Why Native Title rulings need a system to value cultural loss

Right now, courts across Australia are grappling with a difficult legal question. How do you put a dollar value on the cultural and spiritual harm done to Aboriginal and Torres Strait Islander Peoples when their Country has been damaged or taken away?

In February, the Federal Court awarded the Gudanji, Yanyuwa, and Yanyuwa-Marra Traditional Owners A$54 million^[1] for “intergenerational and enduring” cultural and spiritual loss caused by the expansion of the McArthur River Mine in the Northern Territory.

This was only the second compensation award for cultural loss made by federal courts in Australian history, following a landmark 2019 case^[2].

There are still major Native Title rulings^[3] where compensation is yet to be decided. These include the Gumatj/Yunupingu case^[4] in the Northern Territory and the Yindjibarndi Ngurra claim^[5] in Western Australia. Both are widely regarded as major tests of how both economic and cultural loss are assessed.

But perhaps surprisingly, unlike economic damages, there is no formal valuation method for cultural loss. Our research^[6] aims to address this need.

‘There is no algorithm’

It’s been more than three decades since the landmark 1992 Mabo decision^[7] overturned the myth of terra nullius (land belonging to no one) and recognised that Aboriginal and Torres Strait Islander Peoples have a legal claim to their traditional lands. This led to the establishment of the Native Title Act^[8].

Since then, the legal system has largely been focused on questions of who owns traditional lands and addressing economic loss, not how to compensate for the cultural loss when land is damaged or has been taken away.

This changed in 2019 with the Timber Creek decision, when the High Court decided to award^[9] the Ngaliwurru and Nungali Peoples about $2.5 million, including – for the first time – $1.3 million for cultural and spiritual harm.

This year’s McArthur River Mine ruling awarded $54 million for cultural and spiritual loss, as well as $743,408 for economic loss.

Currently, there is still no formal method to asses cultural losses. As Justice Katrina Banks-Smith noted^[10] in the McArthur River Mine case:

Where there is no algorithm, no tariff and little precedent, forming a reasoned view as to that figure is complex.

This stands in contrast to compensation for economic loss. This is assessed using established valuation principles drawn from compulsory acquisition law^[11].

Read more: Landmark High Court decision guides how compensation for native title losses will be determined^[13]

Revealing what matters most

If we want to build a consistent, clear and fair framework for cultural loss compensation, we have to start with what Traditional Owners value most. Our research^[14] (which is yet to be peer-reviewed) asks those questions.

We worked with 30 people from two Aboriginal Nations using a discrete choice experiment^[15], a method that helps reveal people’s priorities when market prices don’t exist.

Participants came from metropolitan, regional and remote areas. Roughly half had direct experience negotiating Native Title.

Each participant first spoke about their views on land. Then, they completed an experiment, making multiple choices between pairs of hypothetical land parcels described as significant for combinations of the following reasons:

• governance and control value
• cultural and spiritual value
• economic value
• community ties value
• environmental value.

What we found

Cultural and spiritual values dominated almost every comparison with other values attached to land. It emerged as the top priority in about 85% of cases.

When we look at the overall pattern of choices, these values were also far more influential than economic considerations – more than 30 times as important in shaping decisions.

Governance and control came next, showing the deep importance of self-determination^[16]. Community connections and environmental stewardship were in the middle, while economic benefits consistently ranked lowest.

However, participants still emphasised that economic outcomes matter. As National Native Title Council Chief Executive Jamie Lowe has pointed out^[17], they represent lost economic development and investment that compounds over time.

A starting point

So, how could this work in practice? This kind of evidence could be used to bring more structure to compensation decisions.

In future rulings, a discrete choice experiment approach, like ours, could help estimate how much cultural loss matters in relative terms – translating that into a corresponding compensation amount.

Right now, courts rely on judicial judgement, anthropological evidence and competing claims to assess cultural loss. But there is no consistent way to convert those considerations into compensation figures.

Why getting it right matters for everyone

Valuing Aboriginal and Torres Strait Islander land properly isn’t just about fairness – it matters for everyone. Globally, Indigenous Peoples manage at least a quarter^[18] of the world’s land. Much of it is central to renewable energy projects, conservation and other development plans.

In Australia, nearly half^[19] of all new renewable energy projects needed for the net-zero transition – from solar and wind to storage and transmission – sit on Aboriginal and Torres Strait Islander land.

With pending Native Title claims, almost 80%^[20] of critical energy and minerals projects could require negotiation with these communities.

For Aboriginal and Torres Strait Islander Peoples, Country is more than just land; it’s lore, kin, ancestry and identity. It’s a nurturing mother^[21] that provides for social, spiritual, cultural and material needs.

Western systems see land very differently^[22]: as a commodity to buy, sell or trade, with a market price.

Without a clear way to measure cultural and spiritual values^[23] – and long-term harm – they can be overlooked or undervalued, leaving communities without fair outcomes.

References

1. ^{^} A$54 million (nit.com.au)
2. ^{^} landmark 2019 case (theconversation.com)
3. ^{^} Native Title rulings (www.ashurst.com)
4. ^{^} Gumatj/Yunupingu case (www.sbs.com.au)
5. ^{^} Yindjibarndi Ngurra claim (www.ashurst.com)
6. ^{^} Our research (doi.org)
7. ^{^} Mabo decision (aiatsis.gov.au)
8. ^{^} Native Title Act (aiatsis.gov.au)
9. ^{^} High Court decided to award (www.austlii.edu.au)
10. ^{^} noted (www.abc.net.au)
11. ^{^} compulsory acquisition law (www.planning.vic.gov.au)
12. ^{^} Nicole Lorimer/Getty (www.gettyimages.com.au)
13. ^{^} Landmark High Court decision guides how compensation for native title losses will be determined (theconversation.com)
14. ^{^} Our research (doi.org)
15. ^{^} discrete choice experiment (thedecisionlab.com)
16. ^{^} self-determination (www.un.org)
17. ^{^} pointed out (www.abc.net.au)
18. ^{^} quarter (doi.org)
19. ^{^} nearly half (poweringaustralia.com.au)
20. ^{^} 80% (doi.org)
21. ^{^} nurturing mother (doi.org)
22. ^{^} differently (doi.org)
23. ^{^} cultural and spiritual values (doi.org)