Case note: Commonwealth of Australia v Yunupingu (on behalf of the Gumatj clan or estate group) & Ors [2025] HCA 6

In a landmark judgement the High Court has answered important questions of native title compensation law in favour of the Gumatj people, rejecting the Commonwealth’s arguments and paving the way for compensation to be claimed for various acts done by the Commonwealth government between 1939 and 1969.

In doing so, the majority has upheld the motivating rationale of the Court in Mabo [No 2] of ensuring that all persons, including native title holders, are equal before the law in the enjoyment of their human right to own and inherit property.[1]

The judgement confirms the important role of the Court to uphold the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system.[2]


Background

Dr Yunupingu AC (now deceased), on behalf of the Gumatj Clan or Estate Group of the Yolngu People, has brought two applications under the Native Title Act 1993 (Cth).

The first is an application for a determination of native title in favour of the Gumatj Clan over an area in the Gove Peninsula. Amongst the native title rights and interests claimed in this application is a non-exclusive right to “access, take and use for any purpose the resources of the claim area (including resources on, below or above the surface of the claim area, such as minerals on or below the surface of the claim area)”.

The second is a compensation application seeking compensation from the Commonwealth for certain “acts” done by the Commonwealth while the Northern Territory was under Commonwealth administration. The acts which can ultimately be claimed in this application will depend on findings of the Federal Court.

The determination application has not been decided and other issues remain in dispute.

However, the Full Court stated questions of broad legal significance in the compensation application to be determined first and separately from other issues in the proceedings.

 

The High Court decision

The High Court considered and determined three important questions of law.

While separate reasons were published by Gordon J, Steward J and Edelman J, all seven judges dismissed the appeal with costs.

The below focuses on the majority judgement of Gageler CJ, Gleeson J, Jagot J and Beech-Jones J.

1. Commonwealth does not have power to make laws for the acquisition of property other than on just terms

The High Court has conclusively determined that the Constitution does not permit the Commonwealth government to make laws for the acquisition of property otherwise than on “just terms”.

Key to this was a consideration of the effect of section 51(xxxi) of the Australian constitution and whether it constrained the power given under section 122 of the Constitution for the Commonwealth to make laws for the government of any territory.

Section 51(xxxi) of the Constitution empowers the Commonwealth Parliament to make laws with respect to the acquisition of property on just terms from any State or person for any purpose for which the parliament has power to make laws. It has long been understood that this provision acts as a constitutional guarantee to protect any State or person from being deprived of their property other than on just terms. As such, section 51(xxxi) has been treated as the sole source of power for any Commonwealth law which has the character of a law for the acquisition of property.

Against this general principle, the High Court in the 1969 case of Teori Tau v the Commonwealth[3] held that s51(xxxi) did not limit or condition the power of the Commonwealth to make laws for the government of any territory. While the correctness of this decision was put into doubt in subsequent cases, it nevertheless stood as binding authority and an obstacle to the Gumatj clan’s claim for compensation.

The High Court has now determined that Teori Tau must be overruled. As a result, it is now confirmed:

  • that s51(xxxi) is the sole source of power for any Commonwealth law that has the character of a law for the acquisition of property;
  • that the Commonwealth government has no power to make laws for the government of a territory with respect to an acquisition of property otherwise than on just terms within the meaning of section 51(xxxi) of the Constitution.

2. The legislative “extinguishment’ of native title is an acquisition of property.

The Commonwealth did not try and argue that native title rights are not property within the meaning of s51(xxxi) of the Constitution. As the majority noted, to do so would be untenable.[4]

Rather, the Commonwealth relied on earlier descriptions of native title rights as “fragile” and “inherently susceptible to extinguishment or defeasance” to argue that the “extinguishment” of a native title right recognised by the common law by the grant of an inconsistent right is not an “acquisition of property” as the extinguishment does not involve a “taking” of the property.

The court rejected this argument.

The majority framed the key question for determination as follows:[5]

Is the common law rule of recognition of native title rights and interests a conditional rule in the sense that such rights and interests are recognised only on condition that recognition will be withdrawn on an authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition? Or is the common law rule of recognition of native title rights and interests an absolute rule in the sense that such rights and interests are recognised but if there is a subsequent authorised and legally effective exercise of legislative or executive power which is inconsistent with continued recognition, recognition will be withdrawn not as a result of the inherent defeasibility of the native title right or interest but because of the effect of the subsequent exercise of power on the antecedent recognition.

