The High Court made a landmark decision on native title law. Here’s what it means

Aboriginal and Torres Strait Islander readers are advised this article contains the name of a deceased person.

The High Court of Australia has handed down a landmark judgement^[1] on native title law in Australia.

Commonwealth vs Yunupingu was about whether the Gumatj Clan in the Northern Territory would be entitled to compensation from the Commonwealth for acts that affected their native title rights and interests.

The court ultimately found^[2] the Gumatj Clan was eligible for compensation, holding the Commonwealth liable.

The case has been described^[3] as one of the most significant tests of native title since the famous Mabo proceedings in 1992.

Where did the case come from?

The late Yunupingu^[4], on behalf of the Gumatj Clan of the Yolngu People in North-East Arnhem Land, sought compensation for land subject to bauxite mining in the Gove Peninsula.

The clan is seeking an estimated $700 million^[5] in compensation as the mining activity winds up^[6], leaving their land damaged.

The Crown authorised the mining in the area without the Gumatj Clan’s consent between the 1930s and ‘60s.

The mining lease, originally granted to Nabalco, is now held by Swiss Aluminium^[7] and operated by Rio Tinto^[8].

What were the laws at play?

Commonwealth vs Yunupingu deals with how native title and constitutional law overlap.

Native title law^[9] recognises the connection Aboriginal and Torres Strait Islander Peoples have to their lands. It is based on their traditional laws and customs dating back long before British invasion, and continues today. It’s governed by the Native Title Act^[10], which includes provisions for compensation when native title rights or interests are impaired or taken away.

Under section 51^[11] of the Constitution, the Commonwealth must pay an owner fairly if they acquire their property. This is called the “just terms” guarantee.

This section was famously the subject of the film The Castle, with lawyers arguing it was about “the vibe^[12]” of the Constitution.

The case was also about section 122^[13], which concerns how the territories are governed.

There were three main issues that were debated before the High Court: whether native title land can be acquired, whether the just terms guarantee applies to the territories, and what role pre-Constitutional mining agreements play.

What were the legal arguments?

The Commonwealth told the High Court it doesn’t have to pay for taking away native title rights because those rights are “inherently defeasible” and therefore not property able to be “acquired”. Defeasible means it can be cancelled.

It’s a technical legal point, but amounts to arguing native title rights can’t be transferred and therefore can’t be acquired by the Commonwealth.

It also argued the just terms guarantee doesn’t apply to the territories in the constitution, except in specific circumstances.

Finally, the Commonwealth said it took ownership of the minerals found in the area before the Constitution was created by granting leases that “reserved” mineral rights to the Crown. This meant, the Commonwealth said, it could have these rights without having to pay native title holders.

Lawyers for the Gumatj Clan countered these points.

They told the court native title rights are covered by the just terms guarantee.

They said to make sense of the Constitution, it must be read as a whole. Therefore, laws about the territories are also subject to the guarantee.

People living in the territories of Australia should still be entitled to fair compensation for property that is acquired and not be excluded because they are in a territory rather than a state.