‘Incremental and cumulative’: Griffiths and the limitations of the Native Title Act 1993 (Cth) in dealing with compensation for cultural loss

ABSTRACT Coming more than 25 years after Mabo v Queensland [No 2] (1992) 175 CLR 1, the landmark decision in Northern Territory v Griffiths (‘Griffiths’) (2019) 269 CLR 1 is the first judicially determined award of compensation for both economic and non-economic, or cultural loss under the Native Title Act 1993 (Cth). Although some attention has been given to the economic loss component of the decision, very little has been written about the most important aspect of the decision, cultural loss, and what this aspect means for First Nations Australians in reality. This article examines the legal and practical implications of the decision in Griffiths as it pertains to cultural loss and in the broader context of colonialism, native title law and First Nations’ law. I argue that these implications demonstrate how compensation for cultural loss under the Native Title Act 1993 (Cth) perpetuates colonialism and will fail many First Nations Australians in properly compensating for the loss of connection to country.