Historic Darwin sitting could see ‘vast’ hit to feds’ coffers if Gumatj succeed, government claims

The Arnhem Land native title claimants say the Constitution requires the Commonwealth to pay them compensation ‘on just terms’ for the loss of their property prior to self-government.

Late Yolngu leader Yunupingu was the lead applicant in the case before he died prior to the Federal Court’s ruling in June. Picture: Zizi Averill

Lawyers for the federal government will cross swords with representatives of Arnhem Land’s Gumatj clan in Darwin next week claiming a loss in the last ditch appeal could cost the Commonwealth a “vast but presently unquantifiable amount” in compensation.

The special High Court sitting in the Territory’s capital represents a final roll of the dice for the government after three Federal Court judges sided with the late Gumatj leader Yunupingu on behalf of his clan in June last year.

The native title claimants argue they are owed compensation for any loss stemming from the extinguishment of their land rights while the Territory was administered by the Commonwealth between 1911 and 1978.

They say during that period the government’s actions were bound by a section of the Australian Constitution that gives it the power to acquire property “on just terms”.

But in its submissions to the High Court, the Commonwealth argues that “if the Full Court is correct, then for almost seven decades a vast but indeterminate number of grants of interests in land in the Territory would have been invalid”.

“Further, upon the validation of those grants by the Native Title Act, the Commonwealth would have become liable to pay compensation of a vast but presently unquantifiable amount (including interest, potentially going back to 1911),” the submission reads.

The long-running case will come to a head in a special sitting of the nation’s highest court in Darwin next week.

The government says unless the Federal Court ruling is overturned “this case will have enormous financial ramifications for the Commonwealth” and “create arbitrary distinctions between native title holders in the Territories and those in other parts of Australia”.

In response, the Gumatj argue there is “no evidentiary foundation for the Commonwealth’s submission as to the ‘vast’ scale of liabilities that would arise beyond the present case”.

They say any other future entitlements to compensation would be determined on their merits and would fail in any case where native title had been validly extinguished by the states, which have their own constitutions.

“Second and more importantly, this court would not be intimidated by the prospect that its function of interpreting and applying the Constitution in accordance with legal principle may occasion fiscal inconvenience to the Commonwealth,” the clan’s submissions read.

“That is especially so in the case of the ‘great constitutional safeguard’ that s 51(xxxi) represents.”

The claimants say the proper application of the Constitution has inconvenienced the government “numerous” times in the past and that is no reason not to right the “constitutional wrong underlying the present case”.

“In each such case, this court has not eschewed its responsibility to enforce the Constitution, but has instead embraced it,” the submission reads.

“No less would be true in the present appeal which at its heart involves a consideration as to whether Indigenous people should be denied the protection of a constitutional safeguard that applies to property owned by other Australians”.