In 2019, Aboriginal Australians won a groundbreaking case where the Ngaliwurru and Nungali communities were awarded AUD 2.53 million (USD 1.64 million) for past losses of native title when they surrendered their title rights to the Crown.1 These damages occurred when the government built roads and infrastructure over an area of land, which included the Timber Creek Township in the Northern Territory during the 1980s and 1990s. Significant to this case was the awarding of about AUD 1.3 million (out of AUD 2.53 million) for damages related to spiritual or cultural harm.2
Since 2019, the Northern Territory government has committed to “developing policies relating to native title compensation,” as stated in their Aboriginal Land and Sea Action Plan (2022-2024).3 As this is such a new development, there is little information on how compensation will be dispensed and utilized.
However, compensation is still determined on a case-by-case basis based on assessing the claim’s specificities, who is bringing the claim forward, and impacts of the claims on native title and interests. Further, while new federal legislation—which would set national policy for structuring native title compensation—has not yet been passed, the Australian government has established guidance for compensation claims through the National Guiding Principles for Native Title Compensation Agreement Making in 2021. These Principles encourage compensation claims resolutions to occur “through negotiation and agreement where possible,”4 but this leaves the decision to the state governments on whether they would decide to pursue litigation or settlement.
For the first time, compensation was given due to spiritual and cultural loss, with Australia’s High Court agreeing AUD 1.3 million was a reasonable compensation for those damages in proportion to an area comprising 127 hectares. The total compensation awarded in this case was approximately AUD 2.5 million. The author could not find information on how the Northern Territory government paid for this case.
Since the 2019 Griffiths case, there are currently 15 active compensation claims 5 at varying stages of progress, with one federal case having potential to reform the native title system. The federal case, the Gove Compensation Claim, filed in 2019, seeks compensation on behalf of Gumatj persons over a Northern Territory mine approved in the 1960. The case argues that claims should include acts occurring before the Native Title Act was enacted. 6
However, there remains a challenge due to the sheer number of unprocessed claims in the system, with a recent uproar in New South Wales after an April 2022 audit report 7 highlighted 38,200 unprocessed claims in the state, which impacted more than 1.12 million hectares of land.
As of November 2022, Australia also announced it will be reviewing the Native Title Act in tandem with the development of a new legal framework “that includes the right of Indigenous people to be top decision makers on developments impacting their heritage.” 8
- 1. “Native Title, Rights and Interests
- 2. PBC,” n.d., https://nativetitle.org.au/learn/native-title-and-pbcs/native-title-rights-and-interests
- 3. Isdale, William and Johnathan Fulcher, “Landmark High Court decision guides how compensation for native title losses will be determined,” The Conversation, March 13, 2019, https://theconversation.com/landmark-high-court-decision-guides-how-compensation-for-native-title-losses-will-be-determined-113346
- 4. “Land and Sea,” Aboriginal Affairs, n.d., https://aboriginalaffairs.nt.gov.au/aboriginal-land-and-sea
- 5. National Indigenous Australians Agency, “National Guiding Principles for Native Compensation Agreement Making,” November 2021, https://www.niaa.gov.au/resource-centre/indigenous-affairs/national-guiding-principles-native-title-compensation-agreement-making
- 6. “Native title compensation: Not much to see but plenty happening below the surface,” Ashurst, July 11, 2022, https://www.ashurst.com/en/news-and-insights/insights/native-title-compensation-not-much-to-see-but-plenty-happening-below-the-surface
- 7. Geritz, Mark, et. al., “Wider scope for native title compensation on the horizon?,” Clayton Utz, October 26, 2022, https://www.claytonutz.com/knowledge/2022/october/wider-scope-for-native-title-compensation-on-the-horizon
- 8. Audit Office of New South Wales. “Facilitating and Administering Aboriginal Land Claim Processes,” May 2, 2022. https://www.audit.nsw.gov.au/our-work/reports/facilitating-and-administering-aboriginal-land-claim-processes; McGrady, Lydia, “In NSW there have been significant wins for First Nations land rights. But unprocessed claims still outnumber the successes,” The Conversation, July 14, 2022, https://theconversation.com/in-nsw-there-have-been-significant-wins-for-first-nations-land-rights-but-unprocessed-claims-still-outnumber-the-successes-186121
- “Factbox: Australia to raise protection for Aboriginal heritage after Juukan,” Reuters, November 24, 2022, “Factbox: Australia to raise protection for Aboriginal heritage after Juukan,” Reuters, November 24, 2022, https://www.reuters.com/world/asia-pacific/australia-raise-protection-aboriginal-heritage-after-juukan-2022-11-24