19 September, 2018
The High Court heard the Timber Creek native title compensation appeals last week in Darwin (Northern Territory v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples(D1/2018) and Commonwealth v Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples (D2/2018) and Griffiths (deceased) and Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory (D3/2018)).
Ashurst attended the first 2 days of the High Court's hearing.
Three clear themes arose in the High Court's attitude to the parties' submissions.
Loss of Spiritual Attachment
It appeared that the High Court was sympathetic to submissions about the native title holders' loss of spiritual attachment to the land.
Based on our observations, we think that it is unlikely that the High Court will overturn the Full Court's decision in relation to loss of spiritual attachment and likely that the $1.3 million compensation for loss of spiritual attachment will be upheld.
Holistic approach
In our observation, the High Court appeared to be highly receptive to exploring a "holistic approach" to the assessment of compensation flagged by the Full Court in its decision. The bench also appeared frustrated that the government parties had not made submissions about this issue.
In our view, the questions asked by a number of the judges indicate that the Court is deeply aware that its decision in this case would provide guidance for future compensation claims.
At this stage, we think it is likely that the High Court will make some significant observations about the holistic approach in its decision that will need to be taken into account by native title holders when framing future compensation claims.
Section 51A cap on compensation
Section 51A of the Native Title Act provides a limit on compensation to the total amount that would be payable for the compulsory acquisition of the freehold estate in the land.
Section 51A is subject to section 53, which applies if the amount awarded under section 51A does not amount to "just terms" (in a Constitutional sense).
Section 53 provides that a person is entitled to further compensation to ensure that any "section 51(xxxi) of the Constitution acquisition of a person's property" is made on "just terms". Such additional compensation is payable by the Commonwealth (except in relation to future acts attributable to the States/Territories).
The Northern Territory did not rely on the section 51A cap at trial or on appeal, so its operation was not fully considered by the trial judge or Full Court.
However, the High Court asked about the construction of section 51A a number of times over the course of the hearing.
If the High Court is minded to make some findings about the operation of section 51A and section 53 (particularly in relation to compensation for loss of spiritual attachment), this will have significant implications for all of the Government parties as they grapple with their overall compensation liability.
Where to from here?
The High Court has reserved its decision and it is likely to be some months before a decision is handed down.
Regardless of the outcome, the High Court's decision will deliver certainty and likely trigger more compensation applications around Australia. Certainty in relation to the assessment of compensation and liability as between the States and the Commonwealth should lead to the settlement of many of such claims by negotiation rather than litigation.
More information about the Timber Creek Compensation Case
We have published a number of Native Title Alerts about the trial judge and Full Court decisions, most recently in April 2018 in our Native Title Year in Review 2017 – Native title compensation.
For further information, please contact:
Tony Denholder, Partner, Ashurst
tony.denholder@ashurst.com
