Northern Territory v Mr A. Griffiths (Deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Commonwealth of Australia v Mr A. Griffiths (Deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples; Mr A. Griffiths (Deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples v Northern Territory

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Nettle,Gordon JJ,Edelman J.
• Judgment Date: 13 March 2019
• Neutral Citation: [2019] HCA 7
• Docket Number: D1/2018, D2/2018 & D3/2018
• Court: High Court
• Date: 13 March 2019

Northern Territory of Australia

Appellant

and

Mr A. Griffiths (Deceased) and Lorraine Jones on Behalf of the Ngaliwurru and Nungali Peoples & Anor

Respondents

Commonwealth of Australia

Appellant

and

Mr A. Griffiths (Deceased) and Lorraine Jones on Behalf of the Ngaliwurru and Nungali Peoples & Anor

Respondents

Mr A. Griffiths (Deceased) and Lorraine Jones on Behalf of the Ngaliwurru and Nungali Peoples

Appellant

and

Northern Territory of Australia & Anor

Respondents

[2019] HCA 7

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

D1/2018, D2/2018 & D3/2018

HIGH COURT OF AUSTRALIA

Aboriginals — Native title rights — Assessment of compensation — Where “previous exclusive possession act[s]” within meaning of s 23B in Div 2B of Pt 2 of Native Title Act 1993 (Cth) (“NTA”) extinguished non-exclusive native title rights and interests held by Ngaliwurru and Nungali Peoples (“Claim Group”) — Where Claim Group entitled to compensation under Div 5 of Pt 2 of NTA — Whether economic loss and cultural loss assessed separately — Principles of assessment for compensation for economic loss — Whether economic value of Claim Group's native title rights and interests equivalent to freehold value of affected land — Whether reduction from freehold value appropriate and how calculated — Whether inalienability of native title rights and interests a relevant discounting factor — Principles of assessment for compensation for cultural loss — Whether trial judge erred in assessment of cultural loss — Whether award manifestly excessive — Whether award met community standards.

Interest — Whether simple or compound interest payable on award for economic loss — Upon what basis simple interest payable.

Words and phrases — “compensable acts”, “compensation”, “compound interest”, “compulsory acquisition”, “cultural loss”, “discount”, “easement”, “economic loss”, “exclusive native title rights and interests”, “extinguishing act”, “inalienability”, “just terms”, “manifestly excessive”, “native title”, “non-economic loss”, “non-exclusive native title rights and interests”, “objective economic value”, “percentage reduction from full exclusive native title”, “previous exclusive possession act”, “simple interest”, “solatium”.

Constitution, 51(xxxi).

Lands Acquisition Act (NT), Sch 2.

Native Title Act 1993 (Cth), Pts 1, 2, 15.

Racial Discrimination Act 1975 (Cth), s 10.

Representation

S L Brownhill SC, Solicitor-General for the Northern Territory, with T J Moses for the Northern Territory of Australia (instructed by Solicitor for the Northern Territory)

S A Glacken QC with G A Hill and L E Hilly for the Ngaliwurru and Nungali Peoples (instructed by Northern Land Council)

S B Lloyd SC with N Kidson for the Commonwealth of Australia (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland, with A D Keyes for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

C D Bleby SC, Solicitor-General for the State of South Australia, for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor's Office (SA))

G T W Tannin SC with C I Taggart for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))

S J Wright SC with M Georgiou for the Central Desert Native Title Services Limited and the Yamatji Marlpa Aboriginal Corporation, intervening (instructed by the Central Desert Native Title Services)

ORDER

Matter Nos D1/2018 and D2/2018

• 1. Appeal allowed in part.

• 2. Set aside Order 2 of the Orders of the Full Court of the Federal Court of Australia made on 9 August 2017 and, in its place, order that:

  • “(1) Paragraph 3 of the further amended order made by the trial judge dated 24 August 2016 be set aside and, in its place, order:

    ‘The compensation payable to the native title holders by reason of the extinguishment of their non-exclusive native title rights and interests arising from the acts in paragraph 1 above is:

    • (a) compensation for economic loss in the sum of $320,250;

    • (b) interest on (a) in the sum of $910,100;

    • (c) compensation for cultural loss in the sum of $1,300,000;

    Total: $2,530,350.

