What you need to know
- In the first ever assessment of native title compensation in Australia, the Federal Court ordered the Northern Territory Government to pay $3,300,261 to the Ngaliwurru and Nungali Peoples as compensation for the impact of land grants and public works on their native title (Griffiths v Northern Territory of Australia (No.3) [2016] FCA 900 (Timber Creek).
- Notices of appeal were filed by all parties in September 2016, challenging almost all components of the trial judge's decision.
- The appeal will be heard by the Full Federal Court over 5 days from 20 February 2017.
What you need to do
- Monitor the progress of the appeal and look out for the Full Court's decision in mid to late 2017.
- Review the recommended actions for mining and petroleum tenement holders, project proponents, infrastructure providers, councils, statutory bodies and government owned corporations contained our 24 August 2016 Native Title Alert Timber Creek compensation – native title worth $3.3 million.
Background – Timber Creek decision
In a landmark decision on 24 August 2016, the Federal Court ordered the Northern Territory Government to pay $3,300,261 to the Ngaliwurru and Nungali Peoples as compensation for the impact of land grants and public works on their native title (Griffiths v Northern Territory of Australia (No.3) [2016] FCA 900 (Timber Creek).
This was the first ever assessment of native title compensation in Australia.
More details about the implications of the Timber Creek decision are contained in our 24 August 2016 Native Title Alert Timber Creek compensation – native title worth $3.3 million and our 1 September 2016 Insights from the Timber Creek decision on native title compensation.
Appeals filed by all parties
As anticipated, because of the importance of the decision to all stakeholders, the Northern Territory, the Commonwealth and the native title holders have each filed notices of appeal and cross appeal. Although an initial media release suggested that only the non-economic loss component of the trial judge's decision would be appealed, in fact almost every aspect of the decision has been appealed by one of the parties.
$512,000 for economic loss – all parties appeal on different grounds
All parties appealed the trial judge's findings that the native title holders were entitled to 80% of the freehold value of the land for economic loss, totalling $512,400. Each argues differently:
- Commonwealth: argues for reduction to 50% of the freehold value ($320,250);
- Northern Territory: argues for reduction to $246,764 (using a different assessment formula); and
- Native title holders: argue for an increase to 100% of the freehold value (to $640,500).
$1.3 million for non-economic loss – Northern Territory and Commonwealth argue award was unreasonable and manifestly excessive
In its notice of appeal, the Northern Territory asserts that the amount of $1.3 million for non-economic loss was "extravagant and excessive and not consistent with principles of fairness and moderation which apply to awards of solatium", and that an award of 10% of the economic loss component was appropriate ($93,848). The Commonwealth makes similar assertions but says that $215,000 for solatium was appropriate. The native title holders did not appeal this component of the decision.
$1.48 million for simple interest – native title holders seek compound interest
The native title holders appealed this part of the decision, asserting that compound interest totalling approximately $4.5 million should have been payable.
Invalid future acts – appeal by Northern Territory and Commonwealth
The Northern Territory and the Commonwealth appealed the award of compensation for 3 invalid future acts arguing that (among other issues), as a matter of law the invalid future acts had no impact on native title.
Next steps – appeal to be heard on 20 February 2017
The Territory has committed to placing the trial judge's award of $3.3 million in an interest bearing account pending the outcome of appeal proceedings.
The appeal will be heard by the Full Federal Court in Darwin over 5 days from 20 February 2017. The Full Court will no doubt take some months to hand down its decision, and regardless of the outcome, an application for special leave to appeal to the High Court of Australia is likely.
It will be some years before we hear the final word on the assessment of native title compensation at Timber Creek and the rest of Australia. However, the appeal, and any future High Court appeal, will do little to alter the enormous impact of this decision for Governments and the private sector. Regardless of the ultimate rulings on the assessment of compensation, this issue is real and has finally crystallised for many stakeholders.
Our recommended actions for mining and petroleum tenement holders, project proponents, infrastructure providers, councils, statutory bodies and government owned corporations are set out in our 24 August 2016 Native Title Alert Timber Creek compensation – native title worth $3.3 million.
