The history of compensation determinations under the Native Title Act 1993 (Cth) (NTA) is not a positive one for native title claimants. In the 19 years from the enactment of the NTA until the 2013 decision De Rose v State of South Australia there had been 37 compensation applications filed under the NTA.
The De Rose decision was the first successful compensation determination, with all others except this one having been withdrawn, discontinued or dismissed. The De Rose Case was the first decision to order the payment of compensation for the extinguishment of native title rights and interests, however as the financial terms of the settlement were agreed by the parties in mediation, and were kept confidential by the Court, the public does not know how much the amount of compensation awarded was. Nor were any significant details of the process of coming to this agreed amount revealed. The Court in this case provided a vague description of the negotiation process, with the parties proposing detailed calculations and formulae to one another, with ‘vastly varying results’, until ultimately a mutually agreeable amount was reached. The Court also mentioned that the State of South Australia was not prepared to accept that the freehold value of the extinguished area was necessarily relevant to the value of the native title rights and interests lost.
This has now changed with the landmark 2016 decision of Griffiths v Northern Territory which does shed light on the ability of the Federal Court to award compensation under the NTA and also how this compensation might be calculated.