Native title compensation Not much to see but plenty happening below the surface

What you need to know

• There are 15 active native title compensation claims across Australia (as at 1 June 2022). There is still no new law on the assessment of native title compensation and there is not likely to be any for some time.  

• Several claims are in settlement negotiations with the State and hearing dates are being deferred to allow this to occur.  

• The payment of native title compensation in NSW is occurring separately from the Native Title Act 1993 (Cth)'s native title compensation claims process in the context of compulsory acquisition of native title under the Land Acquisition (Just Terms Compensation) Act 1999 (NSW). The NSW Valuer General has released a policy setting out the principles of assessing compensation for cultural loss (Compensation for Cultural Loss Arising from Compulsory Acquisition).

• The Yindjibarndi People have filed their long awaited compensation claim in WA, which includes the native title impact of FMG's Solomon Hub mine.  

• The question of who can bring a compensation claim is not proving simple. There have been a number of claims brought by common law holders, apparently without the support of the native title holders' prescribed body corporate (PBC), which have been delayed or entirely derailed by authorisation disputes.

What you need to do

• Remember that new native title compensation claims may be lodged at any time.  Over 300 determined native title holding groups around Australia are entitled to make compensation claims.
• Be aware that declining to join a compensation proceeding voluntarily will not shield you from compensation liability.  Claimants are asking the Federal Court to join parties with potential liability for particular 'compensable acts' on the basis that their participation is necessary.

National developments since Timber Creek

We have regularly published on developments following the High Court's judgment in Northern Territory v Griffiths (2019) 269 CLR 1 (Timber Creek): see our "November 2020 Native Title Alert" and "Native Title Year in Review 2020 Compensation Update", 1 April 2021.

A focus on settlement, not litigation - National Guiding Principles adopted by all governments

In 2021, all Federal, State and Territory ministers responsible for native title met formally for the first time in 4 years.  A key outcome was in-principle endorsement of the National Guiding Principles for Native Title Compensation Agreement (National Guiding Principles).

The National Guiding Principles provide that governments will use their best efforts to settle native title compensation by agreement in order to promote reconciliation with Aboriginal and Torres Strait Islander Peoples. 

The National Guiding Principles can be read in full here.  They:

• prioritise resolving claims through negotiation and agreement, while ensuring consistency across jurisdictions and with national best practice;

• require that any agreement reached should be negotiated with the free, prior and informed consent of all native title parties and consider the aspirations of native title parties; and

• require negotiated agreements to provide certainty for governments and native title parties as far as is reasonably practicable. 

Despite the emphasis on settlement, the Principles note that some further test cases may be required to clarify legal issues.

The preference of governments to reach compensation claim settlements can be seen in current compensation proceedings, particularly the Tjiwarl Compensation Proceeding where settlement discussions have extended beyond the six months originally set aside.

Key State and Territory developments are discussed below.

Internal claim group disputes about who should bring compensation claims

There have been a number of compensation claims filed by individuals whose authorisation by the native title holders has been challenged by the State and/or the relevant registered native title body corporate (PBC).  These challenges need to be resolved before the compensation claims can progress.

The Federal Court has recently dismissed one such challenge in the recent decision of Melville on behalf of the Pitta Pitta People v Queensland [2022] FCA 387 and ordered that the matter be prepared for a 2023 trial.

The Court commented on the considerable public funds and resources consumed by what was effectively an internal Pitta Pitta dispute about who should bring the compensation application (the elders or the PBC).  The Court was critical of the delay this dispute was causing to the payment of compensation to elderly native title holders and their community and encouraged the group to put their differences to the side and focus on progressing the claim.

It will be interesting to see the impact of this decision on other claims around Australia where similar tensions exist. 

Authorisation of compensation claims

In Melville on behalf of the Pitta Pitta People v Queensland [2022] FCA 387, the Court also provided some new guidance about the authorisation of claims under a traditional decision making process. 

The Pitta Pitta compensation claim was brought by a group of elders who submitted that the claim was authorised using a traditional decision making process.  This process did not require a whole of claim group meeting.

