It's time for a native title reckoning

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The High Court recently handed down a momentous decision for Indigenous Australians. The case, known as the Timber Creek Decision, concerned the award of compensation — both economic and non-economic — to the Ngaliwurru Nungali peoples of the Northern Territory for loss of their property rights in their traditional lands.

Ridge line near Timber CreekThe case is the first of its kind to be successfully publicly litigated. In 2006 a claim by the traditional owners of Yulara, near Uluru, was rejected by the Federal Court because the judge found that the claimants could not establish native title.

Subsequently, the Yankunytjatjara people in the De Rose Hill native title claim received compensation from the South Australian government for extinguishment of their rights over sacred sites. The compensation was agreed under a confidential negotiated settlement between the government and the traditional owners. Consequently, it offers no precedent for just how to calculate compensation, and on what basis compensation might be offered.

That native title holders are entitled to compensation is not in dispute. The Native Title Act is clear that the Federal Court has power to award compensation, including for valid extinguishment of native title. The act also makes clear that compensation will be awarded on 'just terms'. Although the act has been in force since 1993, the big question about compensation has been how to attach a dollar value to 'just terms' for extinguishing native title.

Where the state resumes freehold titles, this question is settled. There is a market value for freehold land, and well-established valuation methods to ascertain the compensation value. Native title, however, by definition has no market value. The rights attaching to native title are communal rights held by the community in common. The very concept of native title is the opposite of property in land as is understood by the Anglo-Australian legal system. This difference in character has created a challenge for Australian law in working out principles of compensation valuation.

At first instance, before a single judge, the Timber Creek applicants were awarded compensation for economic loss of property rights at a value equivalent to 80 per cent of the freehold value of the land. This valuation recognised that the claimants suffered only a partial loss of their native title. There was considerable discussion about the valuation method applied. Subsequently, the Full Court, on appeal, disagreed with the valuation method proposed and it reduced the compensation valuation to 65 per cent of the freehold value.

The High Court then settled the principles of compensation valuation, applying a test of what a 'willing but not anxious purchaser would pay a willing but not anxious vendor' to determine the freehold value, and then working out a common sense apportionment based on the extent of the loss.

 

"The extent of state and territory government liability for the loss of Indigenous Australians' native title is now clear."

 

This valuation method does align with the expectations of the general law. For this reason, it is the second head of compensation that has excited most interest in the Timber Creek Decision. Not only were the claimants awarded damages for economic loss, but they were also awarded damages for non-economic loss. This is a significant development.

The primary judge as well as the High Court acknowledged the pain and the suffering over time of the claimant group that arose from their dispossession from the land. The primary judge acknowledged the 'effects in terms of pervasiveness of Dreaming'. The High Court, too, quoted at length from the moving testimony of members of the claimant group about their suffering arising from the loss of their country.

Ultimately, the High Court upheld the original award of $1.3 million as compensation for the claimants' suffering. The Northern Territory government and the Commonwealth had opposed this award as being 'manifestly excessive'. The High Court, however, rejected this argument saying that this was a 'monetary figure as a result of a social judgement ... of what in the Australian community is an appropriate award for what has been done; what is appropriate, fair or just'.

The decision is not unique in awarding compensation for loss of spiritual, social or cultural connection per se. It has in the past been awarded to Indigenous claimants — but as individuals. The Timber Creek decision is the first time such an award has been made to a claimant group.

Even though this case is very important as the first to establish the availability of economic and non-economic compensation for loss of native title, and principles for its determination, each case will ultimately be determined according to its own facts. However, the extent of state and territory government liability for the loss of Indigenous Australians' native title is now clear. Importantly though, this decision relates only to the loss of property rights. It does not address questions of reparations arising from a treaty process. Reparations would be a separate and novel head of compensation.

It is true to say, however, that in the wake of the Timber Creek Decision the time has come for a reckoning. State and territory governments should be looking to implement negotiations with traditional owner groups around the nation to seek to settle the property claims — comprehending economic and non-economic losses. It is in no one's interest to engage in a court process for every single claim.

 

 

Kate GallowayKate Galloway is a legal academic with an interest in social justice.

Topic tags: Kate Galloway, native title, land rights

 

 

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Existing comments

Thank you Kate, We all were shocked here in Australia when we heard of the destruction of major cultural sites by the Taliban but when I consider the situation of the loss/diminishment/trashing of the vast and diverse cultural/linguistic heritage of indigenous Australia it is way beyond comparison. Compensation is so important but also an active respect for and attention to the indigenous culture that is surviving. I expect it would make a massive enlivening difference in this country.
kerry holland | 28 March 2019


I am a Valuer and have been working on a Claim in Qld on behalf of a Claimant Group, with several backed up behind the test case. The State has met with us and agreed to compensation but we have been awaiting this Decision, so the process of law is working well in this case. I have some background in Native Title and worked closely with Traditional Owners for many years.
Nev Hunt | 28 March 2019


Excellent article Kate, it's a really important debate and good on you for writing this and ES for publishing it.
Paul Cleary | 28 March 2019


This decision brings back memories of Dean and Gaudren and their remarks in their Mabo No 2 Judgement, (78) unusually clear and 'in unrestrained language' on dispossession and the effects that follow. Some faith in the justice system for Aboriginal and Torres Strait Island peoples has been restored. About time
Allan Barnes | 31 March 2019


Money is easily spent and wasted. Sovereignty not so easily. The restoration of lands must go hand in hand with restoration of sovereignty for our indigenous people - the sooner the better.
john frawley | 01 April 2019


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