Native Title – The question of compensation finally reaches the High Court 26 years after Mabo

The township of Timber Creek, half-way between Katherine and Kununarra in the Northern Territory, with a population of fewer than 300 people, has recently been the subject of the undivided attention of the Full Court of the High Court in a landmark native title case.

Sitting in Darwin for the first time in Australia’s history, the High Court heard, also for the first time in Australia’s history, argument about how to assess the monetary value of native title rights and interests extinguished or impaired by acts attributable to government.

The proceedings concerned an application for compensation by the native title party under the Native Title Act 1993 (Cth)[1] made by the original inhabitants of Timber Creek, the Ngaliwurru and Nungali peoples, who had been litigating in relation to their native title rights and interests at Timber Creek, in one form or another, since 1999.

The Attorneys-General for the State of Queensland, South Australia and Western Australia intervened in the matter as did native title representative bodies, the Central Desert Native Title Services Ltd and Yamatji Marlpa Aboriginal Corporation. In all there were three separate parties and five interveners.

The Attorney-General for Queensland was represented by the Solicitor-General Peter Dunning QC and Tony Keyes, instructed by Wendy Ussher of Crown Law’s Constitutional Law team.

At first instance, Mansfield J awarded compensation totalling $3.3 million.[2] That amount comprised compensation for economic loss, compensation for non-economic loss and pre-judgment interest. The Commonwealth and Northern Territory appealed and the native title party cross-appealed to the Full Court of the Federal Court (‘FCAFC’).

On 20 July 2017 the FCAFC gave judgment in the appeals and on 9 August 2017, ordered:[3]

(a) compensation for economic loss at $416,325 (varying Mansfield J’s award of 80% of the freehold value of the land to 65%);

(b) for non-economic loss at $1,300,000 (upholding the Mansfield J’s award); and

In their appeals to the High Court, the appellant’s framed their appeals slightly differently and posed slightly different questions for the Court. In total there were 13 grounds of appeal and multiple sub-grounds. The grounds all had in common the question of what principles apply to the calculation of compensation payable under the Native Title Act 1994 (Cth).

The following three key issues were argued before the High Court:

The economic issue:

Whether and if so to what extent the maximum compensation payable for economic loss (freehold value) should be discounted when non-exclusive native title is concerned.

The interest issue:

Whether or not pre-judgment interest on economic loss should be calculated on a compound or simple interest basis and whether interest is awarded on compensation or as part of it.

The non-economic (solatium) loss issue:

What factors are relevant when considering compensation for non-economic loss/intangible disadvantage?

The High Court has reserved its judgment.

Author

Wendy Ussher

_{[1] The proceedings comprised three appeals, which the High Court heard together on 4, 5 and 6 September 2018: Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor (D1/2018); Commonwealth v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor (D2/2018); Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples & Anor Northern Territory & Anor (D3/2018)}

_{[2] Griffiths v Northern Territory of Australia [No 3] (2016) 337 ALR 362; [2016] FCA 900.}

_{[3] Northern Territory of Australia v Griffiths [2017] FCAFC 106.}