Native Title Compensation: Outcomes and Repercussions of the Timber Creek Case

The Decision

The National Native Title Council (NNTC) has produced a useful short summary about the decision (to see the NNTC’s Compensation Fact Sheet Click Here). Please take the time to read the fact sheet. The full judgment of the High Court 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 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:
    1.  the freehold value of the land;
    2. the nature of the native title rights and interests proven at step 1; and
    3.  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 will be running an Information Workshop for PBCs within the next couple of months. An experienced lawyer engaged by the NNTC will present information that will be important to inform future decisions that PBCs will need to make, in regards to any possible compensation applications.

 

Preliminary Steps

In the meantime, QSNTS will be 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 though most of the background information exists already in the connection reports and the tenure analysis used to prove native title claims.

 

Alternative compensation settlement framework 

The NNTC recommends exploring alternative settlement frameworks to avoid the time, expense and risks associated 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 ‘preliminary steps’.

The State of Queensland (which is the entity with the greatest exposure to compensation payments) has begun work to develop a native title compensation framework. This is seen by the State as preferable to fighting compensation claims in the Court. QSNTS will be consulted as part of the development of the framework and will keep you informed of progress.