Native Title Compensation in Australia: Current State of Play

Key takeaways

Native Title Holders can claim compensation for the loss or extinguishment of native title rights, usually in monetary form.
Landmark cases like Griffiths (Timber Creek) confirmed that compensation can cover economic loss, cultural loss, and interest.
Current claims, including Yindjibarndi v WA and Yunupingu v Commonwealth, are expected to set major precedents on how compensation is calculated.
The law is evolving, with each case shaping how future native title compensation claims are assessed.

What is native title compensation?

Once native title has been determined, Native Title Holders (NTHs) can apply for compensation for loss caused by the extinguishment or impairment of their native title rights. This is typically in monetary form. There have only been a handful of compensation claims determined by the Court. As such, NTHs, legal professionals and the Court have navigated this area of law with limited guiding precedent. The following guidance note considers four key compensation claims, both completed and ongoing. These examples highlight the unique nature of each claim and the potential pathways for future claims as impacted by the decisions of the Courts and parties in these claims.

De Rose v State of South Australia [2013] FCA 988

This was the first determined native title compensation claim.

Following recognition of non-exclusive native title over the De Rose Hill pastoral lease in 2005,[1] the De Rose Hill-Ilpalka Aboriginal Corporation RNTBC brought a claim for compensation in the Federal Court in 2011 pursuant to the Native Title Act 1993 (Cth) (NTA). The claim was for compensable acts both with the determination area and in areas that had been excluded from the determination where native title had been extinguished. Due to disagreement as to whether the RTNBC could bring a compensation claim outside of their determined area the native title holders authorised four individual persons to file a new claim over particular areas of extinguishment.[2] The RNTBC joined as a respondent party to this claim and the first claim was dismissed.

Compensation was agreed by the parties for three acts occurring after 1975, these being;

A freehold grant made in 1992;
Creation of that part the Sturt Highway Corridor in 1981 that traversed the claim area; and
Establishment of Agnes Creek carpark in 1996.

The claim was resolved by agreement without the need for a trial and determined by consent orders made by the Federal Court.[3] The terms of the settlement, including the amount of compensation payable, were contained in a confidential Deed of settlement and have not been made public. However, relevant evidence was noted in the determination as set out in the judgment of Mansfield J. His Honour also delivered the judgment in the subsequent first litigated native title compensation claim, addressed below.

Since this decision, amendments have been made to the NTA to clarify that RNTBCs can bring a compensation claim over extinguished areas including areas excluded from the native title determination because of the effect of s61A(2) of the NTA.

Northern Territory v Griffiths (Deceased) on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (Griffiths)

This was the first judgment of a litigated (or ‘contested’) native title compensation claim.

In 2011 the Ngaliwurru and Nungali peoples lodged a compensation claim following their 2009 native title determination recognising exclusive and non-exclusive possession in and around the township of Timber Creek in the Northern Territory.[4] The claim was for several acts done after 1975, when non-exclusive native title existed over the relevant land. All compensable acts were “past acts” or “previous exclusive possession acts” for the purpose of the NTA. A determination of compensation was made by Justice Mansfield in 2016.[5] This was appealed to the Full Federal Court in 2017[6] and again to the High Court, with the matter finally determined in 2019.[7]

The High Court handed down a landmark judgement as the first litigated native title compensation determination.[8] The Claim Group structured its case by claiming separate heads of damage for economic and non-economic (cultural) loss. This approach was considered appropriate by the trial judge and confirmed both by the Full Federal Court and High Court. Compensation was awarded under three separate heads of loss:

Economic losses
Non-economic losses arising from loss of connection to country
Interest on economic loss

Economic Loss

The trial judge determined that economic loss is to be calculated based on the freehold value of the land as at the date that the compensable act occurred, with interest to be applied.

Economic loss was initially calculated by the trial judge to be 80% of the freehold land value.[9] However, on appeal the Full Court reduced this figure to 65%. This was further reduced by the High Court to 50% of freehold land value.

Cultural Loss

The trial judge awarded the native title holders $1.3 million in compensation for non-economic loss.[10] The trial judge found a ‘parcel by parcel’ approach was not appropriate to calculate cultural loss, instead considering the loss holistically.[11] This approach was upheld by the High Court.[12]

“The earlier acts, which were not compensable, punched holes in what could be likened to a single large painting – a single and coherent pattern of belief in relation to a far wider area of land. The subsequent compensable acts punched further holes in separate parts of the one painting, and the damage done was not to be measured by reference to the holes created by the compensable acts alone, but by reference to the effect of those holes in the context of the wider area:”[13]

The Court also rejected the idea that the loss would diminish over time as people passed, instead acknowledging its ongoing effects on future generations.[14] In order to establish a limit for compensation, the court considered what would be accepted by the Australian Community.[15] The decision of the trial judge was upheld in both appeals and $1.3 million in compensation for non-economic loss was awarded.

Interest

Both the Full Court and High Court upheld the award of simple interest, to be calculated from the date of the extinguishing act, however, did not rule out the possibility that compound interest could be payable in different factual circumstances.

Outcome

The High Court awarded the applicants with compensation of $2,530,350, comprised of;

$320,250 for economic loss
$910,100 for interest on the economic loss, and
$1,300,000 for cultural loss

Griffiths has set an example for future claims to use as a basis for their assessments of compensation calculations, and particularly the claims for specific heads of loss. However, the calculation of compensation is fact specific and the approach in Griffiths is not a hard-set rule for future compensation claims to follow.

Yindjibarndi v State of WA

This is a current litigated claim addressing compensation for large scale future acts.

The Yindjibarndi People were granted native title rights in 2020. The Yindjibarndi Ngurra Aboriginal Corporation RNTBC (YNAC) was then established and lodged a claim for compensation in February 2022 against Fortescue Metals Group (FMG) in relation to the Solomon Hub Mine, located within the determination area.

