The Northern Territory government is appealing a federal court decision to award more than $3.3m in compensation to an Aboriginal group for the extinguishment of native title on their land, in a case which could have ramifications for governments across Australia..
Federal court judge John Mansfield last month found in favour of claimants acting for the Ngaliwurru and Nungali people from Timber Creek. Mansfield determined they were entitled to damages for the extinguishment of native title in the area through acts attributable to the Northern Territory and commonwealth governments in the 1980s and 1990s.
The decision as it stands could establish a legal precedent for billions of dollars in liability payouts by states, territories and the resource sector to Indigenous groups who suffered loss of native title due to actions by government and lessees such as mining companies.
While the Northern Territory government has accepted some aspects of the decision, it is appealing the methodology which determined the costs – amounting to $3,300,261, including $512,000 for the economic value of the extinguished rights, more than $1.48m in interest, and another $1.3m for pain and suffering.
The money will be set aside in an interest-bearing trust account while the case progresses.
The NT attorney general, Natasha Fyles, said it was important to get the decision right.
“In many respects this case is the first of its kind in Australia, it can therefore be used as a test case going into the future,” she told Guardian Australia.
“This appeal was lodged so that there can be more certainty around valuing non-economic loss which will in turn provide guidance and assistance to those negotiating the settlement of other native title claims.”
Last week Fyles said the government had provided assurances to land councils that: “It is still our policy that if native title issues arise, we will negotiate in good faith and we will now be doing so in line with the broad principles set out in the Timber Creek judgment.”
Gavin Scott, a partner at Ashurt law firm specialising in native title, said the appeal was not unexpected and it was anticipated the case could reach the high court.
“The Northern Territory government rightly want to get more clarity around the methodology,” Scott said.
“Justice Mansfield said there was not mathematical calculation or scientific formula in determining the compensation amounts,” he said, adding that some of it involved “a certain amount of intuition”.
This would be difficult to apply to other cases, he said, and governments would want clarity around whether there should be a prescriptive approach from the courts.
Joe Morrison, chief executive of the Northern Land Council, said he wasn’t surprised by the appeal and was always of the mind it would go to the high court.
However, “it’s just the fact that there’s going to be further work and litigation and also a longer wait we believe for traditional owners”, he told ABC.