    Note: post-judgment interest is payable on this total under s 52 of the Federal Court of Australia Act 1976 (Cth), accruing from 25 August 2016.’

  • (2) Delete order 9.”

Matter No D3/2018

Appeal dismissed.

1 Kiefel CJ, Bell, Keane, Nettle AND Gordon JJ. These appeals 1 concern the amount of compensation payable by the Northern Territory of Australia to the Ngaliwurru and Nungali Peoples (“the Claim Group”) 2, pursuant to Pt 2 of the Native Title Act 1993 (Cth), for loss, diminution, impairment or other effect of certain acts on the Claim Group's native title rights and interests over lands in the area of the township of Timber Creek in the north-western area of the Northern Territory.

2 The issues are extensive, and in some respects complex, but fundamentally there are three questions:

• (1) how the objective economic value of the affected native title rights and interests is to be ascertained;

• (2) whether and upon what basis interest is payable on or as part of the compensation for economic loss; and

• (3) how the Claim Group's sense of loss of traditional attachment to the land or connection to country is to be reflected in the award of compensation.

3 For the reasons which follow, those questions should be answered thus:

• (1) the objective economic value of exclusive native title rights to and interests in land, in general, equates to the objective economic value of an unencumbered freehold estate in that land. In these appeals, the objective economic value of the non-exclusive native title rights and interests of the Claim Group is 50 per cent of the freehold value of the land;

• (2) interest is payable on the compensation for economic loss, and in the circumstances of this case, on a simple interest basis, at a rate sufficient to compensate the Claim Group for being deprived of the use of the amount of compensation between the date at which compensation was assessed and the date of judgment; and

• (3) the compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land 3 is the amount which society would rightly regard as an appropriate award for the loss. The appropriate award for the cultural loss in these appeals is $1.3 million.

4 These reasons are in seven parts: facts 4; claim for compensation 5; legislative framework 6; economic loss claim 7; interest on the economic loss claim 8; cultural loss 9; and orders 10.

A Facts

5 Timber Creek is a tributary of the Victoria River situated in the north-western corner of the Northern Territory. The area was first explored by non-Aboriginal people in the mid-nineteenth century and, around the end of that century, a number of pastoral leases were granted in the Victoria River district 11, including one pastoral lease granted in 1882 over the area that now comprises the town of Timber Creek 12. The town, which was proclaimed as such in 1975, is located on the Victoria Highway about halfway between Katherine and

Kununurra 13 and covers an area of approximately 2,362 hectares 14. It is bounded on the north by the Victoria River and on the east, south and west by Aboriginal land granted under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). It has a population of approximately 230 people, some two thirds of whom identify as Aboriginal; principally, native title holders. The principal buildings, apart from houses, are a road-house and general store, a hotel and caravan park, local council offices, a police station, a primary school, and a health clinic. The town's economy is centred on tourism and associated services and regional service delivery 15

Compensable acts

6 Between 1980 and 17 December 1996, the Northern Territory was responsible for 53 acts, on 39 lots and four roads within the town, comprising various grants of tenure and the construction of public works, which were later held to have impaired or extinguished native title rights and interests and which give rise to the Claim Group's entitlement to compensation under Pt 2 of the Native Title Act (“the compensable acts”). Twenty-two of the compensable acts were grants of development leases incorporating covenants to effect improvements in exchange for freehold title. The remainder of the acts consisted of a grant of a Crown lease, freehold grants to government authorities on which, in some cases, public works were later constructed, and public works constructed without any underlying tenure 16. The total area of land affected by the compensable acts was approximately 127 hectares (“the application area”), comprising just over 6 per cent of the area previously determined to be land in relation to which native title exists.

History of claims

7 In 1999 and 2000, the Claim Group 17 instituted three proceedings under the Native Title Act for determination of native title to land within the boundaries

of the town 18. The trial judge (Weinberg J) held 19 that the Claim Group had native title rights and interests comprised of non-exclusive rights to use and enjoy the land and waters to which s 47B of the Native Title Act applied in accordance with their traditional laws and customs. On appeal, the Full Court of the Federal Court (French, Branson and Sundberg JJ) varied 20 his Honour's determination, holding in relation to those parts of the determination area to which s 47B applied that the Claim Group's native title rights and interests comprised a right to exclusive possession, use and occupation, but otherwise affirmed Weinberg J's determination. The total area of land...