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The Guardian
14-03-2025
- Politics
- The Guardian
High court native title ruling may affect compensation claims nationwide, experts say
A high court decision on native title has the potential to be as significant as the Mabo case and influence even the land beneath Parliament House, experts say. The court dismissed a commonwealth appeal on Wednesday over whether it may be liable for up to $700m in compensation for bauxite mining at Gove in north-east Arnhem Land. The late Gumatj leader Dr Yunupingu, a renowned land rights activist, originally brought the case in 2019 alongside an application for native title on behalf of his people. In May 2023, the federal court found native title rights and interests are property rights, and their extinguishment is an acquisition and therefore must be made under 'just terms'. This applied to land in the Northern Territory, but there were similarities with land in the ACT. The federal court found Gumatj land was not acquired 'on just terms' before being leased to the Swiss-Australian mining consortium Nabalco in 1968. In its decision on Wednesday, the high court upheld the federal court's decision. 'Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country,' the judgment read. 'It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond federation. 'It is older and deeper than the constitution.' Dr Ed Wensing, an honorary research fellow at the Australian National University's Centre for Aboriginal Economic Policy Research, said 'this decision is like Mabo 2 in many respects'. The 1992 high court decision established the principle of native title in common law. Sign up for Guardian Australia's breaking news email 'This will have long-term ramifications,' Wensing said. 'The effect of this decision, strictly speaking, is only to the NT and most likely the ACT, but will this case also affect other compensation cases in other places all over the country? Most probably.' However, Wensing said the exact ramifications could take years to emerge. Even the claim in the Yunupingu matter may take a decade to resolve, he said. Greg McIntyre SC, who was the lead solicitor in the Mabo case and is a former president of the Law Council of Australia, told Guardian Australia that the decision strengthened native title and put to rest fears that land rights principles underpinning the legislation could be unpicked or dismantled. 'There have been statements in the high court and, to a lesser extent, taken on by federal courts, saying that native title was fragile and capable of being easily turned or extinguished,' he said. 'This now stops that discussion.' Native title can be granted on freehold land or land covered by a pastoral lease, but mining leases are taken to at least partially extinguish native title. Many mining leases predate the Native Title Act. Sign up to Breaking News Australia Get the most important news as it breaks after newsletter promotion McIntyre said the decision that lands must be acquired on 'just terms' has significant implications that could mean governments may be liable for higher compensation claims. In the Northern Territory, he said, that window for compensation could date back to 1903. 'So what we're looking at is that it's potentially going to result in larger quantities of compensation,' he said. McIntyre said Wednesday's decision was the result of a hard-fought battle waged over decades by the Gumatj people. 'They've had the longest fight in the sense that they went to the Northern Territory supreme court in the late 60s. They presented their bark petitions to the parliament,' he said. McIntyre said while the decision specifically concerned the NT, it could have implications for the ACT. 'Obviously, the ACT hasn't always been there,' he said. 'It only came into existence after federation. So it'll be from the time the ACT was established that this decision [will have effect] – that's when you start calculating your compensation.' The Northern Land Council has several current native title matters before the federal court, but declined to comment this week about the high court's finding. The attorney general, Mark Dreyfus, said in a statement on Wednesday that complex issues remained in the case. 'The commonwealth appealed to the high court to settle critical constitutional issues in this case,' he said. 'This decision clarifies the constitution's application to those issues for parties to this and future matters. 'While the high court has considered significant aspects of this matter, the case will now return to the federal court to resolve other remaining complex issues.'
The Guardian
12-03-2025
- Business
- The Guardian
Indigenous leaders celebrate as court rejects appeal in landmark Yunupingu compensation case
Traditional owners say justice has been served for their people as the high court dismissed a commonwealth appeal in a landmark compensation case. The commonwealth lost the high court battle over whether it may be liable for up to $700m in compensation for bauxite mining at Gove in north-east Arnhem Land. Gumatj leaders Djawa Yunupingu and Balupalu Yunupingu celebrated outside the high court on Wednesday after hearing the judgment against the commonwealth. 'Justice has been served for my people and the people of north-east Arnhem Land,' Djawa Yunupingu said. Renowned land rights activist the late Gumatj leader Dr Yunupingu originally brought the case in 2019, alongside an application for native title on behalf of his clan. Djawa Yunupingu emotionally acknowledged his late brother as the 'mastermind' behind the effort. 'He was the one who had the vision,' he said. Sign up for Guardian Australia's breaking news email Gumatj lawyer Sean Bowden told reporters the decision was a 'victory for decency, common sense and the rule of law'. 'Today's decision validates the strength of belief in Aboriginal people, generally, not just in themselves but in their place in Australia,' he said. In May 2023, the federal court found native title rights and interests are property, and the extinguishment is an acquisition, and therefore be made under 'just terms'. It found the Gumatj clan's land was not acquired 'on just terms' before being leased to the Swiss-Australian mining consortium Nabalco in 1968. In its decision on Wednesday, the high court upheld this decision. 'Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country,' the judgment read. 'It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond Federation. 'It is older and deeper than the constitution.' Sign up to Breaking News Australia Get the most important news as it breaks after newsletter promotion The federal government had argued if its appeal failed it would be liable to pay native title holders compensation 'to an indeterminate number of grants of interests' in the Northern Territory land and that would have 'enormous financial ramifications'. After the high court judgment, the attorney general, Mark Dreyfus, said the government recognised the 'significant contribution' the late Dr Yunupingu made in initiating the case. 'The commonwealth appealed to the high court to settle critical constitutional issues in this case,' he said. 'This decision clarifies the constitution's application to those issues for parties to this and future matters.' Greens Senator Dorinda Cox said the government must now 'step up' and ensure the Gumatj people receive the compensation they are owed. 'For too long, First Nations people have borne the cost of mining and resource extraction on our lands without proper respect and shared benefit,' she said. 'This ruling sends a clear message and precedent: the commonwealth cannot ignore its obligations when it comes to First Nations land rights.' A native title application, which Dr Yunupingu filed at the same time as the compensation case, will continue to be heard in the federal court. Help for Aboriginal and Torres Strait Islander people is available on 13YARN on 13 92 76
