Compensation for economic and non-economic loss by extinguishment or impairment of native title: a critical and comparative analysis of developments in Australian case law

Arlidge, Kylie, and Meyers, Gary D. (2018) Compensation for economic and non-economic loss by extinguishment or impairment of native title: a critical and comparative analysis of developments in Australian case law. James Cook University Law Review, 24. pp. 129-145.

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Abstract

The recent developments in case law concerning compensation for extinguishment and impairment of native title do not adequately recognise its sui generis status as a right existing prior to the British colonisation of Australia. Both Australian legal principles and jurisprudence from other common law countries such as the US and Canada suggest that a restrictive view limiting native title rights and interests to those practised in antiquity should not be taken, and strict common law principles and limitations should not be applied by courts in compensating native title holders. The sui generis status of native title presents three propositions. The first is that inalienability should be irrelevant to economic compensation. The second proposition is that the economic value of native title should almost always be equal to the value of freehold title, unless specifically restricted by traditional laws or customs or by interference with title prior to the Racial Discrimination Act 1975 (Cth). The last proposition arising from the sui generis nature of native title is that compensation for non-economic loss should include additional sums held in trust and invested for future generations.

Item ID: 57721
Item Type: Article (Research - C1)
ISSN: 1839-2792
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Copyright Information: © The Author(s).
Date Deposited: 02 Apr 2019 23:16
FoR Codes: 18 LAW AND LEGAL STUDIES > 1801 Law > 180101 Aboriginal and Torres Strait Islander Law @ 100%
SEO Codes: 94 LAW, POLITICS AND COMMUNITY SERVICES > 9401 Community Service (excl. Work) > 940102 Aboriginal and Torres Strait Islander Development and Welfare @ 100%
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