Native title year in review 2023-2024

What you need to know

• There are seven active native title compensation claims across Australia and two registered compensation settlement ILUAs under the Queensland Government's Native Title Compensation Settlement Framework.
• The High Court will hear an appeal in the Gumatj compensation claim in August 2024. The High Court's decision will be the most important development in native title compensation since the High Court's decision in the 2019 Timber Creek case.
• The year ahead could also see significant decisions in the McArthur River Project compensation claim, which appears to have finished hearing in November 2023, and the Yindjibarndi Ngurra compensation claim, which is listed for hearing of oral closing submissions in October 2024 and stands to be a test case on the compensation pass through in section 125A of the Mining Act 1978 (WA).

What you need to do

• Consider whether you should join a compensation claim if it concerns interests granted to you (even if those interests are no longer current). This is particularly relevant where government has made you liable for any compensation payable for that interest or tenure.
• Keep up to date with the progress of active native title compensation claim test cases, as they may have ramifications for land users across Australia.

Recent developments in native title compensation

It has been a pretty quiet year in the native title compensation space across Australia (since July 2023). Only two new claims were filed, one of which discontinued with no significant developments in the law relating to native title compensation.

The stage has, however, been set for a more exciting year ahead and it is likely we will see judicial decisions that will greatly influence the law relating to native title compensation.

We refer of course to the Commonwealth's appeal of the Full Federal Court's decision on constitutional issues in the Gumatj compensation claim, which is listed for hearing before the High Court in August 2024.

The High Court's decision on the appeal is anticipated to be delivered in mid-2025 and will be the most significant development in native title compensation law since its decision in the 2019 Timber Creek case. The decision will have important consequences for the scope of the Commonwealth's native title compensation liability.

We also anticipate seeing important decisions in the McArthur River Project compensation claim and the Yindjibarndi Ngurra compensation claim in the next 12 months. Both claims concern compensation for non-extinguishing acts, with the Yindjibarndi claim also being a test case for the construction and operation of the compensation pass through in section 125A of the Mining Act 1978 (WA).

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

Active compensation claims

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

Recap: The Gumatj Clan are seeking compensation from the Commonwealth and Northern Territory governments in respect of the acquisition of land and minerals in the Gove Peninsula from the 1930s to the 1960s.

The claim stands 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 Australian Constitution.

In May 2023, the Full Federal Court handed down its unanimous decision on two threshold questions concerning application of the "just terms" requirement in section 51(xxxi) of the Constitution. The Court found that the pre-1975 acts of the Commonwealth could be compensable under the Native Title Act as invalid acquisitions of property in contravention of the "just terms" requirement. The Commonwealth promptly filed an application for special leave to appeal to the High Court.

For further details about the claim and the Full Federal Court's decision, see our Native Title Year in Review 2022-2023 articles "Landmark Gumatj Clan compensation decision opens up a new class of compensation claims against the Commonwealth" and "Native title compensation: we're off to the High Court again".

What's new: What's new: In October 2023, the High Court granted the Commonwealth leave to appeal the Full Federal Court's decision. The appeal is listed for hearing on 7-9 August 2024, which suggests a decision will be handed down before June 2025.

The High Court's decision will be the most important development in the native title compensation landscape since the Timber Creek decision and will have significant implications for the extent of the Commonwealth's potential exposure to compensation liability. Look out for Ashurst's summary of the decision and what implications it might have for you.

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.

The original claim (NTD25/2020) did not fully encompass the area of the claimed compensable acts, and the Federal Court refused the applicants' application for leave to amend the claim and include the additional areas.  Accordingly, the applicants filed a second compensation claim over the expanded geographic area in June 2023 (NTD16/2023).

What's new: The second claim was consolidated with the first claim by orders made on 15 August 2023 and the second claim was then discontinued.

The Court file indicates that pleadings as to liability were exchanged between the parties in August 2023 and the matter was heard over three days in November 2023.  This suggests judgment in the proceedings will be handed down in the next month or two. Watch this space.

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

Recap: This claim was filed by the Yindjibarndi Ngurra Aboriginal Corporation RNTBC — a registered native title body corporate for the Yindjibarndi People — in February 2022. The claim relates to grants of various mining tenements associated with Fortescue Metals Group's (FMG) Solomon Hub mining operations in the Pilbara region of Western Australia. The relationship between the Yindjibarndi People and FMG has been strained for some years based on media reports. The media have previously reported (AFR and West Australian, both 24 February 2023) that the applicant is seeking a 10% royalty (approximately $500 million per year).

