Compensation or restitution for loss of Native Title

Monday, 2 June 2014
Greg McIntyre

This paper will argue that the equitable right of restitution by an account of profits and disgorgement is distinguishable from the common law right to compensation, and is not limited by any of the statutory limitations which the Native Title Act 1993 (Cth) (NTA) places upon compensation.

The argument will be put that restitution is a remedy which falls within the notion of ‘just terms’ and is a more appropriate form of remedy than compensation. It opens the way for a native title party to enter into negotiations or commence proceedings seeking a combination of common law compensation and equitable restitution, which may include an account of profits derived from the land.

The paper will also discuss:

  • The application and effect of ss 51(1) to (4), 51A and 53 of the NTA.
  • Whether or not the ‘similar compensable interest test’ is satisfied in relation to the applicable Act, obliging the application of principles or criteria for determining compensation under a law applying to ordinary title, ‘whether or not on just terms’, pursuant to s 51(3) of the NTA.
  • Whether s 51A of the NTA applies only to the entitlement to compensation to be determined by a court of competent jurisdiction in the course of a compulsory acquisition procedure, and whether it effects any limit on what may be negotiated prior to the application of the procedure for such a court determination.
  • Whether, if 53 of the NTA applies, it is the state or the Commonwealth who is liable to pay the compensation.