Calculating Native Title Compensation at the High Court: NT v Griffiths [2019] HCA 7

Tuesday 19 March 2019 @ 9.48 a.m. | Legal Research

On 13 March 2019, the High Court of Australia handed down a judgment in regards to compensation payable to the Ngaliqurru and Nungali Peoples (‘the Claim Group’) pursuant to section 51 of the Native Title Act 1993 (CTH) (‘the Act’). In Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7, the Court reduced the amount to be awarded to the Claim Group as compensation from $3.3 million to $2.53 million for the non-exclusive native title rights and interests that were extinguished. The compensation was made up of 50% of the freehold value of the affected land accounting for simple interest, and factored for cultural loss.


Timber Creek is a town with a population of approximately 230 people, with roughly two-thirds identifying as Aboriginal, who are the native title holders. Between 1980 and December 1996, the Northern Territory was responsible for a number of acts which have been held to have extinguished native title rights and interests within this town. These acts gave rise to the Claim Group's claim for compensation under Part 2 of the Act. The compensable acts include various grants of tenure, construction of public works and grants of development leases. The total area of the land affected is approximately 127 hectares.

Litigation History

At trial at the Federal Court before Weinberg J ('the trial judge'), the Northern Territory was held responsible for 53 compensable acts that impaired or extinguished the native title rights and interests of the Claim Group. The trial judge held that the Claim Group was entitled to an award for economic loss which amounted to 80% of the freehold value of the affected land, with further compensation for cultural loss that amounted to $1.3 million.

On appeal to the Full Court of the Federal Court of Australia, this compensatory amount was reduced to 65% of the freehold value of the affected land, but the valuation of cultural loss was affirmed. At the High Court, the Court unanimously held that the compensation should be no more than 50% of the freehold value of the affected land, but again affirmed the $1.3 million originally awarded for cultural loss.

Calculating Native Title Compensation

In this case, the High Court examined the compensation provisions of the Act and set out general principles for calculating native title compensation claims. The High Court explained that firstly, the economic value of native title rights is to be determined, with this being followed by a calculation of the cultural loss.

The compensation awarded to the Claim Group related to economic loss, was reduced due to the type of rights that were attached to the land. The native title holders held non-exclusive rights to fish, hunt and practice their law and culture, but did not hold the right to exclude all people from the land. The High Court explains at [74]:

“If the native title rights and interests amount or come close to a full exclusive title, it is naturally to be expected that the native title rights and interests will have an objective economic value similar to freehold value.  By contrast, if the native title rights and interests are significantly less than a full exclusive title, it is only to be expected that they will have an objective economic value significantly less than freehold value.  There is nothing discriminatory about treating non-exclusive native title as a lesser interest in land than a full exclusive native title or, for that reason, as having a lesser economic value than a freehold estate.  To the contrary, it is to treat like as like.”

As such, given the non-exclusive nature of the rights held over the land and the circumstances of this case, the High Court held that the compensation to be awarded should be no more than 50% the freehold value of the land.

In determining a basis of assessment for compensation for cultural loss, the High Court first defined these terms at [154]:

“Compensation for the non-economic effect of compensable acts is compensation for that aspect of the value of land to native title holders which is inherent in the thing that has been lost, diminished, impaired or otherwise affected by the compensable acts.  It is not just about hurt feelings, although the strength of feeling may have evidentiary value in determining the extent of it.  It is compensation for a particular effect of a compensable act – what is better described as "cultural loss". “

In following with the trial judge’s assessment, the High Court took into account the following principles in calculating the final compensation amount:

  1. The Claim Group’s connection to the land
  2. The effects when country is harmed, under their laws and customs
  3. The effects of the compensable acts

The trial judge also noted that the effects of the compensable acts are to be assessed incrementally and cumulatively. The High Court affirmed this approach, maintaining that the damage to the land cannot be divided to one particular act, but can only be measured by the entire work done to the land.

Additionally, the compensation awarded, factors in the effects of these acts on future descendants of the Claim Group. The loss was held to be permanent and intergenerational, with different members experiencing its effects differently. The High Court took into account the definition of “native title holders” and that this term recognises that individual members of the group changes from time to time as members pass from old age and are born. As such, the determination of compensable loss is not to be calculated determined by a finite group over a set period of time. The High Court affirmed the trial judge’s final award of $1.3million as compensation, noting that such an award was not so large that it would be inconsistent with Australian community standards as appropriate, fair or just.

Additional Comments

Whilst the High Court reduced the overall compensatory amount awarded to the Claim Group, commentators such as Tony Denholder, a partner at Ashurst, explains that there will be further implications for future native title claims:

“That the small area of Timber Creek still triggered a compensation liability of over $2.5m, will have strong implications for the more than 2.8m[illion] sq km of native title land holdings across the rest of Australia … The high court’s decision will likely to trigger compensation applications from many of the hundreds of native title holder groups around Australia, who finally have clarity – albeit limited – on how they might quantify the compensation owed to them for impacts on their native title.”

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