What's new: The hearing of the matter commenced in August 2023 and continued in April 2024, with the hearing of oral closing submissions listed for 14 to 18 October 2024. This suggests the claim will be determined in the first half of 2025. 

With discontinuance of the Tjiwarl compensation claims during 2023 (see below), this claim will most likely become the 'test case' for the construction and operation of the compensation pass through in section 125A of the Mining Act 1978 (WA).

Malarngowem Compensation Claim – Western Australia (WAD203/2021)

Recap: In September 2019, the Malarngowem Aboriginal Corporation RNTBC commenced a compensation claim in relation 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. Preservation evidence was taken in late 2021 and hearing of the matter set for late 2022 was vacated in mid-2022 to allow for mediation between the parties.

What's new: No orders have been made since 27 July 2022 and mediation is continuing.

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 square kilometres 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.

What's new: Mediation occurred throughout 2023 and is set to continue in 2024.  The Commonwealth is also participating in the mediation.  

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 has been beset by difficulties relating to authorisation and legal representation, including applications by the State and the Pitta Pitta Aboriginal Corporation RNTBC (PPAC) — which holds the Pitta Pitta people's determined native title — to strike out or summarily dismiss the claim on the basis of lacking authorisation or standing. Those applications were dismissed in April 2022 and the matter listed for hearing in 2023, however those hearing dates were vacated after the applicant lost their legal representation in early 2023 and the matter referred to mediation.

What's new: The original claim is scheduled to remain in mediation throughout 2024 between the applicant, State and PPAC. The applicant is again legally represented, with three changes in legal representation to date. In late 2023, a timetable was developed for resolution of the proceeding and the matter re-listed for hearing in October 2024 (lay evidence), December 2024 (expert evidence) and April-May 2025 (closing submissions).

A new compensation claim was filed by the PPAC on 8 February 2024 over the same area covered by the original claim and in respect of the same compensable acts. No orders have been made in respect of the new claim to date.

Discontinued compensation claims

Tijwarl Compensation Claims – Western Australia (WAD141/2020; WAD142/2020 and WAD269/2020)

Recap: All three of the Tijwarl compensation claims were commenced in June 2020. The Tijwarl People claimed compensation in respect of the grant of a number of interests in Western Australia's Goldfields region including roads, pastoral leases and water bores, easements, mining tenements and groundwater licences. In May 2023, the Western Australian government confirmed that it had entered into an Indigenous Land Use Agreement (ILUA) with the Tjiwarl Aboriginal Corporation. This ILUA provided for the full and final settlement of the Tjiwarl compensation proceedings as against the State. Notably, the agreement excluded any compensation liability that mining tenement holders may have for mining tenements granted or renewed after the commencement of section 125A of the Mining Act 1978 (WA).

What's new: The applicant was granted leave to discontinue the primary compensation proceedings (WAD141/2020) on 13 December 2023.  The orders provide that the discontinuance cannot be pleaded as a defence to any future proceedings in respect of the grant of certain mining tenements, indicating that the applicant was unable to settle its claims with the holders of those mining tenements. Ultimately, the discontinuation means that the Tijwarl compensation claims did not deliver any new law on compensation liability under section 125A of the Mining Act 1978 (WA).

Queensland government Native Title Compensation Settlement Framework

Recap: Last year we reported on two compensation settlement agreements being negotiated between the Queensland government and the Jangga people and Iman people in accordance with the Queensland government's Native Title Compensation Settlement Framework.

What's new: Both the Iman People's Compensation ILUA and the Jangga People's Compensation ILUA have been registered on the Register of Indigenous Land Use Agreements.  

The success of those negotiations may encourage further compensation settlement negotiations between the Queensland government and native title holding groups in Queensland.

Want to know more?

• Landmark Gumatj Clan compensation decision opens up a new class of compensation claims against the Commonwealth 2 August 2023 — Summarises the Full Federal Court decision in the Gumatj compensation claim
• Native title compensation: we're off to the High Court again, 2 August 2023 — Summarises the status of compensation claims from mid 2022-2023
• Native title compensation Not much to see but plenty happening below the surface, 11 July 2022 — Summarises the status of compensation claims from mid 2021-2022

Authors: Joel Moss, Counsel and Claudia Shelley, Lawyer.