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Law

Compensation (Past Project)

Providing financial compensation for Indigenous people in native title claims is an increasingly important issue in Australia. The NTRU recognises the need to address the growing interest in the development of clear principles for compensation, particularly in the context of proposed alternative settlement processes. The issue of compensation is circumscribed through legislation in Section 51 of the Native Title Act 1993 (Cth).

In June 2009 the national meeting of Registered Native Title Bodies Corporate (RNTBC) also discussed the possibility of a compensation test case after a successful native title determination so that compensation issues are not clouded by issues relating to who the native title holders are.

Part of this project involved the compilation of an annotated case list and a reference list. These resources address questions including whether compensation is an adequate means for recognising the importance of land to Indigenous communities, how financial compensation should be determined over land and any tax implications arising from compensation.

The Native Title Research Unit has compiled resources addressing financial compensation relating to native title:

• Strelein, L, 2008, Taxation of Native Title Agreements, 274Kb Research Monograph 1/2008, Native Title Research Unit, Australian Institute of Aboriginal and Torres Strait Islander Studies, Canberra.

  This monograph discusses how taxation treatments may apply to native title and explores the complexity which arises when dealing with these two intricate legal regimes. The author suggests resolving the complexity of native title compensation is a policy priority. The author also calls for native title compensation payments to be exempt from Income Tax and GST regime.

• Burke, P, 2002. 'How can judges calculate native title compensation?', 381Kb Discussion Paper Native Title Research Unit, AIATSIS, Canberra.
  Provides possible principles for determining native title compensation. The author notes the problem of awarding compensation on ‘just terms’ given areas with the strongest native title are often land with a limited financial value. Principles which accommodate non-economic losses arising from loss of native title compensation are proposed and applied to a number of hypothetical examples.
• Annotated Case List 7Kb
  

  Provides case summaries into relevant cases such as: Walmbaar Aboriginal Corporation v State of Queensland [2009] FCA 579, Jango v Northern Territory of Australia [2006] FCA 318, Jango v Northern Territory of Australia [2007] FCAFC 101.

• Annotated Reference List 59Kb
  

  Provides a description of native title compensation related references published both within AIATSIS through the Native Title Research Unit and the NTRU Issues paper series Land, Rights, Laws: Issues in Native Title, as well as within other journals and institutions