The High Court has today dismissed the Commonwealth’s appeal from the Full Court of the Federal Court, affirming key findings that support the Gumatj Clan’s entitlement to compensation under the Native Title Act 1993 (Cth) and confirming the constitutional limits on Commonwealth’s power to acquire property other than on just terms: Commonwealth of Australia v Yunupingu [2025] HCA 6.
Arthur Moses SC, Kim Anderson and Jaye Alderson, appeared for the Gumatj Clan, instructed by Bowden McCormack.
The traditional lands of the Gumatj Clan are located in northern-eastern Arnhem Land in the Northern Territory.
The late Dr Yunupingu AM, on behalf of the Gumatj Clan, brought two claims in the Federal Court of Australia: the first seeking a determination of native title in favour of the Gumatj Clan in relation to an area of the Gove Peninsula and the second seeking the payment of compensation for “past acts” under the Native Title Act, arguing that certain appropriations of land by the Commonwealth and grants to third parties in the Gove Peninsula between 1939 and 1969 were invalid at the time they occurred. These acts, carried out under ordinances made by the Governor-General pursuant to the Northern Territory (Administration) Act 1910 (Cth), would have been lawful only if native title had not existed. In light of the recognition of native title rights at common law, particularly following Mabo [No 2], these appropriations and grants were inconsistent with the Gumatj Clan’s native title rights.
In the course of the Gumatj Clan’s claims, orders were made that questions be determined separately by the Full Court. The Full Court answered those questions in favour of the Gumatj Clan. The Commonwealth sought and was granted special leave to appeal the Full Court’s decision by the High Court.
Following a three-day appeal hearing in Darwin in August 2024, the High Court today, by majority, dismissed the Commonwealth’s appeal. In doing so, the Court addressed three significant legal questions:
- Whether the Commonwealth Parliament’s power under section 122 of the Constitution to legislate for territories includes the ability to enact laws permitting the acquisition of property without providing just terms otherwise required by section 51(xxxi) of the Constitution.
- Whether the extinguishment of native title recognised at common law prior to the enactment of the Native Title Act constitutes an acquisition of property within the meaning of section 51(xxxi).
- Whether the 1903 grant of a pastoral lease by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) extinguished any non-exclusive native title rights over minerals located on or beneath the land in question.
The High Court held that the Full Court was correct to accept the Gumatj Clan’s arguments that:
- The power conferred on the Commonwealth Parliament by section 122 of the Constitution does not authorise and has never authorised the enactment of laws for the acquisition of property other than on just terms as required by section 51(xxxi). The Court reasoned that section 51(xxxi) serves both as a source of legislative power and as a constitutional guarantee against uncompensated takings of property. This guarantee applies equally to Commonwealth laws governing territories. The Court rejected the Commonwealth’s argument that section 122 operates as a standalone plenary power unconstrained by the just terms requirement in s 51(xxxi).
- The extinguishment of native title recognised at common law before the introduction of the Native Title Act 1993 constitutes an acquisition of property within the meaning of section 51(xxxi). The Court emphasised that native title is a proprietary right, and its extinguishment by government acts or legislation represents a transfer of property interests that must be compensated accordingly. The High Court rejected the Commonwealth’s argument that native title rights were inherently defeasible, holding that they were not lesser forms of property but rather subject to protection under constitutional guarantees.
The High Court also held that the 1903 pastoral lease did not operate to extinguish non-exclusive native title rights over minerals situated on or beneath the land. This is because the relevant reservation in the pastoral lease did not amount to an appropriation of mineral rights by the Crown but merely withheld those rights from the leaseholder. This meant that native title rights to minerals remained intact despite the lease being granted.
The Gumatj Clan’s claims will now return to the Federal Court to determine the quantum of compensation payable by the Commonwealth for the past acts that extinguished or impaired their native title rights.
