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‘Just terms’, native title and the territories: Commonwealth of
Australia v Yunupingu
On 12 March 2025, the High Court of Australia handed down
its decision in Commonwealth
of Australia v Yunupingu. The case has significant implications
for constitutional and native title law, in particular:
Practically speaking, the case has exposed the Commonwealth
to significant
liability for actions impacting native title in a territory from the early
1900s. More recent relevant actions were already compensable under the Native Title
Act 1993 (NTA).
Background
Between 1911 and self-government
in 1978, the Commonwealth administered and had exclusive power to pass laws
for the Northern Territory. It exercised this power in making, among other
things, various ordinances and grants of mining leases, including over parts of
land claimed by the Gumatj clan
in the Gove Peninsula, Arnhem Land. These circumstances prompted the Gove Land
Rights Case, and the Yirrkala
Bark Petition.
The Gumatj clan native title compensation
application was brought by the late Dr
Yunupingu AC. The procedural
background to the case is complicated, and the claim itself remains
unresolved; however, the constitutional issues were considered in a Full
Federal Court test case in 2023. The Commonwealth appealed the result, raising
3 questions:
- whether the guarantee of just terms for the acquisition of
property in section 51(xxxi) of the Constitution applies
to laws made for territories under section 122
- whether a legislative ‘extinguishment’ of native title before the
commencement of the Native Title Act on 1 January 1994 would constitute
an acquisition of property under section 51(xxxi)
-
whether the grant of a pastoral lease in 1903 had extinguished
any non-exclusive native title rights over minerals.
Territories and the just terms requirement
Section
122 of the Constitution provides the Commonwealth with the power to
legislate for the government of the territories. Section
51(xxxi) states that the Commonwealth can legislate to acquire property on
just terms for any purpose for which it has the power to make laws. This just
terms requirement only applies to the Commonwealth, not the states, and until
the present case there was some uncertainty as to whether it applied to laws
made for a territory under section 122.
In 1969, the High Court in Teori
Tau found that the just terms requirement did not apply to laws
made under section 122, but this precedent had been weakened by judicial
statements in the subsequent cases of Newcrest
Mining and Wurridjal.
Now, in Yunupingu, the High Court has clearly stated that Teori Tau
has been overruled, and authoritatively declared that the power to make laws
for the government of a territory is subject to the requirement that an
acquisition of property must be on just terms.
Legislative ‘extinguishment’ of native title
The NTA provides a scheme for native title compensation;
however, there
has been a view that native title compensation only applied to actions post
1975, when the Racial
Discrimination Act 1975 commenced.
In this case, the Commonwealth argued that extinguishment
or impairment of native title rights at common law should not be characterised
as having constituted an acquisition of property within the meaning of section
51(xxxi) of the Constitution. This would have meant there was no
entitlement to compensation in respect of the Gumatj clan claim.
The essence
of the Commonwealth’s argument was that the property of native title
holders was not taken because native title was ‘inherently susceptible’ to a
valid exercise of the Crown’s sovereign power, derived from its radical
title, to grant interests in land and to appropriate to itself unalienated
land for Crown purposes.
The High Court has, from time to time, referred to the ‘inherent
fragility of native title’, and the Commonwealth laid considerable emphasis
on ‘inherent
susceptibility’ in Newcrest
Mining.
The majority rejected
this argument, finding that the concept of ‘inherent defeasibility’ (that
native title was, by its nature, subject to extinguishment) was unnecessary and
problematic. The majority made reference to the values
of justice and human rights which impelled the formulation of the common
law rule of recognition explained in Mabo [No 2].
According
to the majority, extinguishment or impairment of native title is not the
result of an inherent or innate susceptibility to defeasance of that right or
interest as recognised at common law. Cessation of recognition was wholly and
solely the result of a legally authorised and legally effective exercise of
legislative or executive power operating of its own force to prevail over the
operation of a rule of the common law.
On the third question, the High Court held that the 1903 grant
of the pastoral lease had not extinguished any non-exclusive native title
rights over minerals on or under the subject land.
Implications of the case
Indigenous groups, including the Gumatj
clan and the National
Native Title Council have welcomed the decision. Legal commentators have
highlighted the ‘pivotal’
significance of the case.
While the High Court’s decision was that the ‘theory
of the claim is sound’, it does not mean compensation is necessarily
payable in this case. The claim will need to return to the Federal Court to proceed
through the NTA process.
The Commonwealth’s written
submissions put the broader implications in stark terms: ‘a vast but
indeterminate number of grants of interests in land in the Territory’, which were
validated by the NTA, would have resulted in ‘a vast but presently
unquantifiable liability’ (paragraph [3]).
Noting this, it seems highly likely the decision will result
in additional claims for native title compensation in the Northern Territory
and potentially also the ACT. The extensive time period and legal complexities
involved will likely be considerable. What action the Commonwealth will take to
address this remains to be seen.