A group of Noongar Traditional Owners have lodged a $290 billion compensation claim for spiritual damages caused by extinguishment of Native Title.

The largest compensation claim ever made, the group is seeking a payout of almost a quarter of the national GDP.

The area in question is almost the size of Victoria – a total 19.7 million hectares of land in Western Australia’s South West.

The breakaway group of Noongar Traditional Owners are arguing that they’re unable to exercise their rights on Country due to the almost 19.4 million hectares that are now used for a range of different mining, agricultural, residential, commercial and governmental purposes – which would usually render Native Title extinguished.

However, this area was not granted Native Title, rather the Wilcox decision concerning Noongar Country over a decade ago only determined whether Noongar culture survived colonisation.

In 2006, Justice Wilcox ruled that Noongar Traditional Owners had maintained their connection with Country, traditions and lore of their ancestors – it was not a Native Title determination.

Wayne Nannup, CEO of the South West Aboriginal Land and Sea Council (SWALSC), said this new compensation claim is not representative of the whole Noongar community.

“It’s an application that’s been brought by some people, led by Naomi Smith. There’s some inaccuracies [that have been reported].”

According to SWALSC, the claim also hasn’t been authorised by any of the six registered claimant groups that currently have another settlement before the courts.

Mr Nannup said SWALSC has been heavily invested in Native Title settlement in the state’s South West for a decade.

“[The South West settlement] is really our position. If people choose to engage lawyers to run a compensation argument … that’s their business … it’s not our application.”


Settlement as compensation

Separate to this new compensation claim is the ongoing South West Native Title Settlement that SWALSC has been negotiating for the past decade.

The Settlement came about to resolve Noongar Native Title claims in exchange for huge benefits to Noongar Traditional Owners including joint management of WA’s National Parks, a trust that receives $50 million yearly for 12 years and a Noongar Housing Program, among others.

In 2015, after extensive consultation and authorisation meetings, six Indigenous Land Use Agreements (ILUAs) were agreed upon.

On October 17, 2018, the ILUAs were registered by the Registrar of the National Native Title Tribunal.

This was then appealed on the basis the Registrar improperly authorised and registered the ILUAs – consequently nullifying them.

Currently before the Full Bench of the Federal Court, the appeal had its last hearings on November 25.

Mr Nannup said SWALSC is awaiting a decision which they hope to receive before Christmas.

“We see the [South West] settlement as compensation.”


New precedents

Should the Noongar compensation claim be heard in court, the Timber Creek decision will have to be taken into consideration.

In March this year, the High Court awarded Ngaliwurru and Nungali Traditional Owners over $2.5 million in compensation, including $1.3 million for spiritual loss alone, after the extinguishment of Native Title in the 1980s and 1990s.

Lawyers representing the Noongar group have reportedly calculated the massive compensation claim based on this principle.

“The new frontier for the Native Title space is the question of compensation.”

“That’s on the lips of everybody around the country at the moment,” Mr Nannup said.

On the Timber Creek decision, Mr Nannup said there is some understanding of the ruling that still needs to be considered.

“There’s still a way to go in relation to that decision.”

It remains to be seen whether the claim will hold up in court without an official Native Title determination and without registered claimant authorisation.

Should the payout be granted, a huge precedent will be set for all future compensation claims regardless of Native Title determination.

By Hannah Cross