Federal Court finds commonwealth failed to act on ‘just terms’ with Gumatj clan

A Federal Court decision could expose seven decades of Native Title decisions in the Northern Territory to compensation claims.

An NT Aboriginal clan has won a major Native Title victory after the Federal Court found the commonwealth failed to act “on just terms” when it greenlit mining on their land

The decision handed down on Monday could potentially expose seven decades of Native Title decisions in the Territory to compensation claims.

The late Yunupingu — who passed away in April — launched the compensation claim in 2019 over the acquisition and destruction of his land on the Gove Peninsula when the commonwealth authorised Nabalco to begin its bauxite mining operation in 1968.

The late Yunupingu — who passed away in April — launched the compensation claim in 2019 over the acquisition and destruction of his land on the Gove Peninsula

He argued the Native Title of that land was property, and that it was acquired by the commonwealth without consent.

By approving the Gove Peninsula mine, the Gumatj argued the commonwealth had breached section 51 (xxxi) of the Constitution, by failing to deal with them on “just terms”.

The commonwealth had argued that their claim was “extinguished” when the land was granted to missionaries in Northeast Arnhem Land.

Excavation trucks in use at the Nabalco bauxite and alumina mine on the Gove Peninsula, which the Gumatj clan argued was approved without their consent.

However, on Monday the full bench of the Federal Court found this was not the case, and that the decision was subject to “the just terms requirement”.

“The commonwealth’s primary position is that the applicant’s claim for compensation based on the special mineral leases should fail because all Native Title in the claim area was extinguished by the grant of the Mission Lease. We have rejected this argument above,” the court ruled.

On Monday, Gumatj clan leader Djawa Yunupingu welcomed the decision, saying it was a “continuance” of his late brother’s legacy.

“Although my brother did not live to hear today’s judgment, he would have been pleased that the Federal Court’s decision recognised the fundamental right of First Nations people to be treated equally by Australian law,” Mr Yunupingu said.

Gumatj clan leader Djawa Yunupingu at the NT Supreme Court Picture: Glenn Campbell

“It is a continuance of his life’s work, which began with the Bark Petition and the Gove Land Rights case to have Native Title properly recognised as the heart of the identity of all First Nations people.

“My brother believed that all First Nations people were entitled to receive compensation on just terms in accordance with … the Constitution like any other Australian when their sacred land is taken away from them without their consent.”

Legal experts have previously estimated the claim could be worth up to $700m and could open the door for similar claims.

The commonwealth took responsibility for the Northern Territory from South Australia in 1911 before the NT was granted self government in 1978.

Mr Yunupingu said the ramifications of the decision could impact all Native Titles acquired by the commonwealth over that period.

The Federal Court ordered that within 28 days each party should file written submissions for any orders sought.

The Office of federal Attorney-General Mark Dreyfus said he would “carefully consider” the full Federal Court’s decision