Native title year in review 2024-2025

What you need to know

• There are only six active native title compensation claims across Australia despite over 300 native title groups having a statutory right to seek compensation. Only one new claim has been filed in the Federal Court in the last 12 months and a couple are close to finalisation.
• We are aware that there are some claims being negotiated with Governments. For example, the Queensland Government's preference is to negotiate rather than litigate native title compensation.
• The High Court's decision in the Gumatj compensation claim is the most significant judicial development on this topic since the Timber Creek decision in 2019 (Commonwealth of Australia v Yunupingu on behalf of the Gumatj Clan or Estate Group [2025] HCA 6). It has exposed the Commonwealth to significant liability for many of its land dealings in the Northern Territory and other Commonwealth Territories from the early 1900s onwards.
• Other recent developments include the hearing of the Yindjibarndi Ngurra compensation claim in Western Australia. The decision in this case will provide much needed guidance on a range of issues relating to the assessment of compensation for mining projects and the construction and operation of the compensation pass through in section 125A of the Mining Act 1978 (WA).

What you need to do

• Watch out for the decision in the Yindjibarndi Ngurra compensation claim, which is likely to have wide-ranging implications for the assessment of compensation for mining projects and more generally for the negotiation of future native title agreements.
• The Federal Court decision in the McArthur River Project Compensation Claim in the Northern Territory is also imminent.

Summary of developments in the last 12 months

We have reported on developments regarding native title compensation annually since our inaugural Native Title Year in Review in 2015.

The last 12 months have seen significant judicial developments in the form of the High Court's decision in Gumatj and the hearing of the highly contested Yindjibarndi Ngurra compensation claim over Fortescue's Solomon Hub mine in Western Australia.

However, no entirely new compensation claims have been filed for some years. There may be a number of reasons for this. We know that some native title groups have been waiting for the outcome of these test cases to help guide their own claims. It is possible that claims have slowed down because of "large scale litigation fatigue" and the reality that many groups face significant financial and human resourcing barriers to pursuing native title compensation proceedings (see Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v State of Western Australia [2024] FCA 1114). Notably, there is no statute of limitations for the filing of native title compensation claims, and interest accrues on economic loss from the date of the compensable acts.

A final reason is that some Governments have opted to negotiate compensation directly with groups. When these negotiations reach a conclusion, the agreed terms are incorporated into an ILUA. This can be followed by the lodgement of what is effectively an uncontested native title compensation application and the making of a consent determination of compensation by the Federal Court, so as to formalise the agreement by Court order.

We report on recent developments in native title compensation claims over the last 12 months below.

Active compensation claims

Yindjibarndi Ngurra Compensation Claim – Western Australia (WAD37/2022)

Recap: The Yindjibarndi Ngurra Aboriginal Corporation RNTBC (a registered native title body corporate for the Yindjibarndi People) filed this compensation claim in February 2022. The claim covers 2462 km² of land in the Pilbara region of Western Australia and relates to grants of various mining tenements associated with Fortescue's Solomon Hub mining operations. The application documents refer to 9 mining leases, 16 miscellaneous licences, 22 exploration licences and 3 prospecting licences. The Yindjibarndi People were granted exclusive native title over the compensation claim area in 2017.

Gumatj Compensation Claim – Northern Territory (NTD43/2019; D5/2023)

Recap: The Gumatj Clan filed a claim in late 2019 seeking compensation from the Commonwealth and the Northern Territory in respect of the acquisition of land and minerals in the Gove Peninsula in the Northern Territory between the 1930s and 1960s.

The claim stood as a test case for whether certain pre-1975 acts of the Commonwealth are compensable under the Native Title Act 1993 (Cth) as an acquisition of property other than on "just terms" in accordance with section 51(xxxi) of the Commonwealth Constitution. The Full Federal Court said that they were and the Commonwealth appealed to the High Court. We wrote about the Full Court's decision in our 2 August 2023 alert "Landmark Gumatj Clan compensation decision opens up a new class of compensation claims against the Commonwealth".

Prior to Gumatj, the Courts had only considered whether post-1975 acts by the States and Commonwealth that offended the Racial Discrimination Act 1975 (Cth) were compensable. However, the possibility that contravention of section 51(xxxi) might lead to invalidity was contemplated at the time of the enactment of the Native Title Act. Gumatj is simply the first compensation claim to test this principle.

Rirratjingu compensation claim- Northern Territory (NTD24/2025; DP2025/001)

This claim was filed in July 2025 (along with a native title determination application) by Bakamumu Marika & ors on behalf of the Rirratjingu People and overlaps with the Gumatj claims – see above.

In early August 2025, the Court ordered that a preservation of evidence hearing (in relation to evidence of cultural loss by three named members of the claim group) be listed on dates to be fixed.

McArthur River Project Compensation Claim – Northern Territory (NTD25/2020 and NTD16/2023)

Recap: The Gudanji, Yanyuwa and Yanyuwa-Marra People are seeking compensation from the Northern Territory Government in respect of the effects of various post-1993 acts associated with the development of the McArthur River Mine and Bing Bong Port to which the non-extinguishment principle is said to apply.

Antakirinja Matu-Yankunytjatjara Compensation Claim – South Australia (SAD61/2022)

Recap: The Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC (AMYAC) seeks compensation for over 1,000 compensable acts (freehold grants, pastoral leases, Crown leases, mining tenements and the construction of public works and roads) in an area that covers over 60,000 km² of land in central South Australia. The claim was filed in April 2022 and immediately referred to mediation between AMYAC and the State of South Australia. A hearing of preservation evidence listed for June 2023 was vacated due to the deteriorating health of the key witness. Mediation occurred regularly throughout 2023 and 2024.

