NATIVE TITLE COMPENSATION
Native title holders can get compensation for things the government has done that stop native title holders from exercising their rights, like extinguishing native title to build a bridge or a road.[1]
The laws for native title compensation come from the Native Title Act and the Racial Discrimination Act. The High Court recently looked at these laws and what they mean for the Ngalirwurru and Nungali people and their country around Timber Creek in the Northern Territory.[2] The High Court made some rules about how native title compensation should be worked out.
What is compensation?
Compensation is money for loss or pain that someone has suffered because of something another person has done. Even though money isn’t the same as the thing that was lost, it’s meant to help the person recover from their loss. For example, if someone drives through a stop sign and hits your car, you can get compensation to help you fix your car and pay your hospital bills.
Compensation is much harder with native title because we don’t think about country like its money, so it’s hard to work out how much money should be paid when country is lost.
Who can get native title compensation?
Native title holders who have lost some or all of their native title rights because of something the government has done might be able to get compensation. If native title holders have already been given compensation for what the government did, they usually won’t be able to get more compensation.
Under the Native Title Act 1993 (Cth), native title holders can make a claim for compensation for things done by the government after 31 October 1975 (the date the Racial Discrimination Act was passed).
Only PBCs or authorised applicants can make an application to the Federal Court for native title compensation.[3]
How is compensation worked out?
The High Court case about the Ngalirwurru and Nungali people and their country around Timber Creek is important because it’s the first time the High Court has said what the law is for how compensation for loss, extinguishment or impairment of native title rights is worked out.
The High Court considered the importance of country and the impacts on culture, dreamings, song lines and sacred sites and decided that there are two things that need to be looked at to work out how much compensation should be paid for loss of native title:
economic loss; and
cultural loss.
Compensation for economic loss
The High Court said that compensation for economic loss is worked out by comparing native title to freehold title. Freehold is the strongest type of land ownership under the Australian legal system, and it means you can do almost anything with the land, as long as you follow the law. For example, you can put a fence up to stop people coming in or you can sell the land.
To compare native title to freehold title you first need to work out what kind of native title was impacted by the thing the government did. There’s two types of native title - exclusive and non-exclusive. Your native title determination tells you what type of native title you have.
The High Court said that compensation for loss of exclusive native title could be worked out as 100% of the value of the freehold title.
The High Court said that compensation for non-exclusive native title is worked out by reducing the value of freehold title depending on what kind of native title was lost.[4] For example, if you had rights to hunt but the government built a road through your hunting ground, the Court would have to think about your lost right to hunt compared to what your loss would have been if you had freehold title over the land.
The High Court also said that the government has to pay interest on compensation for economic loss.
For the Ngalirwurru and Nungali people, compensation for economic loss of non-exclusive native title worked out to be 50% of the value of the freehold title - which was $320,250 (plus interest of $910,000).
Compensation for cultural impacts (‘cultural loss’)
The High Court also looked at how compensation can be worked out for the impacts of the loss of native title rights on cultural matters, such as loss of dreamings, song lines and sacred sites. The High Court called this “cultural loss”, however this does not mean that people have ‘lost’ their culture. “Loss” is the label used in compensation law to identify the different things that someone might be compensated for. In native title compensation law, the courts are using the label “cultural loss”. It is important for native title holders and their lawyers to recognise that this means impacts on culture and not that people have lost their culture.
The High Court said that cultural impacts (or ‘cultural loss’) is very different from economic loss and it is often the most important part of the harm caused by extinguishment, impairment, or other impacts on native title from government activities.
For the Ngaliwurru and Nungali people, the High Court looked at things like their dingo dreaming and the ceremonies they held on the land, how the government activities had impacted these things, and what that meant for native title holders. The High Court recognised that this was very hard for the Ngaliwurru and Nungali people and that it meant that they could not properly protect their land anymore in accordance with their cultural obligations. The High Court awarded compensation for cultural loss of $1.3 million.
How can we make a claim for compensation?
Only native title holders can make an application for compensation so talk to your PBC or the Kimberley Land Council.
Remember that making an application for compensation will be very hard because it means translating spiritual hurt into compensation. To do this the Court needs to know how much pain and suffering native title holders have felt because of things the government has done to their country. This will be hard for people to talk about. The Kimberley Land Council can help support PBCs and native title holders with this.
[1] Native Title Act 1993 (Cth) s 51.
[2] Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.
[3] Sections 50(2) and 61 of the Native Title Act.
[4] In the Griffiths case, the Court held that the native title rights and interests held by the Ngaliwurru and Nungali Peoples were “essentially usufructuary, ceremonial and non-exclusive” and so should be valued at “no more than 50 per cent” of the freehold value of the land. In doing so, the Court found that the Full Court of the Federal Court’s valuation (at 65% of freehold value), and the trial judge’s valuation (at 80% of freehold value), were manifestly excessive. The Court noted that the identification and assessment of any deduction from the freehold value is to be a “broad-brush exercise” which is essentially “evaluative” in nature and “not one of precision”, but must be anchored in an assessment of the nature of the native title rights and interests held.