When British colonists landed in Australia and began their incremental flag-planting of the terrain, they decided that, legally speaking, the land belonged to no one. This concept – called terra nullius – denied the Aboriginal population, at that time up to a million strong, any legal right to the land they lived on.
It wasn’t until 1992 that the Australian courts finally recognised that the Australian land mass had not been a ‘no man’s land’. A new concept called ‘native title’ was introduced stating that Aboriginal people had always had rights to land and water according to their traditional law and customs. The case provided compensation where any act committed after 1975 led to native title being extinguished.
Now, in a landmark ruling, Australia’s High Court has discussed how this compensation should be calculated, upholding an award of AUD2.53m in damages to the Ngaliwurru and Nungali Aboriginal people, based in a remote part of the Northern Territory. The money is to compensate for acts committed by the Northern Territory government which built roads and infrastructure through a town called Timber Creek in the 1980s and 1990s. The ruling could have ramifications far beyond this one case. Lawyers representing governments and mining companies which own land in remote areas, have been reported as saying that the case paves the way for billions of dollars in compensation nationally.
Megan Brayne, a native title lawyer, explains that the ruling is particularly important, and unusual, because the compensation takes into account both economic loss and non-economic loss, with the latter focused on the spiritual and cultural disruption suffered by the groups – an alien concept in English law. ‘The High Court conceptualised the landscape like a painting with holes punched in where different tenure was granted,’ says Brayne. ‘They said you can’t just quantify loss as the loss of each lot alone – it’s the impact on the whole painting, the impact on the whole spiritual and cultural landscape.’
In determining this spiritual and cultural loss, the judge took into account several different disrupted practices. Evidence included the fact that the Aboriginal population was hurt by an important initiation site being too close to the town. The work also disrupted the tribe’s ‘dreaming track’ – a path across the land or the sky which marks the route followed by an Aboriginal ancestor.
Brayne is confident that this case will spark many other compensation claims. She says the estimate of several billions of dollars seems fair, though she also cautions that future claims may be contested: ‘There will be arguments run by other governments that this case should be distinguished and that less money should be paid in other claims, and Aboriginal groups may run arguments to increase the compensation amount.’
The case only applies to the loss of native title after 1975, so the precedent is limited in scope. Nevertheless, it remains an important win for Aboriginal people. ‘It’s not the golden ticket, but it’s a very significant step in the right direction,’ says Brayne.
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