1 April 2021
What you need to know
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In March 2021, the Federal Court struck out the Bigambul and Kooma compensation claims in Queensland for failing to identify any particular compensable acts (Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190 and Wharton on behalf of the Kooma People v State of Queensland [2021] FCA 191).
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The Court also refused to grant leave to amend the claims to specify the relevant compensable acts because section 64(1) of the Native Title Act 1993 (Cth) prevents amendments to claims that result in the inclusion of an area of land or waters that was not covered by the original application.
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There have been 15 compensation claims filed across Australia during the post Timber Creek era (beginning in 2016), but 4 have been discontinued and 2 struck out.
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The headline grabbing claims seeking billions of dollars compensation have not got anywhere. Before questions of cultural loss and the assessment of compensation can be considered, the parties need to know in respect of what specific acts compensation is being claimed. What the recent cases have determined, is that it is the applicant's job to identify these (and not that of government).
What you need to do
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Be aware that, unless an act or grant to which you have an interest is specifically included in a compensation claim, your risk of liability is reduced.
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A lot of up front work if you are a native title group planning to bring a compensation claim. The scope of the original application will set the limits of the claim.
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Watch out as State governments and representative bodies' attempt to find a pathway to address native title compensation liability that bypasses the resource intensive and costly Federal Court processes, such as by entering ILUAs.
Procedural issues affecting native title compensation claims
There have been 15 compensation claims filed across Australia since the first decision on the assessment of native title compensation in 2016 (Timber Creek), but 4 have been discontinued and 2 struck out since that time.
In a procedural sense, the native title compensation claim process is still undeveloped, even though the right to claim compensation has been in the Native Title Act 1993 (Cth) from the outset. The Timber Creek compensation claim was run as a test case. For the most part, potential litigants delayed lodging claims until Timber Creek was determined by the High Court. It is inevitable that there will be teething issues with procedure, just as there was with native title determination applications for many years.
Some early stage compensation claims have had difficulties with claim formulation. The question of who is entitled to bring a compensation claim has also emerged.
A native title compensation claim can be filed by either the registered native title body corporate for the compensation claim area, or by persons authorised by the compensation claim group. Authorisation of compensation claims brought by individuals has the same requirements as authorisation of native title determination applications.
The Native Title Act has reasonably limited guidance about how the compensation claim process should work. The basic mechanics are the same as for a native title determination application. However, in substance, compensations claims are quite different.
Native title determination applications are made in relation to an area of land, and do not require upfront details about tenure (i.e. grants of interests in relation to the claim area). The onus is on the State (and any respondents arguing extinguishment) to produce evidence of extinguishing grants of interests. On the other hand, a compensation application is focussed on particular compensable acts. The onus is on the applicant to identify them and provide details in the compensation application form. The Timber Creek claim was very specific as to the compensable acts it was considering. In contrast, many of the early post-Timber Creek compensation applications were formulated as generic classes of acts within a large area. The expectation was, perhaps, that the State against whom the claim was made would assist with the identification of compensable acts. The Federal Court has been increasingly intolerant of this approach.
Two recent decisions of the Federal Court have made it absolutely clear that the of the identification of compensable acts is the work of the applicant.
Bigambul and Kooma compensation claims struck out for failing to identify compensable acts or the area covered by the compensation application
The Kooma and Bigambul compensation claims were filed in December 2019, and related to all of the land and waters within the external boundaries of the Bigambul and Kooma determinations of native title in southern Queensland. We wrote about these claims in our Native Title Year in Review 2019 article Compensation update: What next for native title compensation and our November 2020 Native Title Alert: Compensation Update: Some interesting test cases on the horizon.
The applicants sought billions of dollars in compensation from the State of Queensland, but did not specify any particular compensable acts. Instead, the application forms stated that further information would be provided at a later date.
The State filed an interlocutory application seeking orders that the compensation applications be struck out or summarily dismissed on the basis that they failed to contain prescribed information required by the Native Title Act, as they did not identify any “act” founding an entitlement to compensation, nor any “area covered by the application”.
