Compensation for loss of indigenous rights - Timber Creek appeal in the High Court

On 4 September 2018 the High Court began hearing the Timber Creek appeal in relation to the appropriate approach to determine the value of compensation for the loss of indigenous rights. Historically, the High Court sat for the first time in the Northern Territory – in the Supreme Court of the Northern Territory in Darwin.
The Native Title Act 1993 (Cth), enacted after the historic Mabo (No. 2) decision in 1992, sets out the legislative framework for native title recognition and compensation. In the first judicial determination regarding compensation (Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900), Justice Mansfield awarded over $3m to the Ngaliwurru and Nungali Peoples for loss sustained by acts of the NT Government near Timber Creek affecting 1.27 square kilometres. Broadly, the approach taken involved:
- Discounting the freehold market value by 20% due to limitations on its use under traditional law;
- Assessing the non-economic spiritual relationship which Aboriginal people have with the country and translating their hurt into compensation; and
- Awarding interest since the NT Government’s acts occurred.
Mansfield J’s decision was appealed to the Full Court of the Federal Court (Northern Territory v Griffiths [2017] FCAFC 106) which, whilst adopting the 3-step approach, reduced the award to $2.8m due to the correction of certain errors.

Nigel Wilson