National Compensation Strategy
The NNTC is working on a National Compensation Strategy. This is a coordinated approach to enabling the negotiation of native title compensation settlements by resolving a number of outstanding issues.
What is native title compensation?
Under the Native Title Act 1993 (NTA), native title holders can make applications to the Federal Court seeking compensation for loss, diminution or impairment of their native title. The NTA is, however, vague as to how native title compensation should be valued. Griffiths v Northern Territory  (Griffiths) was the High Court’s first decision in relation to compensation, providing some direction as to how compensation can be valued. Specifically, the High Court provided direction on calculations for economic loss within a township, calculation of simple interest on that compensation from the point of extinguishment, and also provided a separate category and test for cultural loss. However, the judgement in Griffiths does not apply to many types of potential native title compensation claims and leaves unanswered a number of significant questions.
There is agreement among stakeholders that negotiated compensation settlements are preferable to litigated outcomes. Negotiated outcomes ensure that resources are not wasted on litigation and instead focusses resources on agreements critical for securing economic development, independence and positive social outcomes for Indigenous people. It is well accepted that such outcomes benefit Australian society economically has a whole, with increased Indigenous economic participation.
However, to negotiate settlement agreements both native title parties and government parties need to feel assured that they are making the best deal possible. To do that, there are still a number of issues that need to be resolved by the courts that will assist determine the amount of compensation payable in particular circumstances.
The NNTC is supporting the resolution of these issues. Our National Compensation Strategy is supported by the members of the NNTC and has broad support from stakeholders. The Strategy is a multifaceted approach that includes the following.
- The identification and running of test cases that further clarify what native title holders can be compensated for, and how those compensable acts are to be valued.
- Streamlining litigation by working with the Federal Court, the Commonwealth and State and Territory parties to achieve multi-party consent to reduce and refine the number of legal issues to be determined, and to draw on existing, and further develop cooperative arrangements to enhance court processes and efficiencies.
- Research into best practise models for negotiated settlements.
- Resourcing NTRB/SPs such that they are able to able to run test cases and negotiate settlements.
- Ongoing education and training of NTRB/SPs, PBCs and native title holders about compensation claims and what is possible.
- Stakeholder engagement and communication.
If you want further information on the NNTC’s National Compensation Strategy, please contact Austin Sweeney at: firstname.lastname@example.org