On 24 August 2016, Mansfield J deliberated on various compensatory issues with regard to native title claims put forth by the Indigenous peoples from the estate groups of Makalamayi, Wunjaiyi, Yanturi, Wantawul and Maiyalaniwung. Those estate groups are located near the township of Timber Creek in the Northern Territory.
The native title claims put forth by the claim group drew upon section 51 (xxxi) of the Constitution to interpret ‘just terms’ reflecting a reasonable and proportionate compensation payout to the claim group affected.
One of the critical questions to determine was whether compensation was to be assessed at the date of the acts of extinguishment of native title rights and interests; or at the date of validation of the act of extinguishment. Other related issues in this dispute were the valuation of compensation for the claim group (whatever the timing) and whether it should be based on the market value of freehold title. The extent of traditional attachment to the land was also considered, and whether this should be reflected in compensation for non-economic or intangible loss. Lastly, he considered whether compensation should reflect the effluxion of time between the various dates in which compensation entitlement arose and the date of judgment.
Justice Mansfield dismissed some of the compensation applications made by the claim group; however, he did award compensation for the economic value of the extinguishment of their native title rights and the interest on that sum, and significantly, an allowance for non-economic loss.
The case is significant because of the grant of damages for
non-economic loss, and also because damages were calculated from the date of the acts that extinguished the native title rights. The Northern Territory unsuccessfully argued that the valuation date should be the time at which native title was validated. With the implications arising from this decision for state governments, it is likely that the decision will be appealed.
DANI LARKIN is a PhD student at Bond University.