Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (Mortimer CJ, Moshinsky and Banks-Smith JJ)
A recent judgement in the Federal Court of Australia (FCAFC) has, for the first time, awarded traditional owners with compensation for past acquisitions which failed to provide just terms, per s51(xxxi) of the Australian Constitution 'Constitution'.1 In the continual fight for recognition and compensation, whether it be in regard to the Stolen Generation claims the firm has been extensively involved in, or the Voice to Parliament, this landmark decision extends upon existing recognition of native title rights and interests through its intersection between native title and constitutional law.
The applicant, Dr Yunupingu, on behalf of the Gumatj Clan or Estate Group of the Yolngu People, brought two applications under s61 of the Native Title Act 1993 (Cth) 'NTA', one of which sought a determination of native title and the second which sought payment of compensation for alleged effects on native title pertaining to executive and legislative acts done prior to the enactment of the Northern Territory Self-Government Act 1978 (Cth) and therefore, by the Commonwealth.2 The determination of Native title is outside the scope of this commentary, which will explore the significance of the compensation claim.
The compensation claim relates to the 236 of land km2 in the Gove Peninsula, Northern Territory. Mining in this area has a long history with the land having been subject to numerous grants of mineral and pastoral leases under various legislation, categorised as 'past acts'.3 The applicant contended that these past acts were invalid acquisitions of property as they extinguished their native title rights without providing just terms.4 The Court facilitated a hearing of a demurrer, allowing the Commonwealth and other government respondents to serve a demurrer containing multiple grounds, with the court conducting proceedings to address each ground as 'separate questions' rather than delivering one overall decision.
The Commonwealth submitted two constitutional arguments; that s51(xxxi) to provide just terms does not condition laws made under s122 of the Constitution, and that native title rights cannot be 'acquired' as they are inherently defeasible.5 The government respondents submitted a different articulation of the Commonwealth's submissions, submitting that, as native title rights are only recognised by common law, they cannot be transformed by the common law in order to apply common law principles pertaining to s51(xxxi) of the Constitution.6 The Court rejected both constitutional arguments and therefore, the submissions by the government respondents.7
The Court rejected the first argument on the basis that the ruling in Wurridjal (2009) was binding and thus, the requirement to provide just terms extends to laws made under s122 of the Constitution.8 The Court's rejection of the Commonwealth's second constitutional argument was reached after an analysis of s51(xxxi) authorities which confirmed that concepts of inherent defeasibility apply to rights created in statute, omitting any 'contemplation that proprietary rights existing outside of statute are inherently variable'.9 As non-statutory rights, the Court characterised native title rights and interests as proprietary, concluding that any grant or act that extinguishes these rights and interests is capable of amounting to an acquisition of property within the meaning of s51(xxxi).10 As a result, the acts of the Commonwealth were invalid acquisitions of property by way of their failure to provide just terms as required by s51(xxxi) of the Constitution.11
The Court applied Griffiths [2019] to demonstrate that native title can be acquired due to the fact that the Northern Territory received a benefit from the 'clearing' of the applicant's native title.12 As a result, the Court placed the Northern Territory in the position of a 'hypothetical purchaser'.13 This allowed for attention to be drawn to holders of common law land whose rights would be deprived if their title was extinguished without payment of compensation.14 The Court explored this further, citing Mabo (No 1) and s10(1) of the Racial Discrimination Act 1975 (Cth) 'RDA', to reaffirm that the NTA provides native title holders with the same immunity from legislative interference with their right to own and inherit property.15
Critical Commentary
As noted by Butt (2010), there has been a conceptual tension arising from Australian courts' recognition of native title rights and interests within the context of the Australian legal system.16 The likening of native title rights to the rights of common law landholders, in combination with the recognition that the constitutional guarantee of s51(xxxi) extends to protect native title holders' rights and interests, is significant as it bridges native title law with constitutional acquisitions of property and common law. This is significant as it goes further than mere recognition of native title rights and interests which has historically been the case across multiple Australian jurisdictions, affirming these rights as proprietary within the context of the Australian legal system.17
Compensation for impairment or extinguishment of native title has previously been understood as available for acts after the commencement of the RDA, governed exclusively by the NTA.18 This is reflected in the scope of the NTA which validates grants that may have been invalidated in light of the RDA and Mabo (No 2), regulating native title determinations pertaining to future acts on native land.19 This meant that native title which was extinguished before 1978, was lost forever and those native title holders had no legal entitlement to compensation.
