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NSW Government Bulletin

09 November 2022

#Government, #Native Title & Indigenous Cultural Heritage

Published by:

Ewan Raeside

NSW Government Bulletin

Native title compensation beyond the Native Title Act 1993 (Cth) – why government agencies should pay attention to the Gove Compensation Claim

As more native title claims are determined, questions remain about entitlement to compensation payable for acts that extinguish native title.

Only recently in 2019 did the High Court of Australia directly consider the compensation provisions of the Native Title Act 1993 (Cth) (NTA) in the case of Northern Territory v Griffiths (2019) 269 CLR 1 (the Timber Creek decision). The acts considered in that case were “compensable acts” on the basis that they were done after 31 October 1975, the commencement of the Racial Discrimination Act 1975 (Cth) (RDA).

But what about native title compensation for pre-RDA acts?

That issue is currently before the Full Federal Court in proceedings commenced in the Northern Territory (NTD43/2019 – Gove Compensation Claim). In that matter, the Court is being asked to decide whether there is any basis for compensation to be paid for pre-RDA acts under the “just terms” provision for the acquisition of property contained in section 51(xxxi) of the Constitution.

The hearing concluded on 28 October 2022 and the Full Court has reserved its decision. The decision has the potential to greatly expand the circumstances in which native title compensation is payable.

The Timber Creek decision and subsequent developments

The Timber Creek decision related to the amount of compensation to be awarded to the Ngaliwurru and Nungali Peoples (the Claim Group) for the loss, diminution, and impairment on their native title rights and interests of certain compensable acts. These acts included various grants of tenure and the construction of public works in the township of Timber Creek between 1980 and 1996.

The majority of the High Court acknowledged the utility and assistance of the existing body of law relating to the acquisition of property, but noted that those principles were not determinative of the issues arising under the NTA.

Ultimately, the High Court awarded the Claim Group:

  1. compensation for economic loss, totalling $320,500 (based on 50 per cent of the unencumbered freehold value of the relevant land)
  2. simple interest on the award of compensation for economic loss, totalling $910,100 (calculated from the date of the relevant compensable act to the date of the judgment)
  3. compensation for non-economic cultural loss, totalling $1.3 million (awarded for the loss of the spiritual relationship of the Claim Group to their country).

While the Timber Creek decision was instructive, many questions remain regarding native title compensation payable for the loss or impairment of native title.

There are a number of current native title compensation claims across the country which have not yet been decided but which may provide some further guidance, including NTD25/2020 (McArthur River Project Compensation Claim) also in the Northern Territory; QUD327/2020 (Pitta Pitta Compensation Claim) in Queensland; and WAD 141/2020, WAD 142/2020 and WAD 269/2020 (Tjiwarl Compensation Claims) and WAD37/2022 (Yindjibarndi Compensation Claim) in Western Australia.

Various governments have also begun to grapple with the complexities in this area of law. For instance, in March 2022, the Valuer-General of New South Wales (VG) published its Compensation for Cultural Loss Arising from Compulsory Acquisition policy in relation to compensation for non-economic loss (including cultural loss) for compulsory acquisition of native title under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW). The VG’s policy acknowledges various forms of cultural loss may be sought, and provides some principles for a valuation for the quantification of compensation that it will apply.

The Gove Compensation Claim – native title compensation beyond the Native Title Act 1993 (Cth)?

In November 2019, Dr Galarrwuy Yunupingu (on behalf of persons known as the Gumatj Clan or Estate Group) (Applicant) filed the Gove Compensation Claim seeking compensation from the Commonwealth and the Northern Territory governments for the acquisition of native title rights and interests on the Gove Peninsula.

The Applicant argued that the acquisition occurred as a result of the grant of interests in the land, including pastoral and mining leases, before the commencement of the RDA. Various news sources noted that the Applicant was seeking compensation of around $700 million.

In April 2022, the Commonwealth objected to the factual basis of the Gove Compensation Claim and the matter proceeded to a Full Court hearing. In October 2022, during a five-day hearing in Darwin, the Court reworked the Commonwealth’s objection into a series of Separate Questions it will decide.

In summary, the Separate Questions ask whether all or part of the Gove Compensation Claim fails, because certain pre-RDA acts were not an “acquisition of property” under the Constitution, or because the pre-RDA acts otherwise did not affect native title – meaning that no compensation could be payable.

