Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900

FEDERAL COURT OF AUSTRALIA

Griffiths v Northern Territory of Australia (No 3) [2016] FCA 900 File number: NTD 18 of 2011

Judge: MANSFIELD J

Date of judgment: 24 August 2016

Catchwords: NATIVE TITLE – claim for compensation for loss or impairment of traditional rights and interests – "just terms" compensation under s 51 of the Native Title Act 1993 (Cth) – "just terms" compensation under s 51(xxxi) of the Constitution - claim for economic loss – claim for non-economic/intangible loss – claim for pre-judgment interest NATIVE TITLE - acts giving rise to compensation – grants established as previous exclusive possession acts – public works established as previous exclusive possession acts – category D past acts subject to the non-extinguishment principle – multiple acts affecting the same area of land – category D past acts followed by previous exclusive possession acts in respect of the same area of land - availability of compensation under the general law for invalid future acts NATIVE TITLE – date at which compensation is to be assessed - whether compensation is assessed as at the date of the act or at the date of validation of the act – where improvements to the land were made between the date of the act and the date of validation of the act - if compensation is assessed as at the date of validation of the act, whether compensation for impairment as between the date of the act and the date of validation of the act is available NATIVE TITLE – economic valuation of native title rights and interests – construction, prioritisation and application of legal norms governing the value of economic loss for the purposes of determining compensation under the NTA - where native title rights and interests are non-exclusive – where native title rights and interests include rights to access, live on, erect shelters, gather, use and exchange the natural resources of, and protect the land – application of economic principle to the valuation of non-exclusive native title rights and interests – application of anthropological fact and opinion to the valuation of non-exclusive native title rights and interests - whether freehold value is an appropriate proxy for native title rights and interests – whether 'usage value' is an appropriate proxy for native title rights and interests NATIVE TITLE – claim for non-economic/intangible loss – solatium for loss or diminution of connection or traditional attachment to land – assessment in globo – consideration and application of relevant principles – evidence of causation – direct and general evidence of effect of acts – whether comparison of usufructory and spiritual significance of different parcels of land is appropriate – consideration of spiritual relationship between the claimant group and their traditional country – consideration of the consequences that flow from the transgression of traditional laws and customs – consideration of length of time through which the claimants and their ancestors have maintained their connection to land - consideration of loss of access to and use of parts of traditional country NATIVE TITLE – claim for pre-judgment interest – power of the Court to award interest on or as part of compensation for loss or impairment of native title rights and interests – whether compound or simple interest is appropriate in the circumstances – consideration and application of relevant principles