Arthur Moses SC and Kim Anderson recently appeared (with Jaye Alderson) for the late Dr Yunupingu, on behalf of the Gumatj Clan or Estate Group, in a native title dispute before the Full Court of the Federal Court. The Full Court’s decision is likely to have significant consequences for the rights of native title holders to compensation for historical government acts which impaired or extinguished native title.
The applicant claimed compensation, on behalf of the Gumatj Clan, for a series of acts (including the grant of mission and minerals leases) taken by the Commonwealth in relation to land in the Northern Territory between 1911 to 1978. He contended that the acts purported to confer property rights inconsistent with the claim group’s native title rights such that, if valid, the acts extinguished or impaired those native title rights. The outcome of the claims to compensation turns on whether each of the impugned acts was invalid because, by purporting to extinguish or impair native title rights without compensation, they involved an acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution.
If the claims are successful, it will mark a profound change in the approach to compensation for native title holders. Compensation for the extinguishment or impairment of native title rights has previously been understood to be available only for acts after the commencement of the Racial Discrimination Act 1975 (Cth).
The Commonwealth raised a series of objections to the applicant’s claims, which were dealt with as separate questions in advance of trial. In addition to arguments about the effect of early land grants by South Australia and the Commonwealth, the Commonwealth made two constitutional arguments. The first was that, under binding High Court authority, the Commonwealth’s legislative power in relation to the territories in s 122 of the Constitution is not limited by the ‘just terms’ requirement in s 51(xxxi). The second was that, because native title is always liable to be extinguished by the grant of inconsistent property rights, it is ‘inherently defeasible’ and so not a species of property that is protected by the ‘just terms’ requirement.
The Commonwealth’s arguments were the subject of a 5-day hearing before the Full Court in October 2022. The Northern Territory, Queensland, and a number of other interested parties also made submissions.
The Full Court rejected each of the Commonwealth’s objections, holding that the Commonwealth’s legislative power over the territories is subject to s 51(xxxi) and that, like other forms of property, native title rights are constitutionally protected from acquisition other than on just terms.
The Gumatj Clan’s claims will now be able to proceed to trial on the remaining issues in the proceedings, including the nature and extent of their rights under traditional law and custom.
