Mark Gregory, Senior Associate
+61 8 9429 7567

The Federal Court has handed down a much-anticipated decision on a compensation claim under the Native Title Act (NTA).

Unfortunately, the decision does not provide much guidance on the proper approach to compensation under the NTA. The Judge found that the claimants had failed to establish any native title rights at the time the 'compensation acts' occurred. The existence of native title is a threshold for any finding of compensation under the NTA.

The decision is still worthy of note because it explains some elements of the approach the Federal Court will take in dealing with compensation claims, and highlights some of the difficulties claimants have in seeking compensation.

The case
The case is Jango v Northern Territory of Australia [2006] FCA 318. The claim relates to the town of Yulara in the Northern Territory, near Uluru (otherwise known as Ayers Rock). The claimants argued that various 'compensation acts' occurred between 1979 and 1992. Those acts included grants of freehold and leases and the construction of public works (including Connellan Airport, roads and water bores). The claimants argued that they held native title rights before those 'compensation acts' occurred.

Failure to prove native title
The Judge dismissed the claim for compensation because the claimants had not established the existence of any native title rights prior to the 'compensation acts' commencing in 1979.

The claimants said they were members of a traditional landholding group called the Western Desert bloc, and they held native title by acknowledging and observing the laws and customs of that group. However, the Judge found that the evidence did 'not reveal a consistent pattern of observance and acknowledgment of laws and customs, or even practices, relating to rights and interests in land'.

The Judge observed that the witnesses 'expressed very different views as to the content of the laws and customs that they recognised'. He noted that the evidence 'reflects such a variety of opinions, practices and assertions that it cannot be taken as establishing that the indigenous witnesses or members of the compensation claim group observed and acknowledged […] laws and customs of the Western Desert bloc as pleaded in the Points of Claim'.

In other words, the Judge found that the claimants failed to establish, by their evidence, the very case that had been put before the Court.

The Judge was also unsatisfied 'that any laws and customs relating to rights and interests in land that may have been acknowledged and observed by the Aboriginal witnesses are the traditional laws and customs of the Western Desert Bloc'. To establish the existence of native title, claimants must show that they follow land-holding rules that are traditional (ie: founded in customs predating non-Aboriginal settlement). The claimants failed to do this.

Having found that the applicants failed to establish the existence of native title rights prior to the compensation acts, the compensation claim had to fail. Because no native title rights existed (on the Judge's findings) the compensation acts had no effect on any rights, and no compensation became claimable.

Observations on compensation
Although the Judge could not award compensation, he went on to consider some aspects of the extinguishment of native title rights that would have given rise to compensation if native title had been proven. The Judge found:

• early pastoral leases would have partly extinguished native title, but some native title rights and interests would have survived until the 'compensation acts' occurred, starting in 1979
• therefore, if native title had been proved to exist, the claimants would have had a right to compensation as a result of the 'compensation acts', as those acts would have totally extinguished any remaining native title
• the entitlement to compensation would have arisen at the time that the construction of the public works commenced.

The claimants had argued that the extinguishment occurred later, after the construction of public works, when the various 'compensation acts' were validated under native title legislation. The effect of this may have been to entitle the claimants to compensation for the value of the public works themselves.

Implications of the case
Unfortunately, the Jango decision does not provide much clarification of the compensation regime under the NTA. Many issues remain unresolved, particularly in relation to how the quantum of compensation will be assessed.

The case does highlight the difficult task faced by claimants in compensation claims. The claimants have to establish:

• that they held native title rights and interests prior to the 'compensation acts' complained of
• that those native title rights and interests had not been extinguished (by non- compensable acts) before the compensation acts occurred
• that the compensation acts extinguished, or otherwise diminished, the native title rights
• the amount of compensation that should be awarded as a result of the compensation acts.

A failure to establish any of these things will defeat a compensation claim.

The question of how to assess compensation for the extinguishment of native title must await another day.