Timber Creek – High Court decision on native title compensation

In Northern Territory v Mr A Griffiths (deceased) and L Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (13 March 2019) the High Court unanimously awarded compensation pursuant to section 51 of the Native Title Act 1993 (Cth) (“the NTA”) to the Ngaliwurru and Nungali Peoples for the extinguishment of their non-exclusive native title rights. The acts of extinguishment included road building and infrastructure works by the Northern Territory in the 1980s and 1990s.

It is the first case in which the High Court has considered the compensation provisions of the NTA.

Whilst allowing appeals from the Full Federal Court, the Court awarded compensation for economic loss valued at fifty percent of the freehold value of the affected land ($320,250), simple interest ($910,100) and compensation for cultural loss ($1.3 million). The combined award was $2.5 million.

At trial, Mansfield J had awarded compensation for economic loss equal to eighty percent of the freehold value of the land and had awarded compensation totalling $3.3 million. On appeal, the Full Court varied that assessment to 65 percent of the freehold value and awarded compensation totalling $2.9 million.

In the High Court, the Northern Territory and the Commonwealth of Australia submitted that the value of the economic loss did not exceed fifty percent of the freehold value and that the cultural loss award was manifestly excessive.

The Court held, by majority, that the economic value was no more than 50 per cent. The Court rejected a claim for compound interest and awarded simple interest. The Court upheld the claim for cultural loss of $1.3 million.

The Court held that cultural loss determinations require an assessment of the spiritual relationship which the claimant group has with its country and the need to translate the spiritual hurt caused by the compensable acts into compensation. Such assessments will vary according to the compensable act, the native title holders’ identity, the native title holders' connection with the land or waters by their laws and customs and the effect of the compensable acts on that connection. The Court held that the award was not manifestly excessive and was not inconsistent with acceptable community standards.

Kiefel CJ, Bell, Keane, Nettle and Gordon JJ held, at [205]:

“The earlier acts, which were not compensable, punched holes in what could be likened to a single large painting – a single and coherent pattern of belief in relation to a far wider area of land. The subsequent compensable acts punched further holes in separate parts of the one painting, and the damage done was not to be measured by reference to the holes created by the compensable acts alone, but by reference to the effect of those holes in the context of the wider area.”

Nigel Wilson