2 April 2021
What you need to know
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There have been 15 compensation claims filed across Australia during the post Timber Creek era (beginning in 2016) – 4 have been discontinued and 2 struck out.
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There are potentially 2 test cases, addressing:
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whether pre-1975 acts are compensable and how the Commonwealth Constitution's safeguard against "acquisition of property otherwise than on just terms" applies in the native title context (Galarrwuy Yunupingu (on behalf the Gumatj Clan or Estate Group) v NT);
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assessment of compensation for the impact of resources interests on native title, and the operation of the compensation "pass on" provision in the Mining Act 1978 (WA) (Tjiwarl (Aboriginal Corporation) RNTBC v WA; Brett Lewis & Ors on behalf of the Tjiwarl Compensation Claim Group v WA).
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What you need to do
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Be aware that new native title compensation claims are being lodged all the time – maybe even to a native title area near you. Over 300 determined native title holding groups around Australia are entitled to make compensation claims.
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Consider whether you should join a compensation claim if it specifies or otherwise includes interests granted to you in the claim area (even if those interests are no longer current). This is particularly relevant where Government has made you liable for any compensation payable for that interest or tenure.
Developments in each State and the Territory since Timber Creek
We have regularly published outlines of the post-Timber Creek developments in each State and Territory: see 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.
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TIMBER CREEK RECAP: STILL THE ONLY JUDICIAL CONSIDERATION OF PRINCIPLES RELATED TO CALCULATION OF NATIVE TITLE COMPENSATION |
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Two years ago (on 19 March 2019), the High Court handed down its first ever decision relating to native title compensation, including how to put a price on intangible spiritual harm, or "cultural loss". The High Court awarded just over $2.5 million to the Ngaliwurru and Nungali Peoples for the effect of land grants and public works on their native title rights. This included an award of $1.3 million for cultural loss (or spiritual attachment to the land) (Northern Territory v Mr A Griffiths (decd) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (2019) 364 ALR 208 (Timber Creek)). A summary of the case was provided in our 2018 Native Title Year in Review article Compensation update: First High Court decision on native title compensation in Timber Creek case. |
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. Our article Procedural Issues lead to strike out of compensation claims discusses the Federal Court's recent strike out decisions and the recently discontinued claims.
The status of the remaining active claims is summarised below.
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CLAIM |
AREA |
STATUS (AS AT 25 MARCH 2021) |
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McArthur River Project Compensation Claim Casey Davey & Ors v NT (NTD25/2020; DP2020/001) Filed 14/12/2020 |
NT McArthur River Mine and Bing Bong Port |
In notification. Claims compensation for the effects of the McArthur River Mine and Bing Bong Port, including the grant of mining and exploration tenements pursuant to the Mining Act 1980 (NT) and special project legislation passed by the Northern Territory Government, the construction of dredge spoil ponds, the road to the Port, the McArthur River gas pipeline generating power for the project and other acts done pursuant to the McArthur River Project Agreement Ratification Act 1992 (NT). |
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The Gumatj Compensation Claim Galarrwuy Yunupingu (on behalf the Gumatj Clan or Estate Group) v NT (NTD43/2019; DP2019/001) Filed 28/11/2019 |
NT Gove Peninsula, Arnhem Land |
Case Management. We discussed this claim in our Native Title Year in Review 2019 article and our November 2020 Alert. As anticipated, we understand the applicant is seeking to have the question of law regarding pre-1975 acts (i.e. whether the Mining Ordinance 1939 (NT) purported to effect an acquisition of property in respect of native title rights to minerals other than on just terms as required by s 51(xxxi) of the Commonwealth Constitution) determined first, before any other aspects of the claims progress. We expect the Government parties will be keen to test the asserted native title right to minerals before moving to the Constitutional question. It may be many years before this compensation claim (and the issues in this "test case") are resolved. |
