What's next for Native Title Compensation: The De Rose Decision and the Assessment of Native Title Rights and Interests
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WHAT'S NEXT FOB NAIIV[ TITLE COMPENSATION:
THE DRGSE D[CISIGN AND THE ASSESSMENT OF NATIVE TITLE
RIGHTS AND INTERESTS
by Wanjie Song
INTRODUCTION
On 1 October 2013, the Federal Court of Australia delivered an
important judgment in De Rose v South Australia [2013] FCA 988
('De Rose), being the first time a court has ordered payment of
compensation for the extinguishment or impairment of native title
rights and interests. However, being a consent determination, De
Rose did not give any guidance as to the difficult question of how
native title compensation is to be valued.
The Native TitleAct 1993 (Cth) ('NTA') provides that compensation
for the extinguishment or impairment of native title must be on
'just terms' How compensation on just terms' is to be calculated
has been considered and discussed bya number of commentators.
But without a judicial decision, the assessment of native title
compensation remains largely unclear in Australia creating
uncertainty for native title groups considering making a claim for
compensation.
THE DE ROSE DECISION
The Federal Court decision in De Rose is the only time a court has
ordered a payment of compensation for the extinguishment or
impairment of native title rights and interests, since the introduction
of the NTA in 1993.
In 2005, it was determined that the De Rose Hill Nguraritja People
held native title over parts of the De Rose Hill pastoral lease.' The De
Rose Hill Nguraritja Peoplethen madea compensation application
in relation to three separate areas of land that were excluded from
the determination area, as native title had been extinguished by
the creation of a highway, a car park and a freehold lot.
The Federal Court in De Rose decided that compensation was
payable, as the De Rose Hill Nguraritja People would have held
native title over those areas, if that extinguishment had not
occurred. However, De Rose is a consent determination, in
which the actual amount of compensation paid to the De Rose
Hill Nguraritja People was decided by agreement between the
parties, and the Federal Court simply endorsed that agreement.
The judgment did not consider the relevant principles of valuing
compensation forthe extinguishment or impairment of native title
rights and interests. Hence, the case did not provide assistance as
to how native title compensation should be assessed.
WHEN NATIVE TITLE COMPENSATION IS PAYABLE
Compensation is payable when native title rights and interests
over a certain area have been extinguished or impaired, which
usually requires an existing native title determination over that
area. It is also possible to claim compensation over areas which
native title determinations have not been made, although the
party claiming compensation will need to first satisfy the court that
they held native title rights and interests over the area at the time
the relevant acts were done. As more native title determinations
are made, it is likely that cases involving compensation for the
extinguishment or impairment of native title rights and interests
will become more frequent.
COMPENSATION UNDER THE NATIVE TITLE ACT
The NTA allows an application to be made to the Federal Court
by native title holders for compensation for any loss, diminution,
impairment or other effect on native title.4 However, the Native
Title Act does not state how that compensation is to be calculated.
The NTA indicates in section 51A that compensation is to be
capped at the amount that would be payable for the compulsory
acquisition of the land in freehold. However, section 53 of the
NTA qualifies this by stating that the acquisition of native title
rights and interests must be on just terms; which is a reference
to the constitutional guarantee of 'just terms' compensation for
the acquisition of property, pursuant to section 51(xxxi) of the
Commonwealth Constitution5
Some have expressed the view that the freehold cap under section
51A of the NTA is subject to the requirement that the compensation
be on just terms' and that therefore the cap can be exceeded if
freehold value is not considered sufficient to satisfy the'just terms'
criterion.6 Commentators point to the attitude of the High Court
to the protection of the fundamental rights in the Constitution,
INDIGENOUS LAW BULLETIN January / February, Volume B, Issue 10 1 11](ViewImageLocal?handle=hein.journals/indibull8&div=110&collection=&method=preview&ext=.png&size=3)
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What's next for Native Title Compensation: The De Rose Decision and the Assessment of Native Title Rights and Interests
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