Native Title Compensation – what you need to know

Posted: June 19th, 2019



As a member and contributor to the National Native Title Council (NNTC), YMAC is pleased to share the NNTC’s Compensation fact sheet  that offers some clear guidance on a complex but highly important topic – loss of culture and Country.

The fact sheet outlines some of the precedents set by the recent High Court judgment in te Timber Creek native title compensation case and points that claim groups should keep in mind regarding their native title.

Once you have read the NNTC information, YMAC suggests you also consider the following regarding compensation for mining leases.

Mining leases do not extinguish native title, but they can have a significant effect on Country as well as destroy significant sites, disrupt the environment and contaminate water. The High Court’s recent decision did not talk about compensation where native title is not extinguished. Further court decisions will help explain the considerations for native title mining compensation. The Native Title Act does provide the following guidance:

  • When determining compensation for a mining lease, the court must consider how compensation would be calculated if the mining lease was instead over freehold land. Each State and Territory has its own law saying how to calculate mining compensation.
  • Compensation can only be awarded against a mining lease once. If a mine causes significant disruption after an award of compensation is made, no further compensation claims can be made. A claim group should be aware of this before making a compensation claim against an operational mine.
  • States and Territories can pass laws making the mining companies liable for native title compensation for mining. Several States and Territories have passed these laws.
  • A claim group can seek compensation for mining leases granted after the Racial Discrimination Act commenced (October 1975).
  • In general, if a mining lease is granted through an Indigenous Land Use Agreement (ILUA), a claim group cannot seek compensation beyond what is in the ILUA.
  • A claim group can seek compensation for a mining lease if it was granted without an agreement. This includes if it was granted because at the time there were no registered claims, or determinations over the area, or if it was subject to a successful Future Act Determination Application in the National Native Title Tribunal.
  • It may be possible to make a compensation claim for a mining lease even if there was a Right to Negotiate agreement (also known as a s31 agreement). However most s31 agreements contain either:
  • a “set off” provision, which means that any subsequent compensation award to be reduced by any payments made under the agreement; or
  • a “full and final compensation” clause, preventing the native title party from seeking any additional compensation.

If you have any questions please contact your Native Title Representative Body.