Territory Stories

Native Title anthropology after the Timber Creek Decision



Native Title anthropology after the Timber Creek Decision

Other title

Land, Rights, Laws: Issues in Native Title. Vol. 6, no. 5 January 2017


McGrath, Pamela Faye


E-Publications; E-Books; PublicationNT




Timber Creek


This paper considers the implications of the Timber Creek decision for the work of native title anthropologists and highlights some of the conceptual and methodological shifts required for research on native title compensation claims. The author draws attention to the demanding nature of native title compensation cases and the potential for research to aggravate existing trauma associated with loss of country, arguing for the need for all involved to be attentive to this risk when pursuing future claims. - Publisher summary


Made available via the Publications (Legal Deposit) Act 2004 (NT).




Native Title (Australia); Aboriginal Australians; Land tenure; Law and legislation

Publisher name

AIATSIS Research Publications

Place of publication

Canberra (A.C.T.)


6 pages ; 30 cm.

File type






Copyright owner

Pamela Faye McGrath and AIATSIS



Related links

https://aiatsis.gov.au/publication/35025 [AIATSIS website]

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Native Title Anthropology after the Timber Creek Decision 2 the period of time people had been dispossessed of their country the period of time people would have maintained their connection, had they not been dispossessed, that is, in perpetuity the special value of the land to the community, above and beyond its market value. Justice Mansfield makes it clear that the task required of him was not attaching a price to the special spiritual value of the land, but compensating native title holders for the pain and suffering caused by the loss of that value [292]. Moreover, the question of how much compensation should be paid requires consideration of different dimensions of social effect, namely loss of amenities, pain and suffering and reputational damage. When considering these facts, His Honour determined, evidence about the relationship with country and the effects of acts on that will be paramount [318]. The anthropological evidence tendered for the Timber Creek case was relatively extensive. An Expert Anthropologists Report co-authored by Dr Kingsley Palmer and Ms Wendy Asche (who also both prepared the expert report for the Ngaliwurru and Nungali peoples native title proceedings, Griffiths v Northern Territory of Australia (2006) 165 FCR 300) was tendered by the Applicants. Palmer and Asche documented many of the sites around Timber Creek, and their evidence focussed on establishing the interconnectedness of multiple sites to each other as well as to the Ngaliwurru and Nungali peoples themselves. Sites should be understood, they argued, as meta-placea reference to a place that is also a reference to a whole range of spirituality and associated imperatives that inform social exchanges, cultural activities and determined priorities [336]. Most significantly, their analysis went beyond the usual articulation of the cultural obligations to protect country, to consider in detail the profound and sometimes fatal consequences that are considered to accompany a failure to meet these responsibilities. Anthropologist Professor Basil Sansom also gave evidence, appearing on behalf of the Northern Territory government. Sansoms research and analysis of the emotional impacts of dispossession through extinguishments was relied upon by Justice Mansfield, together with the evidence of Palmer and Asche, to help interpret the testimony of the Ngaliwurru and Nungali witnesses. The testimony of the native title holders, which His Honour found to be strong and compelling3 [348], was appropriately privileged above the testimony of expert anthropologists. Nevertheless, Justice Mansfield found the depth of the relationship between self and country is supported and informed by the anthropological evidence [355]. The Timber Creek decision provides guidance on approaching the task of conceptualising and des- cribing the social impacts associated with the diminution or extinguishment of rights in country. It clarifies that the impacts of loss are to be understood as cumulative and incremental [324], intergenerational, and extending to the cultural landscape in its entirety [319]. As such, the time- frame for assessing the consequences of multiple extinguishing acts should be, from the time of the first act until the time of the last, with consideration given to how impacts accrue and ultimately affect the ability of native title holders to reproduce their cultural practices and identities through time and across space. Justice Mansfield recognises that physical impacts on precise areas resonate across the landscape to impair native title rights and interest more generally [378]. Those impacts, says His Honour, dont exist in a vacuum [319]. Drawing on the work of Palmer and Asche, His Honour emphasised that one cannot understand hurt feelings in relation to a boxed quarter acre blockthe effects of acts have to be understood in terms of the pervasiveness of the Dreaming [325]. Rather, His Honours decision upholds the need to recognise the inherent interrelatedness of multiple sites in a single cultural landscape, and the extent to which feelings of hurt and anxiety are not constrained by legal tenure. The Timber Creek decision also signposts that expert anthropologists working on native title 3 Gender-restricted evidence was also tendered during the proceedings.