Commonwealth appeal dismissed in Native Title ruling, could have to pay up to $700m to TOs

Traditional owners could be paid up to $700m from the Federal Government after the High Court upheld a Native Title decision over the acquisition of land for bauxite mining in 1969.

Djawa Yunupingu, brother of late Yunupingu said he felt justice had been served in the High Court’s upholding of the Native Title decision.

The High Court has upheld a Native Title decision in a case launched by the late Indigenous leader Yunupingu that is expected to have massive financial implications for the Commonwealth.

The Court dismissed the Commonwealth’s appeal against a 2023 Federal Court decision, which found the Commonwealth had failed to act “on just terms” when it compulsorily acquired land for bauxite mining in Northeast Arnhem Land in 1969.

The High Court’s decision could see the Commonwealth forced to pay up to $700 million in this case alone, and open the door to other claimants.

Gumatj clan leader Djawa Yunupingu, the brother of the late Yunupingu, pumped his fist as he walked out of the High Court following the decision on Wednesday morning.

“I just want to say that I feel justice has been served in this country for my people and the people of Northeast Arnhem Land, and the certain clan groups that have supported the Gumatj clan; The Gumatj and the Rirratjingu clan,” he said.

PM Albanese and Djawa Yunupingu at the Garma Festival 2024 opening ceremony. Photo: Teagan Glenane for Yothu Yindi Foundation

“I also want to acknowledge my late brother who has been the mastermind of all this. He was the one that had the vision. (This decision is) for the future of my people and our children and their children.”

The Yunupingu family’s lawyer, Sean Bowden, said the decision was “a victory for decency, common sense and the rule of law in this country”.

“Like Djawa, I acknowledge the Yolngu people, the Gumatj in particular who are the clan who led this action. But the Gumatj walked along with the other great clans of Northeast Arnhem Land,” he said.

“Today’s decision validates that strength of belief of Aboriginal people generally, not just of themselves but of their place in Australia. It’s a judgement that respects the rights of traditional owners throughout the Northern Territory, all of whom have, like the Gumatj, suffered directly from the acts of government in dispossessing them of their lands, exploiting those lands for profit and causing great despair and suffering as individuals, families and cultures.”

Mr Djawa Yunupingu. Picture: Pema Tamang Pakhrin

Yunupingu successfully argued his Native Title amounted to property under Australian law and that the Commonwealth had failed to act “on just terms” as required by section 51 of the constitution when it granted a mining lease to Nabalco more than 50 years ago.

The Commonwealth has previously warned the ruling could affect every decision regarding the extinguishment of Native Title in the NT between 1911 and 1978, when the Northern Territory was granted self-government, and expose the government to “a vast amount of compensation” if the appeal failed.

“The Commonwealth would be liable to pay compensation (to Native Title holders) with interest … possibly over 100 years or more,” Commonwealth Solicitor-General Stephen Donaghue said during a High Court hearing last August.

The Commonwealth chose to launch its appeal to the High Court at the same time the Federal Government was campaigning for Australians to support an Indigenous Voice to Parliament.

In a statement, Attorney-General Mark Dreyfus said the appeal was launched to “settle critical constitutional issues”.

“This decision clarifies the Constitution’s application to those issues for parties to this and future matters,” he said.

“While the High Court has considered significant aspects of this matter, the case will now return to the Federal Court to resolve other remaining complex issues.”