Compensation: Care and Consideration Crucial to Claimant Success

18 September 2020

THE conclusion of the Timber Creek compensation case in 2019 is a milestone in the development of native title law, paving the way for Traditional Owners to pursue compensation for the spiritual and economic impacts of lost or diminished native title rights and interests.

Specifically, the High Court’s decision established a method for calculating the value of compensation for economic loss by looking at the value of the land on which native title rights were affected, as well as applying a value that society would consider appropriate, fair and just compensation for spiritual impact (‘cultural loss’).

However, the Timber Creek decision was the first of its kind, which means this field of law is still early in development and Traditional Owners should be careful not to rush compensation claims before a case with genuine merit has been properly established. There are also other important reasons not to rush claims:

  • There are no time limits to bring a compensation claim – this is good news
  • Compensable acts ‘crystalise’ at the time the act took place - so there can never be a reduction in the compensation amount over time (in fact, interest is paid on the compensation amount as at the date the compensable act occurred); and
  • Unlike native title claims, there are no procedural rights associated with filing a compensation claim.

The saying ‘hasten slowly’ is probably a wise approach when it comes to this new era of native title. Also, beware of people who promise the world and urge the quick filing of a compensation claim that is unprepared. There are plenty of risks that will be borne by Traditional Owners if things go wrong so make sure your right to free, prior and informed consent is respected.     

As well as the financial and personal costs associated with prosecuting a compensation claim, the National Native Title Council (NNTC) advises that some key issues to consider include:

  • Whether a claim group can prove that native title existed in the relevant areas when the acts impacting native title were carried out
  • Whether an opportunity for negotiated settlement exists to provide a claim group with a better outcome
  • Whether the compensable acts can be proven to have occurred after the enactment of the Racial Discrimination Act 1975 (31 October 1975) and not before.

To ensure Traditional Owners are given the best chances for a positive outcome in their compensation claims, QSNTS has endorsed the NNTC’s Native Title Compensation Strategy, which reflects a coordinated, national approach to native title compensation.

The NNTC Compensation Strategy: A coordinated, national approach

The NNTC’s Native Title Compensation Strategy is a seven-part plan to help shape the future of native title compensation law by prioritising:

  • Test Cases - The identification and prosecution of test cases that will clarify the legal principles around what compensable acts are and how those acts can be valued
  • Streamlined Litigation – reducing the time, issues, expense and personal toll on Traditional Owners by streamlining the litigation process
  • Negotiated Settlements - Research and develop ‘best practice’ frameworks for negotiated settlements of compensation claims
  • NTSP/NTRB Capability - Appropriate resourcing to native title service providers and representative bodies to aid in test case prosecution and negotiated settlements
  • Education - Education and training support for NTRB/NTSPs, PBCs, Native Title Holders and other stakeholders about compensation claims and associated options
  • Stakeholder Engagement and Communication - Ongoing communication with stakeholders to share information and build mutually beneficial relationships with those affected by compensation matters.

Despite the delaying impacts of the COVID-19 pandemic, there have been significant milestones reached in the implementation of the Compensation Strategy. In particular, compensation claims have been filed in line with the NNTC’s strategy, and discussions are ongoing with government bodies to develop frameworks and guidelines that will help streamline the compensation process as well as generating options by exploring alternative settlements.

What’s happening in our service region?

QSNTS has been working within the Compensation Strategy to carry out preliminary research to identify compensable acts in areas where native title has been positively determined. So far, there are several Native Title Holder groups identified for potential test cases and research is ongoing, but government-imposed restrictions resulting from the COVID-19 pandemic have temporarily slowed our research efforts. Your patience during this time is appreciated.

For current native title claims, the research and identification of potentially compensable acts will be carried out as part of the anthropological research process and resulting options will be discussed with the relevant claims groups during the claim process.

Ensuring a compensation case is well-prepared and likely to result in a positive outcome for Traditional Owners is a process that requires a high level of care and consideration. QSNTS is making provision for researching and prosecuting compensation claims as part of its operational planning, and as the NTSP for your area, QSNTS has knowledge and experience with your mob to research and prepare your compensation claim.

If you have questions or would like to know more about what’s happening in your area, please contact us on free call 1800 663 693.