Pearson on behalf of the Tjayuwara Unmuru Native Title Holders v the State of Australia [2017] FCA 1561

Registered on the National Native Title Register

Between: David Pearson and Dennis Douglas on behalf of the Tjayuwara Unmuru Native Title Holders (Applicant) and State of Australia and Commonwealth of Australia (Respondent).

The Attorney General, on behalf of The Commonwealth of Australia, intervened in the proceedings but adopted a position of neutrality, neither opposing nor consenting to the making of the determination.

Judge: White J 

Determination

In this determination of the Tjayuwara Unmuru Compensation Application, the Court ordered the State of South Australia to pay monetary compensation to the Tjayuwara Unmuru Native Title Holders, as recognised in De Rose v State of South Australia [2013] FCA 687 (Tjayuwara Unmuru Native Title Claim). Compensation was for the past extinguishment, diminution, or impairment of their native title rights and interests, and payable in accordance with the parties jointly submitted confidential compensation agreement. A redacted version of the compensation agreement is included in White J's determination and is attached below as Schedule 3.

The compensation covered loss of native title over two small portions of the Stuart Highway corridor and land dedicated for the purpose of a Digital Radio Concentrator Tower under the control of Telstra Corporation Ltd [5]. These areas are surrounded by land which was the subject of the Tjayuwara Unmuru Native Title Claim and which, if not for the acts of the State, would have probably formed part of that determination [8].

Significance 

The determination of the Tjayuwara Unmuru Compensation Application was delivered after Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 where Justice Mansfield found that compensation was payable to the Ngaliwurru and Nugali Peoples for both economic and cultural loss. The appeal of that decision to the Full Federal Court largely upheld Mansfield J's decision (Northern Territory of Australia v Griffiths [2017] FCAFC 106). 

The determination of the Tjayuwara Unmuru Compensation Application did however come before the High Court authoritatively settled the principles of native title compensation in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (Timber Creek).

Background

The Nguraritja People were recognised as the native title holders of an area covering 4,500 square kilometres in the central north of South Australia in the De Rose v State of South Australia [2013] FCA 687. Their native title is managed by the Tjayuwara Unmuru Aboriginal Corporation as the RNTBC. 

In 2015, the Nguraritja filed an application seeking compensation for those areas excluded from the consent determination because native title had been extinguished in those areas through acts of the State of South Australia [2].

During extensive negotiations, on a confidential and without prejudice basis, the Nguraritja provided the State with culturally sensitive material to support their claim [27]. The Nguraritja claimed that the establishment of the Stuart Highway and a Digital Radio Concentrator tower interfered with the pathway of a restricted men's tjukurpa [30]. Details of the tjukurpa have never been recorded publicly, and only men with required ritual seniority can participate [30]. 

In testimony regarding the impact on the Nguraritja People, it was noted that the new highway cuts their creation stories and law into three separate areas [31]. An independent anthropological report, including ethnographic and testimonial evidence, was completed in order to show the connection between the Nguraritja people and the land acquired by the State [27]. 

The Nguraritja and the State of South Australia subsequently reached agreement on the terms of the compensation and sought to have the Court give effect to their agreement per section 87 of the Native Title Act (1993) (Cth) (NTA). 

Details of Judgment

Entitlement of the Applicant to compensation arises from Pt 2, Div 2 of the Native Title Act (NTA), particularly section 20(1) which establishes entitlement to compensation for native title holders when a State or Territory validates a 'past act', in this case in the Tjayuwara Unmuru Native Title Claim [19].

The parties jointly submitted to the Court an agreement of compensation pursuant to section 87 of the NTA. White J was satisfied that an order in the terms proposed by the Agreement was appropriate [20], given the parties had agreed on appropriate compensation [25], pursuant to section 51 of the NTA.

The parties jointly submitted to the Court that the order of compensation be made confidential on the grounds it was necessary to prevent prejudice to the proper administration of justice [42]. 

The Court so ordered that the compensation sum be kept confidential, with reference to Mansfield J's reasoning in De Rose v State of South Australia [2013] FCA 988. Mansfield J had concluded that suppression of the amount of compensation was necessary in that case to prevent prejudice to the proper administration of justice [45], because: 

1. to disclose figures, when there are presently no decisions addressing how compensation under the NTA should be addressed, may create expectations in future court proceedings; 
2. the disclosure of a figure may set a tariff for other compensation claims that, in another set of circumstances, may be inappropriate and impede negotiations; and 
3. disclosure of compensation sums may invite criticism of either party which might be unfair given that the figure had been agreed in private negotiations, the circumstances of which are not known to the public. 

His Honour also considered countervailing arguments, including the open justice principles and that compensation is public money, with an interest of transparency. His Honour concluded that in this case confidentiality was appropriate [46], however may not be appropriate in future cases [48]. 

The State of South Australia was ordered to pay the Tjayuwara Unmuru Aboriginal Corporation RNTBC, on behalf of the Nguraritja People, compensation in the terms that the parties jointly submitted in their confidential compensation agreement.

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