Galarrwuy Yunupingu ‘should be afforded’ same land rights as others, lawyers tell court

Galarrwuy Yunupingu is fighting for compensation for the acquisition and destruction of his Gove Peninsula land when the Commonwealth authorised Nabalco to begin mining operations.

Lawyers for Gumatj clan leader Galarrwuy Yunupingu have told a Federal Court hearing he should be afforded the same rights as any other Australian who has their land acquired by the Commonwealth.

The former Australian of the Year has launched a claim for compensation for the acquisition and destruction of his land on the Gove Peninsula when the Commonwealth authorised Nabalco to begin mining operations in 1968.

He argues his native title is property, and the Commonwealth breached section 51 (xxxi) of the constitution, failing to act “on just terms” when it acquired that property without consent.

During the Federal Court hearing in Darwin on Wednesday, Dr Yunupingu’s counsel, Arthur Moses SC, read a passage from a book – Our Land is Our Life – published by Dr Yunupingu in 1997.

“This is not a history story,” he quoted Dr Yunupingu as saying.

“This is my story. This is what happened to my country and my father’s country, and my father’s father’s country.

“In the early 1960s, I saw bulldozers rip through our Gumatj country in northeast Arnhem Land.

“I watched my father stand in front of them to stop them clearing sacred trees and saw him chase away the drivers with an axe.

“I watched him cry when our sacred waterhole was bulldozed. It was one of our Dreamings and a source of water.”

The Commonwealth has argued the protections afforded in section 51 of the constitution do not apply in the Northern Territory.

It points to a 1969 case - Teori Tau – where the High Court rejected the claims of a group of Papuans who opposed the development of a copper mine on their land on Bougainville Island. The court ruled that section 51 did not apply to Australian territories.

Mr Moses told the court the Commonwealth was arguing the “just terms” provision in section 51 “applies to everyone in Australia but Aboriginal people who had their land stolen from them”.

Gumatj elder Galarrwuy Yunupingu is fighting for land rights in the Commonwealth Court. Picture: AAP Image/Mick Tsikas

He said section 51 offered a constitutional guarantee of fair dealing between the commonwealth and the land of individuals.

He said to argue it shouldn’t apply to his client was the “complete antithesis” of the idea “that all Australians are to be treated equally under our constitution.”

Mr Moses said the High Court’s decision in Teori Tau had been overturned in the 2009 case Wurridjal vs Commonwealth – where three plaintiffs from Maningrida successfully argued against the acquisition of their township for a five-year lease as part of the Northern Territory Intervention, on the basis it had not been acquired “on just terms”.

He said the Commonwealth was taking a “narrow view” of the Wurridjal case when it argued it did not overturn the Teori Tau decision.

“The Commonwealth is inviting this court to depart form what is the plain reading of the judgement, not us,” he said.

“The Commonwealth is inviting this court to adopt a decision that has not been taken by any other court.

“Some of the arguments have been quite well made, but they are wrong.”

On Monday, counsel for the Commonwealth Nitra Kidson KC told the court the case was “potentially huge” in terms of compensation.

“The position of the applicant is, although they have a handful of acts, if one follows through … potentially, other than in areas where all native title was extinguished …. you have invalidity of everything done by the crown in relation to land between 1911 and 1978,” she said.

“We’re talking about power exercised … to do things like build roads.”

Mr Moses told the court the “huge consequences” argument was misconceived, and the court should not be influenced by any “political” or “fiscal inconvenience” its judgement might deliver.

The hearing continues.

Matt Cunningham is the Sky News Northern Australia Correspondent.

Originally published as Galarrwuy Yunupingu ‘should be afforded’ same land rights as others, lawyers tell court