s 53 Native Title Act 1993 (Cth)

Barker J

In this matter, Barker J recognised, by consent, the native title rights and interests of the Gingirana people to approximately 12,153 square kilometres of land located in the western perimeter of the Little Sandy Desert, south of Newman and northwest of Wiluna in Western Australia. The application was filed in 2003 and amended three times. The respondent parties included the State of Western Australia, Yamatji Marlpa Aboriginal Corporation and Telstra Corporation Limited. The Commonwealth Attorney General was an intervenor.

[4] On 14 August 2017, the Attorney General of the Commonwealth of Australia intervened in the application pursuant to s 84A(1) of the Native Title Act 1993 (Cth) (NTA). The intervention arose over the issue of whether the State may have an entitlement to compensation from the Commonwealth arising under s 53 of the NTA, with respect to the operation of s 47A and s 47B NTA to parts of the application.

The Court recognised exclusive native title rights and interests to possession, occupation and enjoyment of Unallocated Crown Land 1, 3 and 4. The non-exclusive native title rights and interests recognised include: the right to access, take and use the resources for any purpose, and the right to maintain and protect places of significance.

[11]–[24] The Court accepted that the Gingirana claimants belong to a system of laws and customs referred to as the Western Desert Cultural Bloc. The pathways to connection recognised were: by descent of people with traditional association with the land; by birth or birth of an ancestor on the determination area; or by possession of traditional cultural knowledge of the determination area. The Court found there to be a significant amount of material in support of the claimants’ connection to the determination area. This was partly due to the evidence given by five Gingirana claimants during the preservation evidence hearing in March 2015.

During the preservation evidence hearing, all the witnesses explained the significance of the law to Gingirana claimants. In particular, Mr Patterson explained in his witness statement [20]:

‘The Tjukurpa is the story – the Law – about Putijarra country. It has been passed down from the old people. It started in the beginning – in the dreamtime. Tjukurpa makes special places. From the dreamtime, we pass it on from generation to generation. It is still alive today. Men have their tjukurpa, and ladies have their own tjukurpa – men can’t talk about ladies stuff and ladies can’t talk about the men’s side. For some tjukurpa, both men and women share the knowledge. Some parts of law business are for men, some parts of law business are for women and some parts are for everyone together. This is our Putijarra Law, and we are still following that.’

The State was satisfied that the evidence was sufficient to establish the maintenance of connection according to traditional laws and customs in the determination area. The State was also satisfied that the connection material is sufficient to establish that the claimants occupied UCL 1, UCL 3 and UCL 4 in the eastern portion of the determination area at the requisite time for s 47B(1)(c) of the NTA to apply.

The parties and the Commonwealth agreed that the description of the native title holders in Schedule 2 of the determination, rather than that in the  Form 1, accurately reflects those persons who hold native title rights and interests in the determination area according to traditional laws and customs.

The Court made the determination as sought in Schedule 2, holding at [26]–[27] that ‘the Court is not limited to making a determination in the form sought in the Form 1 and may proceed to make a determination in such form as it sees fit based on the evidence, provided the application is valid: see BP (deceased) on behalf of the Birriliburu People v Western Australia [2008] FCA 944 at [18], Watson on behalf of the Nyikina Mangala People v State of Western Australia (No 6) [2014] FCA 545 at [33] and Street on behalf of the Yarrangi Riwi Yoowarni Gooniyandi People v State of Western Australia [2016] FCA 1250 at [18].

The Court was satisfied that it is appropriate and within the power of the Court under ss 87 and 94A of the NTA, to make the determination. The determination includes an agreement that within six months of the date of the determination, a prescribed body corporate will be nominated in accordance with the requirements of ss 55, 56 and 57 of the NTA.

