The High Court of Australia’s recent ruling in Commonwealth of Australia v Yunupingu [2025] HCA 6 (Commonwealth v Yunupingu) marks a pivotal moment in the evolution of native title law. To fully grasp the significance of this decision, it’s essential to understand what native title is and trace its development since the landmark Mabo case.
What is Native Title?
Native title is the recognition under Australian law of the traditional rights and interests of Aboriginal and Torres Strait Islander peoples. While it does not grant legal ownership like freehold title, it acknowledges enduring connections to land and waters through practices such as ceremony, camping, and protecting cultural sites – rights that predate colonisation. The concept was formally recognised in the 1992 Mabo v Queensland (No 2) decision, which overturned the doctrine of terra nullius – the notion that Australia was land belonging to no one prior to British settlement.
Native title may exist in areas such as:
- vacant (or unallocated) Crown land
- parks and public reserves
- beaches
- some types of pastoral leases
- land held by government agencies
- land held for Aboriginal communities
- oceans, seas, reefs, lakes, rivers, creeks and other waters that are not privately owned.
Evolution of Native Title Since Mabo
Following the Mabo v Queensland (No 2) decision in 1992, the Australian Parliament enacted the Native Title Act 1993 (Cth) to provide a legal framework for native title claims. This Act set out processes for claiming native title and established the National Native Title Tribunal.
Although native title is recognised under Australian law, proving its existence involves a demanding and complex process. Typically, claimants must demonstrate an unbroken tradition of laws and customs that confer rights to the land, maintained and passed down through generations since prior to European settlement.
Once a native title claim is approved and registered with the National Native Title Tribunal, Aboriginal and Torres Strait Islander people can have a say in negotiations about future developments on that land. But this doesn’t mean they have full ownership. If their rights come into conflict with those of farmers, mining companies, the government, or private landowners, those other rights usually take priority.
Extinguishment and Compensation
Extinguishment means that native title rights over a piece of land are permanently taken away. This can happen when the government grants someone else full rights over the land, like through freehold title or certain leases, that aren’t compatible with native title. Once native title is extinguished, the traditional owners usually can’t get those rights back.
An example of extinguishment is the 1996 high-profile case Wik Peoples v Queensland decision, which clarified that pastoral leases do not automatically extinguish native title. The High Court found that native title rights can coexist with pastoral lease rights, unless the two are inconsistent, in which case, the leaseholder’s rights prevail. This meant that native title could continue on vast areas of leased land.
Native title holders have a legal right to seek compensation when their rights and interests are reduced, harmed, or extinguished (Native Title Act 1993 (Cth) s 51(1)).
Compensation can be claimed anywhere there has been full or partial extinguishment or impairment of native title rights and interests.
Only recently have courts begun to deal with native title compensation claims. In 2019, a key ruling came in the Timber Creek case (Northern Territory v Griffiths), where the High Court awarded compensation for the first time under the Native Title Act for the extinguishment of native title, including for cultural loss, not just economic harm. It provided a framework for assessing compensation and highlighted that the total amount owed for historical losses and extinguishments of native title could be substantial.
Racial Discrimination Act
Until now, this compensation applied to actions that took place on or after 31 October 1975, which is the date the Racial Discrimination Act 1975 (Cth) came into force. That Act prohibits discrimination based on race, colour, descent, or national or ethnic origin (RDA s 10(1)), meaning governments cannot pass laws that unfairly disadvantage native title holders.
Importantly, this case considered whether compensation could also be claimed for acts occurring before 31 October 1975, based on the Australian Constitution’s requirement that any acquisition of property by the Commonwealth must be on “just terms” (s 51(xxxi)).
The Commonwealth v Yunupingu Case
In 2019, the late Dr. Galarrwuy Yunupingu, on behalf of the Gumatj Clan of the Yolŋu people in North-East Arnhem Land, initiated a compensation claim against the Commonwealth. The claim centred on land in the Gove Peninsula that had been subjected to mining since the 1960s, leased to them by the Commonwealth Government. These leases led to environmental and cultural damage that, the Clan argued, should be compensated under both native title law and the Constitution (the ‘just terms’ doctrine (Section 51(xxxi))).
A bit of history is required to understand this case.
In 1911, South Australia handed over its northern part to the Commonwealth, creating the Northern Territory. Between 1911 and 1978, the Commonwealth Government had the exclusive power to make laws for the Northern Territory and granted mining leases and made laws about land and minerals. If the Commonwealth is the one that extinguished native title (after 1911), then it is the one responsible under the Constitution to pay compensation on just terms.
They were seeking an estimated $700 million in compensation.
Key Legal Issues:
- Application of the ‘Just Terms’ Provision: Section 51(xxxi) of the Australian Constitution requires the Commonwealth to acquire property on ‘just terms.’ The question was whether this provision applied to the extinguishment or impairment of native title rights in territories like the Northern Territory.
- Nature of Native Title as Property: Whether native title rights constitute ‘property’ under the Constitution, thereby entitling traditional owners to compensation when such rights are extinguished or impaired.
The Commonwealth made several key legal arguments:
- That native title rights are ‘inherently defeasible,’ meaning they could be removed and were not a form of property the government could ‘acquire’ under the Constitution.
- That the ‘just terms’ guarantee in section 51(xxxi) of the Constitution (requiring the Commonwealth to pay compensation when acquiring property) did not apply to laws made under the Territories power (s122).
- That early mining leases ‘reserved’ mineral rights to the Crown, meaning no one, not leaseholders, not native title holders, had any mineral rights to begin with.
Lawyers for the Gumatj Clan pushed back, arguing:
- Native title is property, and any impairment or removal must be compensated fairly.
- The Constitution should be read as a whole, and the just terms clause must apply in the Territories just as it does in the states.
- The Crown never acquired mineral rights in a way that extinguished native title, so the Gumatj Clan’s rights remained intact until the mining leases and legislation took them away.
High Court’s Findings:
On March 12, 2025, the High Court dismissed the Commonwealth’s appeal, affirming that:
- Native Title as Property: Native title rights are proprietary in nature and thus qualify as ‘property’ under the Constitution.
- Just Terms Requirement Applies: The requirement for just terms compensation applies to laws made under the territories power, meaning the Commonwealth is obligated to compensate for the acquisition of property, including native title rights, in the territories.
Implications of the Decision
This ruling has far-reaching consequences:
Precedent for Compensation Claims: It opens the door for other Indigenous groups to seek compensation for historical acts by the Commonwealth that impaired native title rights, even those occurring before the enactment of the Racial Discrimination Act in 1975. The Constitution itself provides an independent legal basis for compensation, meaning that even acts that happened before 1975, like the early mining activity in the Gove Peninsula, can still be covered. The High Court’s ruling challenges previous assumptions and opens the door to historical justice for harms done well before modern anti-discrimination laws were in place.
Potential Financial Liability: The decision exposes the Commonwealth to significant financial liability, with estimates suggesting compensation amounts could reach into the billions.
Recognition of Indigenous Rights: The ruling reinforces the legal recognition of Indigenous Australians’ connection to their land and affirms their rights to fair compensation when those rights are infringed upon.
The Commonwealth v Yunupingu case underscores the evolving landscape of native title law in Australia and highlights the ongoing journey toward justice and recognition for Indigenous Australians.
