Today the High Court of Australia will begin hearing a case that will consider the question of compensation for the loss of traditional land rights. This article in The Conversation explains it well. According to the article, it’s an appeal case following two earlier decisions made by the Federal Court on the first compensation claim since the passing of the Native Title Act. In the first of these decisions (the first Timber Creek decision) Federal Court Justice John Mansfield developed a methodology for working out how much money should be awarded as compensation for loss of native title rights. It had three steps:
- The value of land rights in plain economic terms, discounted by 20% because native title often brings constraints on how the land can be used economically
- How to compensate for the loss of non-economic aspects of the land’s value e.g. spiritual and cultural harm (What a question! Where would you start?)
- Interest to award the passage of time (in this case back to the 1980s when the Northern Territory government granted land and undertook public works near Timber Creek)
The decision was appealed and the amount of compensation reduced, but the methodology for working out compensation was not challenged. But will the High Court follow the same methodology? It’s an interesting article- well worth a read, with good links.
The Resident Judge of Port Phillip 