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Gumatj Clan welcomes Court win in land rights compensation case brought by the late Yunupingu

Giovanni Torre -

Gumatj Clan leader Djawa Yunupingu has welcomed the decision by the Full Court of the Federal Court of Australia in the case of Yunupingu on behalf of the Gumatj Clan v the Commonwealth, brought down Monday, which rejected the federal government's arguments against compensation.

The Court's decision goes to the heart of the relationship between Native Title, the Territories power and the requirement that acquisition of property be on just terms.


This case was launched by my brother, Yunupingu (dec), in 2019, and centred around the Commonwealth’s decision to allow mining on Gumatj country in 1968 without our consent," he said.

“The case signifies the enormous contribution which my brother has made to the development of the law in this country in the service of all First Nations People. It is a continuance of his life’s work, which began with the Bark Petition and the Gove Land Rights case to have Native Title properly recognised as the heart of the identity of all First Nations People.

“My brother believed that all First Nations People were entitled to receive compensation on just terms in accordance with s.51(xxxi) of the Constitution like any other Australian when their sacred land is taken away from them without their consent."

Mr Yunupingu said the ramifications of the findings "are significant, potentially impacting all Native Title in the NT acquired by the Commonwealth between 1911-1978". 

“Although my brother did not live to hear today’s judgment, he would have been pleased that the Federal Court’s decision recognised the fundamental right of First Nations People to be treated equally by Australian law," he said.

The case, known as Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75, sought compensation under the Native Title Act for grants and acts by the government without just terms.

Mr Yunupingu, on behalf of Gumatj Clan,
contended that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those rights at common law – where the Mr Yunupingu contended that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision.

His case argued that, Native Title Act apart,
the grants or acts were invalid by reason of the failure to provide just terms as required by the Constitution. It was put to the Court that each of the grants or acts fell within the definition of a “past act” in the Native Title Act where by operation of the Act, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the Native Title Act in respect of the acquisition of property.

The Commonwealth argued that the claim should fail on a number of bases – where separate questions were considered and determined by a Full Court in the exercise of the Court’s original jurisdiction. The Court rejected all of the Commonwealth's arguments against Mr Yunupingu's case on behalf of Gumatj Clan.

The Commonwealth had argued, among other things, that the 1969 case of Teori Tau (Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564) still stood, in which it was found that the federal government didn't have to stick by a rule of having "just terms" when it acquired property in the Northern Territory.


However, the Court held, contrary to Commonwealth's submission, that native title rights and interests are proprietary in nature and constitute "property" for the purposes of s 51(xxxi) of the Constitution and, also contrary to the Commonwealth's argument, that the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122, as the case of Wurridjal v Commonwealth [2009] did indeed overrule the finding in Teori Tau v Commonwealth.

The Court stated in its judgement:

"We will also make an order giving the parties the opportunity to file short written submissions on any further orders that they contend should be made by the Full Court. It may be that these matters can be determined on the papers. The parties can indicate in their submissions if they consider it necessary for there to be a further hearing before the Full Court. Depending on the submissions, we may give the parties the opportunity to file responding submissions."

A spokesperson for Commonwealth Attorney General Mark Dreyfus told National Indigenous Times that Commonwealth "notes today’s decision in Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia".

"We will now carefully consider the Full Federal Court's decision," he said.

More to come.

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