Federal Court judgment commentary: Native title

• Author: Mr Maithri Panagoda and Amelia Aguiar
• Law Firm: Carroll & O'Dea
• Published date: 31 July 2023

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (Mortimer CJ, Moshinsky and Banks-Smith JJ)

A recent judgement in the Federal Court of Australia (FCAFC) has, for the first time, awarded traditional owners with compensation for past acquisitions which failed to provide just terms, per s51(xxxi) of the Australian Constitution 'Constitution'.¹ In the continual fight for recognition and compensation, whether it be in regard to the Stolen Generation claims the firm has been extensively involved in, or the Voice to Parliament, this landmark decision extends upon existing recognition of native title rights and interests through its intersection between native title and constitutional law.

The applicant, Dr Yunupingu, on behalf of the Gumatj Clan or Estate Group of the Yolngu People, brought two applications under s61 of the Native Title Act 1993 (Cth) 'NTA', one of which sought a determination of native title and the second which sought payment of compensation for alleged effects on native title pertaining to executive and legislative acts done prior to the enactment of the Northern Territory Self-Government Act 1978 (Cth) and therefore, by the Commonwealth.² The determination of Native title is outside the scope of this commentary, which will explore the significance of the compensation claim.

The compensation claim relates to the 236 of land km2 in the Gove Peninsula, Northern Territory. Mining in this area has a long history with the land having been subject to numerous grants of mineral and pastoral leases under various legislation, categorised as 'past acts'.³ The applicant contended that these past acts were invalid acquisitions of property as they extinguished their native title rights without providing just terms.⁴ The Court facilitated a hearing of a demurrer, allowing the Commonwealth and other government respondents to serve a demurrer containing multiple grounds, with the court conducting proceedings to address each ground as 'separate questions' rather than delivering one overall decision.

The Commonwealth submitted two constitutional arguments; that s51(xxxi) to provide just terms does not condition laws made under s122 of the Constitution, and that native title rights cannot be 'acquired' as they are inherently defeasible.⁵ The government respondents submitted a different articulation of the Commonwealth's submissions, submitting that, as native title rights are only recognised by common law, they cannot be transformed by the common law in order to apply common law principles pertaining to s51(xxxi) of the Constitution.⁶ The Court rejected both constitutional arguments and therefore, the submissions by the government respondents.⁷

The Court rejected the first argument on the basis that the ruling in Wurridjal (2009) was binding and thus, the requirement to provide just terms extends to laws made under s122 of the Constitution.⁸ The Court's rejection of the Commonwealth's second constitutional argument was reached after an analysis of s51(xxxi) authorities which confirmed that concepts of inherent defeasibility apply to rights created in statute, omitting any 'contemplation that proprietary rights existing outside of statute are inherently variable'.⁹ As non-statutory rights, the Court characterised native title rights and interests as proprietary, concluding that any grant or act that extinguishes these rights and interests is capable of amounting to an acquisition of property within the meaning of s51(xxxi).¹⁰ As a result, the acts of the Commonwealth were invalid acquisitions of property by way of their failure to provide just terms as required by...