The applicants sought leave to amend the compensation applications to identify particular compensable acts, but the State opposed the application on the grounds that the proposed amendments were prohibited under section 64(1) of the Native Title Act as they would result in the inclusion of areas not covered by the original application.
Native Title Act requires a compensation application to identify compensable acts and the area of the application
The Federal Court examined the native title compensation regime in the Native Title Act in detail. It noted:
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Since a determination of compensation requires identification of an act and an area, an application for a determination of compensation also requires identification of the relevant act and area.
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A compensation application must be in Form 4 and must contain the information and be accompanied by the documents as mentioned in Form 4 (Regulation 5(2) Native Title (Federal Court) Regulations 1998 (Cth)). Schedule I of Form 4 requires, “Details of the act which it is claimed extinguished or affected native title rights and interests for which compensation is claimed…”.
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Schedule B requires, “information identifying the boundaries of…[t]he area covered by the application. Schedule C requires, “[a] map of the boundaries of the area covered by the application”.
These details are required so that claims can be properly notified and affected third parties given the opportunity to participate in the resolution of the claim
The Federal Court goes on to consider the relevance of the information on the compensation application form to the notification provisions of the Native Title Act.
The requirements of the compensation claim application form (Form 4) to identify a compensable act and area covered by the application are designed to allow the Registrar of the National Native Title Tribunal to identify the persons and entities to be notified, and to allow those who are notified to understand whether their interests may be affected and make an informed decision as to whether to become parties.
In this way, the Native Title Act and the Regulations observe a basic requirement of natural justice that a person whose interests may be affected by a legal proceeding should be given a reasonable opportunity to be heard.
No amendment allowed because it would add an "area" to the claims
The Applicants applied for leave to amend the compensation claims to specify a number of acts that were alleged to affect native title rights and interests and cure the defects of failing to identify any compensable act.
This was opposed by the State on the basis that the proposed amendments would offend section 64(1) of the Native Title Act, which provides: "An amendment of an application must not result in the inclusion of any area of land or waters that was not covered by the original application".
In agreeing with the State that the claims could not be amended, the Federal Court again referred to the notification of affected third parties and said that one of the purposes of the compensation application form is to provide useful information to the persons who are to be provided with the form, or with information drawn from the form.
The Federal Court held:
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In the case of a compensation application, “the area covered by the application”, will be the areas in which the application alleges that native title rights and interests have been affected by a compensable act. It is in those areas that the interests of other persons or entities may be affected.
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The identification of an act and its effects upon native title rights and interests in an area are critical to the determination of whether compensation is payable, how much is payable, to whom it is payable and by whom it is payable.
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It is the identified act and the alleged geographical extent of its effects which determine “the area covered by the application”, not the mere assertion in the application as to the area covered.
Accordingly, neither the Kooma nor the Bigambul compensation claims covered any land or waters, because they did not identify any compensable acts. As noted, it was not possible for the claim to be amended to specify compensable acts, as this would result in the inclusion of areas not covered by the original application, which is not permitted.
Accordingly, both claims were struck out.
Recently discontinued Single Noongar Compensation Claim faced a number of procedural issues
In November 2019, a group of Noongar people filed a compensation claim for $290 billion (Naomi Smith on behalf of the Single Noongar Claim Group v State of Western Australia [WAD580/209]) (Single Noongar Compensation Claim). We discussed this claim in our Native Title Year in Review 2019 article Compensation update: What next for native title compensation and our November 2020 Native Title Alert: Compensation Update: Some interesting test cases on the horizon.
The claim had a number of procedural flaws, including a question about authorisation, the fact that native title had not been recognised to any part of the claim area, and the absence of any specified compensable acts.
The State filed an application for summary dismissal of the claim because of its procedural flaws. This was originally intended to be heard in April 2020, but the progress of the application was affected by COVID-19 related court disruptions. After many adjournments and before the strike out application was actually heard, in March 2021 the Applicants were granted leave to file a notice of discontinuance of the claim, with no order as to costs. With the registration of the South West Area ILUAs, the compensation claim had become pointless. Once the ILUAs were registered, they bound all native title holders to the compensation settlement agreed with the State.