White J

In this matter, White J made a compensation determination by consent in favour of those people who are Nguraritja (landowners) for the Tjayuwara Unmuru determination, in relation to areas of land over which were excluded from their native title determination due to the extinguishment of native title. The State of South Australia was the respondent party and the Attorney-General of the Commonwealth intervened, but did not appear in the proceeding. The area subject to the determination is surrounded by the land which was the subject of the Tjayuwara Unmuru determination and would probably have formed part of the Tjayuwara Unmuru determination.

[1] On 16 July 2013, the Court made a native title determination by consent (the Tjayuwara Unmuru determination) recognising the rights and interests of the relevant Nguraritja people in relation to a significant area in the central part of the far north of South Australia: see De Rose v State of South Australia [2013] FCA 687.

[2] On 27 February 2015, the Nguraritja filed an application pursuant to s 61 of the Native Title Act 1993 (Cth) (NTA) seeking compensation in respect of those areas excluded from the consent determination because native title had been extinguished. The extinguishment occurred by reason of acts of the State of South Australia. The compensation determination concerns relatively small portions of the Stuart Highway corridor, which traverses the Tjayuwara Unmuru determination area (together, the Stuart Highway Corridor Land); and land dedicated for the purpose of a Digital Radio Concentrator Tower which is under the care, control and management of Telstra Corporation Ltd (the DRC Land). The Stuart Highway Corridor land is an area of approximately 4.153 km2 and the DRC land comprises an area of approximately 0.0225 km2. The entitlement of the Applicants to compensation arises from the provisions in Pt 2, Div 2 of the Native Title Act 1993 (Cth) (NTA) and the counterparts to those provisions in the NTSA Act.

[3] The parties agreed that s 19 of the NTA and s 32 of the Native Title (South Australia) Act 1994 (SA) (NTSAA) have the effect of validating the acts involved in the surrender and excision of the Stuart Highway Corridor land and the subsequent establishment of that land as part of the Stuart Highway Corridor. It was also agreed that s 19 of the NTA and s 32A of the NTSAA have the effect of validating the act of the State in excising the area of the DRC land. The entitlement of the Nguraritja to compensation pursuant to s 20(1) in respect of that land was enlivened as a result.

The applicant and the respondent reached agreement as to the compensation payable by the State under the NTA. Pursuant to s 87(2) NTA, the Court may make an order on the agreement of the parties without conducting a hearing. White J referred to the statement of Mansfield J in Lander v South Australia [2012] FCA 427 at [11]–[12] and noted that ‘those observations are as apposite in the case of compensation determinations as they are in relation to consent determinations of native title.’

[25] The parties agreed that the payment by the respondent to the Tjayuwara Unmuru Aboriginal Corporation RNTBC on behalf of the native title holders of the confidential sum referred to in the agreement, comprises full and just (in the sense required by s 51 and 53 of the NTA) compensation for any acts attributable to the respondent (or for which the respondent is liable to pay compensation) in the agreement area, in accordance with the terms of the agreement. The persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of the compensation, shall be determined in accordance with the decision making processes of the RNTBC as set out in its constitution.

[27] The parties engaged in extensive negotiations on a confidential and without prejudice basis. During the course of the negotiations, the Nguraritja provided the State with videoed interviews of the claimants and an expert report concerning the effect of the loss. The videoed interviews included material containing culturally sensitive information provided by the native title holders in support of their claim. That material is, in accordance with the traditional laws and customs of the Nguraritja, to be viewed only by certain senior males.

[30] The Nguraritja have creation stories and laws, known as tjukurpa, which cross the determination area. They claim that the establishment of the Stuart Highway and of the Digital Radio Concentrator tower have interfered with the pathway of a particular highly restricted men’s tjukurpa. There is a ceremony associated with this tjukurpa which is of the highest importance and in which only men of required ritual seniority can participate. The details of the tjukurpa and its association with the determination area have never been recorded in an open or public manner.

