Compensatory justice and accountability for First Nations peoples: the Timber Creek case

Purpose: This paper examines the state’s accountability to its citizens, in particular the First Peoples of settler colonial nations such as Australia, and how these responsibilities may be enacted via a process of compensatory justice in Native Title claims. We focus on the landmark Timber Creek ruling and the impacts of racialized preconceptions on the accountability outcomes of the case. Design/methodology/approach: This study draws on critical race theory to reveal embedded racialised perspectives that perpetuate exclusion and discriminatory outcomes. Court documents including hearing transcripts, case judgements, witness statements, appellant and respondent submissions, expert reports and responses from First Nations leaders, form the basis of our analysis. Findings: The case highlights how the compensation awarded to Native Title holders was based on racialised assumptions that prioritised neoliberal values, commercial activities and reaching a “socially acceptable” judgement over valuing Aboriginal uses of land. A critical analysis of court documents reveals the pervasiveness of presumed “objectivity” in the use of accounting tools to calculate economic value and the accountability implications of a process based on litigation, not negotiation. These findings reveal the hiding places offered by calculative practices that equate neoliberal priorities with accountability and reaffirm the importance of alternative accountings to resist inequitable distributive outcomes. Originality/value: Novel insights, drawing on First Nations peoples’ connections to land and their perspectives on accountability and justice, are offered in this study. Our analysis of Native Title holders’ submissions to the courts alongside historical and anthropological sources leads to the conclusion that compensation decisions regarding Native Title land must be approached from the perspective of Aboriginal landowners if accountable outcomes are to be achieved.