❓ Hon George Cash asks about compensation for compulsory acquisition of native title interests, particularly regarding 'special attachment' under the Land Administration Act 1997 (WA) and Native Title Act 1993 (Cth). The Minister's response clarifies the relevant legislation and acknowledges the lack of specific criteria for 'special attachment' compensation.
AnsweredQoN 75Legislative Council
QuestionView source ↗
(2) What are the elements that comprise the compensation for compulsory acquisition under the relevant Act?
(3) Which provisions under the relevant Act provide for compensation for loss of special attachment where native title interests are compulsorily acquired?
(4) Can the Minister advise of the criteria to be assessed in determining special attachment compensation?
(5) Is the Minister aware of any court or tribunal decisions where such criteria were considered and if so, will the Minister provide details of the decisions?
(3) Which provisions under the relevant Act provide for compensation for loss of special attachment where native title interests are compulsorily acquired?
(4) Can the Minister advise of the criteria to be assessed in determining special attachment compensation?
(5) Is the Minister aware of any court or tribunal decisions where such criteria were considered and if so, will the Minister provide details of the decisions?
AnswerView source ↗
Answered
9 March 2009
Responded by
Leader of the House representing the Premier
Response time
103 days
Department of the Premier and Cabinet advises:
(1) It is the Government's preference to acquire any land requirements for a gas processing precinct in the Kimberley by agreement. However, any compulsory acquisition of native title rights and interests for this purpose will be done under the Land Administration Act 1997 (WA) (LAA) and in accordance with the relevant provisions of the Native Title Act 1993 (Cth) (NTA). Compensation to any native title holders for compulsory acquisition of native title will be done under the NTA, taking into account principles for determining compensation set out in the LAA.
(2) Compensation for native title holders falls to be determined under Part 2 of Division 5 of the NTA. Section 51 of the NTA sets out the criteria for determining compensation under the NTA. Sections 51(1) and (2) provide:
(i) Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.
(ii) If an act is the compulsory acquisition of all native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsection (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.
Under section 241(2) of the LAA, "regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on...the date of the taking."
Section 51A(1) of the NTA provides a cap for total compensation payable for full extinguishment of native title to the amount payable "if the act were instead a compulsory acquisition of a freehold estate in the land or waters." However, this is subject to the requirement to provide "just terms" compensation.
(3) There are no provisions of the NTA or LAA that deal specifically with compensation for loss of "special attachment" where native title interests are compulsorily acquired. However, compulsory acquisition must be on "just terms" which may take into account loss of "special attachment".
(4) The NTA and LAA are silent on this issue and there have been no Australian judicial decisions in this context. As such there are no "criteria". However, it has been suggested that courts might take into account various factors, including, the nature of the native title interests (whether exclusive or non-exclusive); market value of the land; cultural, environmental and economic value of the land; and inter-generational and community loss.
(5) No Australian court or tribunal has awarded compensation in a native title context.
In Australia, the National Native Title Tribunal has suggested that the market value or equivalent freehold value of land may not provide an appropriate or helpful measure of compensation for the loss or diminution of native title: Danggalaba Clan [1998] NNTTA 11; Western Australia v Thomas (1996) 133 FLR 124.
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(1) It is the Government's preference to acquire any land requirements for a gas processing precinct in the Kimberley by agreement. However, any compulsory acquisition of native title rights and interests for this purpose will be done under the Land Administration Act 1997 (WA) (LAA) and in accordance with the relevant provisions of the Native Title Act 1993 (Cth) (NTA). Compensation to any native title holders for compulsory acquisition of native title will be done under the NTA, taking into account principles for determining compensation set out in the LAA.
(2) Compensation for native title holders falls to be determined under Part 2 of Division 5 of the NTA. Section 51 of the NTA sets out the criteria for determining compensation under the NTA. Sections 51(1) and (2) provide:
(i) Subject to subsection (3), the entitlement to compensation under Division 2, 2A, 2B, 3 or 4 is an entitlement on just terms to compensate the native title holders for any loss, diminution, impairment or other effect of the act on their native title rights and interests.
(ii) If an act is the compulsory acquisition of all native title rights and interests of the native title holders, the court, person or body making the determination of compensation on just terms may, subject to subsection (5) to (8), in doing so have regard to any principles or criteria for determining compensation set out in the law under which the compulsory acquisition takes place.
Under section 241(2) of the LAA, "regard is to be had to the value of the land with any improvements, or the interest of the claimant in the land, assessed as on...the date of the taking."
Section 51A(1) of the NTA provides a cap for total compensation payable for full extinguishment of native title to the amount payable "if the act were instead a compulsory acquisition of a freehold estate in the land or waters." However, this is subject to the requirement to provide "just terms" compensation.
(3) There are no provisions of the NTA or LAA that deal specifically with compensation for loss of "special attachment" where native title interests are compulsorily acquired. However, compulsory acquisition must be on "just terms" which may take into account loss of "special attachment".
(4) The NTA and LAA are silent on this issue and there have been no Australian judicial decisions in this context. As such there are no "criteria". However, it has been suggested that courts might take into account various factors, including, the nature of the native title interests (whether exclusive or non-exclusive); market value of the land; cultural, environmental and economic value of the land; and inter-generational and community loss.
(5) No Australian court or tribunal has awarded compensation in a native title context.
In Australia, the National Native Title Tribunal has suggested that the market value or equivalent freehold value of land may not provide an appropriate or helpful measure of compensation for the loss or diminution of native title: Danggalaba Clan [1998] NNTTA 11; Western Australia v Thomas (1996) 133 FLR 124.
Notice: This document is created or edited using unregistered or evaluation copy of rtLib valid for testing or development purposes only. To use it for productive or any other purposes please register it. You may purchase the license on
http://www.rtlib.com
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