[31] The Nguraritja claimed that the Stuart Highway has cut the tjukurpa in three different places, causing irreversible damage to the cultural landscape and to the laws and customs associated with the tjukurpa. The Nguraritja also claimed that the Digital Radio Concentrator tower has been built in a sacred area and now constitutes an impediment to the tjukurpa track, as it travels from one site in the determination area to another. The Nguraritja also claim that Stuart Highway has changed the manner in which water flows across the land which, in turn, has spiritual consequences. In part, this is because the Stuart Highway has been built up and in part, because of the excavation of borrow pits at various places along its length.

The Nguraritja further claimed that the Stuart Highway has affected the exercise of their native title rights to hunt and gather from the land. This is because animals such as kangaroos and emus have been frightened away from the road. In addition, the Highway and its frequent use have restricted the activities which can be carried on in close proximity to it.

[42] The parties filed joint submissions that the Court should make an order preserving the confidentiality of the amount of compensation. They sought the making of that order pursuant to s 37AG (1) (a) of the Federal Court of Australia Act 1976 (Cth) on the ground that it is necessary to prevent prejudice to the proper administration of justice. SANTS provided an affidavit from Mr Pearson, the first of the named claimants. Mr Pearson’s affidavit disclosed the following:

the negotiations which the applicant conducted with the State were on a confidential basis and the applicant had understood, at the time of the negotiations, that the amount agreed upon would be kept confidential;
the amount of compensation is a compromise figure taking into account both legal and factual uncertainties and, further, the applicant’s desire to avoid further disclosure of the highly secret men’s law to which reference was made earlier; and
the potential for there to be a critique in the wider Aboriginal community, and in particular amongst the Western Desert People, of the compensation amount. Such a critique may be positive or negative, informed or uniformed, merited or unwarranted.

[44] Both the applicant and the State further submitted that the prospect of the compensation sum being kept confidential was a significant factor in the obtaining of agreement. Both parties pointed out that the principles concerning the assessment of compensation under s 51 of the NTA are still not finally settled, even taking account of the first instance decision in Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 and the Full Court decision in Northern Territory of Australia v Griffiths [2017] FCAFC 106 and that the compromise was reached in this particular context. The parties referred to the suppression order made by Mansfield J in De Rose v State of South Australia [2013] FCA 988 and the reasons for that order given at [82].

His Honour considered there to be some countervailing factors: ‘These include the importance of the open justice principle, the fact that the compensation involves expenditure of public money and the interests of transparency and accountability with respect to the compensation sum. Further, things have moved on since the decision in De Rose. There are now the two decisions in Griffiths to which reference was made earlier. It is also reasonable to think that, in some respects, the disclosure of the compensation figure in this case may facilitate negotiations in other matters’ (at [46]).

[42] – [48] White J concluded that the order for suppression was appropriate, in particular having regard to the matters to which Mr Pearson deposed and the considerations to which Mansfield J referred in De Rose. In addition, his Honour took account of the policy of the NTA to encourage the resolution of matters by agreement, and the circumstance that, this being an early compensation case, the parties conducted their negotiations on the basis of an expectation of confidentiality. White J did note at [48] however, ‘that in the future when the principles concerning the assessment of compensation become more settled, parties may not be able to proceed on that assessed basis, especially having regard to the countervailing considerations to which I have referred.’

[49] His Honour was satisfied that it is appropriate to make the orders to give effect to the parties’ agreement.

Mansfield J

In this case, Mansfield J determined a claim for compensation under s 61(1) of the Native Title Act 1993 (Cth) (NTA) in relation to native title rights and interests over land and waters within the township of Timber Creek in the Northern Territory which had been partially extinguished by earlier acts and three invalid future acts. 

Background

The compensation application followed an earlier decision concerning 3 applications by the Ngaliwurru and Nungali people for a determination of native title to vacant Crown land within Timber Creek. The trial judge determined that native title existed and held that s 47B applied to the claimed land, with the result that any prior extinguishment by the grant of pastoral leases was to be disregarded: Griffiths v Northern Territory [2006] FCA 903.

