Native title compensation claim
Last week, Greg Houston filed an expert report with the Federal Court in Casey Davey & Ors v Northern Territory of Australia, on the economic principles relevant for determining a compensation claim for the alleged infringement of native title rights in and around the McArthur River mine and Bing Bong port in the Northern Territory. The native title holders are the Gudanji, Yanyuwa and Yanyuwa-Marra Aboriginal Peoples, whose claim arises from the circumstances surrounding the development of the lead, zinc and silver mine at McArthur River, which occurred around the time of the 1992 landmark High Court decision in Mabo v Queensland recognising native title under the common law of Australia.
Greg’s report develops an economic framework for determining compensation assuming the objective is to restore the claimants to the economic position they would be in today, had they not been deprived of the opportunity to bargain over the time-limited surrender of their native title rights around three decades ago.
An after-the-fact determination of compensation on ‘just terms’ where native title rights were suspended to enable mining operations over a 50-year period (of which almost 30 years have passed) will be a first for Australia. Complex economic questions arise in relation to the form and quantum of compensation that would have arisen under a hypothetical bargain made many decades ago, and how best to bring forward the relevant terms of that bargain to present day values.
We are honoured to be assisting the Northern Land Council in these landmark proceedings, as well as hugely grateful for the unstinting contributions over many months of our colleagues Dale Yeats, Zoe Odgers, Bronwyn Taylor and Liam Hickey in bringing together this endeavour.
The Hon Dr Andrew Leigh MP gave an important