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Native Title Compensation In Australia—Time to Pay

The High Court of Australia has handed down its first decision on compensation payable under the federal Native Title Act 1993 ("Act"). The case is Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (13 March 2019).

The High Court has confirmed that just terms compensation payable under the Act for extinguishment of native title non–exclusive rights should be divided into three components—economic loss, simple interest, and cultural loss. The amount awarded in this instance was $2.53 million. Cultural loss was $1.3 million of this amount.

The cultural loss award and the other compensation amounts will involve substantial compensation being paid by governments that undertook past acts which extinguished native title rights. The Federal, State, and Territory governments will now be required to deal with the numerous native title compensation claims from Aboriginal groups who have established in the Federal Court that they hold native title rights. Whether this case provides sufficient guidance for the governments to streamline the compensation claim process remains to be seen.

In addition, the key compensation elements from the case may be sought to be applied by parties negotiating indigenous land-use agreements for new projects or following the right to negotiate procedure under the Act for the grant of mining and petroleum tenements. 

Read the full White Paper.

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