April 2019 Māori Law Review

Australia – rights of indigenous peoples – native title – compensation – Timber Creek – Griffiths

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples

High Court of Australia [2019] HCA 7

13 March 2019

The High Court of Australia has given its first judgment on principles for compensating the extinguishment of native title.

Download Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory (1.4 MB PDF).

Overview and result

Australia - rights of indigenous peoples - native title - compensation - economic loss - non-economic and cultural loss - interest payable on compensation - Timber Creek (NT) - Ngaliwurru and Nungali Peoples
Date13 March 2019
CaseNorthern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory (1.4 MB PDF)
Citation[2019] HCA 7
CourtHigh Court of Australia
Judge(s)Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Earlier/later decisionsNorthern Territory v Griffiths (2017) 256 FCR 478; Griffiths v Northern Territory [No 3] (2016) 337 ALR 362; Griffiths v Northern Territory [2014] FCA 256; Griffiths v Northern Territory (2006) 165 FCR 300; Griffiths v Northern Territory (2007) 165 FCR 391.
Legislation citedConstitution of Australia, s 51(xxxi); Lands Acquisition Act (NT), Sch 2; Native Title Act 1993 (Cth) Pts 1, 2, 15; Racial Discrimination Act 1975 (Cth), s 10.
Cases citedIncluding: Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422; The Commonwealth v Yarmirr (2001) 208 CLR 1; Western Australia v Ward (2002) 213 CLR 1; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373; Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232; Wik Peoples v Queensland (1996) 187 CLR 1, [1996] HCA 40; Cunningham v The Commonwealth (2016) 259 CLR 536; March v City of Frankston [1969] VR 350; Marshall v Director General, Department of Transport (2001) 205 CLR 603; Rosenbaum v The Minister (1965) 114 CLR 424; Spencer v The Commonwealth (1907) 5 CLR 418, [1907] HCA 82.
Overview and resultOn 13 March 2019, the High Court of Australia handed down its judgment in Northern Territory v Griffiths [2019] HCA 7.[1] This is the High Court’s first determination of compensation for the extinguishment of native title. In awarding $2,530,350 to the Ngaliwurru and Nungali Peoples, the High Court set in place the broad principles by which to calculate compensation, paving the way for a new era in the native title world.

Background

The Native Title Act 1993 Cth (NTA) provides for compensation on just terms for the loss of native title occurring after 31 October 1975.[2] Between 1980 and 1996, the Northern Territory was responsible for 53 acts, including grants and public works, on 39 lots and four roads (totaling 127 hectares) in the Timber Creek town area which were previously held to have impaired or extinguished native title.[3] Timber Creek is a town located between Katherine and Kununurra in the Northern Territory of Australia comprising 2,362 hectares.

In 2011, the Ngaliwurru and Nungali Peoples commenced their claim for compensation under s 61(1) of the NTA.[4] At first instance, the Federal Court awarded $3,300,661 in compensation, comprising $512,400 in economic loss (equivalent to 80% of the freehold value of the land), $1,488,261 in simple interest on this amount and $1.3m for non-economic loss.[5] On appeal, the Full Federal Court reduced the award to $2,899,446 on the basis the economic loss was equivalent to 65% of the freehold value, not 80%.[6]

Appeals were made to the High Court on all components of the previous decision, namely, economic loss, interest payable on the economic award, and non-economic loss.

Discussion

The High Court held the economic component should be 50% of the freehold value, not 65% or 80%, that simple interest be awarded on this amount, and most significantly, upheld the $1.3 million award for non-economic or cultural loss.[7] In doing so, the High Court confirmed the dual approach of calculating both economic and non-economic loss[8] as opposed to a holistic assessment hinted at by the court below.[9]

Economic loss

In calculating economic loss, the High Court identified the rights in question[10] and made an evaluative estimate of the percentage of rights comprising freehold title which it considered proportionate to the native title rights and interests.[11] Given the incidence of rights were found to be essentially usufructuary, ceremonial and non-exclusive,[12] devoid of commercial elements,[13] the Court held reasonableness requires an award equivalent to 50% of the freehold value[14] amounting to $320,250.[15]

