Tuesday, 2 April 2019

Native Title Compensation Case (Timber Creek) Decision : At A Glance

Each judgment in the Timber Creek case has been highly anticipated.  As the first litigated native title compensation case, the judgments provide guidance on: How to value economic loss?  How to calculate interest on the compensation for economic loss?  How to value the non-economic loss? 

The case was brought by the Ngaliwurru and Nungali Peoples who are the recognised native title holders of their traditional land and waters in the north-west of the Northern Territory near the Victoria River.  Following their recognition as native title holders, the Ngaliwurru and Nungali Peoples sought compensation on just terms for loss, diminution, impairment or other effect on their native title rights and interests.

While the reasoning is highly fact specific, we now have judicial guidance on these complex topics.


Federal Court
20 July 2016 [1]
Full Federal Court
20 July 2017 [2]
High Court
13 March 2019 [3]
Economic loss
80% of the freehold value of the land at the date the compensable act occurred
$512,400
65% of the freehold value of the land at the date the compensable act occurred
$416,325
50% of the freehold value of the land at the date the compensable act occurred
$320,250
Interest
Simple interest from the date the compensable act occurred to the date of judgment
$1,488,261
Upheld - pattern of business investments did not warrant payment of compound interest
$1,183,121
Upheld - noting compound interest is available but not warranted in this instance
$910,100
Non-economic loss/ Cultural loss
Calculated on a global basis having regard to the consequential effects on the ability to care for country
$1,300,000
Upheld
$1,300,000
Upheld - noting that the trial judge heard all of the  evidence and that this figure may be rightly regarded by society as an appropriate award for cultural loss
$1,300,000

$3,300,261
$2,899,446
$2,530,350


VGSO advises government departments, agencies and statutory authorities on how to comply with the Native Title Act 1993 (Cth), the Aboriginal Heritage Act 2006 (Vic) and the Traditional Owner Settlement Act 2010 (Vic).  This is part of VGSO's exclusive area of work.  

We appear for the State of Victoria in Federal Court proceedings and mediations as well as mining arbitrations conducted by the National Native Title Tribunal.   

We are well placed to advise you on the implications of this significant case and compliance generally in relation to any Crown land dealings across the State.  

To find out more contact:

Julie Freeman
Assistant Victorian Government Solicitor
99471404

Managing Principal Solicitor
99471419 

Principal Solicitor
99471435

Principal Solicitor
99471422 


[1] Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900
[2] Northern Territory of Australia v Griffiths [2017] FCAFC 106
[3] Northern Territory of Australia v Griffiths [2019] HCA 7

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