Native Title Compensation Claims

What is native title compensation?

Native title compensation is the right of native title holders to receive payment when their rights have been extinguished or impaired by a valid act of government. Compensation for native title extinguishment is recognised under the Native Title Act 1993 and was given significant shape by the High Court of Australia in its 2019 decision in Northern Territory v Griffiths, the Timber Creek case.

What the Timber Creek decision established

Before 2019, the question of how to calculate native title compensation had not been fully resolved by the courts. Timber Creek changed that. The High Court held that compensation has two components:

Economic loss. This is the loss of the native title rights themselves, calculated by reference to the freehold value of the affected land at the time of the extinguishing act. The native title rights are not equivalent to freehold, so a discount applies, but the freehold value sets the ceiling.

Non-economic loss (cultural loss). This is the cultural, spiritual and emotional loss suffered by the native title group when their connection to Country is severed by extinguishment. In the Timber Creek matter, the High Court assessed this at 25% of the economic loss. Compensation for cultural loss recognises that native title is not merely a property right but the expression of a people’s relationship to their Country.

The decision has wide implications. Every act of extinguishment, whether a grant of freehold title, a compulsory acquisition, or the issue of a lease, may give rise to a compensation claim where native title rights existed over the affected area.

Who can make a claim

A compensation claim can be made by a PBC or registered claimants. The group must demonstrate that they held native title rights over the area affected by the extinguishing or impairing act. In practice this means there must already be a native title determination, or a determination must be obtained as part of the compensation proceedings.

Past act compensation

Compensation is available for acts that occurred before the Native Title Act 1993 commenced, as well as for acts after commencement. Queensland’s historical land tenure decisions, from the pastoral era to more recent compulsory acquisitions, may have given rise to compensation entitlements that have not yet been pursued.

How David Saylor can help

David advises Traditional Owner groups and PBCs on the assessment and pursuit of compensation claims. He works with claimants to understand the history of the affected land, identify the relevant extinguishing acts, and assess both the economic and non-economic components of a potential claim.

Where proceedings are necessary, David represents clients in the Federal Court.

Call (07) 4431 0074 or 0474 244 447, or email david@saylorlegal.com.au to discuss a potential compensation matter.