Landmark High Court case paves the way for $700 million native title claim

Indigenous elders from Arnhem Land have won a historic victory in their 60-year fight for land rights, after the High Court found that Northern Territory native titleholders were entitled to fair compensation for property seizures in one of the most significant decisions since the Mabo case.

The case brought by the late Indigenous elder and land rights pioneer Yunupingu exposes the Commonwealth to multimillion-dollar compensation claims over land it acquired in the Northern Territory during the 20th century.

The High Court on Wednesday upheld a Federal Court decision from last year over the Commonwealth’s objections, allowing the Gumatj people of Arnhem Land to seek compensation for mining leases granted over the Gove Peninsula in the 1960s and setting a precedent for other Indigenous groups.

“Justice has been served in this country for my people and the people of north-east Arnhem Land,” the late Yunupingu’s brother, Djawa, said outside the court on Wednesday morning. “It’s for the future of my people, and our children and their children.”

Their claim could reach $700 million, based on the reported value of a 42-year deal between Rio Tinto and Gove traditional owners struck in 2011.

Beyond that, the case is significant because it opens the federal government – but not the states – to further compensation claims from when the Commonwealth controlled the Northern Territory from 1911 to 1978. Compensation has previously only applied in cases relating to actions after 1975, when the Racial Discrimination Act was introduced.

Central to Yunupingu’s case was the “just terms” guarantee in the Constitution, referenced in Australian movie The Castle, which requires fair compensation be paid when property is acquired by the Commonwealth.

The question for the court was whether that guarantee applied to the historical extinguishment of native title held by Aboriginal people in the Northern Territory.

Native title refers to special rights that Indigenous Australians may obtain when the Federal Court recognises they have an ongoing connection to land, demonstrated through traditional laws and customs. This rarely includes outright land ownership.

UNSW associate professor Sean Brennan said it was a historic case where the Constitution intersected with native title law. “It returns to answer a question that was first raised more than 30 years ago in [the landmark native title decision] Mabo,” he said.

“Does the requirement that the Commonwealth give just terms compensation, when it acquires someone’s property, apply to native title? The court’s answer is yes, because fundamentally that is what equality before the law demands.”

Lawyer Sean Bowden, one of the solicitors acting for the Gumatj, said the decision on Wednesday was a “victory for decency, common sense, and the rule of law in this country”.

“It’s a judgment that respects the rights of traditional owners throughout the Northern Territory, all of whom have, like the Gumatj, suffered directly from the acts of government in dispossessing them of their lands.”

Bowden said it had taken a lot for the Yolngu people, of which the Gumatj are one clan, to continue believing in Australia’s laws and systems of government. “But today that faith has been rewarded by a court that has applied the law and been fearless in its application,” he said.

Their native title claim will now progress through the Federal Court. If they are successful, the court will establish what “just terms” involve and whether that includes compensation.

The Yolngu have been fighting the Commonwealth’s decision to grant bauxite mining rights on Gove Peninsula to a company called Nabalco since the federal government made the decision in the 1960s.

They sent the Yirrkala bark petitions asserting their ownership of the land to Canberra in 1963, which were the first formal statement of native title in Australia and are still displayed in federal parliament.

The Yolngu then took their case to court in Australia’s first land rights claim, but this failed in 1971 when the judge ruled native title was not part of Australian law. This was overruled two decades later with the Mabo decision in 1992, which recognised native title and led to the Native Title Act 1993.

Jamie Lowe, chief executive of the National Native Title Council, said the High Court had on Wednesday made a landmark decision. “Our rights and recognition [as Aboriginal people] have been hard fought [for], politically, and we’ve seen through the referendum that there’s a lot of losses,” he said.

“A lot of times we’ll have to turn to the courts to get our rights recognised, and this is another example of that ... We continue to fight for our rights and we get the wins along the way.”

Mining giant Rio Tinto’s Gove site in the Northern Territory, where the refinery is being dismantled.

Attorney-General Mark Dreyfus acknowledged the outcome and said the case would now return to the Federal Court, where further complex issues would be resolved. “The government recognises the significant contribution that the late Dr Yunupingu made in initiating this case,” he said.

“The Commonwealth appealed to the High Court to settle critical constitutional issues in this case. This decision clarifies the Constitution’s application to those issues for parties to this and future matters.”

Shadow attorney-general Michaelia Cash called for clarity over the impact of claims on the budget and the mining sector, as well as an explanation about how any money would be used.

“This money should be used to improve the situation for people on the ground. We need full transparency on how these funds will be spent to ensure that is the case,” she said.

Bowden said it would now be up to traditional landowners across the Northern Territory to make compensation claims.

Outside the court on Wednesday, he paid tribute to the late Yunupingu’s leadership and “crystal clear vision”.

“Yunupingu spent a lifetime securing his people’s future, and he conceived of and initiated this legal action before any of us saw it,” he said.

“I can almost see him dancing this afternoon across the beautiful white beaches.”

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