High Court sides with Gumatj in Commonwealth's appeal of Yunupingu case

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The High Court has denied the Commonwealth’s appeal against Yunupingu, paving the way for the Gumatj clan to potentially receive millions in compensation for bauxite mining at Gove.

The landmark case centres on the Commonwealth’s decision to allow mining in northeast Arnhem Land in 1968 without consent from the Traditional Owners, the Gumatj people.

In 2019, renowned land rights advocate the late Yunupingu, on behalf of the Gumatj clan, made an application for native title for land in the Gove Peninsula.

At the same time, he lodged a compensation application for the alleged effects on native title of certain executive and legislative acts from 1911-1978.

Yunupingu, who died in April 2023, claimed compensation under section 51 (xxxi) of the constitution, which empowers the parliament to make laws for the acquisition of property on just terms, meaning the Commonwealth can acquire land if the landowner is paid.

In May 2023, the full bench of the Federal Court ruled in favour of Yunupingu, but later that year the High Court granted the Commonwealth special leave to appeal.

When the case began in the High Court in August last year Commonwealth solicitor-general Stephen Donaghue said that the government would be exposed to “a vast amount of compensation” if the appeal failed.

“The Commonwealth would be liable to pay compensation (to native title holders) with interest … possibly over 100 years or more,” Dr Donaghue said at the opening of the appeal.

The Commonwealth was granted special leave to appeal to the High Court over claims that the native title case would invalidate Northern Territory land grants dating back to 1911.

The Rirratjingu clan have their own claims to native title over parts of the area in question but support the Gumatj argument on reservation of minerals.

The compensation was sought for land from which bauxite had been mined since 1968, when the Australian government entered into a lease with Nabalco.

The mining lease is now held by Swiss Aluminium.

Attorney-General Mark Dreyfus said in a statement that the Government recognises the significant contribution 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.

“While the High Court has considered significant aspects of this matter, the case will now return to the Federal Court to resolve other remaining complex issues.”

National Native Title Council chair Kado Muir congratulated the Gumatj clan and paid respect to the Yunupingu family.

“The Gumatj decision shows that when our sacred lands are taken away, we are entitled to receive compensation on just terms in accordance with section 51(xxxi) of the Constitution, in the same way as any other citizen of Australia,” he said.

“The Court made no decision regarding the amount of compensation that was due to be paid to the Gumatj Traditional Owners in today’s judgment.

“The question of the amount (quantum) of compensation will be referred back to the Federal Court to determine.

“Once the issue of quantum of compensation is determined, the award arising from today’s judgment will support real economic empowerment for the Gumatj people.”

National Native Title Council chief executive Jamie Lowe said the High Court’s decision shows that native title is recognised under Australian law and also protected by the Constitution.

“Where the Commonwealth, States or Territories have acted in a way that fails to respect Constitutional or other legal protections, then it is common sense that there will be redress,” he said.

“This ought to be seen as an opportunity to economically empower communities who have been historically dispossessed.

“It is not controversial that the communities impacted by projects on their Country should benefit from the wealth generated through those projects.”