Aboriginals in Australia who were stripped of land rights should be compensated for “spiritual harm”, a
landmark ruling by Australia’s High Court said on Wednesday.
The court ruled that the Ngaliwurru and Nungali peoples from a remote part in the
Northern Territory were entitled to compensation for being disconnected from their lands by the government.
The ruling which has been described as the biggest ‘native title’ ruling on indigenous rights to traditional land and water in decades could pave the way for billions of dollars in compensation nationally, experts say.
Wednesday’s ruling centred on a
1.27 square kilometre patch of land in the remote Northern Territory town of Timber Creek. Portions of the land were used by the state government to build infrastructure and other public works between 1980 and 1996.
The high court said that impinged on “native title” rights and interests of the indigenous peoples, a
report by the AFP said.
The court upheld a ruling that the indigenous group was entitled to compensation not only for the value of the land and lost interest but “compensation for cultural loss.”
It said the Northern Territory (NT) government was to pay $2.53 million (over 1 million U.S. dollars) in damages to the Ngaliwurru and Nungali groups for an earlier federal court ruling which found that the NT government “extinguished” their native title rights when they built infrastructure on their land in the 80s and 90s.
Experts say this is one of the most significant native title cases since the Mabo case recognised Aboriginal ownership of the land in 1992.
The Native Title Act 1993 was introduced after the landmark “Mabo” decision in 1993 overturned the British claim that Australia was “terra nullius” – nobody’s land.
It found that Aboriginal rights to some, but by no means, all land, survived colonisation and were not “extinguished”, a report by
Aljazeera said. Aboriginal groups have since been able to file native title claims over large parts of the country.
The Native Title Act provides a right of compensation for the “impairment and extinguishment” of native title rights. However, it provides little guidance on what compensation means in practice. Thus, parliament left the details to the courts,
The Conversation said.
In 2016, Justice John Mansfield awarded $3.3 million in a milestone decision that included $1.3 million in compensation for the loss of connection to the land suffered by the traditional owners in the Timber Creek case.
It was appealed to the Full Federal Court, where it was reduced to $2.9 million. The case subsequently went to the High Court.
On Wednesday, the High Court found that the indigenous owners should receive $2.5 million (over 1 million U.S. dollars) for the loss of their native title, reducing the amount by 400,000 Australian dollars based on the judges’ assessment of the traditional owners’ economic loss.
However, in a victory for the traditional owners, the High Court upheld the award of $1.3 million Australian dollars (over 920,000 U.S. dollars) for their cultural or spiritual loss. The Northern Territory and federal governments had earlier argued that it was excessive.
But the High Court said in its ruling that the $1.3million “was not manifestly excessive and was not inconsistent with acceptable community standards.”
Basically, the compensation award was split into three parts: the economic value of the land, interest on that amount, and the sum that should be paid for spiritual losses.
This was the first time the High Court considered the monetary value of the removal of land rights, including economic loss and loss of spiritual connection.
“This is a ruling that brings a different light on native title and the cultural and spiritual loss, let alone the inability to take any economic opportunities,” Northern Land Council interim CEO Jak Ah Kit told
Al Jazeera.
“We need to revisit those cases where they were unjustly compulsorily acquired by governments, and we’ll then need to take instructions from them,” the head of the council that had helped the Ngaliwurru and Nungali groups to fight for compensation added.
Ahead of the ruling, experts had said that other states like Queensland and South Australia could file similar claims.
Tony Denholder, a partner at law firm Ashurst
said the case “case “will have strong implications for the more than 2.8 million square kilometers of native title land holdings across the rest of Australia.”
He told
AFP that it “will likely trigger compensation applications from many of the hundreds of native title holder groups around Australia, who finally have clarity — albeit limited — on how they might quantify the compensation owed to them.”
“It is likely that nationally, the liability for native title compensation will run into the billions of dollars.”
