25/08/2016 - 15:07

Court ruling opens up native title claims

25/08/2016 - 15:07

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A Federal Court ruling that was the first ever assessment of native title compensation in Australia is expected to lead to more claims by Aboriginal groups.

A Federal Court ruling that was the first ever assessment of native title compensation in Australia is expected to lead to more claims by Aboriginal groups.

The Federal Court yesterday ordered the Northern Territory government to pay $3.3 million to the Ngaliwurru and Nungali peoples as compensation for the impact of land grants and public works on their native title

The ruling comes nine years after the Ngaliwurru and Nungali peoples completed a native title claim over the town of Timber Creek, which has an area of about 23 square kilometres.

Ashurst partner Geoff Gishubl said if a small area like Timber Creek triggered a compensation liability of $3.3 million, then the liability for the large native title land holdings in Western Australia, South Australia, Queensland and the rest of the Northern Territory could be significant.

Mr Gishubl said the Commonwealth, states and territories were largely liable for native title compensation, but this liability may be passed on to third parties, either by legislation or contractually.

For example, some mining and petroleum tenement holders in WA and NSW are already liable for compensation under the relevant state mining and petroleum legislation.

He noted that if a tenement or other interest had been granted after reaching agreement with native title parties, there was likely to be a compensation release in the agreement designed to prevents future compensation claims. 

State governments have also sought to pass on native title compensation to project proponents and infrastructure providers in some circumstances, for example through long-term leases. 

Mr Gishubl said these contractual arrangements should be carefully reviewed to identify the extent of any liability.

Land Equity Legal principal Marcus Holmes said the case would open the gates to native title holder groups lodging compensation applications.

“It is likely that after some more hard fought test cases, state and territory governments will settle native title compensation in a more objective and formulaic fashion than did the court in this instance,” he said.

Mr Holmes predicted the array of test cases would be expensive and complex.

“The court made it clear that assessing compensation for extinguishment or impaired native title is a case by case process, with detailed evidence required from land valuers, native title holders and anthropologists as to the impacts caused by loss or impairment of native title rights and interests and the monetary value of those impacts in combination,’’ Mr Holmes said.

“For native title holders with native title determinations over town lands (for example, in the Pilbara), the compensation paid out could be very significant.

“At its best, this could assist self-determination and economic independence and wealth for their members and, at its worst, lead to ‘civil war’ about who gets what.”

Mr Holmes said the court had left it to native title holders, through their corporation, to decide on distributions to individuals and any dispute resolution.

Mr Gishubl said The Timber Creek decision would not be the final word on native title compensation. 

“The valuation methodology established by Justice Mansfield will no doubt eventually be considered by the full Federal Court or High Court, either in an appeal from this decision or a future compensation decision in another matter,” he said.

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