The Full Court varied the determination to provide that, in relation to those parts of the claim area to which s 47B applied, the native title comprised a right to exclusive possession, use and occupation of that part of the claim area: Griffiths v Northern Territory [2007] FCAFC 178.

It was found that at the time of each compensable act, the following native title rights were affected:

(1) to travel over, move about and have access to the land;
(2) to hunt, fish and forage on the land;
(3) to gather and use the natural resources of the land such as food, medicinal plants, wild tobacco, timber, stone and resin;
(4) to have access to and use the natural water of the land;
(5) to live on the land, to camp, to erect shelters and structures;
(6) to engage in cultural activities, conduct ceremonies, to hold meetings, to teach the physical and spiritual attributes of places and areas of importance on or in the land, and to participate in cultural practices related to birth and death, including burial rights;
(7) to have access to, maintain and protect sites of significance on the application area;
(8) to share or exchange subsistence and other traditional resources obtained on or from the land (but not for any commercial purposes).

In Griffiths v Northern Territory [2014] FCA 256, Mansfield J ruled on the question of whether s 47B can apply to a compensation claim and the effect of declarations of Reserves, construction of public works and Crown to Crown grants, leaving the consideration of issues regarding the appropriate amount of compensation to be determined at a later date.

In this matter compensation was claimed in relation to areas where non-exclusive native title was found to exist because s 47B NTA did not apply to those areas and all other land and waters within Timber Creek that was not included in the earlier claim.

The respondents to the compensation application were the Northern Territory Government, the Commonwealth of Australia. The Attorney General of Queensland and State of South Australia were joined as interveners.

Compensation orders

Mansfield J assessed the compensation entitlement as:

80% of the freehold values of the relevant allotments. 
Simple interest on that market value from the date of respective acts to the date of this judgment calculated in accordance with Practice Note C16, with an agreed proxy to the extent required.
Non-economic loss (solatium) of $1,300.00.

The compensation payable due to the extinguishment of the native title holders non-exclusive native title rights and interests is $3,300,661 comprised of:

Economic value of the extinguished native title rights: $512,400;
Interest on the sum of $512,400: $1,488,261;
Allowance for solatium: $1,300,000

Mansfield J also declared that the damages payable by the Northern Territory for the invalid future acts is $48,597 comprised of $19,200 and pre-judgment interest of $29,397.

The compensation application was dismissed in relation to three acts.

Consideration

Mansfield J noted that no particular framework exists under the NTA for the determination of the compensation payable on just terms. In arriving at a compensation amount, His Honour ruled on four main issues which were contentious in determining the appropriate amount of compensation:

the time at which the valuation of the extinguishment of native title rights and interest should be assessed;
the value which should be ascribed to the native title rights and interests which have been extinguished;
 the manner and extent to which traditional attachment to the land should be reflected in the compensation award; and
the manner and extent to which the passing of time between the various dates in which the entitlement to compensation arose and the date of judgment should be reflected in the award of compensation.

The date of assessment

Mansfield J considered whether compensation should be assessed at the date of each extinguishing act or the date of validation of the extinguishing acts. Mansfield J concluded at [172] that the date of each act which extinguished or impaired the native title, deemed valid by the legislation, is the appropriate date of valuation rather than the validating legislation itself.

His Honour noted at [173] that this ‘does not preclude the desirability of stepping back at the end of the process…to determine whether, in the circumstances, and having regard to the interest awarded the “just terms” requirement of s 51(1) of the NTA has been satisfied.’

The value of native title rights and interests

In considering what value could be attributed to native title rights and interests, Mansfield J considered that the freehold value is the appropriate starting point because s 51A of the NTA sets it as the upper limit. However, where the native title holders did not have, at the relevant time, the right to exclusive possession, the freehold value is not the appropriate end point.

Under the statutory regime, compensation is to be paid for the loss, diminution or impairment or other effect of the determination acts on the particular native title rights and interests in question. Consequently, non-exclusive native title rights must be less than the market value of that freehold title.