Pitta Pitta Compensation Claims – Queensland (QUD327/2020 and QUD60/2024)

Recap: The original Pitta Pitta compensation claim was filed by five individual Pitta Pitta native title holders in 2020. The claim relates to hundreds of compensable acts spanning over three million hectares of land in Queensland and involves a large number of respondents. It has the potential to be a test case on the assessment of compensation for the grant of exploration and mining interests in Queensland.

The claim was beset by difficulties relating to authorisation and legal representation for many years, including a dispute with the Pitta Pitta Aboriginal Corporation RNTBC (which holds the Pitta Pitta people's determined native title). A new compensation claim was lodged on 8 February 2024 by the Pitta Pitta Aboriginal Corporation RNTBC which was identical to the original claim. In May 2024 the Court ordered that the new claim be consolidated with the original claim and the RNTBC be named the second applicant in the original claim.

Claims dismissed, discontinued or settled in 2024-2025

Malarngowem Compensation Claim – Western Australia (WAD203/2021)

Recap: The Malarngowem Aboriginal Corporation RNTBC 2019 compensation claim related to the grant of a single exploration licence to Kimberly Granite Holdings Pty Ltd in 2016 over a small area in the eastern Kimberley region of Western Australia.

Potential future claims

Queensland

For the last few years we have reported on compensation settlement ILUAs negotiated pursuant to the Queensland Government's Native Title Compensation Settlement Framework. We wrote about this framework in our Native Title Year in Review 2022-2023 article, "Native title compensation: we're off to the High Court again". Since that publication, two further milestones have been reached. In early 2024, the NNTT registered the Jangga People compensation settlement ILUA (QI2023/006) and the Iman People #2 compensation settlement ILUA (QI2023/009), each of which provide for an interim payment to the native title holders in partial satisfaction of the State's compensation liability.

We are not aware of any further compensation settlement discussions having reached the stage where authorisation meetings have been publicly notified. We know that the Djungan People are considering filing a compensation claim, as an authorisation meeting for the preparation of a claim was publicly notified in November 2024, but so far no new claim has been filed.

Western Australia: Preservation evidence taken for future Karajarri compensation claim

In September 2024, the Federal Court made an order allowing for the taking of preservation evidence from elderly witnesses for a future compensation claim about compensable acts arising from the pearl industry near Port Smith (Karajarri Traditional Lands Association (Aboriginal Corporation) RNTBC v State of Western Australia [2024] FCA 1114). This was a novel application requiring the Court to consider whether it had jurisdiction and power to make such an order, and also whether it should exercise its discretion to do so.

The decision contains evidence about the barriers to commencing native title compensation claims at regional and local levels, including funding and capacity. The Court heard from the Kimberley Land Council and the RNTBC that the work required is time consuming, complex and expensive and requires the assistance of legal advisers and experts. There are also significant costs and resources associated with consultation and authorisation. The Court also heard about "large scale litigation fatigue" leaving deep scars within communities. The Court said (at [44]):

The requirements for commencing a compensation claim under the NTA, as contained in both the NTA and the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth), are on their face heavily prescriptive, and resource and time intensive. As I said more than once during the hearing of this application, the burdens imposed on First Nations peoples as moving parties in NTA proceedings, in terms of simply being able to commence a proceeding, are much higher under this legislative regime than in other commensurate practice areas of this Court.

The preservation evidence was heard in late October 2024. No further developments in this matter have been reported publicly.

Negligence claim based on impact of climate change on Ailan Kastom fails (Pabai v Commonwealth)

In this representative negligence claim, brought by Torres Strait Islanders against the Commonwealth, the Applicants alleged that successive Commonwealth governments had failed to take reasonable steps to shield their low-lying islands, culture and way of life from already-foreseeable impacts of climate change.

Although the Applicants made it clear they were not claiming for loss or impairment of native title rights and interests, they sought damages for loss of fulfilment of Ailan Kastom (ie Torres Strait Island custom), characterising the loss as a cultural and human-rights-based harm. In doing so, they sought to rely on the High Court's Timber Creek decision relating to native title compensation for cultural loss (along with decisions in other legal contexts such as personal injury case law).

The Federal Court rejected their claim (Pabai v Commonwealth of Australia (No 2) [2025] FCA 796). The Court accepted extensive evidence that climate impacts are eroding sacred sites, cemeteries, subsistence gardens and traditional hunting grounds, thereby diminishing the Torres Strait Islanders’ capacity to practise Ailan Kastom. However, the Court rejected the Applicants' argument that this form of harm was compensable under the common law of negligence. The Court held that, for damage to be actionable, it must involve a "right or interest recognised as capable of protection by law". The cases relied on by the Applicants did not establish that loss of fulfilment of Ailan Kastom constitutes such a right or interest.

For more about this decision, see our 16 July 2025 alert, "Pabai v Commonwealth: climate change, government responsibility and what it means for business" and in relation to climate change globally, see our 24 July 2025 alert, "ICJ's landmark climate opinion: what it means for business".

Other Authors: Roxane Read, Senior Associate and Katrina Hall, Lawyer.

Want to know more?

• Landmark High Court decision exposes Commonwealth to new native title compensation liability, 12 March 2025
• Pabai v Commonwealth: climate change, government responsibility and what it means for business, 16 July 2025
• ICJ's landmark climate opinion: what it means for business, 24 July 2025
• Native title compensation: a big year ahead?, 23 May 2024
• Landmark Gumatj Clan compensation decision opens up a new class of compensation claims against the Commonwealth, 2 August 2023
• Native title compensation: we're off to the High Court again, 2 August 2023
• Native title compensation Not much to see but plenty happening below the surface, 11 July 2022