Native Title Update

Mark Lamont Director, Information & Resources

The ‘Timber Creek’ native title compensation case in the Northern Territory resulted in a High Court of Australia award to the Nungali and Ngaliwurru traditional owners of $2.5 million to compensate for acts undertaken across their native title determination area. This was the first case to decide compensation under the Act’s provisions and sets a precedent.

At the time the High Court handed down the Timber Creek decision in March 2019, there were three compensation claims filed. Now, there are fourteen applications before the courts: 10 in WA, two in NT, one in NSW and one in Queensland (see map).

The Queensland application from the Pita Pita people involves an area covered by four local authorities: Boulia, Cloncurry, Diamantina and Winton. There are over five hundred compensable acts named in the applications for issuing grants of freehold and leasehold title, the construction of infrastructure (local and state government), issuing of various licenses, permits, and authorities for prospecting, mining, and other interests. The claim covers more than three million hectares across the local government areas.

It is not yet known if the state will seek to settle the case or allow it to proceed to litigation to assess the likely future direction of compensation cases for Queensland. The compensation claim in the Northern Territory was for 127 hectares and the amount awarded was just over $2.5 million, on average, $20,000 per hectare. On this basis, if every compensable act is upheld by the Queensland courts, the compensation could be $60 million. It is unlikely that every element of the claims will be upheld but there is potentially a substantial compensation.

Schedule 1 of the Federal Court application identifies the factors the Federal Court will consider in determining if any act is compensable including: a) the government or other person that did the act and whether the act has been validated; and b) if the act has been validated, how this was done; and c) copies of: (i) all searches of official title registers (such as the title register of crown lands and the land title register of the relevant State or Territory); and (ii) all searches conducted with public bodies and authorities; that identify existing or expired non-native title rights and interests in relation to the land or waters covered by the compensation application.

The Federal Court has highlighted the need to ensure acts are validated by the proponent of the act before being undertaken. Any act on the land after 1994 would need to establish if any previous exclusive possession acts had extinguished native title, if there are any determinations or claims over the land area, or if there is an Indigenous Land Use Agreement in place that may cover the act in question. They would also be expected to evaluate if any provisions within the relevant sections the Native Title Act 1994 validated each specific act. Of equal importance is the need to document that process and have a ready record for every project.

The lesson for government is to ensure that all projects are valid acts and do not illegally extinguish or affect native title rights. If not, the number of acts in breach will continue to grow and become compensable in the future. Councils cannot afford to delay the implementation of processes that address these risks, and we of course recommend the iMPACT portal designed to make the processes as robust and streamlined as possible for local government.