Mabo and the Valuation Vibe: Substantive Equality in the Timber Creek Compensation Case

Abstract

The High Court of Australia’s decision in Northern Territory v Griffiths (2019)
269 CLR 1 (‘the Timber Creek compensation case’) provided long-awaited judicial guidance on the operation of the compensation provisions of the Native Title Act 1993 (Cth). It is now clear that compensation for extinguished native title rights and interests incorporates awards for: economic loss; simple interest on that economic loss; and cultural loss. The cultural loss component of the High Court’s judgment has been widely praised. Yet there is a gap in the literature in respect of the Court’s analysis of the economic value of extinguished native title. Additionally, as compensation for invalid future acts was not argued before the Court, the applicable principles in that area are not yet clear. Accordingly, this case note focuses on those elements of the Timber Creek litigation. It contends that, viewed through the lens of substantive equality, the High Court’s economic valuation of the claimants’ native title rights and interests is open to criticism. That said, the judgment is a step towards achieving substantive equality in native title, particularly when viewed in the light of recent native title jurisprudence. It is, however, open to question as to whether substantive equality can be achieved without further judicial guidance on the compensation payable for invalid future acts.