Commonwealth of Australia v Yunupingu (on behalf of the Gumatj clan or estate group) & ors [2025] HCA 6

Summary

In a landmark ruling, the High Court has set an important precedent that the Commonwealth is liable to pay compensation to First Nations Peoples if their native title rights have been compromised by certain historical government decisions. In this case, this included government decisions to grant mining leases.  

The High Court unequivocally affirmed the Gumatj Clan of the Yolgnu people’s right to ‘just compensation’ under native title law for historical acts which adversely affected their native title rights in the Gove Peninsula. The decision recognised the Gumatj Clan’s enduring connection to the Gove Peninsula in North-East Arnhem Land.  

The Gumatj Clan has sought compensation of $700 million under the Native Title Act 1993 (Cth) (NTA). The Federal Court is currently assessing that claim.  

This decision potentially opens the door for other First Nations native title holders to seek compensation from the Commonwealth where their rights have been lost or impaired due to government decisions. 

Background  

Provisions of the Constitution & the Native Title Act 

The Constitution sets out the powers available to the Commonwealth and the limits of those powers – in other words, it says what the Commonwealth can and cannot do. Two sections in the Constitution are particularly important to this decision.  

The first is section 122 of the Constitution, which grants the Commonwealth the power to make laws governing Australian territories (Territories power). As a result of this power, the Commonwealth has greater control over the laws of territories than it does in relation to states.  

The second is section 51 (xxxi) of the Constitution, which allows the Commonwealth to compulsorily acquire private property – but it must do so on ‘just terms’. Property is acquired on ‘just terms’ when the Commonwealth compensates the owner fairly and reasonably for the acquisition of the property. This means the Commonwealth can take land owned by someone else, if it provides fair compensation in return.  

The NTA recognises and protects the land rights of Aboriginal and Torres Strait Islander people. Native title means the rights and interests they have in land or waters, based on their traditional laws and customs. Native title a type of property right. 

There are two types of native title. Exclusive native title means having full control of the land, similar to owning it. Non-exclusive native title means the land can be used, but it has to be shared with others who also have rights to it, like leaseholders. 

Ultimately, the High Court decision was about how the two provisions of the Constitution work with each other and with the property rights held by First Nations Peoples under the NTA.  

Government decisions 

The Commonwealth made various decisions in relation to the lands of the Gumatj Clan in the Gove Peninsula before native title was recognised in 1993.  

In 1903, a pastoral lease was granted by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) over land that included the Gove Peninsula.1 

From 1911 to 1978, the Commonwealth used the Territories power to enact legislation for the Northern Territory, including laws that granted mining and other leases.2 

Some laws made under the Territories power, and government actions that followed, affected the Gumatj Clan’s land rights. These included a 1938 lease to the Methodist Missionary Society over the Gove Peninsula, a 1939 law that gave the government ownership of all minerals,3 a 1953 law vesting mineral rights to the Crown,4 and five leases which granted exclusive mining rights.5 Under the fifth lease, granted in 1969, Rio Tinto operated a bauxite mine for 40 years.6  

Federal Court proceedings 

In 2019, the late Dr Galarrwuy Yunupingu, on behalf of the Gumatj Clan, commenced a claim in the Federal Court to:  

1.   have native title over the Gove Peninsula recognised; and
   
   
2. seek compensation for the harm caused to their land rights by Commonwealth laws and actions. 

The NTA provides that native title holders are entitled to compensation for certain ‘past acts’ including legislation and executive acts of the government.  

Dr Yunupingu, on behalf of the Gumatj Clan, argued that between 1911 and 1978, the Commonwealth used the Territories powers to grant leases and do other things that constituted ‘past acts’ under the NTA.  

It was claimed that the Gumatj Clan shared non-exclusive native title rights over the Gove Peninsula, including the right to access and use minerals for any purpose. 

It was argued that the Commonwealth’s ‘past acts’ were inconsistent with the non-exclusive native title rights of the Gumatj Clan and constituted the acquisition of property on unjust terms, in contravention of section 51 (xxxi) of the Constitution. 

The Gumatj Clan was successful in the Federal Court. The Full Court of the Federal Court said native title rights constitute property under section 51(xxxi) of the Constitution, which meant they must be acquired on ‘just terms’. Since the Commonwealth took away these rights without fair payment, the Gumatj Clan was eligible to claim compensation under the NTA. 

The decision was significant for both constitutional and native title law. The implication for the Commonwealth is that it may be liable to other compensation claims by other native title holders in similar circumstances. As a result, the Commonwealth appealed to the High Court.  

