Compensation for Native Title

‘The standard of entries was challenging and impressive, but we unanimously agreed that the clear winner was the manuscript Compensation for Native Title. It is a significant piece of work on an important topic and will be an excellent and important book’.
– from The Holt Prize 2021 judging panel the Hon Susan Crennan AC QC, Emeritus Professor Mark Aronson of the University of New South Wales and Perry Herzfeld SC of the New South Wales Bar

This book is about how Australian law compensates Indigenous Australians for the loss or impairment of native title rights. Although statutory entitlements to compensation have been available in the Native Title Act 1993 (Cth) since its commencement, it was not until 2016 that the first judicial determination of compensation was made. In 2019 the High Court of Australia gave its first consideration to the topic, in Northern Territory v Griffiths [2019] HCA 7 (the “Timber Creek” decision).

This book surveys the current state of the law, explores future directions, and seeks to resolve some as yet undetermined issues. It provides the first extended analysis of this emerging body of law. Apart from considering compensation under the Native Title Act and how it should properly be assessed, the book also explores the availability of common law remedies for native title holders, and considers the implications of the Commonwealth Constitution’s guarantee of “just terms” for certain acquisitions of property.

A key theme throughout the book is a recognition of a tension between the desirability of applying existing legal principles and doctrines, while also recognising the uniqueness of native title. The book provides a framework for thinking about how to approach – and resolve – that tension. It also critiques aspects of the approaches taken by the courts so far, and offers a new path forward. Ultimately, it is argued that native title holders can and should be recompensed through the application of well-established principles and methods.