Aboriginal groups across Australia stand to benefit from a landmark native title decision that experts say will pave the way for First Nations to claim billions of dollars in compensation for the loss of their lands.
In a ruling handed down last week, the High Court awarded the Traditional Owners of the Northern Territory town of Timber Creek more than $2.5 million.
The compensation covered the “economic” and “spiritual” losses suffered by the Ngaliwurru and Nungali peoples from public infrastructure – including roads, a school, a cemetery, and water pipelines – being built on their land in the 1980s and 1990s.
It was the first time that the highest court in the Australian judicial system put a dollar value on First Nations loss of land for the construction of public amenities.
What did the court say?
The full bench of the High Court found that the claim was “not just about hurt feelings” and acknowledged the deep bond between Aboriginal people and the land.
“Spiritual connection identifies and refers to a defining element in a view of life and living. It is not to be equated with loss of enjoyment of life or other notions and expressions found in the law relating to compensation for personal injury. Those expressions do not go near to capturing the breadth and depth of what is spiritual connection with land.”
The full bench of the court compared severance of that relationship to “punched holes” in a painting and said it was “appropriate” to calculate the loss as a percentage of freehold value.
"The amount is not so large that it suggests a failure to apply proper principles by reference to relevant considerations."
What does the decision mean?
Tony Denholder, partner in prominent native title law firm Ashurst, said the case will have lasting ramifications.
“Timber Creek, without a doubt, is the most significant decision for Aboriginal Australia decision since the High Court and Mabo,” he told NITV.
“It’s the first time the High Court has explained how compensation for acts of government which have been impaired or extinguished native title should be calculated.”
After two centuries of European settlement, native title was not recognised or protected by law until 1994.
“Before that government didn’t realise or appreciate that it needed to address native title rights when it was seeking to grant land tenures or build public infrastructure,” Mr Denholder said.
“This is treating Aboriginal Australia in a non-discriminatory way – so in the same way that taxpayer funds are used when governments compulsorily acquire someone’s backyard for a road expansion or some other public infrastructure.”
What has been the reaction?
Jonathan Fulcher, a law professor at the University of Queensland, said the decision could test the politicians and public sentiment.
“The debate inside and outside Parliaments around the country as Governments respond to this High Court decision may polarise the country again over the vexed question of race, European settlement and compensation,” he wrote for the Thomson Reuters Foundation.
“Hopefully, people will accept the rule of law, respect the court’s decision and debate the issues in a measured and positive manner.
“But when it comes to the value of native title, Australia’s long-distant past may loom large in its future.
“Costs could also be passed on to groups such as mining companies or farming groups which have developed.”
An influential right-wing think tank suggested that taxpayer-funded compensation to native title holders for building public infrastructure on their ancestral lands will discourage investment in regional Australia.
“It is concerning that the cost of public infrastructure projects on native title land may be massively inflated by ‘cultural loss’ claims,” said Gideon Rozner, director of policy the Institute of Public Affairs.
“Such an outcome would mean substantial losses for the taxpayer with benefits to Indigenous communities that at best are unclear.”
“If the Timber Creek decision discourages private investment and development on land under native title claims, that would be a particularly concerning outcome.”
Meanwhile in the outback , excitement has spread about the High Court’s decision.
John Morgan, CEO of the Ngaliwurru-Wuli Aboriginal Corporation, said the funds would likely be divided between five clans.
“They’re all quite excited, I suppose, more to do with the landmark decision,” he told NITV.
“It certainly changes the way that land claims are viewed.”
“They feel as though they’ve had a moral victory if you like.”