Commonwealth loses High Court appeal of landmark native title compensation claim in North Arnhem Land

Australia’s highest court has upheld a decision finding traditional owners from North East Arnhem Land are entitled to some $700m in compensation over the destruction of their land due to bauxite mining. The case was launched by the late Indigenous leader Dr Yunupingu, on behalf of the Gumatj people, in 2019 over a mining lease on Gove Peninsula region of the Northern Territory. The clan contended that from 1911 to 1978, a number of grants or legislative acts took place which “may have extinguished or impaired their non-exclusive native title at common law”, and the Commonwealth failed to act on “just terms” when the land was leased to a mining company. The Federal Court initially ruled in Dr Yunupingu’s favour in 2023, finding the Gumatj people were entitled to compensation as a result. The Commonwealth then launched an appeal to the High Court challenging this finding. But on Wednesday, the High Court rejected the appeal. The ruling means the traditional owners could receive up to $700m in compensation as a result, with the High Court finding an initial single pastoral lease first granted in 1903 did not extinguish the Gumatj people’s “non-exclusive native title to minerals in the lease area”. A key part of the case centred around “just terms” outlined in the Australian Constitution, surrounding the Commonwealth’s acquisition of property. The term was made famous in the Australian film The Castle – with the Commonwealth arguing “just terms” did not apply in this case due to another section of the constitution allowing parliament to make laws about territories, not states. In its decision, the High Court said this “does not extend” to making a law “with respect to an acquisition of property otherwise than on just terms within the meaning of … the Constitution.” “To adopt the conditional common law rule of recognition of native title rights and interests would … perpetuate its own form of injustice,” the High Court judgment states. Outside court Djawa Yunupingu, a senior member of the Gumatj clan, paid tribute to his late brother while remarking justice had been served for his people. “It’s for the future of my people and our children and their children,” he said. In a statement, Attorney-General Mark Dreyfus said: “The government recognises the significant contribution that the late Dr Yunupingu made in initiating this case.” “The Commonwealth appealed to the High Court to settle critical constitutional issues in this case,” he said. “This decision clarifies the Constitution’s application to those issues for parties to this and future matters.” The case will now return to the Federal Court to resolve other issues. Greens Senator Dorinda Cox called the ruling a “landmark” victory for First Nations communities which upheld Dr Yunupingu’s legacy. “It confirms what we have long known – native title is not just symbolic, it is real, legal property, and the government cannot be allowed to take this away without fair compensation,” Senator Cox, a Yamatji Noongar woman, said. “First Nations people do not see land and sea as property, it is intrinsic to our identity as a culture and native title cannot separate this.”