The Court was required to consider what authorisation under a traditional decision making process involved.  In rejecting the challenge to authorisation, the Court was unable to agree with the approach taken in an earlier decision of Barker J in Kimberley Land Council Aboriginal Corporation (ICN 21) v Williams [2018] FCA 1955.  We wrote about that decision in our Native Title Year in Review 2018 article "Authorisation and registration of ILUAs", 10 April 2019.

In Williams, Barker J said that "things of that kind" means "things of that kind specifically" and that when the subject matter of an authorisation is not readily analogous to anything dealt with under traditional law and custom, it is the people who acknowledge and observe those traditional laws and customs who must determine – as a group, as a whole – whether their laws and customs do, in fact, provide for "things of that kind".

Although it was not ultimately necessary to determine, Mortimer J in Melville disagreed and said that the provision does not require the group as a whole to form an opinion about whether it has a traditional decision making process for things of that kind.  The Court said at [32]:

Section 251A, like s 251B, is definitional.  It is not formulated, in its text, by reference to the formation of an opinion or a state of satisfaction.  In its definition, it provides that "where there is a process of decision-making" under traditional law and custom that must be followed, that process must be used.  The definition requires the existence of such a process as a matter of objective fact.  Of course, evidence from native title holders will be crucial in establishing that objective fact.  However, the provision does not require the group as a whole to form an opinion and for that opinion to operate as the definition.

This take on section 251B has the potential to streamline the authorisation process for some claims and to avoid the need for whole of claim group meetings for authorisation if there is a traditional decision making process already established within the claim group.  

New South Wales

NSW Valuer General's Policy on Compensation for Cultural Loss arising from Compulsory Acquisition

The payment of native title compensation in NSW is occurring separately from the Native Title Act's native title compensation claims process in the context of compulsory acquisition.

The NSW Valuer General determines compensation for the acquisition of land under the Land Acquisition (Just Terms Compensation) Act 1999 (NSW).  This includes compensation for the acquisition of native title rights and interests in relation to land, including compensation for cultural loss.  The NSW Valuer General has been required to grapple with the implications of Timber Creek without waiting for any further legal principles to be developed.

In March 2022, the NSW Valuer General released a policy Compensation for Cultural Loss Arising from Compulsory Acquisition, following its June 2021, draft report Review of Forms of Cultural Loss and the Process and Method for Quantifying Compensation for Compulsory Acquisition.

The policy guides valuers on the approach to be adopted to determine compensation for non-economic loss (including cultural loss) arising from compulsory acquisition.  The policy identifies:

• an indicative range of forms of cultural loss that may be compensable;
• a process by which the existence and significance of such forms of compensable cultural loss may be identified; and
• the valuation methodology to determine the amount of compensation payable for cultural loss identified.

The policy establishes a process allowing for a nine month consultation period during which it is envisaged that the native title party will provide materials as to cultural loss and participate in a conference with the Valuer General.  The Land & Environment Court will consider any objections to the Valuer General's determination.

The policy also sets out the kinds of evidence that may be provided in support of a claim for compensation for cultural loss and a list of examples of the forms of cultural loss including: 

• loss of access over land and residence on land;
• loss of activities on the land;
• loss of cultural practices on the land;
• loss of ecology due to impacts on plants, animals, lands and water ;
• loss of access and ability to look after cultural sites;
• trauma and progressive impairment associated with loss of country, loss of identity and intergenerational loss.

The policy sets out a number of principles for valuation methodology to quantify compensation for cultural loss.  They include:

• that the compensation amount reflect a loss in perpetuity and compensated by the payment of a single capital sum for all generations;
• that the compensation amount be determined on an in globo basis without division by form of cultural loss or by parcel of land acquired (unless only one parcel acquired), with the apportionment or distribution of the award to be resolved among those who had suffered the loss;
• that the compensation amount has regard to other determinations for cultural loss made by the Valuer General, the Courts or by Valuers General of other States and Territories;
• that the compensation amount be determined intuitively; and
• that the compensation amount be an amount that would be considered appropriate, fair and just in the Australian community.

