Landmark compensation case upheld

Kimberley Land Council CEO Nolan Hunter has labelled a recent High Court decision in the Timber Creek compensation case “a landmark decision”.

On March 13 2019, the High Court ruled that native title holders from Timber Creek would receive $2.5 million in compensation for loss of their rights, including cultural loss.

It is the first time the High Court has examined the Native Title Act’s compensation provisions, including how to put a price on cultural harm caused by forced disconnection from country.

According to Mr Hunter, the judgment reaffirms what the Native Title Act already says – that people should be compensated for loss of their land.

“After 25 years of native title law, this decision finally gives some certainty about how people are compensated for the loss of their native title land,” he said.

“Formal legal recognition of the harm caused to Traditional Owners by the process of dispossession from country and formal legal redress for that dispossession, like compensation, will give people some ability to take proactive steps to address historic community disadvantage.”

“However, we see again that the compensation for native tittle loss is not what you would get if you were compensated for freehold title.

“Aboriginal people still aren’t being treated the same as non- Aboriginal people in regards to loss of property rights because of the way the Native Title Act and the common law views “non-exclusive” native title rights, and how these rights will now be valued in compensation claims.”

Mr Hunter said the KLC is also concerned that pursuing future compensation claims could come at an even greater emotional and personal cost for native title holders who have already been forced to go through the adversarial and litigious native title court process to have their rights in country recognised.

“Without doubt, if there is no proactive involvement from government, litigation of compensation claims will extract a much higher personal toll on claimants than has been experience to date in native title determinations.

“The KLC is calling for a statutory ‘opt-in’ scheme as an alternative to litigation of native title compensation claims.

“The government and native title representative bodies together have a responsibility to do everything possible to avoid further trauma to Traditional Owners by forcing them to relive the enormous hurt and shame of being forcibly disconnected from country.”