The High Court has begun hearing the Timber Creek native title compensation case, which could set a precedent for similar claims. (ABC News: Mitch Woolnough)
The High Court is sitting in the Northern Territory for the first time in history to hear a native title compensation case hailed as one of “the biggest test cases in Indigenous rights since Mabo”.
- The High Court is in the Northern Territory for the first time in history
- It will hear a case regarding compensation for native title holders from Timber Creek
- This will set a precedent about how to calculate native title compensation
The case will set a precedent about how to calculate native title compensation, as these provisions in the Native Title Act 1993 have never before been tested in the High Court.
Native title holders from Timber Creek, 600 kilometres south-west of Darwin, were initially awarded $3.3 million in compensation for extinguishment of their native title rights in 2016.
But Federal Court Justice John Mansfield’s decision was appealed by the NT and federal governments and the Full Federal Court then reduced the compensation to $2.9 million.
The High Court is reviewing this Full Federal Court decision.
Both Justice Mansfield and the Full Federal Court divided the compensation into three components — economic loss, interest and non-economic loss related to the “spiritual” harm caused by disconnection with country.
While Justice Mansfield found the economic value component of the compensation should be calculated at 80 per cent of the land’s freehold value, the Full Federal Court revised this down to 65 per cent.
The Full Federal Court did not change the non-economic loss component, which was set at $1.3 million.
The High Court is sitting in Darwin for the first time in its 118 year history. (ABC News: Mitch Woolnough)
Native title rights ‘overvalued’: Government
About 40 Timber Creek residents and members of the Ngaliwurru and Nungali claim group have travelled to Darwin for the historic High Court hearing, which will run for three days.
Both the NT and Federal Government are appealing to the High Court, along with the Ngaliwurru and Nungali peoples.
The Ngaliwurru and Nungali peoples are seeking compensation for acts done by the NT Government in the 1980s and ’90s, including the building of infrastructure and public works in Timber Creek which extinguished their native title rights.
They argue that the loss of their native title rights is worth the entire freehold market value of the land.
The federal and NT governments argue the rights have been “overvalued” and should not be worth any more than 50 per cent of the freehold value of the land.
Queensland, Western Australia and South Australia are “intervenors” or interested parties in the case and have made submissions to the High Court, supporting the NT and federal government’s position.
Lorraine Jones and Chris Griffiths spoke to the ABC on behalf of their claim group. (ABC News: Mitchell Woolnough)
‘Our message is getting across’
Chris Griffiths and Lorraine Jones spoke outside court on behalf of the claim group.
“This court hearing, it makes us feel sad, it makes us happy and it also makes us proud because we know that our message is getting across, that they are understanding how important [it is that] we are connected to country and the land,” Mr Griffiths said.
Mr Griffiths’s father recently died and has been the lead native title claimant in the case.
“Going to court makes my old man, who’s probably sitting in heaven right now looking down on us, smiling that we got this far,” he said.
“I know it was important to him, because of the spiritual connections we have to the country.”
He explained the feeling his father and others have experienced when their country is “hurt” and their connection with it is taken away.
“What he meant was the feeling in the tummy of the person, turns upside down inside of him, because he can see the destruction of his land and his country,” Mr Griffiths said.
“Our ceremonial belief, our cultural law, our cultural knowledge, our cultural history actually sits near Timber Creek. It’s actually a couple of steps away from the police station.”
Lorraine Jones, also a lead claimant in the case, explained a similar feeling.
“When you see damages happen to you’re land, you feel your emotionally hurt inside, you don’t show it on the outside, but it’s hurting you on the inside.”
The escarpment stretches for kilometres around the tiny Northern Territory town of Timber Creek. (ABC News: Avani Dias)
First trip to Darwin
Before the hearing, Chief Justice Susan Kiefel spoke during a ceremonial sitting about why the High Court has not travelled to Darwin.
“There may be a number of factors which explain this important omission,” she said.
“One might have been the perception of Darwin as remote and, to an extent, inaccessible.”
She recounted the “fateful” first and last journey of the South Australian Supreme Court to the Top End in 1875.
“The circuit judge, his associate, the crown prosecutor all perished when their ship struck a reef during a cyclone.”