- by C Bartholomew
- The Guardian
- Issue #2138
Photo: John Englart – flickr.com (CC BY-SA 2.0)
On the 12 March 2025, the High Court of Australia delivered its judgement regarding the case of Commonwealth of Australia v Yunupingu. This decision has made some headlines in the media, but discussion of the broader context behind the decision and its implications has been lacking. The Yunupingu decision will likely come to be regarded as one of the most significant native title judgements in recent history, however the reasons why can only be properly understood within the history of native title law in Australia.
THE CASE
The late land rights leader Dr Galarrwuy Yunupingu, on behalf of the Gumatj clan, applied for native title for land in the Gove Peninsula. The Northern Territory was governed by South Australia until 1911, during which time it granted pastoral leases over great swathes of land. Between 1911 and 1978, the Commonwealth government held exclusive power over lawmaking in the Northern Territory, a power it used to make ordinances regarding mineral rights and to grant mining leases over land, including that of the Gumatj. Yunupingu and the Gumatj lodged a claim for compensation, arguing that the granting of interests in land over which they held native title constituted an acquisition of property by the Commonwealth.
While the native title claim itself is ongoing, the Commonwealth challenged the existence of any right to compensation. This crucial point of law that was decided upon by the full bench of the Federal Court in 2023, who ruled in favour of Yunupingu and the Gumatj. However, the High Court granted the Commonwealth special leave to appeal later that year. The Commonwealth was terrified of the prospect of having to pay compensation to traditional owners. Solicitor-general Stephen Donaghue raised these fears of “a vast amount of compensation” in the opening of the appeal.
In its landmark judgement from this year, the High Court upheld the Federal Court decision in favour of Yunupingu. It held that the Commonwealth cannot acquire property otherwise than on just terms, as required under s51(xxxi) of the Constitution. In other words, the Commonwealth, even when governing a territory, must pay compensation for any property it acquires. The High Court also held that the extinguishment of native title recognised under common law, even prior to the commencement of the Native Title Act 1993, constitutes an acquisition of property under s51(xxxi). The last major point held by the High Court was that the granting of a pastoral lease in 1903 by the Governor of South Australia under state legislation did not extinguish any non-exclusive native title rights over minerals on or under the land.
IMPLICATIONS
This decision could be an important shift in native title law. The 2019 case Northern Territory v Griffiths established compensation for extinguishment of native title with three calculations for economic loss, cultural loss, and interest (controversially determined to be simple, not compound interest). However, the general consensus was that compensation could only be claimed for native title extinguished after 1975.
Why 1975? That was the year of the federal Racial Discrimination Act, the cornerstone of native title claims since the High Court ruled that Queensland’s attempt to retroactively abolish native title to stop the claim of the Meriam people violated the Act. This decision was, of course, Mabo (No 1), the precursor to the more famous Mabo (No 2).
Yunupingu takes a huge step forward for native title by establishing a basis for compensation claims for pre-1975 extinguishment. As National Native Title Council chair Kado Muir said, “The Gumatj decision shows that when our sacred lands are taken away, we are entitled to receive compensation on just terms in accordance with s51(xxxi) of the Constitution, in the same way as any other citizen of Australia.”
Given that this case concerned compensation over land mined for bauxite in the Northern Territory, there are several questions which will be answered in years to come. How will this decision impact native title in the states, where state laws around property acquisition and interests in land will come into play, and where land may not have been acquired directly from the Commonwealth? Given the context of ongoing cases such as the Yindjibarndi case against Fortescue, how will Yunupingu and these ongoing cases impact corporate exploitation of Indigenous lands for mining and other purposes? So far, it has been the responsibility of federal and state governments to pay compensation for the extinguishment of native title, but is this merely another example of our governments bankrolling the exploitation of Australian lands and resources? The scope of native title in Australia will no doubt continue to be reshaped and redefined beyond Yunupingu as other cases.
PROGRESS AND STAGNATION
In moments of change such as this one, it is important to recognise that native title is complicated, conflicted, and slow to develop. Australia’s history of engaging with native title is incredibly short compared to our colonial counterparts the United States, Canda, and New Zealand, all of whom have been addressing native title, for better or worse, for hundreds of years. Australian capitalists have had comparatively little interest in trade with First Nations peoples, while Australian institutions have clung onto old-fashioned notions of terra nullius and absolute Crown ownership far longer than other jurisdictions.
The judicial history of native title has been one of conflict between progressive and conservative judges. For instance, the question of content (the specific rights native title holders have) was given a “list of traditional activities” approach by the 2002 case of WA v Ward. This meant traditional owners found to have native title only had a specific list of ‘traditional’ rights and interests protected, with no regard for duties, obligations, or even modern rights and interests such as use of minerals. The case of Yorta Yorta v Victoria of that same year considered the question of what proof is needed to establish native title. It upheld the continuity approach, meaning there needs to be proof of continued practice of traditional laws and activities to establish native title. This approach essentially makes native title impossible for traditional owners in urban centres or any other region heavily impacted by colonisation, forced relocations, or other practices, as the Yorta Yorta case specifically denied the validity of contemporary Indigenous practices. This approach is also blatantly hypocritical, as Western societies are allowed to change without being disregarded the same way. It is also worth noting that Yorta Yorta and other cases have favoured the accounts of random white squatters over the evidence provided by Indigenous communities themselves regarding the nature of their own laws and cultures.
The 2013 case of Akiba, on behalf of the Torres Strait Regional Seas Claim Groupbegan a move away from the Ward approach to the content of native title, instead recognising broad rights to land and resources for any purpose. Akiba also challenged the idea that Commonwealth legislation and leases, even temporary ones, extinguish native title forever. These changes have, in a sense, loosened the restraints on the self-determination and economic activity of native title holders. After Akiba courts have gradually made native title rights more holistic and more resilient. The question of proof, however, remains firmly under the Yorta Yorta continuity approach, bringing significant struggle to Indigenous communities in regions such as Victoria and South East Queensland. Even the compensation approach developed by Griffiths could be considered a continuation of Yorta Yorta, as contemporary Indigenous culture is devalued.
The decision of Yunupingu is a reminder of both how far native title has come and how far it has yet to go. It is important to recognise the efforts of Elders and Indigenous communities in pushing forward these developments through their efforts in the courts. First Nations Laws and Indigenous cultures are not relics of the past or hypotheticals for the future, but are instead an everyday experience for peoples and communities all around Australia. This is the reality that the colonial law is hopefully slowly waking up to.