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Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People Compensation Claim Bruce Smith on behalf of the Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People v WA (WAD266/2020; WP2020/004) Filed 28/11/2019 |
WA Central Desert |
Not yet notified. The claim includes a detailed schedule of hundreds of compensable acts including the grant of pastoral leases, mining leases, exploration tenements, miscellaneous licences, prospecting licences, mineral claims, ground water licences and the creation of a stock route and temporary reserve. It also claims compensation for the creation of the Cosmo Newberry Aboriginal Reserve. |
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Tjiwarl RNTBC Compensation Claim Tjiwarl (Aboriginal Corporation) RNTBC v WA (WAD141/2020; WP2020/001) Filed 17/06/2020 Tjiwarl Claim Group Compensation Claim Brett Lewis & Ors on behalf of the Tjiwarl Compensation Claim Group v WA (WAD142/2020; WP2020/002) Filed 17/06/2020 |
WA Central Desert |
Case Management. The Tjiwarl People's compensation claims are the first in WA to cover land the subject of mineral resource interests (WAD141/2020 and WAD142/2020). We discussed these claims in our November 2020 Alert. |
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Kapi Tjiwarl Compensation Claim Shirley Wonyabong & Ors on behalf of the Kapi Tjiwarl Compensation Claim Group and State of WA (WAD269/2020; WP2020/005) Filed 26/11/2020 |
WA Central Desert |
In Notification. A further compensation claim was filed in November 2020 in relation to the creating and vesting of a water reserve (Shirley Wonyabong & Ors on behalf of the Kapi Tjiwarl Compensation Claim Group and State of Western Australia (WP2020/005)). This claim raises a discrete liability issue. |
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Gibson Desert Nature Reserve Compensation Claim Daisy Tjuparntarri Ward & Ors on behalf of the Gibson Desert Nature Reserve Compensation Claim Group v WA (WAD222/2020; WP2020/003) Filed 18/09/2020 |
WA Gibson Desert Nature Reserve |
Settlement reached. The parties entered into a settlement agreement on 29 October 2020, which will see the reserve jointly managed by the traditional owners and the State. The agreement allocates $7.5 million to support the joint management activities over the reserve (including to improve infrastructure that will support such activities), over a 10 year period. The agreement will also see the renaming of the Gibson Desert Nature Reserve to the Pila Nature Reserve. |
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Pitta Pitta Compensation Claim Florence Melville & Ors on behalf of Pitta Pitta People v Qld (QUD327/2020; QP2020/001) Filed 22/10/2020 |
Qld Central North West Qld |
Notification ended on 29 March 2021. The claim relates to hundreds of compensable acts including grants of freehold, leasehold (including pastoral and grazing leases), reserves, water licences, exploration permits held by over 50 named mining companies, authorities to prospect, boreholes, electricity infrastructure and gas pipelines covering almost 3 million hectares of land in the Boulia, Cloncurry, Diamantina and Winton Shire Council areas of Queensland. |
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Barkandji Malyangapa Compensation Claim Patricia Johnson & Anor on behalf of the Barkandji Malyangapa People v Attorney General of NSW (NSD925/2020; NP2020/001) Filed 21/08/2020 |
NSW Wanaaring to Wentworth, extending westerly to the NSW and SA border |
Not yet notified. This claims has not been brought by the Barkandji Native Title Group Aboriginal Corporation RNTBC, which have now, in fact been joined as a respondent. The State indicated to the Court that it may seek to strike out the proceedings, based on whether the claim has been properly authorised by the common law holders. We discussed this claim in our November 2020 Alert. |
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Bodney 1 (Burswood) (WAD 6289/1998; WP1998/001) Bodney 2 (Kings Park) (WAD 6290/1998; WP1998/002) Bodney 3 (Bold Park) (WAD 6291/1998; WP1998/003) |
WA Burswood, Kings Park and Bold Park |
These date from 1998 but have not been notified. They were adjourned in 2018. |
For further information, please contact:
Clare Lawrence, Partner, Ashurst
clare.lawrence@ashurst.com
