one...

Kirsty Volz, PhD Candidate, The University of Queensland - avatar Kirsty Volz, PhD Candidate, The University of Queensland

How public libraries can help prepare us for the future

Public libraries can use their status as community hubs to engage the public in scenario planning for the future. Mosman Library/Flickr, CC BYFor generations, libraries have helped people explore know...

Matthew Finch, Adjunct Research Fellow, University of Southern Queensland - avatar Matthew Finch, Adjunct Research Fellow, University of Southern Queensland

One-third of all preschool centres could be without a trained teacher in four years, if we do nothing

Currently, half of all early childhood teachers have a bachelor degree, with a further one-third still working towards one. from shutterstock.comOne-third of all preschools may lack a qualified teach...

Megan O'Connell, Honorary Senior Fellow, University of Melbourne - avatar Megan O'Connell, Honorary Senior Fellow, University of Melbourne

Not one but two Aussie dishes were used to get the TV signals back from the Apollo 11 moonwalk

US astronaut Neil Armstrong on the Moon during the Apollo 11 mission. NASAThe role Australia played in relaying the first television images of astronaut Neil Armstrong’s historic walk on the Moo...

John Sarkissian, Operations Scientist, CSIRO - avatar John Sarkissian, Operations Scientist, CSIRO

How our obsession with performance is changing our sense of self

How well we do – at work or on the sports field – influences how we see ourselves. from www.shutterstock.com, CC BY-NDWe live in a society obsessed with performance. For both young and old...

Ben Walker, Lecturer (Management), Victoria University of Wellington - avatar Ben Walker, Lecturer (Management), Victoria University of Wellington

Australian writer Yang Hengjun is set to be charged in China at an awkward time for Australia-China relations

Charges against Yang appear to relate to his work as a writer and blogger in which he has been sharply critical of the Chinese regime. Facebook Australia’s relations with China will be further ...

Tony Walker, Adjunct Professor, School of Communications, La Trobe University - avatar Tony Walker, Adjunct Professor, School of Communications, La Trobe University

More than 28,000 species are officially threatened, with more likely to come

A giant guitarfish caught in West Papua is hung from a fishing boat. Guitarfish are in trouble, according to the IUCN Red List. Conservation International/Abdy Hasan, Author providedMore than 28,000 ...

Peter Kyne, Senior Research Fellow in conservation biology, Charles Darwin University - avatar Peter Kyne, Senior Research Fellow in conservation biology, Charles Darwin University

Grattan on Friday: Being a Trump 'bestie' comes with its own challenges for Scott Morrison

It's now widely observed that Morrison and President Donald Trump have struck an early bromance. AAP/Lukas Coch“How good is this?” Scott might have said to Jenny, when word came that he&rs...

Michelle Grattan, Professorial Fellow, University of Canberra - avatar Michelle Grattan, Professorial Fellow, University of Canberra

How to choose a Weber Q Barbeque

There are several barbeque brands in the Aussie market today, and it can be quite challenging to find the right one for you. Weber Q is a reliable, barbeque brand that comes in a wide variety of products to choose from. This article investigates th...

News Company - avatar News Company

6 Reasons Why Fresh Content Benefits Your Brand and SEO

When it comes to content marketing, most guides focus on the part where your content needs to be relevant, well-written and well-formatted, all of which are true. However, while all of them speak about quality, most of them forget to mention just...

Diana Smith - avatar Diana Smith

LifeStyle

The Gas Fireplace VS the Wood Fireplace

It’s that time of year again when the weather has turned chilly, everybody is putting out their ...

How to Revolutionize Your Beauty Experience

Being concerned with beauty and cosmetics used to mean frequent visits to the salon and sitting in...

8 Cool Yet Romantic Things to do in Australia

Australia is a wonderful place for vacationing this summer and you can beat the heat as they have ...

How to Banish Dark Circles without the Need for Cucumber Slices

Dark circles can be downright annoying, especially when you are getting enough sleep. So, what cau...