A landmark High Court decision has paved the way for billions of dollars in native title compensation claims, in the most significant ruling on Indigenous land rights since the Mabo and Wik cases almost three decades ago.
In the decision on Wednesday, the High Court reduced the compensation payable by the Northern Territory government to the traditional owners of an area of land in the remote town of Timber Creek from $2.9 million to $2.5 million.
But in a first, the court set out general principles for calculating native title compensation claims, and - in a win for the traditional owners of the land at Timber Creek - upheld the portion of compensation previously awarded by the Federal Court for loss of spiritual attachment to the land.
The dispute, which was an appeal from a decision of the Full Court of the Federal Court, centred on an area in Timber Creek measuring 1.27 square kilometres. For the first time in its 118-year history, the High Court sat in Darwin to hear the appeal.
Indigenous elder Lorraine Jones was one of two plaintiffs who brought the native title compensation claim on behalf of the land's traditional owners, the Ngaliwurru and Nungali peoples, over a series of acts on the land by the Northern Territory government including building public works. The lead plaintiff in the case has since died.
The High Court confirmed a two-step or "bifurcated" process should be adopted in calculating native title compensation, where the economic value of the particular native title rights was determined first, followed by an estimate of the non-economic or cultural loss resulting from a "diminution in ... connection to country".
In a joint judgment Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane, Geoffrey Nettle and Michelle Gordon said both the Federal Court and the Full Court of the Federal Court had arrived at a figure for economic loss that was "manifestly excessive" because the traditional owners' native title rights over the land were ceremonial and non-exclusive.
Those rights did not give the traditional owners the power to "prevent other persons entering or using the land or to confer permission on other persons to enter and use the land", the judges said.
The Federal Court had said the traditional owners should receive 80 per cent of the freehold value of the land, a figure reduced on appeal to the Full Court of the Federal Court to 65 per cent.
That figure was reduced again to 50 per cent by the High Court, which rejected the traditional owners' argument that they should receive 100 per cent of the freehold value of the land.
Including interest, the High Court awarded the traditional owners $1.23 million in compensation for economic loss.
It said the $1.3 million awarded by the Federal Court, and upheld by the Full Court of the Federal Court, for cultural or non-economic loss, was "not shown to be inconsistent with acceptable community standards". The total amount awarded was $2.53 million, down from $2.9 million.
Ashurst partner Tony Denholder said that while the court reduced the amount of compensation awarded for economic loss, it was significant that "the small area of Timber Creek still triggered a compensation liability of over $2.5 million".
"It is likely that nationally, the liability for native title compensation will run into the billions of dollars," he said.
He said the decision would have "strong implications for the more than 2.8 million square kilometres of native title land holdings across the rest of Australia".