Following the hearing, the Full Court reserved its judgment on the Separate Questions.

Implications for government agencies

The Court’s decision has the potential to expand compensation liability for pre-RDA acts, subject to any appeal rights that the parties may exercise. It will be of particular interest to government bodies that may be responsible for compensation.

We will continue to monitor the case and provide further updates once the Court’s decision is handed down.

Authors: Jenny Humphris & Ewan Raeside

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Practice and Courts

NSW Court of Appeal – decisions reserved as at 4 November 2022.
Read more here.

AAT Bulletin Issue No.22/2022

The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals divisions (31 October 2022). Read more here.

Publications – articles, papers and reports

19,000 homes planned for South West Sydney
The NSW Government will be responsible for assessing three planning proposals that could unlock around 19,000 new homes, and secure the protection and implementation of important koala corridors, in Appin, Gilead and North Appin (2 November 2022). Read more here.

IPC Annual Report 2021/22
The Information and Privacy Commission NSW (IPC) has published its Annual Report 2021/22 today which documents its work and achievements throughout the 2021/22 reporting period (1 November 2022). Read more here.


New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act – Waverton Bowling Club [2022] NSWLEC 130
ABORIGINAL LAND RIGHTS – ss 36(1)(b) and 36(1)(c) of Aboriginal Land Rights Act 1983 (NSW) – whether claimed land was lawfully used or occupied – whether claimed land was needed or likely to be needed for essential public purpose of public recreation – claimed land reserved for Community and Sporting Club Facilities – licences for access and site investigation held by local council – appeal upheld.
Aboriginal Land Rights Act 1983 (NSW), Crown Land Management Act 2016 (NSW), Crown Land, Management Regulations 2018 (NSW).

Falamaki v Council of the City of Ryde [2022] NSWLEC 1601
APPEAL – development application – internal alterations and change of use to dual occupancy – contentions resolved – deferred commencement consent.
Environmental Planning and Assessment Act 1979 ss 1.4, 4.15, 4.16, 6.4, 6.25, 6.26, 8.7, Environmental Planning and Assessment Regulation 2000, Sch 1, Land and Environment Court Act 1979 s 34AA, Ryde Local Environmental Plan 2014 cl 6.4, State Environmental Planning Policy (Affordable Rental Housing) 2009 Pt 2, Div 1, cll 10, 13, 14, 15, 16A, 17, 18, State Environmental Planning Policy (Resilience and Hazards) 2021 cl 4.6, State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, Pts 2A, 3, cll 2A.1, 2A.3.

Jeray v Blue Mountains City Council [2022] NSWCATAD 343
ADMINISTRATIVE LAW – administrative review – Government information – refusal to deal with application – whether substantial and unreasonable diversion of agency’s resources – consideration of ss 60(3A) and (3B) factors.
Administrative Decisions Review Act 1997 (NSW), Civil and Administrative Tribunal Act 2013 (NSW) , Freedom of Information Act 1989 (NSW), Government Information (Public Access) Act 2009 (NSW) , State Records Act 1998 (NSW).

Brown v Secretary, Department of Education [2022] NSWIRComm 1095
EMPLOYMENT AND INDUSTRIAL LAW – Termination – Unfair dismissal – teacher did not attend meetings as directed – consideration of whether direction to attend meetings was lawful –teacher can be placed on a teacher improvement plan any time after a review finds underperformance – teacher breached direction to work collaboratively with supervisors and other colleagues and treat colleagues with respect – whether conduct was misconduct warranting termination of employment – dismissal not harsh, unreasonable, or unjust.
Industrial Relations Act 1996 (NSW) ss 84, 88, Interpretation Act 1987 (NSW) s 49, Teaching Service Regulation 2017 Reg 5, Teaching Service Act 1987 (NSW) ss 5A, 6, 93A, 93D, 93G, 93H, 93J.

Kaltoum v Commissioner for Fair Trading [2022] NSWCATOD 138
OCCUPATIONAL LICENSING – building practitioner – whether Applicant has the qualifications, skills, knowledge and experience to carry out the work for which the Applicant is seeking registration.
Administrative Decisions Review Act 1997 (NSW), Design and Building Practitioners Act 2020 (NSW), Design and Building Practitioners Regulation 2021 (NSW).

Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221
ADMINISTRATIVE LAW – judicial review – whether reasons of primary judge form part of the record – meaning of “ultimate determination” – primary judge’s decision a step towards an ultimate determination – reasons of primary judge do not form part of the record .
CHILD WELFARE – Care proceedings – whether primary judge made an error of law on the face of the record by misconstruing or failing to apply the requirement that there be a ‘realistic possibility of restoration within a reasonable period’ – submissions invite merits review of primary judgment and are therefore rejected
CHILD WELFARE – Care proceedings – paramountcy of the best interests of the child – whether primary judge erred in focusing on the possibility that a parent would be capable of providing a safe environment for the child – primary judge did not err.
ADMINISTRATIVE LAW –Irrelevant and relevant considerations – judge below erred in the way in which he took into account whether a parent was denied procedural fairness.
Administrative Decisions (Judicial Review) Act 1977 (Cth), Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 9, 10A, 60, 61, 62, 69, 70, 70A, 71, 72, 78, 79, 82, 83, 85, 91, Children and Young Person’s (Care and Protection) Amendment Act 2018 (NSW), Courts Legislation Amendment Act 1996 (NSW), Interpretation Act 1987 (NSW), s 8, Supreme Court Act 1970 (NSW), s 69.

Environment Protection Authority v Eveston (No 3) [2022] NSWLEC 128
ENVIRONMENTAL OFFENCES: breach of licence – failure to remove waste in contravention of an environment protection licence – plea of guilty – factors to take into account in determining sentence – whether environmental harm – potential environmental harm – whether harm foreseeable – whether offender could take practical measures to reduce the harm – whether offender demonstrated contrition and remorse – comparable cases – whether a restoration order appropriate – application of totality principle – monetary penalty imposed – moiety order – publication order – costs ordered.
Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), Criminal Procedure Act 1986, ss 215(1)(a), 257B, 257G, Fines Act 1996, ss 6, 122, Land and Environment Court Act 1979, s 34(3), Protection of the Environment Operations Act 1997, ss 3, 64(1), 78, 81, 91(5), 241(1), 245, 248, 250(1)(a), 258(2), 169(1).

Seek Justice Pty Ltd v Minister for Planning [2022] NSWCA 220
PRACTICE AND PROCEDURE – application for expedition of leave application and appeal – not in interests of justice to grant high degree of expedition sought – application dismissed – Costs in the cause
Civil Procedure Act 2005 (NSW), ss 56-58


New South Wales Legislation

Proclamations Commencing Acts
Electoral Legislation Amendment Act (No 2) 2022 – published LW 2 November 2022
Electoral Legislation Amendment Act 2022 No 57 – published LW 2 November 2022

Regulations and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Bee Keeping and Grazing) Regulation 2022 – published LW 4 November 2022
Environmental Planning and Assessment Amendment (Snowy 2.0 and Transmission Project) Order 2022 –published LW 4 November 2022
Environmental Planning and Assessment Amendment (Wagga Wagga Activation Precinct) Regulation 2022 – published LW 4 November 2022
Greater Cities Commission Regulation 2022 – published LW 4 November 2022
Local Court (Amendment No 12) Rule 2022 – published LW 31 October 2022
Referable Debt Order – published LW 4 November 2022

Environmental planning instruments
Clarence Valley Local Environmental Plan 2011 (Amendment No 51) – published LW 4 November 2022
Hornsby Local Environmental Plan 2013 (Map Amendment No 2) – published LW 4 November 2022
Kempsey Local Environmental Plan 2013 (Map Amendment No 3) – published LW 4 November 2022
Parramatta Local Environmental Plan 2011 (Map Amendment No 5) – published LW 4 November 2022
Shoalhaven Local Environmental Plan 2014 (Map Amendment No 6) – published LW 4 November 2022
State Environmental Planning Policy (Transport and Infrastructure) Amendment (Bee Keeping and Grazing) 2022 – published LW 4 November 2022
Wingecarribee Local Environmental Plan 2010 (Amendment No 65) – published LW 4 November 2022
Woollahra Local Environmental Plan 2014 (Amendment No 28) – published LW 4 November 2022

Commonwealth Legislation

Act compilation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 27/10/2022 Act No. 156 of 1988 as amended
Social Security (Administration) Act 1999 02/11/2022 Act No. 191 of 1999 as amended
Veterans' Entitlements Act 1986 04/11/2022 Act No. 27 of 1986 as amended
Social Security Act 1991 07/11/2022 Act No. 46 of 1991 as amended

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Ewan Raeside

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