Divining damages: compensating dispossessed First Nations Peoples in Australia and lessons from regional human rights courts

Abstract

International and national legal instruments recognise the need to provide redress where First Nations peoples’ lands and resources have been used, damaged or taken without consent. Globally, financial compensation remains the most common form of legal redress. This presents a fundamental challenge: how can non-pecuniary loss be quantified in pecuniary terms? The High Court of Australia confronted this issue in Northern Territory v Griffiths [2019] HCA 7 under Australia’s Native Title Act 1993 (Cth), endorsing an approach to assessing compensation for cultural and spiritual loss that relies heavily on judicial intuition. This thesis examines that approach, asking how Australian courts should compensate First Nations peoples for the non-economic impacts of dispossession and what role judicial intuition should play. As native title compensation jurisprudence remains in its infancy, the analysis turns to the more developed practices of the Inter-American, African and European regional human rights courts in awarding non-pecuniary damages. While these systems offer valuable insights, the central lesson is cautionary: unstructured reliance on intuition risks producing jurisprudence that is unclear and inconsistent. To mitigate these issues, this thesis draws on First Nations-led valuation methodologies from Canada, developments in European tort law and emerging Australian legal scholarship to propose more principled, culturally grounded and structured approaches, including the implementation of judicial guidelines, developed by an independent, co-designed body. Although focussed on the Australian experience, this thesis offers broader insights into how legal systems can respect the rule of law and appropriately limit the role of judicial intuition, while meaningfully recognising First Nations peoples’ relationships with land.