In considering how much less this should be, His Honour noted that it is not appropriate to treat non-exclusive native title rights as valued in the same way as if those rights were held by a non-indigenous person and expressly rejected the Territory’s approach of valuing the native title rights in conventional economic terms. His Honour valued non-exclusive native rights as 80% of the freehold value, at [232]. His Honour acknowledged at [233] that this was an intuitive decision which reflects a ‘focus on the entitlement to just compensation for the impairment of those particular native title rights and interests which existed immediately prior to the determination acts’. This percentage did not include an allowance for cultural or ceremonial significance of the land, or of the very real attachment to the land which the Claim Group as an Indigenous community obviously has.

Interest component

It was accepted that interest was payable on the value of extinguished native title rights and interests to reflect the time between when the entitlement to compensation arose and the date of judgment. Mansfield J considered, in the absence of any guidance in the NTA, whether that interest should be calculated on a simple basis, a compound basis at superannuation rates, or a compound basis at the risk free rate. Mansfield J found that it should be assessed at the simple rate.

In determining this matter, His Honour considered what actions the native title holders would have taken if they had been compensated at the date of the compensable acts. His Honour noted that compound interest could not simply be given because a longer time period was involved. Mansfield J was not persuaded that the Applicant's evidence was sufficient to support a finding that the native title holders would either have invested the money on a compound basis at either 'superannuation' or 'risk-free' rates or in any enterprise which would have longer term been productive of economic earnings at such levels. In arriving at this conclusion His Honour relied upon contemporary evidence of the applicant’s commercial management which revealed that funds were generally distributed to individuals and families, and there was little evidence to suggest that once distributed, those individuals had sought to invest or use those funds to generate income for commercial or investment purposes.  His Honour ​therefore considered the appropriate interest calculation is simple interest at 4%, the rate specified in the Court's Practice Note CM 16.

Non-Economic Loss/Solatium

The applicant sought an award in globo for the loss sustained and disadvantages experienced by the native title holders because of the extinguishment and impairment of their native title. The issue before the Court was how to quantify the essentially spiritual relationship which Aboriginal people, and particularly the Ngaliwurru-Nungali People, have with country and to translate the spiritual or religious hurt into compensation.

Mansfield J awarded $1.3 million under this heading, noting that an important aspect of native title rights and interests was the spiritual, cultural and social connection with the land.

In arriving at this figure, Mansfield J considered the proper question is what non-economic effect there was upon pre-existing native title by the compensable acts and referred to 3 particular considerations of significance to the assessment of the appropriate amount of compensation:

construction of water tanks along a line of particular spirituality that has caused clearly identified distress and concern;
the extent to which certain acts effected not simply the precise geographical area of the lot over which that act specifically related, but in a more general way to related area so as to have impaired the native title rights and interests more generally; and
the fact that each of the compensable acts to some degree have diminished the geographical area over which native title rights within the Township of Timber Creek, and more generally, may be exercised, and each in an imprecise way has adversely affected the spiritual connection with the particular allotments, and more generally, which the Claim Group have with their country

His Honour held that the claimants were only entitled to compensation for the 'hurt feeling' evoked or caused by the determination acts. Any sense of loss generally derived from a loss of access to country in the town of Timber Creek and the inability to exercise native title rights on that country lies outside the parameters of s 51(1) of the NTA. 

Mansfield J further noted that as the evidence revealed that the effect of the acts had not dissipated over time, the compensation should be assessed on the basis of the past three decades or so of the loss of cultural and spiritual relationship with the affected lots and for an extensive time into the future.

Mansfield J held that as this compensation is made as at the date of this judgment, there is no question of interest to be calculated in relation to it.

Section 94 of the NTA

The Commonwealth argued that the Applicant's proposed order for payment of compensation to the proposed prescribed body corporate, which would manage how it is applied, may involve a court delegating its judicial functions when it cannot do so.

The Court found that the proposed order is appropriate and accords with s 94 of the NTA and is not unconstitutional.