The judgement of the FCAFC demonstrates that the protection s51(xxxi) provides for the property rights of Australians, extends to Indigenous people whose native title rights and interests in the land were extinguished or impaired before 1978. This creates significant consequences, having the capacity to impact all native titles in the Northern Territory acquired by the Commonwealth between 1911 and 1978.20 Not only does this judgement expand on the current processes for native title determinations through the inclusion of past acts, but it identifies another source for compensation outside the NTA as The Constitution.21
The judgement is also useful in defining and clarifying the scope of s51(xxxi) in relation to native title cases, mitigating the said unpredictability of the proviso.22 The Court's analysis of s51(xxxi) authorities provides evidence that there is no basis to extend concepts of inherent defeasibility beyond statutory rights.23 As a result, it can be seen that the judgement distinguishes legitimate regulation from compensatory 'acquisitions of property' in the context of the s51(xxxi) proviso.24
Additionally, the analysis of the s51(xxxi) authorities and the conclusion reached by the Court exemplifies the applicability of s51(xxxi) to native title claims, in the context of contested dicta that may be used to argue otherwise. The Commonwealth relied heavily on dicta by Gummow J in Newcrest [1997] as evidence that expanding native title compensation to include past acts under s51(xxxi) has the potential to invalidate every grant of freehold or leasehold title by the Crown from 1911 to 1978.25 The Court rejected the dicta as 'not seriously considered or sufficiently persuasive' by contextualising it in the context of Gummow J's dicta in Wurridjal where he noted that the constitutional purpose of s51(xxxi) is to ensure that 'in no circumstances will a law of the commonwealth provide for the acquisition of property except upon just terms'.26
As noted by Isdale (2020), the applicability of 'just terms' means full and adequate compensation.27 The expansion of native title compensation to encompass past acts under the NTA which is not subject to any time bar, has the potential to subject the Commonwealth and Territory governments to enormous historical debts.28 In the context of a cost of living crisis and from an economic point of view, this has the potential to attract large amounts of public scrutiny. This in turn may influence public policy considerations which encourage settlement agreements between governments and native title holders, limiting future contributions to native title law more broadly.
Through the court's exploration of the proprietary nature of native title rights and interests, constant reference and recognition were given to their nature as inextricably linked to the land and communally held through a "spiritual, cultural, and social connection".29 This facilitated the court in distinguishing these rights from statutory rights which are inherently defeasible, recognising that native title rights and interests are not dependent on the crown for their existence, having existed for generations.30
The judgement of Mortimer CJ, Moshinsky and Banks-Smith JJ in the FCAFC does not come from the High Court and thus, it is limited in persuasiveness.31 The only High Court ruling in favour of just compensation for the extinguishment of native title rights is Griffiths, which only pertains to acts after 1978.32
As it stands, the Commonwealth has filed a special leave application in the High Court to challenge this landmark Federal Court ruling for compensation under the NTA that could be worth $700 million. Subject to appeal to the High Court, the judgement remains significant through its clarification that native title rights and interests are not inherently defeasible, rejecting uncertain and contentious dicta that may be used to imply otherwise. As a result, the judgement provides evidence that these rights and interests are afforded constitutional protection under s51(xxxi) in which the acquisition of native title is subject to just terms. Furthermore, the judgement's significance is rooted in its contribution to the continued recognition of native title rights and interests, demonstrating the importance of Indigenous people's connection to their country by way of providing compensation for the extinguishment of this social, spiritual, and economic connection.33
Bibliography
A Articles/Books/Reports
Sean Brennan, 'Native Title and the 'Acquisition of Property' Under the Australian Constitution' (2004) 28(1) Melbourne University Law Review 28
Peter Butt, Land Law (Thomson Reuters, 6th ed, 2010)
B Cases
Mabo v Queensland (No 2) (1992) 175 CLR 1
Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75
C Legislation
Aboriginal Land Rights Act 1983 (NSW)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)
Aboriginals Ordinance 1918 (NT)
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA)
Native Title Act 1993 (Cth)
Northern Territory (Administration) Act 1910 (Cth)
Northern Territory Self-Government Act 1978 (Cth)
D Others
Ilan Lewis, 'Sussing Out the Vibe: Federal Property Acquisition and the search for a Principled Approach to the Scope of the 'Just Terms' Proviso in s51(xxxi) of the Australian Constitution' (Masters of Law Thesis, University of New South Wales, 2016)
Aaron Moss, 'The Constitutional Relationships Between 'Just Terms' Acquisition, Territories, and Native Title: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75' on AUSPUBLAW (13 June 2023)
Footnotes
1Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 at [1] ('Yunupingu') at [461]; Australian Constitution s51(xxxi) ('Constitution').
