Posted on March 14, 2019 by Lindsay Taylor and Elaine Yeo

How much is native title worth? – Landmark High Court case

Yesterday, in a landmark decision, the High Court of Australia determined the amount of compensation payable to a native title group for both economic and cultural loss.

The Northern Territory of Australia was ordered to pay a total of $2,530,350 to the Ngaliwurru and Nungali Peoples for loss, diminution, impairment or other effects of certain acts by the Government that had an impact on the group’s native title rights and interests over Timber Creek, in the north west of the Northern Territory.

The question is, what does this mean for governments, and will this case set off further compensation claims?

The Native Title Act 1993  recognises and protects native title. If native title is extinguished, then the Act provides for compensation.

The Court determined that there was a dual-step, or ‘bifurcated approach‘ to assessing the value of compensation. First, the economic value of the native title rights and interests that had been extinguished is determined. Second, an additional, non-economic or cultural loss occasioned by the diminution in the group’s connection to country was estimated.

Determining the economic value of native title rights and interests

In relation to the economic value, the Court held that exclusive native title rights and interests in the land would generally equate to the freehold value of the land. However, in this case, the Court recognised that the group’s native title rights and interests were essentially non-exclusive, in that they did not have the power to prevent other persons entering or using the land and did not have the right to use the land for commercial purposes. Therefore, the economic value of non-exclusive native title rights and interests were 50% of the freehold value of the land.

The Court also held that it was appropriate to award interest on the economic value for ‘being kept out of the money‘ that the group should have received at the time of extinguishment. Interest is payable from the date at which compensation was assessed and the date of judgment. The economic value for native title rights and interests was assessed at $320,250, plus $910,100 in interest, totalling to $1,230,350.

Value of cultural loss

In general terms, the cultural loss claimed by the group comprised the loss of their connection to country and the loss of their rights to ‘live on and gain spiritual and material sustenance from the land‘.

The Court considered that the value of the cultural loss will differ from case to case. The amount would vary according to the identity of the native title holders, their connection with the land, the effects, under their laws and customs, when country is harmed and the effect of the acts that extinguished native title.

In total, the value of the cultural loss suffered by the group was assessed at $1,300,000.

Moving forward

The case sends an important message about the protection of native title rights and interests by governmental bodies and the compensation that is payable when native title rights and interests are extinguished.

As far as local councils in New South Wales are concerned, Part 8 of the Crown Land Management Act 2016 (NSW) imposes obligations on council managers of Crown land to protect native title rights and interests under the Native Title Act and this obligation is accompanied by compensation responsibilities that are imposed on councils for failure to do so.

Now that the Court has articulated a clear set of principles in calculating compensation, we shall wait and see whether this case will trigger further native title compensation claims.

To read the High Court decision in full, click here.

If you would like to discuss further, please contact Dr Lindsay Taylor on 02 8235 9701 or Elaine Yeo on 02 8235 9712.

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