Invalid Future Acts

The Applicant claimed compensation for trespass to land or compensation in lieu of injunctive relief under the general law in relation to a number of residential lots and freehold grants which were invalid future acts under s 223 and s 24OA of the NTA. The NTA has no provisions expressly providing for compensation in relation to invalid future acts. Mansfield J was satisfied that the Court has jurisdiction in relation to the claim and further orders will be made addressing the invalid future acts.

Mansfield J

This is the first determination of compensation for the extinguishment of native title rights and interests under the Native Title Act 1993 (Cth) (NTA).  The matter was resolved by agreement and the Court was satisfied that it was appropriate to make orders in accordance with the proposed consent determination

The respondents were the State of South Australia and De Rose Hill-Ilpalka Aboriginal Corporation RNTBC (ICN 4712). The Commonwealth of Australia intervened in the proceedings.

Background

The application for native title to which the compensation was made commenced on 19 March 2013 and has a long history.

The starting point was an application on behalf of the Nguraritja for a determination of native title pursuant to s 61 of the NTA. After a lengthy trial and judgment: De Rose v South Australia [2002] FCA 1342 and an appeal: De Rose v South Australia [2003] FCAFC 286; (2003) 133 FCR 325, a further evidentiary hearing took place before the Full Court. 

In June 2005 the Full Federal Court determined that the Nguraritja held native title rights and interests over the same area as the “Determination Area” described in these orders: De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose Hill Determination).

The De Rose Hill Determination excluded those parts of the Determination Area over which extinguishment of native title had occurred.

The first and second compensation applications

In June 2011, the Prescribed Body Corporate (PBC) for the Nguraritja applied for compensation due to extinguishment for acts in the claim area and other areas excluded from the De Rose Hill Determination (First Compensation Application). 

Negotiations for settlement of the First Compensation Application between the Nguraritja and the State took place under Court-ordered mediation and Heads of Agreement were signed.

However, under s 62(3) of the NTA, a claim to an area that has not previously been the subject of a native title determination must be accompanied by an affidavit and the applicant must be a natural person.  As the PBC ​acts as agent to the native title holders in relation to their recognised native title rights and interests it has no role to play in relation to native title rights and interests that have been extinguished. Consequently, the PBC could not validly claim compensation for the excluded area. The State agreed to allow the Applicant to discontinue the First Compensation Application as it was considered defective and the application was dismissed with no costs order.

In 2013, a second Native Title Compensation claim (Second Compensation Application) was commenced. The parties intended the determination of the Second Compensation Application to reflect the terms of the earlier agreement reached by the Nguraritja and the State.

Consequently, the parties sought an order under s 87(5) NTA in terms of the proposed Consent Determination and attaching a Settlement Deed that resolves all of the State’s actual and potential compensation liability to the Nguraritja in the area covered by both the First and Second Compensation Applications (the Agreement area) up to the time of the determination of the Second Compensation Application.

The Commonwealth did not consent to or oppose the orders. 

The further determination of native title and extinguishment

The Court then made a native title determination under s 13(2) of the NTA over those parts of the claim where no determination had previously been made.  The Commonwealth did not oppose the making of the determination. This is the entire area of the Second Compensation Application proceeding.

The parties agreed that compensation be payable by the State under the NTA for the following three past acts by the State that extinguished native title, occurring after commencement of the Racial Discrimination Act 1975 (Cth):

The 20 January 1992 freehold grant of surrendered pastoral lease to an individual;
The 15 October 1981 creation of the Stuart Highway Corridor on land surrendered from a pastoral lease; and
The 1 November 1996 resumption to the State of pastoral lease land for the establishment of the Agnes Creek car park.

The Applicants, the PBC and the State agreed that the State was not liable for any compensation in relation to the Tarcoola to Alice Springs railway corridor.

The Applicants, the PBC and the State did not agree on the compensable status of certain pastoral improvements, but agreed that the State’s compensation settlement sum would discharge the State’s obligations in relation to those improvements, whenever they occurred.

