The Commonwealth has lost a High Court battle over whether it can be liable for up to $700 million in compensation for lost Native Title rights over a mining lease on Gumatj land.
The case was brought by the renowned land rights activist, the late Dr Yunupingu, on behalf of the Gumatj people in 2019 after Bauxite mining operations began to cease on the Gove Peninsula in North East Arnhem Land.
The Federal Court previously found Native Title rights and interests constituted property, with any extinguishment amounting to an acquisition.
It ruled the Gumatj clan's land was not acquired "on just terms" before it was then leased to the mining consortium, Nabalco.
The Commonwealth appealed this verdict to the High Court, which ultimately found in favour of Dr Yunupingu (on behalf of the Gumatj Clan or Estate Group) on Wednesday.
Djawa Yunupingu, a senior member of the Gumatj clan, told the ABC outside court that "justice has been served in this country for my people and the people of North East Arnhem Land".
"I also want to acknowledge my late brother … who was the one who had the vision," they said.
"It's for the future of my people and our children and their children."
In a statement, Attorney General Mark Dreyfus said the government "recognises the significant contribution that the late Dr Yunupingu made in initiating this 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."
The case focused on the Commonwealth's decision to allow mining on the land in 1968 without consent from Traditional Owners.
The Gumatj had to demonstrate that there was "property" to acquire "on just terms". However, the property is in the NT - a territory - of which the Commonwealth has control and final say over the land.
They argued the granting of leases left it with non-exclusive Native Title rights which included the right to resources on or below the surface—including minerals.
The Commonwealth argued the "just terms" clause within section 51(xxxi) of the Constitution doesn't apply to the territories.
However, the High Court rejected this argument.
"The time has come for it to be finally and authoritatively declared that the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory does not extend to making a law with respect to an acquisition of property otherwise than on just terms within the meaning of s 51(xxxi) of the Constitution."
The government had argued it would be exposed to a "vast amount" of compensation if its appeal fails, which was noted by the significant interest in the case from parties across the country.
"The Commonwealth would be liable to pay compensation [to Native Title holders] with interest ... possibly over 100 years or more," commonwealth solicitor-general Stephen Donaghue KC previously said.
The Commonwealth also argued Native Title rights could be overruled by an exercise of the Crown's sovereignty, however, this was also rejected by the court.
"In the present case, to adopt the conditional common law rule of recognition of Native Title rights and interests would destroy that equality and perpetuate its own form of injustice," the court ruled.
With AAP
