NTSCORP is located on the lands of the Gadigal people. We pay our respects to Elders past and present and extend that respect to all Traditional Owners across NSW and the ACT.

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Native title compensation

Under the Native Title Act 1993 (Cth) (Native Title Act), native title holders are entitled to compensation for certain acts which have extinguished or impaired (damaged) their native title rights and interests. Compensation is money that is given to someone to recognise the loss or pain that they have suffered.

Who can make a compensation application?

A compensation application can be made by a prescribed body corporate (PBC) or an authorised applicant acting on behalf of a native title group. Usually, a group must first have a determination of native title.

Compensation applications are made to the Federal Court.

What acts can you claim compensation for?

Under the Native Title Act, native title holders can seek compensation for certain acts by the state, territory or federal government after 31 October 1975. These acts are often called compensable acts. Some examples could include the grant of a lease or the construction of public works such as a telephone line or a road.

The compensable act must affect the native title rights and interests of native title holders. This means it must extinguish native title rights and interests, or else it must be inconsistent with the existence, enjoyment or exercise of native title rights and interests.

Who pays the compensation?

Compensation is generally paid by the relevant state, territory or federal government.

Alternatives to bringing a compensation application in the Federal Court

Going to court can be expensive and take many years. It may also not get you the outcome you want. Instead of going to court, another option can be negotiating an agreement with the state, territory or federal government. An agreement can provide more flexible benefits (i.e. not just compensation), such as:

  • funding and resourcing for PBCs
  • land transfers, and
  • giving native title holders the opportunity to have a say in natural resource management on their country.

For more information about native title compensation, visit the National Native Title Tribunal’s website here or contact us.

How is compensation calculated?

On 14 March 2019, the High Court decided the Ngaliwurru and Nungali Peoples native title compensation claim in the Northern Territory. This is often referred to as the Timber Creek decision. The Timber Creek decision provided important guidance about how the courts should calculate native title compensation.

In the Timber Creek decision, the High Court said that there were three parts to calculating native title compensation:

  • economic loss
  • interest on economic loss, and
  • cultural loss.

Economic loss is calculated based on the freehold value of the affected land at the time native title rights were extinguished or impaired. If you have exclusive native title rights, compensation could be 100% of the freehold value. If you have non-exclusive native title rights, compensation is generally calculated at a lesser percentage, depending on the nature of the native title rights and interests.

Interest is also payable on compensation for economic loss from the date of the compensable act. Depending on the evidence, this could be simple or compound interest.

Cultural loss refers to the loss of spiritual connection to the land, such as the loss of dreamings, song lines and sacred sites. It is calculated by considering the amount that society would rightly regard as an appropriate award for the loss.