Unveiling the Past: Commonwealth’s Liability for Pre-1975 Native Title Extinguishments

Key Takeaways

• The case involves the Commonwealth of Australia as the appellant and the Gumatj Clan, represented by Yunupingu, as the respondent.

• The High Court of Australia dismissed the appeal, upholding the Federal Court's decision in favour of the Gumatj Clan.

• The Gumatj Clan sought compensation for the impact on their native title rights due to Commonwealth acts between 1911 and 1978.

• The Court examined whether section 122 of the Constitution allows property acquisition without just terms, concluding it does not.

• It reaffirmed that native title is recognised by common law and requires just terms for extinguishment.

• The 1903 pastoral lease did not extinguish the Gumatj Clan’s native title rights.

• The High Court affirmed that the Commonwealth's actions constituted an acquisition of property requiring just terms.

• The case was remitted for further determination of claims.

Background

The case involves the Commonwealth of Australia as the appellant and the Gumatj Clan, represented by Yunupingu, as the respondent. The High Court of Australia dismissed the appeal with costs, upholding the decision of the Federal Court of Australia. The Gumatj Clan, part of the Yolngu People, sought compensation for the alleged effects on their native title rights and interests due to various Commonwealth legislative and executive acts between 1911 and 1978 in the Gove Peninsula, Northern Territory. The Full Court of the Federal Court of Australia answered a series of questions in favour of the Gumatj Clan, but other issues remained in dispute.

Legal Issues

The case addressed several key legal questions:

1. Constitutional Powers and Property Acquisition: The Court examined whether the Commonwealth Parliament’s power under section 122 of the Constitution to make laws for territories includes the power to acquire property without just terms, as defined in section 51(xxxi) of the Constitution. The Court concluded that it does not. The case also revisited the Teori Tau decision, which held that section 122 is not constrained by the guarantee in section 51(xxxi) for just terms in property acquisition. The Court found the reasoning in Teori Tau inconsistent with the integrated interpretation of the Constitution and lacking justification, but did not overrule it due to potential legal instability.

2. Native Title and Property Rights: The Court reaffirmed that native title is recognised by common law and can only be extinguished by a valid exercise of sovereign powers. The extinguishment of native title constitutes an acquisition of property under section 51(xxxi), requiring just terms. The Court rejected the argument that native title is inherently defeasible and thus outside the scope of section 51(xxxi).

3. Effects of Pre-1911 Leases on Native Title: The Court considered whether pre-1911 leases, particularly the 1903 pastoral lease, extinguish any native title rights or interest. The Commonwealth argued that the exception and reservation in clause in the 1903 Lease created exclusive rights to minerals under the land, which was contested. The Court analysed the 1903 pastoral lease, concluding that its terms did not create ownership rights to minerals in the Crown that would extinguish the Gumatj Clan’s non-exclusive native title rights. The lease’s exception and reservation of minerals was interpreted as a keeping back of rights rather than a positive conferral of ownership to the Crown.

   
   

Gumatj Clan’s Claim

The Gumatj Clan claimed compensation under the Native Title Act 1993 (Act) for past acts attributable to the Commonwealth which were validated by the Act. These acts include appropriation and grants of land interest in the Gove Peninsula, occurring between 1939 and 1969, which the Clan argues were inconsistent with their native title rights.

Held

The High Court dismissed the appeal, affirming the Federal Court’s decision that the Commonwealth actions constituted an acquisition of property requiring just terms under section 51(xxxi) and that the 1903 lease did not extinguish the Gumatj Clan’s native title rights. The case was remitted for further determination of the first respondent’s claims.

Conclusion

The High Court’s decision in Commonwealth v Yunupingu marks a pivotal moment in the legal landscape concerning native title rights in Australia. The Court’s determination that the extinguishment of native title rights constitutes an acquisition of property under section 51(xxxi) of the Constitution, requiring just terms, underscores the constitutional protection afforded to native title holders. This landmark ruling extends the just terms requirements to law enacted under section 122 of the Constitution, thereby providing constitutional protection to territories and overruling the precedent set by Teori Tau.

Furthermore, the recognition of native tile rights as property for the purposes of section 51(xxxi) ensures that their extinguishment by legislation is subject to compensation claims under the Act. The Court’s rejection of the argument that native title is inherently defeasible affirms the robust protection of these rights under the Constitution. Additionally, the decision clarifies that the 1903 pastoral lease did not extinguish the Gumatj Clan’s non-exclusive native title rights to minerals, as the lease’s reservation of minerals was not a positive conferral of rights to the Crown.

Overall, this decision strengthens the legal framework for the protection and recognition of native title rights, ensuring that they cannot be arbitrarily extinguished without due process and compensation. The High Court’s ruling not only reinforces the constitutional safeguards for native title holders but also sets a precedent for future cases involving the extinguishment of native title rights, emphasising the necessity of clear legislative intent in such matters.

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