Part of the mediation included negotiations on the amount of compensation that was appropriate for the compensable extinguishment caused by the State.

Sections 51, 51A and 53 of the NTA set out the criteria for determining compensation.  Section 51 of the NTA sets out principles to be applied when making a determination of compensation on just terms and s 51A limits the total compensation for total extinguishment in relation to particular land or waters to the amount payable for a compulsory acquisition of a freehold estate, unless that would infringe the requirement in s 53 for compensation to be on ‘just terms’ as per s 51(xxxi) of the Commonwealth of Australia Constitution Act 1900 (Cth).

The State did not accept that the current freehold value of the extinguished area was necessarily relevant to the value of the native title rights and interests lost. However, the issue was agreed to be relevant for the purpose of section 51A(1) of the NTA.

Obtaining agreement on the freehold value of the land concerned was not possible. Ultimately, the parties exchanged amounts which they would be prepared to offer or accept until a mutually agreeable amount was reached.

The Agreement does not cover any compensable extinguishment of native title attributable to the State in the period following the determination.

Orders for compensation

Justice Mansfield considered the agreement satisfied the requirements of sections 87 and 94 of the NTA and it was appropriate for the Court to make the orders:

An agreement had been reached by the parties and the Commonwealth, as intervener, did not oppose the making of the determination.
The determination provides the method for determining the persons entitled to the compensation, the amount or kind of compensation to be given to each person and any dispute regarding the entitlement of a person to an amount of compensation. 
All relevant interest holders in the area have had an opportunity to take part in the proceeding.
All parties have had independent and competent legal advice in the proceeding.
Schedule 1 to the proposed Consent Determination contains a detailed description of the Determination and Agreement Areas.

In reaching this conclusion, his Honour referred to the solicitor employed by South Australian Native Title Services and senior counsel who advised the native title holders and the PBC as an indication of the informed nature of the parties’ consent.  His Honour also referred to extensive negotiations in Adelaide and considered the on-country discussions and disclosures important for contextualising the significance to the native title holders of particular areas of land.  His Honour considered this approach to be consistent with the preference for mediation as the primary means of resolving native title applications.

Justice Mansfield cited Lander v South Australia [2012] FCA 427 at [12] that, where the parties have entered into an agreement and, particularly where one of the parties is the state:

[T]he Court does not need embark on its own inquiry of the merits of a claim made in the application to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3] per French J. However, it might consider that evidence for the limited purpose of being satisfied that the State is acting in good faith and rationally: Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 at [29]-[30] per Emmett J.

Justice Mansfield also considered that the early resolution of proceedings, without the need for a hearing, is also consistent with the overarching purpose of the Court’s civil practice and procedure, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The nature and extent of negotiations about the amount of compensation was another factor used by the Court to conclude that orders under s 87 of the NTA were appropriate. 

Compensation payment not disclosed

The Compensation Agreement (Schedule 3 of the Orders) does not disclose the compensation payment amount. Justice Mansfield considered this was necessary to prevent prejudice to the proper administration of justice, under s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The reasons for not disclosing the figure are discussed at paragraph 82. His Honour considered that disclosure of the compensation figure may:

create expectations in other matters which private consensual agreement should not produce, as there are presently no decisions addressing how compensation under the NTA is to be assessed;
Be seen to set a tariff for other compensation claims which is not appropriate as each set of circumstances will necessarily be different;
Draw attention to and invite criticism – positive or negative – of the Nguraritja from other compensation claimants under the NTA in a way which would be unfair. It may also invite criticism – positive or negative – of the State;
The unfairness would flow from the fact that, as the figure has been agreed in private mediation and negotiations, it is not possible to know the detailed considerations which led to the agreement.
All of these factors mean disclosure of the figure may impede the prospects of satisfactory negotiation of other compensation claims and that would impede and prejudice the proper administration of justice, especially where the NTA encourages the negotiated outcome of applications particular to the circumstances of each case.