Landmark High Court decision guides how compensation for native title losses will be determined

14 Mar 2019

The High Court has decided, for the first time, the approach that should be taken to resolving native title compensation claims. UQ Law Adjunct Professor Jonathan Fulcher and postgraduate research student William Isdale explain this significant decision on The Conversation.

In a previous article, we said it would be “the most significant case concerning Indigenous land rights since the Mabo and Wik decisions”.

The High Court’s decision yesterday certainly stands up to that description, and provides a degree of certainty for native title holders and governments. However, it also leaves a number of important issues unresolved. There will no doubt be further significant decisions in the future.

The significance of the decision

The decision is significant for Indigenous people because it confirms the substantial awards that may be made for past losses of native title. In this case, the High Court awarded the Ngaliwurru and Nungali peoples just over A$2.5 million for the loss of 1.27 square kilometres of non-exclusive native title, in and around the remote Northern Territory township of Timber Creek. The loss of that title occurred incrementally, by various acts of the NT government in the 1980s and ’90s.

The decision is significant for state and territory governments because the financial liabilities they owe to many Indigenous peoples have been clarified. Governments have known about the potential for compensation claims since the Native Title Act was passed in 1993. But because the Act expresses the right to compensation in vague terms (being an entitlement “on just terms to compensate the native title holders”), the amounts were unquantifiable. For example, the Commonwealth government’s 2007-08 budget papers noted:

The Australian Government’s liability cannot be quantified due to uncertainty about the number and effect of compensable acts, both in the past and in the future, and the value of native title affected by those acts.

The Native Title Act’s recognition of rights to compensation extends back only to losses of title that have occurred since October 31 1975 (when the Racial Discrimination Act 1975 commenced).