Two recent court cases, one ending in a High Court decision and the other in a settlement agreement, may have significant implications for compensation payments from Australian governments to Aboriginal and Torres Strait Islander people.

In the Northern Territory, the High Court issued their judgement in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (‘the Timber Creek case’) on 13 March 2019. This case was the first High Court decision on the award and assessment of compensation for loss of Native Title. The High Court:

• Held that compensation for economic loss from the extinguishment of native title rights should be determined as a percentage of the freehold value equivalent to the degree of rights lost. In this case, the High Court determined that the rights extinguished were non-exclusive and usufructory (having the use or enjoyment of) and so assessed an economic loss of 50 per cent of the freehold value or $320,250.
• Ordered that simple interest should be paid on the economic loss, to compensate for the compensation not being awarded until the present, amounting to $910,100.
• Upheld a substantial award by the federal court of $1.3 million for cultural loss by the Native Title holders and rejected the Northern Territory and Commonwealth governments’ arguments that awards for cultural loss should be nominal. This last part of the judgement has attracted the most attention.

This precedent may affect the Commonwealth in two ways:

• The Native Title Act 1993 (NTA) operates such that state governments are only liable to pay compensation for extinguishing Native Title after the passage of the Racial Discrimination Act 1975 (race-based extinguishment of property rights by the states being legal before that date). In the Timber Creek case, the Northern Territory Government will pay compensation for acts between 1980 and 1996. However, this temporal limitation on compensation claims may not apply to the Commonwealth, which, as noted in Dean and Gaudron JJ’s portions of the Mabo II judgement (para 62), is also bound by section 51(xxxi) of the Constitution to only acquire property on ‘just terms’ (see also Sections 51, 51A and 53 of the NTA). Some commentators have suggested that the Commonwealth might therefore be liable to pay ‘just terms’ compensation for any extinguishment of Native Title by it since 1901. If this were the case, then the amounts could be determined similarly; paragraph 237 of the Timber creek judgement refers to the amount for cultural loss being determined on the basis of what is ‘appropriate, fair or just’.

  This may be particularly relevant in the Northern Territory, which was governed by the Commonwealth from 1911 to 1978. Recent media reports have suggested that the Yolngu people of Arnhem Land, who submitted the famous bark petition land rights claim to Parliament in 1963 and fought the Gove land rights case in 1971, may now apply for compensation from the Commonwealth for the seizure of their land for bauxite mining in 1963. Other groups are reported to be actively considering similar options.

• Secondly, when the Native Title Act 1993 was first passed, the Commonwealth offered to fund 75 per cent of any compensation for which the states or territories were found liable (under section 200 of the NTA). This offer remained on the table until it was formally withdrawn by the Gillard government, an action protested by then Attorney General of Western Australia and current Commonwealth Attorney General Christian Porter. Given the precedent set by the Timber Creek case for a much higher level of compensation for cultural loss than state and territory governments may have anticipated, the state and territory governments are likely to agitate for the Commonwealth to re-agree to part-fund their compensation bills.

The second case concluded in Queensland, where Deputy Premier and Minister for Aboriginal and Torres Strait Islander Partnerships Jackie Trad announced on 9 July 2019 that a $190 million settlement had been agreed to settle a class action for ‘stolen wages’ led by Mr Hans Pearson (the uncle of prominent Cape York leader Noel Pearson), who was represented by Shine Lawyers. The settlement is substantially larger than the previous compensation schemes offered by the Queensland government, but smaller than the estimated $500 million kept from Aboriginal and Torres Strait Islander Queenslanders during the protectorate era.

Stolen wages refers to all wages, savings, entitlements and other monies due to Aboriginal or Torres Strait Islander people during the periods (approximately from the Federation era to the 1960s–1970s, and the 1980s in some Queensland reserves) where governments sought to control the lives of Aboriginal people by making them wards of the State or otherwise placing them under the power of ‘protectors’, Aboriginal Protection Boards or similar government institutions. These institutions or their governments nominally held the wages and other entitlements of Aboriginal workers in trust (as Aboriginal people were not considered capable of managing money), but the moneys were frequently not paid, used for other state purposes, or stolen by ‘protectors’.

Following this settlement, Shine Lawyers have announced they may pursue similar class actions in Western Australia and the Northern Territory. The Commonwealth and various pastoral companies would likely be the defendants in any Northern Territory claim, as the Northern Territory only gained self-government in 1978 and the Commonwealth indemnified the Northern Territory government against claims predating self-government. Shine’s head of class actions, Jan Saddler, has stated that ‘more than 2200 Indigenous Territorians who may have worked during the relevant period were still alive today and could be owed up to $100,000 each.’

The Commonwealth’s potential complicity in and liability for stolen wages in the Northern Territory was explored in the Senate Standing Committee on Legal and Constitutional Affairs 2006 report Unfinished business: Indigenous stolen wages. That inquiry received evidence on a number of ways Aboriginal people in the Northern Territory were denied wages and entitlements, including non-payment and under-payment of wages, fraud, deliberate non-enforcement of employment conditions by Commonwealth officials, misclassification of workers, appropriation of pensions and child welfare payments by stations and protectors, government transfers of Aboriginal people’s unclaimed trust accounts to consolidated revenue, and Aboriginal workers being charged highly inflated prices at station stores which held their wages in credit.

The inquiry could not determine the overall extent of stolen wages, as the Committee was told that this would require extensive archival work. The Committee therefore recommended that access to archives be facilitated; that AIATSIS be funded to conduct research on stolen wages; and that, if preliminary research revealed that the extent of stolen wages in the Northern Territory was similar to that of other jurisdictions, then a Commonwealth compensation scheme should be created, on the model of the New South Wales Aboriginal Trust Fund Repayment Scheme (which operated from 2004 to 2011).

The Rudd government response in 2010 largely rejected these recommendations, instead stating that the Commonwealth would ‘consider any substantive claims’ put to it.