Native Title

Compensation for Extinguishment of Native Title Rights

What has happened?

On 13 March 2019, the High Court of Australia handed down its decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.

The case involved an appeal from a decision of the Full Court of the Federal Court of Australia (Northern Territory of Australia v Griffiths [2017] FCAFC 106).

At issue was a claim for compensation brought by the Ngaliwurru and Nungali Peoples Claim Group in respect of the extinguishment of native title rights and interests held by them over lands in the area of the township of Timber Creek in the north-western area of the Northern Territory.

These rights had been extinguished between 1980 and 17 December 1996 as a result of the Northern Territory giving various grants of tenure over the land and approvals to carry out various public works.

Two key issues considered in the case were (at [2]):

  1. “how the objective economic value of the affected native title rights and interests is to be ascertained”; and

  2. “how the Claim Group's sense of loss of traditional attachment to the land or connection to country is to be reflected in the award of compensation”.

Key findings:

The High Court held:

  1. “the objective economic value of exclusive native title rights to and interests in land, in general, equates to the objective economic value of an unencumbered freehold estate in that land” (at [3]).

  2. “the compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land is the amount which society would rightly regard as an appropriate award for the loss” (at [3]). 

  3. the compensation payable with respect to non-exclusive native title rights and interests is determined by discounting the value of a freehold interest in the land by reference to the more limited rights and interests that have been lost (at [87).

Further information

For further information on this judgment and its potential implications for you please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@bicksteele.com.au.