Mansfield J
In this matter, the Court granted leave to two applicants on behalf of the Ngaliwurru and Nungali Peoples to amend a Compensation Application and made orders that the native title holders are entitled to compensation under ss 20 and 23J of the Native Title Act 1993 (Cth) (the NTA).
This matter follows the Court’s judgment of 19 March 2014 in Griffiths v Northern Territory [2014] FCA 256 (Griffiths) which considered issues of liability and determined that matters as to compensation would be reserved for further consideration.
The respondent in this matter was the Northern Territory of Australia. The Attorney-General of the Commonwealth was joined as an Intervenor.
Issues to be considered
Mansfield J set out the following issues as the considerations for this matter:
whether final orders should be made reflecting the Griffiths judgment on the issues of liability
how to address the issue of liability in respect of one of the extinguishing acts for which compensation is claimed but which was not addressed in the judgment
how to address the issue of liability in respect of three invalid future acts in respect of which ‘leave in principle’ was given to amend the application; and
procedural directions to progress the hearing of the compensation claim.
Issue 1
Mansfield J considered the Federal Court Rules 2011 (Cth) applied to the separate trial of the issue of liability and the appropriate course was to make a final ‘Draft Order’ recording the effect of the judgement which can be made in the future without further debate.
Issue 2
The extinguishing act was the grant of a Crown Lease. Although the applicant claimed that the non-extinguishment principle applied, Mansfield J confirmed, at [15], that the act is to be treated as extinguishing non-exclusive native title. Therefore, his Honour found that the native title holders are entitled to compensation for extinguishment of their native title by that act.
Issue 3
Mansfield J noted at [16] that the claim, as amended, involves an action in the nature of damages for trespass for grants made and actions taken that are invalid to the extent they affect native title due to ss 24AA(2) and 24OA of the NTA. His Honour stated at [17] that he was ‘satisfied that the Court has jurisdiction to entertain that claim.’
Issue 4
These were procedural matters that the parties had largely agreed upon.