The majority held that the common law rule of recognition was and remains absolute. The extinguishment, or withdrawal of recognition, of native title is the consequence of a legally authorised and legally effective exercise of legislative or executive power which operates to prevail over the prior common law rule of recognition. As such, the exercise of the power is a “taking” of the recognition and protection of those native title rights.

In separate judgements, Gordon J, with whom Steward J agreed, reasoned that any act which extinguishes native title involves an “acquisition” as it confers a benefit or advantage on a person with an interest in the land, being that their interest will no longer be burdened by native title.[6]

The High Court has now comprehensively rejected the view that native rights are “inherently defeasible”.

The majority reasoned that:

  • Native title rights do not have to be characterised as inherently defeasible in order for the recognition of those rights to yield to a subsequent legally authorised and legally effective exercise of legislative or executive power;
  • The characteristic of inherent defeasibility would almost certainly not have been a characteristic of the native title right under traditional law and custom;
  • Inserting the characteristic of inherent defeasibility would result in the rights protected by the common law being different from and inferior to the underlying rights existing under traditional law and custom.

The majority found that to accept the view that the native title rights recognised under the common law are to be treated as defeasible at common law in circumstances where the native title right existing under traditional law is not, would undermine the motivating rationale of the recognition of native title formulated in Mabo [No 2] of ensuring that all persons, including native title holders, are equal before the law in the enjoyment of their human right to own and inherit property.[7]

The majority considered that to perpetuate the notion of inherent defeasibility and adopt the view of the conditional common law rule of recognition would “destroy that equality and perpetuate its own form of injustice”.[8]

3. The grant of a pastoral lease in 1903 did not extinguish all native title rights in minerals.

This question raised a discrete issue as to whether the grant of a pastoral lease in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) had the effect of extinguishing any non-exclusive native title rights over minerals on or under the land.

The Gumatj claim for compensation for the 1939 vesting of minerals in the Crown pursuant to the Mining Ordinance 1939 (NT) (an act attributable to the Commonwealth) is premised on the basis that their native title rights and interests included a right to take and use minerals below the claim area[9] and that those non-exclusive rights had not been extinguished at the time of the 1939 legislation.

The Commonwealth argued that the reservation out of the 1903 pastoral lease and in favour of the Crown of all minerals had the effect of conferring title to those minerals exclusively on the Crown in right of the state of South Australia and this was the sole issue considered by the court in the separate questions.

The Court rejected this argument, confirming that the act of reserving minerals out of the pastoral lease did not amount to the Crown taking full beneficial ownership of the minerals.

However, as is apparent from the reasons of Steward J, while the Court has determined that the reservation of minerals from a pastoral lease did not of itself vest ownership of minerals in the Crown, that does not resolve:

  • Whether the Gumatj held non-exclusive native title rights in minerals under their traditional laws and customs; or
  • If they did, whether those rights had been extinguished (other than by the grant of a pastoral lease) prior to 1939.[10]

What’s Next

For the Gumatj people, their claims will now go back to the Federal Court. However, important principles of law have been decided by the High Court and significant legal hurdles to their compensation claim removed.

For other native title holders in the Northern Territory and the ACT, this judgement will be of huge import, confirming their entitlement to just terms compensation for acts done by the Commonwealth which caused the extinguishment of native title while they were administering those jurisdictions (and not just acts done after enactment of the Racial Discrimination Act in 1975).

The judgement however will also be significant outside of the Northern Territory and the ACT. The Commonwealth will be liable for just terms compensation to native title holders for any acquisition of property pursuant to a law of the Commonwealth that has caused an extinguishment of native title, irrespective of the date of the act.

Section 53 of the Native Title Act will have work to do.

In light of the findings and reasoning of the court in this case, it is likely that State governments also will face strengthened legal and policy challenges in addressing native title compensation.

[1] [2025] HCA 6 at [80].

[2] [2025] HCA 6 at [79].

[3] (1969) 119 CLR 564

[4] [2025] HCA 6 at [50].

[5] [2025]HCA 6 at [74]

[6] [2025] HCA 6 at [173]

[7] [2025] HCA 6 at [80]

[8] [2025] HCA at [80]

[9] This question has not yet been determined and will presumably be an issue to be considered by the Federal court in the determination proceedings

[10] [2015] HCA 6 at [412]