Compensation and native title

When native title claimants seek compensation for the loss or impairment of their native title over an area of land or water, they can lodge a compensation application in the Federal Court.

The compensation application may be made before or after a determination of native title is made by the court over the same area of land or water. It must, among other things, also determine whether or not native title existed at the time an act (such as a land acquisition) was done before deciding if any compensation is payable. If native title did not exist at the time the act was done then no compensation is payable.

Who can apply for compensation?

Any member of the compensation claim group who is authorised by the group can apply for compensation on behalf of the group. The compensation claim group is made up of all the people who claim to be entitled to compensation.

A registered native title body corporate can also make a compensation application. Bodies corporate are established to hold and manage native title once a determination of native title has been made.

Native title holders may be entitled to compensation for loss or impairment of native title caused by the following:

• the doing of some government acts that affect native title where compensation is payable chiefly through the operation of the Racial Discrimination Act 1975 (the RDA)
• the validation of acts done since the commencement of the RDA which were invalid because of the existence of native title (past acts)
• the validation of some acts done between 1 January 1994 and 23 December 1996 which were invalid because the future act steps in the Native Title Act 1993 were not followed (intermediate period acts)
• the effect of future acts on native title.

Compensation is payable only once for the same act in an area.

Who decides whether compensation is payable?

Parties may agree about the amount or kind of compensation payable and who is entitled to any compensation. They can come to an agreement, for example, through a compensation application, or through negotiations by way of an indigenous land use agreement about future acts or some other activities already done on the land.

Where a compensation application is made, the Federal Court will refer the application to the Native Title Registrar for notification of the application. Notice will be given to particular individuals and the public is also notified. Persons who have an interest that may be affected by a determination in the matter can become parties to the proceedings. Once the Court establishes the party list for the proceedings the matters is usually referred to the National Native Title Tribunal to carry out mediation to assist the parties to agree about matters in dispute.

The Tribunal may also assist people making a compensation application by providing land tenure information, mapping services, details of native title applications and information about native title.

Where parties cannot agree to settle the application, the court decides whether compensation is payable for loss or impairment of native title. The court will also decide on the amount or kind of compensation and who is entitled to the compensation.

Who pays compensation?

Generally, the Commonwealth, state or territory government pays compensation, unless Commonwealth, state or territory laws say that another person is liable. Other persons may be liable for compensation resulting from future acts such as the grant of exploration and mining tenements or the compulsory acquisition of native title.

Reaching an agreement about compensation

Instead of making a formal application to the court, native title holders and other parties involved in developments may negotiate compensation under an agreement made under the future act right to negotiate scheme or by way of an indigenous land use agreement.

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This fact sheet is provided as general information only and should not be relied upon as legal advice for a particular matter.

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