Despite numerous cases considering the operation of the Native Title Act since the landmark Mabo judgment of the High Court in 1992, this was the first case to consider and apply the compensation scheme under section 61 of the Act.
The only real difference between the decision at first instance by Justice John Mansfield of the Federal Court was that the discount for economic loss on the freehold value of the land fell from 80 per cent to 65 per cent in the Full Federal Court and then to 50 per cent in the High Court. This brought down that component of the payout from $512,400 to $320,250 and overall damages from $3.3 million to $2.5 million.
Timber Creek was first explored by non-Aboriginal people in the mid-19th century. Between 1980 and 1996, the Northern Territory was responsible for 53 acts, on 39 lots and four roads within the town, comprising various grants of tenure and the construction of public works, that impaired or extinguished native title rights and interests.
The High Court emphasised that the claim was “not just about hurt feelings” and referenced specific examples such as loss of a Kunuma boab tree and the building of a causeway across Timber Creek that damaged a Dingo Dreaming site.
“It’s damaged for good and we can’t tell the young fellas the full story,” Justice Mansfield was told. “If they can’t see the Dreaming it’s hard for us older fellas to tell them the full Dreaming story they need to learn to grow up
“I feel ashamed, like I’ve done the wrong thing myself in not looking after the country, the sites and the Dreaming.”
The lead judgment of Chief Justice Susan Kiefel and Justices Virginia Bell, Patrick Keane, Geoffrey Nettle and Michelle Gordon put a dollar value on that hurt.
It said “spiritual connection identifies and refers to a defining element in a view of life and living” and should not be equated with expressions in compensation law such as loss of enjoyment of life.
“Those expressions do not go near to capturing the breadth and depth of what is spiritual connection with land.”
Or the affect on their “painting”.
“Earlier acts, which were not compensable, punched holes in what could be likened to a single large painting – a single and coherent pattern of belief in relation to a far wider area of land. The subsequent compensable acts punched further holes in separate parts of the one painting.”
This passage could well earn a place alongside some of the grand statements in Mabo, along with the lead judgment’s view that but there “is nothing to suggest that the trial judge’s award would not be accepted by the Australian community as appropriate, fair or just”.
There are some nervous governments – calculators in hand – that might disagree.
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