Authorisation issues flagged by the Federal Court in Barkandji Malyangapa Compensation Claim
In August 2020, a group of Barkandji Malyangapa People of western New South Wales filed a compensation claim seeking compensation for the extinguishment of native title over a large area, spanning from Wanaaring to Wentworth, extending westerly to the New South Wales and South Australia border (Patricia Johnson & Anor on behalf of the Barkandji Malyangapa People v Attorney General of NSW (NSD925/2020)). We discussed this claim in our November 2020 Alert.
This is not a compensation claim brought by the registered native title body corporate. In fact, the relationship between the claimant and the common law holders is not straight forward. It is clear from the orders made in this claim that there are issues with the Applicants' authorisation. The Federal Court ordered the Applicants to produce evidence of their authorisation by 28 January 2021, and also joined the formal representative of the determined native title holders for parts of the compensation claim area, the Barkandji Native Title Group Aboriginal Corporation RNTBC, as a respondent to the claim before the formal notification process commenced.
The State indicated to the Court that it was considering an application to strike out the proceedings, so the Court ordered that notification of the claim be delayed. The State has until 31 March 2021 to notify the Applicant and the Court whether it proposes to file a strike out application.
One procedural issue finally resolved – RNTBC can claim compensation over land where native title has been extinguished within their determination area
One procedural issue that applicants will no longer face is the rule, now removed, that registered native title body corporates (RNTBCs) could not claim compensation in relation to land where native title had been entirely extinguished. This had the effect that native title holders had to bring two parallel compensation claims – one by the RNTBC over land where native title was determined to exist and one over the historically extinguished land within their determination area (e.g. the Tjiwarl compensation claims in WA: Tjiwarl (Aboriginal Corporation) RNTBC v WA; Brett Lewis & Ors on behalf of the Tjiwarl Compensation Claim Group v WA).
In addition to the inefficiencies of running two claims, this also added an unnecessary, complex and expensive authorisation process for the second claim, in circumstances where there is already a recognised body that has the authority of relevant native title holders to represent their interests.
The Native Title Legislation Amendment Act 2021 (Cth) contains amendments that expressly allow a RNTBC to make a compensation claim over areas within the external boundary of its determination area where native title has been fully extinguished.
Where to from here?
The Federal Court's decisions in Kooma and Bigambul were not unexpected. They provide a clear statement about the Court's attitude towards ambit compensation claims that are not properly prepared before lodgement. They also signal the Court's understanding of the impact of compensation claims on third parties who may ultimately be liable to meet the costs of any compensation determined to be paid.
However, the Court's findings about the ability of the claims to be amended to add new compensable acts may have surprised some stakeholders.
Native title holders often rely on the State to provide tenure history materials during the case management phase of a compensation claim and would be likely to identify additional compensable acts from those materials. These decisions suggest that a relevant claim cannot be amended to include those acts if it would result in the inclusion of an area of land or waters that was not covered by the original application. A second claim would need to be lodged in relation to such acts.
Native title holders currently preparing new compensation claims will need to ensure that all compensable acts are included in Schedule I of the Form 4 Compensation Application. This will require additional preparation time and costs and potentially delay the lodgement, but will ultimately lead to a more efficient resolution of the claim.
Before questions of cultural loss and the assessment of compensation can be considered, the parties need to know in respect of what particular acts compensation is being claimed. What the recent cases have determined, is that it is the applicant's job to identify these.
Third parties within interests in the vicinity of a compensation claim can now be confident that, unless an act or grant to which they have an interest is specifically included in a compensation claim, their risk of liability is reduced.
Native title holders will need to do a lot of up front work if they are planning to bring a compensation claim. The scope of the original application will set the limits of the claim.
All stakeholders should watch as State governments and representative bodies' attempt to find a pathway to address native title compensation liability that bypasses the resource intensive and costly Federal Court processes, such as by entering ILUAs.
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
