KRED Legal Update

Native Titile Compensation

Does your community have a right to be compensated for loss of Native Title?

The way that native title works is that holders of native title get the same or similar rights in relation to the acquisition or use of their land by government and 3rd parties as ordinary title holders (e.g people who own homes or have leases). This means that Traditional Owners can claim compensation for the impairment or extinguishment of their native title rights and interests “on just terms”. For example, Traditional Owners may be able to claim compensation for:

- loss of native title before 1993 due to an inconsistent grant (e.g. freehold or a national park);

- damage to native title land and/or waters from mining, such as contamination;

- social disruption from mining on native title land;

- invalid extensions or renewals of mining leases without an Indigenous Land Use Agreement in place.

This is an under-explored area in law. Despite the fact that over 20 years ago the High Court recognised the existence of native title in Australia in Mabo v Queensland [No 2] [1992] HCA 23, there hasn’t yet been a decision by any Australian court considering how much compensation might be payable for the impairment or extinguishment of native title. Compensation was awarded in the case De Rose v South Australia [2013] FCA 988, but because the amount was decided by agreement between the parties, the details remain confidential.

A compensation claim is currently being litigated in the Northern Territory over the Timber Creek town site. It is expected this will be the first time an Australian court considers how much native title may be worth in monetary terms.

We are following developments in this area of law and also looking at how compensation for loss of Indigenous land has been valued internationally, with a view to ensuring Traditional Owners are in the strongest position possible to control development on their land and waters.


©KRED Legal Pty Ltd. This information is general in nature only and should not be relied upon as legal advice.