States, miners grapple with native title fallout from High Court ruling

A landmark High Court ruling that native title is property has left state governments and miners grappling with the consequences.

The High Court in Canberra. Its decision in the Yunupingu case last week makes the commonwealth liable to pay compensation to the ­Gumatj people for the decision to allow Swiss company Nabalco to mine bauxite on Gumatj lands. Picture: NCA NewsWire / Martin Ollman

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A landmark High Court ruling that native title is property has left state governments and miners grappling with the consequences.

Warren Pearce, chief executive of the Association of Mining and ­Exploration Companies, told The Australian that while the ­Yunupingu decision found that the federal government had a significant liability in the Northern Territory and potentially other commonwealth land from the early 1900s, there were questions about how, or if, the decision could apply more broadly.

“Currently this issue only extends to commonwealth land, and potentially to other dealings in other states such as compulsory acquisition of land for defence,” Mr Pearce. “Australia needs a plan to manage the costs of compensation for native title.

“While Yunupingu appears to be limited primarily to the NT, there is a significant issue with native title compensation across Australia.

“In Western Australia there are currently four native title settlements and each one is slightly different. We understand and expect native title lawyers in Australia will be reading this case, but the concern now is whether it will remain limited to the commonwealth, or will this provide a precedent beyond its current bounds.

“This introduces a new ­element of uncertainty on where the endpoint will be or if there is an endpoint.”

The High Court’s decision in the Yunupingu case last week makes the commonwealth liable to pay compensation to the ­Gumatj people for the decision to allow Swiss company Nabalco to mine bauxite on Gumatj lands.

The mining began in 1968 with commonwealth permission and over the objections of the Gumatj people, who made their opposition known in the Yirrkala bark petitions and in a subsequent court case.

On Monday, a spokesman for the West Australian government said the ruling “does not at this stage appear to relate to Western Australia”.

Gumatj leaders Djawa Yunupingu and Balupalu Yunupingu celebrate outside the High Court in Canberra last Wesnesday. Picture: AAP Image/Mick Tsikas

Gilbert + Tobin partner and native title expert Marshall McKenna said he believed the implications of the Yunupingu decision were largely confined to the NT for constitutional reasons – being the commonwealth cannot acquire property, including native title rights, other than on “just terms”.

“That means any acquisition of native title in the territory from January 1, 1901 is compensable,” Mr McKenna said.

“That is different from the states, who have to give the same terms to native title holders as to freehold titleholders, but only from October 31, 1975 (the commencement of the Racial Discrimination Act).

“The impact on industry is limited, because industry has been operating on the assumption that compensation is payable from October 31, 1975 – so it’s only historical mines that are a problem.

“The impact on the NT government and /or the commonwealth is more – because all historical acquisitions under commonwealth control (stations, farms, towns etc) are potentially compensable.”