By William Oxby, Partner, Amy Carseldine, Senior Associate and Louise Kruger, Senior Associate, Brisbane. 

On 13 March 2019, the High Court handed down its first decision on native title compensation in ‘Timber Creek’ [2019] HCA 7 (Timber Creek).

The High Court’s decision is a measured reflection of the need for Australian law to evolve in a manner that acknowledges, recognises and accommodates the diversity and individuality of native title in Australia. The majority judgment sensibly navigates the difficult task of applying common law legal concepts, such as compensation, freehold value, economic loss and solatium, in the context of traditional rights and interests, and connection to country.

Resisting the temptation to apply a blanket approach, a 5:2 majority of the High Court instead affirmed a methodology to determine the appropriate, just and fair compensation to be awarded to native title holders for the impact of compensable acts on their distinct native title rights and interests.

Applying the methodology, the High Court determined that compensation should be paid for the extinguishment of the claim group’s non-exclusive native title rights and interests in the amount of $2,530,350. This amount comprised:

  • $320,250 for economic loss;
  • $910,100 simple interest on the economic loss; and
  • $1.3 million for cultural loss.

For a more in-depth discussion regarding this case, including its implications, please visit: https://www.herbertsmithfreehills.com/latest-thinking/a-methodology-for-the-calculation-of-native-title-compensation

William Oxby
William Oxby
Partner, Brisbane
+61 7 3258 6469
Amy Carseldine
Amy Carseldine
Senior Associate, Brisbane
+61 7 3258 6489
Louise Kruger
Louise Kruger
Senior Associate, Brisbane
+61 7 3258 6480
Emily Wilson
Emily Wilson
Senior Associate, Perth
+61 8 9211 7270