A federal court has ordered the payment of more than $3m in compensation to traditional owners over damage to sacred sites in one of the most significant rulings about native title since the Mabo decision 24 years ago. The compensation case, brought on behalf of the Ngaliwurru and Nungali people in the township of Timber Creek, sought damages for the extinguishment of native title in the area through acts attributable to the Northern Territory and commonwealth governments in the 1980s and 1990s.
Their victory in Darwin on Wednesday was expected to set a significant precedent in such compensation cases, leaving state, territory and federal governments exposed to future compensation and drawing comparisons with the historic Mabo ruling in 1992 which recognised native title for the first time. The Ngaliwurru and Nungali groups won native title for the land, near the West Australian border of the Northern Territory, in 2006 after a seven-year battle, but not for every area of land they claimed.
The groups sought compensation for a number of acts, including the construction of public works, on their land which extinguished native title and impacted their ability to conduct spiritual and ceremonial activity. Federal court judge John Mansfield ordered compensation of $3,300,261, including $512,000 for the economic value of the extinguished rights, more than $1.48m in interest, and another $1.3m for pain and suffering.
Wednesday’s judgment sets an extraordinary precedent and methodology for measuring the value of extinguished native title, and is predicted to leave state and territory governments liable for huge payouts in forthcoming and future compensation claims. More than 2.3m square kilometres of land is currently designated native title. Mansfield preferenced the higher valuations made by the commonwealth’s expert valuer, Copland, rather than the expert relied on by the Timber Creek applicants.
Among his findings, Mansfield said the loss to the Ngaliwurru and Nungali peoples was “evident” but it was clear they had not wholly lost their connection to country, and that some developments in Timber Creek had been acceptable under Indigenous law. Each government encroachment had “to some degree diminished the geographical area” that the Ngaliwurru and Nungali could exercise native title rights over, he said, and “in an imprecise way” had adversely affected their spiritual connection with the particular areas and their country generally.
Speaking outside the court, the chief executive of the Northern Land Council, Joe Morrison, said they were “buoyed” by the court’s decision. Allowing the case to proceed had been an “immense opportunity for traditional owners right around the country who wanted to seek compensation for extinguishment of native title”. Distribution of the compensation payments will be made in accordance with the decision-making processes of the native title holders.
