‘The standard of entries was challenging and impressive, but we unanimously agreed that the clear winner was the manuscript Compensation for Native Title. It is a significant piece of work on an important topic and will be an excellent and important book.’
– from the Holt Prize 2021 judging panel the Hon Susan Crennan AC QC, Emeritus Professor Mark Aronson of the University of New South Wales and Perry Herzfeld SC of the New South Wales Bar
‘The question of the methodology to be adopted in reaching a principled basis for determining compensation on just terms for the loss, diminution or impairment of native title rights is the core analysis of Dr Isdale’s excellent book … Dr Isdale’s book is a critically important contemporary analysis of an undeveloped area of inquiry.’
– from the foreword by The Hon Justice Andrew Greenwood, Federal Court of Australia and Dr Jonathan Fulcher, University of Queensland
This book is about how Australian law compensates Indigenous Australians for the loss or impairment of native title rights. Although statutory entitlements to compensation have been available in the Native Title Act 1993 (Cth) since its commencement, it was not until 2016 that the first judicial determination of compensation was made. In 2019 the High Court of Australia gave its first consideration to the topic, in Northern Territory v Griffiths [2019] HCA 7 (the “Timber Creek” decision).
This book surveys the current state of the law, explores future directions, and seeks to resolve some as yet undetermined issues. It provides the first extended analysis of this emerging body of law. Apart from considering compensation under the Native Title Act and how it should properly be assessed, the book also explores the availability of common law remedies for native title holders, and considers the implications of the Commonwealth Constitution’s guarantee of “just terms” for certain acquisitions of property.
A key theme throughout the book is a recognition of a tension between the desirability of applying existing legal principles and doctrines, while also recognising the uniqueness of native title. The book provides a framework for thinking about how to approach – and resolve – that tension. It also critiques aspects of the approaches taken by the courts so far, and offers a new path forward. Ultimately, it is argued that native title holders can and should be recompensed through the application of well-established principles and methods.
Foreword – The Hon Justice Andrew Greenwood, Federal Court of Australia and Dr Jonathan Fulcher, University of Queensland
Introduction
1. Background
2. The Timber Creek jurisprudence
3. Critique of Timber Creek’s economic component / an alternative methodology
4. Critique of Timber Creek’s non-economic component / further guidance
5. Constitutional “just terms” and its implications
6. Compensation (and other remedies) at general law
7. Conclusion
Appendix – Compulsory Acquisition Statutes
Bibliography
Index
Dr Isdale’s Compensation for Native Title is most certainly an excellent and timely book addressing very significant and important issues. It is very significant work of scholarship and written in a clear and engaging style which makes it also a very important work for a wide readership — academics, practicing lawyers and valuers and students alike. Additionally, many of the issues raised and discussed illuminate the law of valuation more generally such that the work deserves a place with works on native title and also with works on property valuation and property law generally. I strongly recommend the work in all these dimensions. Read full review…
Justice Clyde Croft AM, Australian Property Law Journal, (2023) 30
It’s no ordinary PhD to take on a topic that has such an intergenerational impact and importance in Australia. Will’s brought what is obviously his sharp legal mind to a large set of issues with a really thorough, methodical approach, a clarity of analysis and argument, and an acknowledgement that what is at stake is not just questions of methodologies, but also principles and values.
Associate Professor Sean Brennan, Compensation for Native Title: A Cape York Institute Think Tank
February 21, 2023 / Cape York Institute
[Video] See Will speak here (start video at the 15 min mark approx).
A welcome contribution to the legal scholarship, there is considerable merit and possibility in Isdale’s argument. The book offers practical measures for affording First Nations viable avenues for some form of reparations. It has the potential to act as a practical guide to legal and social justice professionals interested in promoting accountability and making justice a political reality for Aboriginal and Torres Strait Islander custodians and native title holders. Read full review…
Daphne Arapakis, policy and research officer, Koorie Youth Council, 2022, Law Institute Journal (Vic)
[M]uch remains in the development of jurisprudence in this area, to which Isdale has made a significant contribution.
Justice Jagot, Native Title – Compensation for Economic Loss, Federal Court of Australia Website, June 2022
Compensation for Native Title by William Isdale was the recipient of the Holt Prize in 2021, and for good reason.
…
Isdale proposes a framework of native title compensation that provides clear principles and parameters within which compensation for native title can be assessed – such principles being those that already exist within Australia’s legal system. Read the full review …
Isabel Philip, Tipstaff, NSW Equity Division, 2022, Vol. 47(3) 239–243 Alternative Law Journal
Book launch: Compensation for Native Title
Courtroom 1, Federal Court of Australia, Brisbane – 30/06/22
On 30/06/22 the University of Queensland Law School and The Federation Press launched Compensation for Native Title. The book was launched by the Honourable Justice Andrew Greenwood and hosted by Dean of Law, Professor Rick Bigwood at the Federal Court of Australia, Brisbane.
Remarks by the Hon Justice Andrew Greenwood
On the launching of Dr William Isdale’s book entitled
Compensation for Native Title
[Photo] Will Isdale (centre) at the launch of his new book in Brisbane. With him are Rick Bigwood Prof and Dean of Law at UQ (left) and Justice Greenwood of the Federal Court of Australia (right) – 30/06/2022
