Compensation
The Native Title Act 1993 (Cth) (NTA) sets out several aims in its preamble, including the following acknowledgement:
‘Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms, and with a special right to negotiate its form, must be provided to the holders of the native title.’
The NTA allows for monetary and non-monetary compensation to native title holders under certain circumstances. For example, claims may be made for activities which occurred after the Racial Discrimination Act 1975 (Cth) and caused economic or cultural loss. Agreements, such as Indigenous Land Use Agreements (ILUAs), may facilitate negotiations for compensation for past, immediate or future activities impacting on native title. Native title holders may also apply to the Federal Court for a determination on compensation.
The first case to award compensation for extinguishment of native title rights and interests under the NTA was De Rose v State of South Australia [2013] FCA 988. The Nguraritja people reached agreement by consent determination with the State of South Australia for a confidential amount.
In 2019, the High Court considered compensation for native title in the landmark case Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.
Compensation claims and processes are growing in complexity. As of 2020, the native title sector is developing a Native Title Compensation Resolution Framework. This recognises the challenges of compensation claims and compensation’s role in nation building. See the NNTC for updates on the framework.
Read more +
There are a number of useful resources on native title and compensation that you can visit for more information:
References & acknowledgements +
- Smith, Kevin, ‘Keynote: The Timber Creek Native Title Compensation Decision and Comprehensive Regional Settlements’ in Native Title Sector Seminar (2019).
- Stewart, M, Tehan, M and Boulot, E, 2014. 'Transparency in Resource Agreements with Indigenous People in Australia: Report to the Extractive Industries Transparency Initiative Pilot', released as WP 2015/1, Agreements, Treaties and Negotiated Settlements Project, University of Melbourne (50 pages).