The High Court made a landmark decision on native title law. Here’s what it means
- Written by Bethany Butchers, Associate Lecturer in Law, University of Newcastle
Aboriginal and Torres Strait Islander readers are advised this article contains the name of a deceased person.
The High Court of Australia has handed down a landmark judgement on native title law in Australia.
Commonwealth vs Yunupingu was about whether the Gumatj Clan in the Northern Territory would be entitled to compensation from the Commonwealth for acts that affected their native title rights and interests.
The court ultimately found the Gumatj Clan was eligible for compensation, holding the Commonwealth liable.
The case has been described as one of the most significant tests of native title since the famous Mabo proceedings in 1992.
Where did the case come from?
The late Yunupingu, on behalf of the Gumatj Clan of the Yolngu People in North-East Arnhem Land, sought compensation for land subject to bauxite mining in the Gove Peninsula.
The clan is seeking an estimated $700 million in compensation as the mining activity winds up, leaving their land damaged.
The Crown authorised the mining in the area without the Gumatj Clan’s consent between the 1930s and ‘60s.
The mining lease, originally granted to Nabalco, is now held by Swiss Aluminium and operated by Rio Tinto.
What were the laws at play?
Commonwealth vs Yunupingu deals with how native title and constitutional law overlap.
Native title law recognises the connection Aboriginal and Torres Strait Islander Peoples have to their lands. It is based on their traditional laws and customs dating back long before British invasion, and continues today. It’s governed by the Native Title Act, which includes provisions for compensation when native title rights or interests are impaired or taken away.
Under section 51 of the Constitution, the Commonwealth must pay an owner fairly if they acquire their property. This is called the “just terms” guarantee.
This section was famously the subject of the film The Castle, with lawyers arguing it was about “the vibe” of the Constitution.
The case was also about section 122, which concerns how the territories are governed.
There were three main issues that were debated before the High Court: whether native title land can be acquired, whether the just terms guarantee applies to the territories, and what role pre-Constitutional mining agreements play.
What were the legal arguments?
The Commonwealth told the High Court it doesn’t have to pay for taking away native title rights because those rights are “inherently defeasible” and therefore not property able to be “acquired”. Defeasible means it can be cancelled.
It’s a technical legal point, but amounts to arguing native title rights can’t be transferred and therefore can’t be acquired by the Commonwealth.
It also argued the just terms guarantee doesn’t apply to the territories in the constitution, except in specific circumstances.
Finally, the Commonwealth said it took ownership of the minerals found in the area before the Constitution was created by granting leases that “reserved” mineral rights to the Crown. This meant, the Commonwealth said, it could have these rights without having to pay native title holders.
Lawyers for the Gumatj Clan countered these points.
They told the court native title rights are covered by the just terms guarantee.
They said to make sense of the Constitution, it must be read as a whole. Therefore, laws about the territories are also subject to the guarantee.
People living in the territories of Australia should still be entitled to fair compensation for property that is acquired and not be excluded because they are in a territory rather than a state.
Lawyers for the Gumatj Clan submitted that “reserving” of minerals within the early pre-Constitution leases meant the leaseholders were given rights to everything except the minerals in the ground. No rights to minerals were granted at all - not to the leaseholders and not to the Crown.
This would mean native title holders with rights to the minerals in those lands would continue to have those rights. As the Commonwealth affected these rights through legislation and mining leases, they must pay the owners fairly.
What did the court find?
In getting to this point, the Federal Court has sided with the Gumatj Clan, but the Commonwealth appealed to the High Court.
After hearing detailed arguments over three days in August, the High Court Justices dismissed the appeal.
In doing so, it found that taking away native title rights is like taking property. As a result, the just terms guarantee applies and means the Gumatj Clan should be fairly compensated.
It also agreed with the clan that the guarantee applies to territories as well as the states.
The court found the early pre-Constitution pastoral leases did not have the effect of taking away any non-exclusive native title rights over minerals, meaning the Gumatj Clan continued to have their rights until the legislation and mining leases took place in the 1930s to '60s.
The matter will return to the Federal Court to resolve the remaining legal issues.
What does all this mean?
Ultimately, the decision by the High Court is significant. It will allow for some acts that have caused profound harms to First Nations people from 1911 to be covered by compensation.
This decision follows a 2019 High Court judgement, commonly referred to as Timber Creek, which awarded compensation under the Native Title Act for the first time. The case was described as the most significant native title case to follow Mabo, opening the door for “billions of dollars” to be claimed by First Nations Peoples for impacts on their lands.
This case solidifies that precedent and takes it further by formally expanding the range of acts for which native title holders could apply for compensation.
Until now, there has been a widespread assumption that compensation under the native title system would only be available for acts that occurred after the introduction of the Racial Discrimination Act in 1975, but this case proves otherwise.
This is limited to acts done by the Commonwealth, which may mean this will largely have implications for acts done in the territories, because the Commonwealth managed the Territories after federation until 1978 (NT) and 1988 (ACT).
Authors: Bethany Butchers, Associate Lecturer in Law, University of Newcastle