Much like Griffiths, this claim includes heads of damage for both economic and non-economic loss. However, while Griffiths, addressed compensation for past acts,this claim addresses compensation for valid future acts, being the grant of various mining tenements to FMG Resources. Each of the tenements were granted after the Yindjibarndi native title claim was lodged. Neither the Yindjibarndi registered native title claimant nor the RNTBC consented to or received any compensation for the grants of the tenements. The applicant initially sought $500 million in compensation, increasing this to $1.8 billion, including approximately $1 billion for cultural loss, $678 million for economic loss and amounts for the destruction of specific sites including songlines and heritage sites, as well as trauma. A key argument by the Yindjibarndi is that compensation should reflect the potential amount of royalites the Yindjibarndi should have been able to negotiate with Fortescue.

A key dispute between the parties is where the entitlement to compensation arises.

The amounts offered in response by both the State Government and FMG resources are significantly lower than the compensation claimed.

The State Government has offered $128,114 for economic loss, noting the remoteness of the land and freehold value. The calculations are made more complex due to the high value of underground minerals within the area. FMG argues that minerals are not included under native title rights and therefore need not be considered when calculating the economic value of the land. In relation to cultural loss, the State has proposed an award of $5 to $10 million.

Judgement is currently reserved and the Court is expected to make a determination late in 2025 or early 2026.

Commonwealth v Yunupingu [2025] HCA 6

This is a High Court decision addressing constitutional powers.

Dr Yunupingu AC (now deceased), on behalf of the Gumatj Clan or Estate Group of the Yolngu People, has brought two applications under the NTA.

The first is an application for a determination of native title in favour of the Gumatj Clan over an area in the Gove Peninsula. Amongst the native title rights and interests claimed in this application is a non-exclusive right to “access, take and use for any purpose the resources of the claim area (including resources on, below or above the surface of the claim area, such as minerals on or below the surface of the claim area)”.

The second is a compensation application seeking compensation from the Commonwealth for certain “acts” done by the Commonwealth while the Northern Territory was under Commonwealth administration. The acts which can ultimately be claimed in this application will depend on findings of the Federal Court.

The determination application has not been decided and other issues remain in dispute.

However, the Full Court stated questions of broad legal significance in the compensation application to be determined first and separately from other issues in the proceedings.

In a landmark judgement of national significance, the High Court answered important questions of law in favour of the Gumatj people, rejecting the Commonwealth’s arguments and paving the way for compensation to be claimed for various acts done by the Commonwealth government between 1939 and 1969 which resulted in the extinguishment of native title.

The Court considered three main questions of law, making the following findings;

The Commonwealth does not have power to make laws for the acquisition of property other than on just terms

In Teori Tau v the Commonwealth,[16] the High Court held that s51(xxxi) of the Constitution did not limit the Commonwealth’s powers under s122 of the Constitution which empowers the Commonwealth to make laws for the government of any Territory. This longstanding precedent was overruled by the High Court in Yunupingu case, making clear that even when exercising its powers under s122 of the Constitution the Commonwealth cannot make laws for the acquisition of property unless on just terms.

The legislative “extinguishment” of native title is an acquisition of property

The Commonwealth relied on earlier descriptions of native title as “fragile” and “inherently susceptible to extinguishment” to argue that the extinguishment of native title was not an acquisition of property.

The High Court rejected this argument. The majority found that to accept the view that native title rights are to be treated as fragile or defeasible at common law, where they are not under traditional law, would undermine the motivating rationale of the recognition of native title formulated in Mabo [No 2] of ensuring that all persons, including native title holders, are equal before the law in the enjoyment of their human right to own and inherit property.[17]

The grant of pastoral lease in 1903 did not extinguish all native title rights in minerals.

The third issue dealt with the extinguishing effect of a pastoral lease granted in the area in 1903 that included a provision that gave the Commonwealth the right to take and use minerals below the claim area.[18]

The Court held that the mere reservation of minerals did not have the effect of conferring title to those minerals exclusively on the Crown and therefore did not extinguish any pre-existing native title rights.[19]

It should be noted that the Court has not yet considered whether the Gumatj held non-exclusive native title rights in minerals under their traditional laws and customs.

Conclusion

There remains limited case law on how native title compensation should be valued. The above claims demonstrate the developments in this area since the De Rose Hill determination. Each litigated claim has assisted to clarify and develop principles guiding courts, legal representatives and claimants in future claims. Claims such as Yunupingu and Yindjibarndi are likely to have a significant impact on future decision making, setting further precedents on the quantum of compensation and providing important clarification on the nature of native title and the protections afforded it under the law. There are over 500 positive Native Title determinations within Australia,[20] as such native title compensation claims will likely remain a dynamic area of law as many groups are expected to lodge claims, each containing different contexts and legalities, expanding upon the currently limited precedents.

This is general commentary only and is not legal advice. If you are unsure how this commentary applies to you, seek expert legal advice. MPS Law continues to assist with the resolution of native title compensation claims, so contact us for more information.

[1] De Rose v South Australia (No 2) (2005) 145 FCR 290.

[2] De Rose v South Australia [2013] FCA 988.

[3] Ibid.

[4] Griffiths v Northern Territory of Australia (2007) 165 FCR.

[5] Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900.

[6] Northern Territory v Griffiths [2017] FCAFC 106.

[7] Northern Territory v Griffiths (Deceased) on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7.

[8] [2019] HCA 7.

[9] [2016] FCA 900, [463].

[10] [2016] FCA 900, [463].

[11] [2016] FCA 900, [342].

[12] [2019] HCA 7, [197].