Case Summary
The High Court’s ruling in Commonwealth of Australia v Yunupingu [2025] HCA 6 marks an important decision regarding native title compensation in the Northern Territory. It examines whether past acts by the Commonwealth that extinguished native title rights necessitate just terms as outlined in section 51(xxxi) of the Constitution.
This case originated from a claim by the Gumatj Clan, a Yolngu Indigenous group located in northern-eastern Arnhem Land in the Northern Territory, seeking a native title determination and compensation for the historical extinguishment of their native title rights in the Gove Peninsula. Their claim concerned appropriations of the land by the Commonwealth and grants to third parties of interests in land in the Gove Peninsula between 1936 and 1969. The Gumatj Clan contended that these past acts attributable to the Commonwealth, made under the Northern Territory (Administration) Act 1910 (Cth), were invalid at the time to the extent that they conflicted with native title rights, later acknowledged in Mabo v Queensland [No 2] (1992) and the Native Title Act 1993 (Cth).
The key legal question was whether the Commonwealth’s broad power to govern territories under s 122 of the Constitution—which allows Parliament to make laws for the government of territories— was subject to s 51(xxxi), which requires property acquisitions to be on just terms. The Federal Court ruled in favour of the Gumatj Clan, a decision upheld by the High Court, which affirmed that past extinguishments of native title by the Commonwealth may give rise to compensation obligations. This ruling carries significant implications for future native title compensation claims, especially in the Northern Territory.
Key Findings of the Court
The High Court made three key findings in their decision:
- The High Court found that the Commonwealth’s broad power to govern territories under s 122 of the Constitution is subject to s 51(xxxi), which requires the Commonwealth to provide just terms when acquiring property. As Gordon J stated at [189], ‘There is nothing in the nature of the power in s 122 which suggests it displaces, let alone in fact displaces, s 51(xxxi).’ The Court clarified that s 51(xxxi) functions not only as a grant of legislative power but also as a constitutional safeguard protecting individuals from the uncompensated acquisition of property. This protection applies equally to Commonwealth laws made under s 122.
- The High Court ruled that extinguishing native title, as recognised under common law before the commencement of the Native Title Act 1993 (Cth), amounts to an acquisition of property under s 51(xxxi) of the Constitution. The Court affirmed that native title is a proprietary right that is protected by constitutional guarantees, and its extinguishment through government actions or legislation involves a transfer of property interests that requires just compensation.
- The High Court also found that the 1903 pastoral lease did not extinguish non-exclusive native title rights over minerals located on or beneath the land. This was because the lease did not involve the Crown appropriating mineral rights, instead, it simply excluded those rights from being granted to the leaseholder. Consequently, the native title rights to minerals remained unaffected and continued to exist despite the issuance of the lease.
Issues Remitted to the Federal Court
The High Court has remitted certain issues to the Federal Court of Australia (FCA) for further determination. These include:
- Compensation Calculations: The FCA must assess the quantum of compensation owed to the Gumatj Clan for the past acts of extinguishment by the Commonwealth.
- Identification of Past Acts: The FCA will need to determine which specific past acts meet the criteria for compensation under the Native Title Act 1993 (Cth).
- Assessment of Impact: The FCA will evaluate the impact of the extinguishments on the native title rights and determine the extent to which the acts resulted in compensable acquisitions of property.
Implications for Future NT Compensation Claims
This decision has profound implications for future native title compensation claims, particularly those involving acts of extinguishment by the Commonwealth in the Northern Territory. By confirming that Section 51(xxxi) of the Constitution applies to the Commonwealth’s power under Section 122, the Court established that past acts attributable to the Commonwealth that extinguish native title may amount to an acquisition of property requiring compensation on just terms under the Native Title Act 1993 (Cth). This ruling significantly broadens the scope of Commonwealth responsibility for past extinguishments and strengthens Indigenous land rights in the Northern Territory. It also opens the door for additional compensation claims where historical acts of extinguishment in the Northern Territory may have occurred without appropriate compensation.
View Case Summary (PDF) – Case Summary Commonwealth of Australia v Yunupingu [2025] HCA 6 – Thought Leadership