The case confirms that native title is a property right and, like any other property right, if it is taken away by the Commonwealth then the native title holders are entitled to compensation on just terms. The case also confirms that this principle of just terms compensation applies to the taking of property by the Commonwealth in the Northern Territory. The Commonwealth was responsible for making laws for the Northern Territory from 1911 until 1978 when the Territory obtained self-government.
Whose native title was affected?
This native title claim was made by Dr Yunupingu AM on behalf of the Gumatj, one of the clans of the Yolŋu People. Dr Yunupingu passed away before the case was finished, but the case still bears his name. The country of the Gumatj is in northeast Arnhem Land. The particular land considered in this case is in the Gove Peninsula.
In the 1950s and 1960s, the Commonwealth granted four leases to companies to allow them to mine bauxite on the Gove Peninsula. In 1963, the traditional owners of the land presented the two Yirrkala bark petitions to the Australian Parliament in protest. Parliament responded by establishing a Select Committee, which concluded that the Indigenous people had not been consulted about the proposed mines. The Committee recommended that certain sacred sites be protected, but mining was allowed to continue.
Members of the Gumatj and Rirratjingu clans of the Yolŋu People then brought a case in the Northern Territory Supreme Court, seeking recognition of their 'communal native title'. The Court ruled against them in 1971 in the case of Milirrpum v Nabalco. It was not until 1992 that the arguments they made in this case were finally accepted by the High Court in Mabo [No 2] v Queensland.
The Milirrpum case led to the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which returned significant parts of the Arnhem Land Reserve to the traditional owners. However, this did not apply to the mining sites which had been carved out of the reserve.
After Mabo was handed down, and the Native Title Act 1993 (Cth) was passed, the Gumatj brought a new case seeking recognition of their native title. They also sought compensation for acts of the Commonwealth that had extinguished their native title, including the granting of the mining leases without their consent.
This High Court case does not determine their native title but deals with a number of legal issues raised by the Commonwealth, and allows those native title and compensation claims to proceed in the Federal Court.
What objections were made to their native title claims?
The Commonwealth raised three arguments about why the native title claims of the Gumatj could not succeed.
First, the Commonwealth argued that native title rights were not like other property rights. It said that native title was 'inherently fragile' and that if it was extinguished by the Commonwealth the native title holders were not entitled to compensation on just terms. The Commonwealth compared native title rights to a statutory benefit given by the Government, like a Medicare benefit, that could be taken away again without providing compensation. However, the High Court said that this misunderstood the nature of native title. Native title was not created by Australian law, it was an enduring set of rights and interests that existed before Australian law and was only later recognised by it. Native title could not properly be compared to a statutory right that could just be taken away without compensation.
Secondly, the Commonwealth argued that although the Constitution says that if the Commonwealth takes property it has to provide compensation on just terms, this didn't apply to things the Commonwealth did in a Territory, like the Northern Territory. This argument was supported by a case from 1969 called Teori Tau. However, the High Court unanimously held that Teori Tau was wrong. The Commonwealth's power to make laws for a Territory is constrained by the just terms principle, in the same way as all of the other Commonwealth powers in the Constitution. This ruling is not limited to native title: whenever the Commonwealth takes someone's property in a Territory it has to provide compensation on just terms.
Thirdly, the Commonwealth argued that all of the relevant native title rights in this case had already been extinguished by a lease granted by South Australia in 1903, before the Commonwealth took control over the Northern Territory in 1911. This argument was based on the terms of the lease, but was also rejected.
How does this apply to acts by the States?
State Governments are not bound by the 'just terms' principle in the same way as the Commonwealth. However, if a law of the Commonwealth and a law of a State are inconsistent then the Commonwealth law applies.
In practice, this means that after the Commonwealth passed the Racial Discrimination Act 1975 (Cth) (RDA) on 31 October 1975, acts by the States that extinguished native title also require the payment of compensation on just terms. This is necessary so that Indigenous people have equality before the law, and so that they can enjoy their human rights, including the right to own and inherit property, in the same way as other Australians.
What does this case mean for private property?
This case does not change the native title that can be claimed by Indigenous Australians. It does not mean that any private property held by an individual or business is at risk of being taken away.
The Native Title Act confirmed that any past acts that extinguished native title and that would have been invalid, for example because they did not provide just terms compensation, or because they were contrary to the RDA, are valid. However, the Native Title Act also recognised that:
Justice requires that, if acts that extinguish native title are to be validated or to be allowed, compensation on just terms … must be provided to the holders of the native title.
This case confirms that the just terms principle - made famous in the Australian movie The Castle - applies equally to everyone in Australia. If the Australian Government takes away your property, you are entitled to be compensated fairly.
