National Native Title Council - Compensation Information Workshop

The Decision

The National Native Title Council (NNTC) has produced a useful short summary about the decision (see the attached titled compensation fact sheet).  Please take the time to read the fact sheet.  If you want to read the full judgment, it can be found by searching: Griffiths v Northern Territory 2019 HCA 7. This case is also referred to as the Timber Creek case and a Google search under that name will link you to some useful material.  

The law around native title compensation is complex and will develop further over time. Importantly, compensation can only be claimed in relation to acts which occurred after the commencement of the Racial Discrimination Act 1975 (Cth) (31 October 1975).  As the law stands now, a successful compensation claim will require: 

  1. Proving native title would have existed if it wasn't extinguished, diminished or impaired by acts done by the State after 31 October 1975 ('compensable acts'); 
  2. Identifying where the compensable acts took place; 
  3. Assessing the historical land tenure of the place the compensable act took place; 
  4. Assessing the compensation by having regard to: 
    • the freehold value of the land; 
    • the nature of the native title rights and interests prove at step 1; and 
    • the cultural harm suffered because of the compensable act; and
  5. Reducing the overall compensation by any compensation-type payments already received under other agreements.  

The Timber Creek case largely dealt with points 3 and 4 above. 

It is important to note that the amount awarded in the Timber Creek case was far less than the amount actually spent to run the case.  This is not a surprise because cases which are the first of their kind are often expensive but it is something that all native title holders need to be mindful of when considering their options.  

NNTC/QSNTS Information Workshop 

To assist native title holders in navigating this complex area, the NNTC in conjunction with QSNTS held an information workshop for PBCs on the 27 August 2019 in Brisbane.  An experienced lawyer engaged by the NNTC presented information that was important to inform future decisions that groups will need to make, in regards to any possible compensation applcations.  

In the meantime, QSNTS is undertaking a research project to scan the region for compensable acts, based on the things raised in 1 to 4 above and will report findings back to those groups who hold native title in areas where compensable acts are identified.  This process will take at least 12 months because there is a significant amount of work to do even through most of the background infromation exists already in your connection reprots and the tenure analysis used to prove your native title claims.  

Alternative compensation settlement framework

The NNTC and QSNTS recommends exploring alternative settlement frameworks to avoid the time, expense and risks assosciated with compensation legal fights in court.  QSNTS and other Queensland representative bodies are exploring these options.  This work will be done at the same time as the work associated with the research project noted above.  

Prioritisation

Because native title has to be established before there is any compensation consideration, it makes sesnse that compensation work will be prioritised around existing determined areas or areas that are soon to be determined.  However, it also makes sense to start doing compensation assessments at the same time that claim connection work is being undertaken.  QSNTS will attempt to give equal priorty to these different tasks and look forward to discussing the detils with each of the native title groups in due course.