2 Yunupingu (n 1) [1]; Native Title Act 1993 (Cth) ('NTA'); Northern Territory Self-government Act 1978 (Cth).
3 Aboriginals Ordinance 1918 (NT) s14; Northern Territory (Administration) Act 1910 (Cth) s21, s4U.
4 Yunupingu (n 1) [8].
5 Ibid [46]-[47].
6 Ibid [300]-[303].
7 Ibid [57].
8 Wurridjal (2009) 237 CLR 309 in Yunupingu (n 1) [57](a)-(b).
9 Mutual Pools & Staff Pty Ltd v Federal Commissioner of Taxation [1992] HCA 4, Health Insurance Commission v Peverill [1994] HCA 8, Minister for Primary Industry v Davey [1993] FCA 876, Commonwealth v WMC Resources Ltd [1998] HCA 8, Attorney-General (NT) v Chaffey [2007] HCA 34, Cunningham v Commonwealth [2016] HCA 39, Telstra Corporation v Commonwealth [2008] HCA 7 and Esposito v Commonwealth [2015] FCAFC 160 in Yunupingu (n 1) [320]-[392] ('s51(xxxi) Authorities').
10 Yunupingu (n 1) [478-80].
11 Constitution (n 1) s51(xxxi).
12 Northern Territory v Griffiths [2019] HCA 7 in Yunupingu (n 1) [462] ('Griffiths').
13 Spencer v Commonwealth [1907] HCA 82 in Yunupingu (n 1) [463].
14 Yunupingu (No 1) [462-3].
15 Mabo v Queensland (No 1) [1988] HCA 69, and Racial Discrimination Act 1975 (Cth) s10(1) ('RDA') in Yunupingu (n 1) [462]-[466].
16 Peter Butt, Land Law (Thomson Reuters, 6th ed, 2010) 978.
17 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ; Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA); Aboriginal Land Rights Act 1983 (NSW); NTA (n 2) s223(1)(2); Mabo v Queensland (No 2) (1992) 175 CLR 1 Brennan J at [58]-[64] ('Mabo (No 2)').
18 RDA (n 15); NTA (n 2).
19 Ibid; Mabo (No 2) (n17); Butt (n 16) 978.
20 Sean Brennan, 'Native Title and the 'Acquisition of Property' Under the Australian Constitution' (2004) 28(1) Melbourne University Law Review 28, 29.
21 Constitution (n 1) s51(xxxi).
23 Yunupingu (n 1) [387]-[392].
24 s51(xxxi) Authorities (n 9); Brennan (n 20) 30.
25 Ms Kidson in Yunupingu (n 1) [292] quoting Gummow J in Newcrest Mining (WA) Limited v Commonwealth [1997] HCA 38.
26 Wurridjal (2009) 237 CLR 309 [178] (Gummow J) in Yunupingu (n 1) [409]-[419].
28 Ms Kidson in Yunupingu (n 26).
29 Mabo (No 2) (n17), Yanner v Eaton (1999) 201 CLR 351 ('Yanner'), and Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ('Yorta Yorta') in Yunupingu (n 1) [447-450].
30 Yunupingu (n 1) [458].
31 Moss (n 27).
32 Griffiths (n 12).
33 Griffiths (n 12), NTA (n 2), Yorta Yorta (n 29), Yanner (n 29), and Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 in Yunupingu (n 1) [447]-[455]; Mabo (No 2) (n 17).
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