Australian federal court makes first determination of compensation for native title

On 1 October 2013 in De Rose v State of South Australia [2013] FCA 988, the federal court made the first determination of compensation for the extinguishment of native title, in connection with a settlement reached between the claimants and the State of South Australia over an area in the far north west of South Australia. While the financial terms of the settlement remain confidential, the decision demonstrates the role that determinations of compensation can play in native title settlements and provides some useful guidance regarding the court’s approach in an area that can be expected to see increasing activity.

The Native Title Act 1993 (Cth) (NTA) provides for applications to be made to the federal court regarding: whether or not native title exists in relation to any land and/or waters; and the compensation payable in relation to the effect on native title of anything done by any state, territory or the Commonwealth, to the extent that those ‘acts’ are validated by the NTA or complementary state and territory legislation.

Thirty-seven compensation applications have been filed since the NTA commenced in 1994, covering various areas in all Australian jurisdictions other than Tasmania and the Australian Capital Territory…

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