The High Court case 

The Commonwealth’s case: 3 propositions 

The Commonwealth argued that:  

1. The Territories power in section 122 of the Constitution should be seen separately from the ‘just terms’ requirement in section 51(xxxi).
    
2. The ‘just terms’ requirement would only arise if the Territories power in section 122 also contained that obligation – and it does not. 
3. This interpretation permits it to make laws acquiring native title rights that are not on just terms. 
4. The acquisition of native title rights does not need to be made on ‘just terms’ because they are ‘inherently fragile’ and ‘susceptible’ to extinguishment by the Crown exercising power over the land and waters. 
5. It already owned the minerals because it had granted leases before the Constitution was established, reserving mineral rights to the Crown. Consequently, the Commonwealth could own the mineral rights without compensating native title holders.   

Gumatj Clan submissions: 3 propositions 

The Gumatj clan argued that: 

1. Native title rights are property rights under section 51(xxxi) of the Constitution, and by granting interests in land (leases), the Commonwealth had acquired their property.  

2. Even if exclusive native title rights were extinguished, the Clan’s non-exclusive native title rights to the land were not. It claimed the Commonwealth actions in granting interests in land was invalid to the extent that it was inconsistent with their native title rights. The inconsistency was a failure to acquire their property on ‘just terms’.
3. The Constitution must be read as a whole, not as separate parts. This means section 122, about making laws for the territories, must follow the ‘just terms’ rule. 

Decision: 3 Conclusions 

The High Court agreed with the Full Court of the Federal Court and dismissed the appeal. The decision had three major conclusions. 

1. The Court held that the Constitution should be read as a whole, so the ‘just terms’ requirement applies to laws made under the Territories power. It said that the Commonwealth cannot acquire property through laws authorised by the Territories power unless it is on just terms. The Court emphatically stated (at [44]):

“The time has come for it to be finally and authoritatively declared that the power conferred by s.122 of the Constitution to make laws for the government of a territory does not extend to making a law with respect to an acquisition of property otherwise on just terms within the meaning of s 51(iiix) of the Constitution.” 

2. The Court rejected the Commonwealth’s claim that the ‘inherently fragile’ native title rights are only recognised by the common law until legislation is made or executive action is taken (such as granting a lease under a statute). The Court reasoned that native title rights can be affected by authorised legislation or power inconsistent with native title rights, but those rights do not disappear simply because authorised legislation or power is created. This means native title rights are property rights that can be acquired by the Commonwealth and must be acquired on just terms.
3. The Court found that the grant of pastoral leases by the Commonwealth prior to 1911 did not extinguish non-exclusive native title rights to minerals on or under the land held by the Gumatj Clan. Since native title rights and interests are by nature property rights, the Commonwealth acquired the Gumatj Clan’s property but did not do so on just terms, entitling Gumatj Clan to claim compensation under the NTA.

Commentary 

This decision represents an expansion of the circumstances that will allow First Nations Peoples to claim compensation from Commonwealth for decisions that harmed their native title rights.  

After the introduction of the NTA in 1993, native title holders were unsuccessful for over two decades in achieving an award for compensation for government actions that extinguished or diminished their native title rights. The first decision to grant compensation, known as the Timber Creek case (Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7), was finalised in the High Court in 2019. In this case, compensation was awarded to the Ngaliwurru and Nungali peoples for actions by the government that had extinguished their native title rights.7  

The current High Court decision has significant implications for the scope of compensation that native title holders may be entitled to, particularly in relation to claims for compensation for acts in any of the Australian territories before 1993 when the NTA was enacted. In its submissions to the High Court, the Commonwealth stated that if the Federal Court was correct:  

“…for almost seven decades a vast but indeterminate number of grants of interests in land in the Territory would have been invalid. Further, upon the validation of those grants by the Native Title Act 1993 (Cth) (NTA), the Commonwealth would have become liable to pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911).” 

The High Court has referred the claim back to the Federal Court which is tasked with assessing the compensation that is to be paid to the Gumatj Clan. Whether the Federal Court accepts that $700 million, as claimed, should be paid or some other amount remains to be seen. 

There are several issues which were not dealt with in this matter that will likely need to be clarified by the Courts in future matters.  

For example, it is unclear whether leaseholders and others may be liable to pay compensation for native title claims. It is also undecided whether the Gumatj Clan holds native title rights to minerals and other resources of the Gove Peninsula land. It is also still to be decided what would be considered ‘just terms’ in the native title context. 

While it is too early to know just how broadly this decision can be applied, the decision is no doubt a significant step towards recognising aspects of native title that do not fit neatly into the common law concept of property.  

This case summary was written by Aliya Abdurrahman, Rebecca Poynton and Lillian Bender.