The policy also sets out details of valuation methodology.  Although there is not a lot of land where native title has been determined to exist in NSW, this policy is presumably now in action. 

Barkandji Malyangapa Compensation Claim discontinued

The Barkandji Malyangapa Compensation Claim (NSD925/2020) was commenced in August 2020.

The claim was filed by individuals and questions were immediately raised by the State and the Barkandji PBC about authorisation. We wrote about these issues in our article "Procedural issues lead to strike out of compensation claims", 1 April 2021.

After a number of case management hearings and a potential interlocutory hearing to consider authorisation, the claim was discontinued in April 2022 (before the Melville decision was handed down).  

There are no longer any active compensation claims in NSW.

Western Australia

Tjiwarl Compensation Claims

The Tjiwarl Compensation Proceedings, which consist of three separate compensation claims by the Tjiwarl People heard together (WAD 141/2020, WAD 142/2020 and WAD 269/2020) were commenced in June 2020.  

The Tjiwarl People claim compensation in respect of the grant of a number of interests in Western Australia's Goldfields region, such as roads, pastoral leases, water bores, easements, mining tenements and groundwater licences.  

The compensable acts are all acts to which the non-extinguishment principle applies, in other words, acts which did not have the effect of completely extinguishing native title.  This is a significant point of difference from Timber Creek, which only dealt with compensation for the complete extinguishment of native title.  The construction and operation of the compensation pass through in section 125A of the Mining Act 1978 (WA) is also in issue.  

A timetable was set for the resolution of the proceedings which saw an August 2022 trial.  However, the timetable was vacated in December 2021 to allow settlement discussions to continue.

The Native Title Holders and the State have participated in regular mediation sessions convened by the Federal Court since mid-2021 and it is expected that these discussions will settle many of the issues in the proceeding.  The Tjiwarl proceedings may not be the vehicle for long awaited new law on the assessment of compensation. 

Malarngowem Compensation Claim

A compensation claim by the Malarngowem Aboriginal Corporation RNTBC (WAD203/2021) was commenced in September 2021 in relation to a small area in the eastern Kimberley region of WA.  Notably, this claim relates to only one compensable act being the grant of an exploration licence in 2016 to Kimberley Granite Holdings Pty Ltd.  

The limited nature of this claim seems to have ensured its speedy progress through the Federal Court.  Preservation evidence from elderly or ill native title claimants was taken in December 2021 and the claim is scheduled for hearing from September to December 2022.  In addition, the matter is in mediation before the Federal Court Registrar.   

Yindjibarndi Compensation Claim

In February 2022, Yindjibarndi Ngurra Aboriginal Corporation RNTBC – a registered native title body corporate for the Yindjibarndi People – filed a native title compensation claim (WAD37/2022).

This is the long-awaited Yindjibarndi native title compensation claim, associated with the FMG Solomon Hub mining operations on Yindjibarndi country.  This had previously been touted in the media as potentially being a multi-million-dollar compensation claim for economic loss and spiritual harm.

This new claim relates to grants of various mining tenements held by FMG and subsidiaries – the application documents refer to 9 mining leases, 16 miscellaneous licences, 22 exploration licences and 3 prospecting licences.

The claim is presently in notification with a long way to go. This new Yindjibarndi application is could well be the important test case for the WA mining industry (that the Tijwarl claim is not).

No Court dates have yet been listed.

Yilka Compensation Claim

The Yilka Compensation Claim (WAD266/2020) was commenced by Bruce Smith on behalf of the Wati Tjilpi Ku, on behalf of the Yilka Sullivan Edwards People in November 2020.  Compensation is claimed with respect to hundreds of compensable acts including the grant of pastoral leases, mining leases, exploration tenements, miscellaneous licences, prospecting licences, mineral claims, ground water licences and the creation of a stock route and temporary reserve.  

