21 March 2019
On 13 March, the High Court of Australia handed down what is widely considered one of the most significant cases on native title since the famous Mabo 2. The case considered the rights of the Ngaliwurru and Nungalli peoples to compensation in relation to their traditional lands in the Northern Territory.
The basic principle of native title is that where Aboriginal people can show that they have traditionally used land in a particular way, they have acquired a kind of right to that land to continue their usage. That right is called native title. Native title can be extinguished in various ways. An example of extinguishment is what happened in Timber Creek. Between 1980 and 1996, the Northern Territory government engaged in 53 acts, such as granting tenure to land, and constructing public works. These extinguishing acts occurred over 127 hectares, to which Aboriginal people up to that point had exercised their native title.
The Ngaliwurru and Nungalli peoples sought financial compensation for the extinguishment of their rights to the land. They sought compensation on both an economic level, for the value of the land plus interest, and also non-economic loss. The original trial judge awarded them compensation amounting to some $3.3 million. This sum was reduced by the Full Court of the Federal Court, to closer to $2.9 million, based on calculating the economic loss differently.
This judgment was then appealed to the High Court. Five Justices wrote a joint opinion establishing principles for compensating Aboriginal people for the extinguishment of Aboriginal native title. They further reduced the economic loss compensation, so that the total sum ended up about $2.5 million. However, like the Full Court of the Federal Court, they upheld the compensation for cultural loss at $1.3 million. The recognition of the value of cultural and spiritual connection to land is expected to have significant consequences for future compensation for extinguishment of native title. It is also expected to affect negotiations between traditional owners of land, and corporate and government interests seeking to extinguish native title in future.
Michael Brull
Policy Lawyer
NSW Council for Civil Liberties