Interest on economic loss

In response to the Ngaliwurru and Nungali Peoples’ appeal that equity and ‘just terms’ required an award of compound interest,[16] the High Court maintained that simple interest should be calculated and payable on the award for economic loss[17] in the amount of $910,100.[18]

This was on the basis that equity may provide simple interest in cases of compensation for compulsory acquisitions of land – analogous to the extinguishment of title.[19] The High Court accepted compound interest may be awarded in certain situations, such as fraud or breach of fiduciary duty, but that was not the case here.[20]

Interest was found not to be part of the total compensation under s 51A(1)[21] but recompense for being denied the use of that money.[22]

Non-economic loss

In determining the non-economic or cultural loss,[23] the High Court found s 51(1) of the NTA requires the following steps:

  • identification of the compensable acts;
  • identification of the native title holders’ connection with the land or waters by their laws and customs; and lastly,
  • consideration of both the particular and inter-related effects of the compensable acts on that connection.[24]

The High Court steered away from considering acts in isolation[25] or imposing temporal and physical limits[26] and considered a contextual assessment of both the specific effects of an act but also the impact on the whole area.[27] The High Court held the permanent and inter-generational duration of the effect of loss[28] and the communal entitlement were both significant in assessing the cultural loss.[29]

After considering the evidence that the damage to country caused gut-wrenching pain, deep emotions and anxiety,[30] the High Court held the awards by the courts below of $1.3 million was not erroneous[31] but a social judgment representing what, in today’s Australian community, is an appropriate, fair or just award for what has been done.[32]

Comment

This case has set the stage for a new era in native title. Compensation claims can now be pursued with some certainty as to how to assess the amount of compensation. It is likely this will be done through agreements, further litigation and state-based compensation schemes, noting that some states have transferred liability for compensation to proponents.[33] Further clarity is also required about compensation for acts, such as mining, and other native title rights, such as commercial rights, not dealt with in this case.

Notes

[1] Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) HCA 7.

[2] Ibid 20, 40-42, 49. Native Title Act 1993 Cth s 51(1).

[3] Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) HCA 7, 6.

[4] Ibid 8. Prior to this, determinations of non-exclusive and exclusive native title had been made over the area however due to s 47B of the NTA having no application to a compensation claim, for the purposes of the compensation application, the impaired native title was non-exclusive (see paragraphs 9 and 260).

[5] Ibid 12.

[6] Ibid 13.

[7] Ibid 3, paragraph 2 of Orders.

[8] Ibid 84.

[9] Northern Territory of Australia v Griffiths (2017) FCAFC 106, 144.

[10] Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) HCA 7, 68, 96.

[11] Ibid 87. The High Court opined the likely result is that the economic value of native title is likely to be higher in developed areas (paragraph 96) but this may mean non-economic is lower in these areas (paragraph 98, 219).

[12] Ibid 69, 106.

[13] Ibid 106.

[14] Ibid 106-107. Gageler J arrived at the same value, based on the usage value being close to zero but the negotiation value as 50%. Edelman J also arrived at 50% but objected to the application of the Spencer test on the basis that the question should be what the Northern Territory would reasonably be prepared to pay to obtain the surrender of native title.

[15] Ibid paragraph 2 of Orders.

[16] Ibid 110 and 112.

[17] Ibid 3(2).

[18] Ibid paragraph 2 of Orders.

[19] Ibid 113, 128.

[20] Ibid 125-133.

[21] Ibid 141.

[22] Ibid 150-151.

[23] the following issues were not in dispute: that the award should be made on an in globo basis; it should reflect the number of native title holders at time native title was determined to have existed, and; the assessment needs to reflect the content of the laws and customs (paragraph 156-158, 214).

[24] Ibid 218.

[25] Ibid 219.

[26] Ibid 216.

[27] Ibid 219.

[28] Ibid 230.

[29] Ibid 229.

[30] Ibid 194.

[31] Ibid 235.

[32] Ibid 237. Edelman J’s judgment differed, arguing cultural loss should be assessed at the date of extinguishment not judgment (153, 318, 321, 323).

[33] For example, Mining Act 1978 (WA) s 125A.

Author: James Dwyer

James is a Senior Analyst at the Office of Treaty Settlements. Previously, he practiced native title law in Australia and worked as an advisor to Kluane First Nation, a self-governing treaty First Nation in Canada's Yukon.