However, the compensation claim was commenced by a single applicant, whose authority was questioned by the State and the PBC.  Before this issue could be resolved, the Applicant sadly passed away and an application was made under section 66B of the Native Title Act to replace him by two other individuals.  This application was dismissed by the Federal Court in May 2022 for lack of authorisation by the compensation claim group (Smith on behalf of the Wati Tjilpi Ku on behalf of the Yilka Sullivan Edwards People v State of Western Australia [2022] FCA 581).  

This claim is unlikely to progress unless the internal claim group issue can be resolved.

Wirrilimarra Compensation Claim

The Wirrilimarra Compensation Claim (WAD157/2021) was commenced in July 2021 by Archie Tucker on behalf of Wirrilimarra Banyjima Custodians Aboriginal Corporation in relation to 10,000 square kilometres in the Pilbara region of WA.  This relates to land subject to the Banjima native title determination with Archie Tucker one of the applicant group in the original native title claim. Very little information was provided about the compensation claim group or compensable acts was included in the application.

The State filed an interlocutory application and supporting affidavit in April 2022 but it is not clear whether this seeks to strike out the claim.  No hearing date has yet been set for this application.

Queensland

Queensland Government's Native Title Compensation Project Management Office

In 2019, the Queensland Government established the Native Title Compensation Project Management Office (PMO) within Queensland Treasury to manage future compensation claims and develop a native title compensation settlement framework.  Little has been publicly released about the PMO.  The Treasury's 2020-2021 Annual Report states that the PMO is managing existing native title claims, while continuing to develop the compensation settlement framework.

Pitta Pitta Compensation Claim

The Pitta Pitta Compensation Claim (QUD327/2020) relates to hundreds of compensable acts spanning 3 million hectares of land in Queensland.  

The Pitta Pitta Claim has the potential to be a test case on the assessment of compensation for the grant of exploration and mining interests in Queensland.  Now that the challenge to authorisation has been rejected (see above), the Court has ordered that the matter be prepared for a 2023 trial.

This is the only active compensation claim in Queensland.

Northern Territory

Gove Compensation Claim

In November 2019, Dr Galarrwuy Yunupingu filed a native title compensation claim (NTD43/2019) on behalf of the Gumatj Clan.  The claim relates to the acquisition of land and minerals in the Gove Peninsula in the Northern Territory in the 1960s (Gove Compensation Claim).  

The Gove Compensation Claim stands to be a test case for a number of issues, including native title rights to minerals, whether the Commonwealth is liable for compensation for extinguishment of native title prior to the commencement of the Racial Discrimination Act 1975 (Cth), and whether vesting of property in minerals in the Commonwealth under Mining Ordinance 1939 (NT) was invalid under the Commonwealth Constitution.  A further issue will be whether the Gumatj Clan have already been compensated under the Rio Tinto Alcan Gove Traditional Owners Agreement.

We understand from orders published in the proceedings that the parties are exploring the possibility of certain discrete and narrow questions of law being determined in advance of a full trial of the matter.  This would involve a hearing of those questions before the Full Federal Court prior to the main trial.  Such a hearing would likely determine questions around the validity of certain actions of the Commonwealth prior to the commencement of the Racial Discrimination Act 1975 (Cth).  

McArthur River Project Compensation Claim

The McArthur River Project Compensation Claim (NTD25/2020) was commenced in December 2020 by the Gudanji, Yanyuwa and Yanyuwa-Marra People in respect of the effects of various acts associated with the McArthur River Mine and Bing Bong Port.

The notification period for the claim ended in May 2021, with respondent parties now finalised.  The claim has been set down for a hearing in June 2023. 

South Australia

The Antakirinja Matu-Yankunytjatjara Aboriginal Corporation RNTBC compensation claim was filed in April 2022 and covers over 60,000 square kilometres of land in central South Australia (SAD61/2022).  

The application seeks compensation for over 1000 freehold grants, pastoral leases, Crown leases, mining tenements and the construction of public works and roads in the claim area.

Authors: Clare Lawrence, Partner; Leonie Flynn, Expertise Counsel; Ian Harris, Lawyer