Generally when native title is extinguished the extinguishment is permanent. The Racial Discrimination Act 1975 (Cth) (RDA) came into effect on 31 October 1975 and is the foundation provision for compensation for the loss of native title. The RDA was enacted to give effect to the International Convention on the Elimination of All Forms of Racial Discrimination. .

Actions committed on or after 31 October 1975 which extinguished, or in some way impaired, the rights of native title holders may be inconsistent with the requirements of the RDA. Compensation may arise under the RDA. Moreover, under section 51(xxxi) of the Australian Constitution, the Commonwealth must pay just terms for an acquisition of property including native title rights. The Native Title Act 1993 (Cth) (NTA) is now the principal mechanism for the acknowledgement, regulation, and protection of native title. The NTA outlines how compensation for extinguishment of native title should be determined.

In Northern Territory v Griffiths (2019) 93 ALJR 327 the High Court had to decide the economic value of extinguished native title rights and the compensation payable for the loss of cultural value. It is arguable that cultural value is priceless. However, an economist is likely to state that the market does not care what is regarded as priceless. As a society we have to choose how we allocate money, resources, time, and exertion.

Every time we make a choice, we place a price on a thing, an issue, and even a matter of justice. The High Court determined that compensation for cultural loss is a monetary figure arrived at as a result of a social judgement of what the Australian community believes at the present time is an appropriate award for the loss.

To read more on the Northern Territory v Griffiths (2019) 93 ALJR 327 case and its significance go to the The Conversation.

About the author

Dr Kip Werren
Lecturer & Course Coordinator
School of Law