High Court awards Timber Creek native title holders $2.5m, partly for 'spiritual harm'

By Felicity James

The High Court has ruled native title holders from the remote Northern Territory town of Timber Creek will receive $2.5 million in compensation for loss of their rights, including spiritual connection to the land.

Key points:

·         The dispute has been about how to calculate compensation for extinguishment of native title rights

·         The Timber Creek claimants will get $2.5 million, down from the $3.3 million originally awarded

·         The High Court rejects claims that $1.3 million for "spiritual harm" is excessive

The test case — described as one of the biggest since Mabo — brought the High Court to the Northern Territory last September for the first time in its history.

It was the first time the High Court had examined the Native Title Act's compensation provisions, including how to put a price on intangible harm caused by disconnection with country.

The claim by Ngaliwurru and Nungali native title holders was about rights that were extinguished through the building of roads and infrastructure by the Northern Territory Government in the 1980s and 1990s.

The final amount of $2.5 million in compensation settled on by the High Court is divided into three components — economic loss, interest and non-economic loss related to the "spiritual" harm caused by disconnection.

It includes $1.3 million for the non-economic loss. The court rejected the argument from the NT and Federal Governments that the amount was "manifestly excessive".

"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 is the amount which society would rightly regard as appropriate for the award for the loss," the majority judgement said.

The decision has set a precedent for similar claims across the country.

Queensland, Western Australia and South Australia were "interveners" or interested parties in the case, supporting the NT and Federal Governments' position.

Governments win argument about 'economic loss'

The appeal process began after the Timber Creek native title holders were awarded a total of $3.3 million in compensation for extinguishment of their native title rights in 2016.

That decision by Federal Court Justice John Mansfield was challenged by the NT and Federal Governments.

The Full Federal Court then reduced the compensation amount to $2.9 million.

Both the NT and Federal Governments appealed again to the High Court, along with the Ngaliwurru and Nungali claim group.

The Federal and NT Governments argued the native title rights were "overvalued" and the economic loss should not be worth any more than 50 per cent of the freehold value of the land.

The High Court agreed with that argument and awarded $320,250 for that component.

That was partly because Timber Creek was covered by a pastoral lease in the 1880s, which meant native title holders did not have the right under Australian law to exclude people from the land but kept "non-exclusive" rights to hunt, fish and practice their law and culture.

The Ngaliwurru and Nungali people had argued the loss of their native title rights was worth the entire freehold market value of the land.

An end to unfinished business

The lead claimants Lorraine Jones and Chris Griffiths spent several years in court, finishing a job that their late fathers started in 1999, when the native title applications were first filed.

PHOTO: Lorraine Jones and Chris Griffiths continued the fight begun by their late fathers. (ABC News: Mitchell Woolnough)

Ms Jones said loss of culture was the most important part to be recognised, describing it as "like a tangle in the tummy".

"It hurts like something happens to your family," she said.

Mr Griffiths said he was disappointed the economic loss component of the compensation was reduced, but that recognition of their spiritual connection was "what our old people wanted".

"To prove that our culture is still alive, our law is still in the land, our blood is still running in the country, our tears will fall on the land," he said. 

Mr Griffiths and Ms Jones said the Ngaliwurru and Nungali people will decide as a family group how they will use the compensation.

Northern Land Council lawyer Tamara Cole, who has been overseeing the case with the claim group for almost a decade, said the NT Government would be responsible for paying the compensation.

"Native title holders around Australia have been waiting for the High Court to deliver its decision in Timber Creek, so they can get on with their negotiations with state and territory governments to arrive at fair amounts of compensation," Ms Cole said.

First posted 13 Mar 2019, 4:36pm