Galarrwuy Yunupingu court case hears Yolngu native title was extinguished

A Northeast Arnhem Land leader’s land rights compensation case has been complicated by a lease granted to missionaries. Read the latest from the hearing.

A lease granted to missionaries in Northeast Arnhem Land extinguished the native title of the local Yolngu people, rendering them ineligible for compensation for the subsequent destruction of their land, a court has heard.

Gumatj clan leader Galarrwuy Yunupingu is seeking compensation for the acquisition and destruction of his land on the Gove Peninsula, when the Commonwealth authorised Nabalco to begin mining operation in 1968.

He argues the native title of that land was property, and that it was acquired by the Commonwealth without consent.

During the second day of a Federal Court hearing in Darwin, lawyers for the Commonwealth argued the Yolngu’s native title had been extinguished in 1938, when a lease was granted to the Methodist Missionary Society.

Djiniyini Gondarra (Golumala), Djawa Yunupingu (Gumatj clan), Mawalan Marika (Rirratjingu clan), Yaltharr Mununggurr (Djapu clan) at the NT Supreme Court. Picture: Glenn Campbell

“Subsequent acts would have no impact on native title as it had already been extinguished,” counsel for the Commonwealth, Carla Klease said.

“Where the controversy lies … relates to how the missionary lease should be characterised.”

Ms Klease outlined to the court how the lease had been established under Section 16 of the Aboriginal Ordinance Act.

The Act gave special powers to the “Chief Protector” to “undertake the care, custody or control” of Aboriginal children in the Northern Territory.

About 30 Yolngu people including elders from six Arnhem Land clans were in the courtroom as Ms Klease detailed the Commonwealth’s case, prompting a warning from Justice Debra Mortimer.

“There are a lot of people sitting in court for which this subject matter is difficult and personal,” she said.

“You’re making legal submissions about this provision, but I take it the Commonwealth recognises the language in this and the subject matter is a terrible part of the history of the Northern Territory.”

Ms Klease said the Commonwealth “accepts it’s right to have contemporary outrage” about the issues, but that the facts surrounding the granting of the lease needed to be examined.

Galarrwuy Yunupingu AM interacts with Australian Prime Minister Anthony Albanese during the Garma Festival at Gulkula. Picture: Tamati Smith/Getty Images

Lawyers for Dr Yunupingu and the Northern Land Council will argue the mission lease did not extinguish native title.

This is in part because the lease was declared to be “for the benefit, care or protection” of Aboriginal people and the “for the maintenance, custody and care” of Aboriginal children.

“It would be inimical for a charitable institution mandated to be ‘for the benefit, care or protection’ of Aboriginal persons and ‘for the maintenance custody and care’ of Aboriginal children to exploit a lease granted expressly on that basis for other purposes,” the NLC argues in written submissions.

It argues the fact the general population was prohibited from entering the mission, but that Aboriginal people were excluded from that prohibition, shows “an enduring entitlement of Aboriginal persons to access and remain on the land”.

During Tuesday’s hearing, lawyers for the Commonwealth also argued the Yolngu’s native title had been impaired by the issuing of pastoral leases in the late 19th and early 20th century.

“The reservation was the creation of the ownership rights in the crown in the form of the minerals,” the Commonwealth’s lead counsel Stephen Lloyd SC said.

Legal experts have previously suggested Dr Yunupingu’s claim could be worth up to $700 million and could open the door to further claims.

The court has heard the case could have the potential to make every act done by the Crown in relation to land in the Northern Territory between 1911 and 1978 liable for compensation, including for things like the construction of roads.

Counsel for the Northern Territory, Stephen Wright SC, told the court the NT was concerned about the “much expanded compensation liability” that could exist if the claim was successful.

“Even if the liability only falls to the Commonwealth, the Northern Territory is still concerned about a large fiscal liability in respect of things done in the Territory back to 1911,” he said.

The hearing continues.

Matt Cunningham is the Sky News Northern Australia Correspondent