Expert evidence in landmark native title compensation claim

Greg Houston was asked by the Australian Government Solicitor, on behalf of the Commonwealth of Australia, to present expert evidence in a native title compensation claim that was ultimately the subject of a landmark decision by the High Court.

The Timber Creek proceeding is the first time the courts have considered the framework for determination of compensation under the Native Title Act 1993 and is set to establish important precedent for many future claims, which some parties estimate could run into the billions of dollars.

Our task concerned the economic framework under which to determine the level of compensation payable to the Ngaliwurru and Nungali peoples for various historic acts by the Northern Territory government that extinguished their native title rights. These acts took place as far back as 1980, in the process of forming what is now the town of Timber Creek (2016 population: 249).

Working closely with Dale Yeats, Greg developed a framework founded on the economic forces that determine price outcomes, which addressed how those outcomes might be augmented by unique circumstances as well as drawing on core economic concepts such as the time value of money and seminal works from the economic literature. [1]

The High Court ultimately awarded the Ngaliwurru and Nungali peoples compensation in the amount of $2.5 million, comprising:

• $0.3 million for economic loss, calculated as being equal to the freehold value of land at the time of the acts, discounted by 50 per cent to reflect the non-exclusive nature of the native title rights;
• $0.9 million for interest, calculated as simple interest at the rate specified in Federal Court Practice note CM16, ie, 4 per cent above the prevailing Reserve Bank of Australia’s cash rate; and
• $1.3 million for cultural loss, assessed by reference to what the Australian community would regard as appropriate, fair or just.

[1] Fisher, F and Romaine, R, Janis Joplin’s notebook and the theory of damages, Journal of Accounting Auditing and Finance, 5(1/2), 1990

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