Yunupingu v Commonwealth: an important native title decision

 

A sceptre snatched with an unruly hand

Must be as boisterously maintained as gained

King John, Act 3, scene 3.

 

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75, Judgment of: Mortimer CJ, Moshinsky And Banks-Smith JJ. Date of judgment: 22 May 2023 (link here).

 

Today’s Federal Court Decision is momentous insofar as it decides that the native title holders of the Gove Peninsula will be entitled to compensation for any native title mineral rights they held prior to the grant of mineral leases, pastoral leases and a mission lease. This arises form the Court’s finding (against the arguments of the Commonwealth) that any native title mineral rights which existed (and which are yet to be determined) were not extinguished by the grants of pastoral leases and mineral leases over the relevant land on the Gove Peninsula, and that the requirement for the Commonwealth to pay just terms compensation for such extinguished native title rights continues in the Northern Territory.

 

The judgement, reflecting the arguments put by the parties, is highly technical and complex, particularly for non-lawyers such as myself. I don’t propose to attempt a detailed summary, nor a discussion of the legal implications of the judgment itself. I am sure that there will be a number of detailed summaries published over the coming weeks. I have included at the end of this post an appendix which sets out the Federal Court’s own high level summary of the case for those interested. 

It is as yet unclear whether this decision will be appealed to the High Court.

There was however one paragraph in the judgment that caught my attention, not for its legal import in relation to Gove, but because it plays into the particular policy responsibilities of the Commonwealth in relation to the Territories, and in particular the Northern Territory, both generally, but for present purposes for Indigenous policy.

 

Paragraph 471 states (emphasis added) :

471. Further, we do not accept the Commonwealth’s contention that when it exercised sovereign power in the Northern Territory it did so not as a national government in a federal system; rather it was “essentially performing the role of a State (as is illustrated by the fact that, in the case of the Northern Territory, the Commonwealth “stepped into the shoes” of the South Australian government)”. The NT Administration Act was an exercise of power under s 122 of the Constitution. It was subject to s 51(xxxi). There is a clear distinction between the kind of legislative power exercised over the Northern Territory as between the Commonwealth and South Australia.

 

It strikes me that the Commonwealth has over the last decade increasingly sought to position itself on Indigenous policy issues as of equivalent status as the states (and territories) in an effort to shift policy responsibility to the states and territories across the board. The issue that came before the Court is just one example of this. Another is the way in which the Commonwealth has been administering the National Agreement on Closing the Gap, and in particular, its passive approach to the quality of compliance by the states on issues such as the quality of implementation plans required under that National Agreement.

 

The fact that the Federal Court has called the Commonwealth out on the particular issues raised in this litigation is important, but should serve as an impetus for the Commonwealth to take stock and reconsider its wider positioning across the Indigenous policy domain. Afterall, the 1967 Referendum, passed with the support of over 90 percent of voters, gave the Commonwealth powers to legislate in relation to Aboriginal affairs for a reason.

 

Appendix

The Catchwords (or high level summary of the issues and decisions) to this judgment are set out by the Federal Court as follows (emphasis added):

NATIVE TITLE – claim for compensation under Native Title Act 1993 (Cth) (NTA) – where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common law – where the applicant contends that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision – where the applicant contends that, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) – where the applicant contends that each of the grants or acts falls within the definition of a “past act” in the NTA – where the applicant contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property – where the Commonwealth contended that the applicant’s claim should fail on a number of bases – where separate questions considered and determined by a Full Court in the exercise of the Court’s original jurisdiction.

 

NATIVE TITLE – extinguishment – pastoral leases granted between 1886 and 1903 – reservations of minerals – where the Commonwealth contended that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established) – held: any native title mineral rights not extinguished

 

NATIVE TITLE – extinguishment – Mission Lease granted in 1938 – where the Commonwealth contended that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted – where the Commonwealth contended that the legislative instrument provided for the grant of a common law lease and thus the lease conferred exclusive possession on the lessee – where the Commonwealth contended in the alternative that the Mission Lease was a statutory lease that granted rights that were inconsistent with the claimed non-exclusive native title rights – held: the Mission Lease did not extinguish or purport to extinguish the claimants’ claimed non-exclusive native title rights

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the just terms requirement contained in s 51(xxxi) does not apply to laws enacted pursuant to s 122 of the Constitution – where the Commonwealth submitted that Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564 is the binding authority on this question – where the Commonwealth submitted that Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 did not overrule Teori Tau – held: Wurridjal did overrule Teori Tau and the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122

 

CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land – held: native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi) – held: a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi)