Saunders on behalf of the Bigambul People v State of Queensland (No 2) [2021] FCA 190

Between:

Leonard Saunders on behalf of the Bigambul People (Applicant) 

and 

the State of Queensland (First Respondent), the Queensland South Native Title Services (Second Respondent), the Bigambul Native Title Aboriginal Corporation RNTBC and others named in the Schedule (Third Respondent)

Judge: Rangiah J  

Judgment: This decision concerns an application made by the State of Queensland to strike out an application for compensation for loss of Native Title by the Bigambul People. The State of Queensland argued that there was no proper basis for compensation to be awarded and therefore, the application should be struck out.

Justice Rangiah ultimately accepted the State's argument and decided that, because the compensation application failed to address certain required criteria, it had to be struck out [150]. In particular, the application failed to identify a specific compensable act, and to identify a specific area. 

His Honour refused to allow the Bigambul People to amend their compensation application to include the requisite criteria because doing so would have contravened s 64(1) of the Native Title Act (NTA) [149].

This case is important because it clarifies the requirements that must be met in order to be awarded compensation for extinguishment of Native Title. 

Background 

This case followed the landmark decision in Northern Territory v Mr A.Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples (better known as the Timber Creek decision), in which the High Court outlined the principles which govern how compensation for Native Title should be assessed.  

This case was heard at the same time as Wharton on behalf of the Kooma People v State of Queensland (No 2) [2021] FCA 191 because it concerned similar facts and issues [5].

Litigation History 

The proceedings began on 20 December 2019, when the Bigambul People filed an application for a determination of compensation for loss of Native Title under the Native Title (Federal Court) Regulations 1998 (Cth) [8].  

The State filed an application to strike out the compensation application on 4 March 2020, arguing that the Bigambul People's application failed to provide information required by s 61(5) of the NTA [22]. 

On 12 June 2020, the Bigambul people sought leave to amend their compensation application [25].

Entitlement to compensation 

Divisions 2, 2A, 2B, 3 or 4 of Part 2 of the NTA, read together with the Native Title (Queensland) Act 1993 (Qld), provide an entitlement to compensation for Native Title holders for:

• past acts (defined in s 228 of the NTA) attributable the Commonwealth or a State or Territory that took place before 1 January 1994 and which would otherwise be invalid because of Native Title;
• intermediate period acts (defined in s 232A of the NTA) attributable the Commonwealth or a State or Territory which took place between 1 January 1994 and 23 December 1996;
• past extinguishment of Native Title by certain valid or validated acts on or before 23 December 1996 either by previous exclusive possession acts (defined in s 23B of the NTA) or by previous non-exclusive possession acts (defined in s 23F). They may be acts of the Commonwealth, or of a State or Territory which has passed parallel legislation (s 23I);
• future acts (as defined in s 233 of the NTA) that have the potential to extinguish Native Title; and
• other legislative provisions relating to Native Title. 

Applications for compensation 

Section 50(2) of the NTA allows for an application for a determination of compensation to be made to the Federal Court of Australia.  

Under s 61(5)(1), an application must be in a prescribed form. Schedule 1 of the prescribed form (Form 4) requires all Native Title compensation applications to contain specific details of the act which it is claimed extinguished or affected Native Title rights and interests for which compensation is claimed.  

The application must also provide information identifying the boundaries of the area covered by the application, as well as a map of the boundaries of the area covered by the application. 

Whether an application for compensation can be struck out 

Under s 84C(1) of the NTA, if an application for compensation does not meet the basic requirements under s 61, a party to the proceedings may at any time apply to the Federal Court to strike out the application. Section 84C(1) also allows the compensation application to be amended after a strike-out application has been filed [64]. 

The outcome 

Justice Ranaigh held that the application for compensation should be struck out because it failed to:

• identify a compensable act;
• contain information identifying the boundaries of the area covered in the application; and
• include a map of the area covered in the application. 

Justice Ranaigh also refused to allow the Bigambul People to amend their application to include areas not identified in the original application because doing so would contravene s 64(1) of the NTA, which prohibits an amendment to an application including any area of land or waters that was not covered in the original application [149]. 

This case illustrates how a failure to specify a compensable act and/or identify a specific area can be fatal to compensation claims for a loss of Native Title. 

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