The High Court of Australia has upheld the award of $1.3 million to a group of Aboriginal traditional owners in the Northern Territory for cultural loss caused by their native title being extinguished, in a landmark decision delivered on Wednesday.
However, the court reduced the total compensation awarded to the traditional owners by $400,000 to $2.5 million, upholding appeals from the Commonwealth and Northern Territory governments on other parts of the lower court's decision.
The ruling, centred on a 1.27 square kilometre patch of land in the remote Northern Territory town of Timber Creek, sets a significant precedent for how Aboriginal traditional owners are compensated for land that was taken from them and cannot be returned.
Experts say it is one of the most significant native title cases since the Mabo case recognised Aboriginal ownership of the land in 1992.
Much of Timber Creek and its surrounding land is owned by the Ngaliwurru and Nungali.
Their native title was extinguished on the patch of land at the centre of the legal proceedings by various actions – such as building public works – taken by the NT government between 1980 and 1996.
In 2016, Justice John Mansfield awarded $3.3 million in a landmark decision that included $1.3 million compensation for the loss of connection to the land suffered by the traditional owners. It was appealed to the Full Federal Court, where it was reduced to $2.9 million, and then to the High Court.
On Wednesday, the High Court found that the Ngaliwurru and Nungali people should receive $2.5 million for the loss of their native title, reducing the amount by $400,000 based on the judges' assessment of the traditional owners' economic loss.
The compensation award was split into three parts: the economic value of the land, interest on that amount, and the sum that should be paid for spiritual losses.
In a victory for the traditional owners, the High Court upheld the award of $1.3 million for their cultural loss, knocking back arguments from the federal and NT governments that it was "manifestly excessive".
While the NT government had asked for it to be cut down to $130,000 and the federal government said it should be $230,000, the High Court said that there was nothing to suggest the award of $1.3 million would not be accepted by the Australian community as "appropriate, fair or just" or that it was inconsistent with Australian community standards.
"The effects on the sense of connection are not to be understood as referable to individual blocks of land but understood by the 'pervasiveness of Dreaming' ... an act can have an adverse effect by physically damaging a sacred site, but it can also affect a person's perception of and engagement with the Dreamings ... and as a person's connection with country carries with it an obligation to care for it, there is a resulting sense of failed responsibility when it is damaged or affected in a way which cuts through Dreamings," five of the seven judges wrote, endorsing Justice Mansfield's findings.
The appeals by the Commonwealth and NT governments succeeded in reducing the amount given to traditional owners for their economic loss. Justice Mansfield initially awarded $512,000 (80% of the freehold value of the land) and the Full Court of the Federal Court reduced that on appeal to $416,325 (65% of the freehold value).
The High Court reduced the amount again to 50% of the freehold value of the land, as the federal and NT governments had argued for. The traditional owners had argued that they should have received 100% of the freehold value.
The history of the land meant that the traditional owners' native title rights were "limited" and "non-exclusive", and so not as valuable as exclusive native title rights.
The Ngaliwurru and Nungali people had also appealed the interest awarded, saying it should be calculated at a higher rate — using compound instead of simple interest. The High Court preferred to use simple interest.
Speaking to BuzzFeed News ahead of the decision, traditional owner and plaintiff Lorraine Jones said she was happy the Timber Creek case had “opened a can of worms”.
"[We thought] we’ll give it a shot whether we win or lose, sort of thing," she said. "And showing a good example. We’re not going to sit back and let anyone ruin our country."
She hopes the outcome will assist traditional owners across Australia receive compensation for their land. "They’re going through the same suffering that we went through," she said.
Leon Terrill, a senior lecturer at the University of New South Wales Law School, said governments, mining companies and traditional owners alike were eagerly awaiting the High Court’s ruling.
The decision is about "setting the norms" and will have significant ramifications for how compensation is awarded in the courts in the future, he said.
It will also serve as a background for future negotiations between Indigenous traditional owners and the companies and governments responsible for extinguishing native title.
"It’s definitely one of the most significant native title decisions for years," Terrill said.