Legal experts say the High Court win by the Northern Territory’s Gumatj clan against the commonwealth might bolster cases of other Indigenous groups in the territories that haven’t been compensated for development on their land — but it’s not so clear-cut for mob in the states.
The late Dr Yunupingu filed the case on behalf of the Gumatj people in 2019 to prove his mob were owed compensation from the crown for taking ownership of minerals in 1939 and greenlighting the mining of bauxite from the 1960s on the Gove Peninsula without the clan’s consent.
The win “confirms that native title is protected by the constitution and that extinguishment of native title requires just compensation, just like any other property right in this country,” Mabo Centre director Professor Eddie Cubillo told the ABC’s Indigenous Affairs Team.
Dr Cubillo says compensation will look different for traditional owners in other states and territories. (Supplied: University of Melbourne)
“And it corrects a longstanding injustice by ensuring Indigenous people in the territories have the same constitutional protection as others.”
He said it opened the way for similar native title compensation claims against the commonwealth for acts in the territories between 1911 and 1978, because the federal government “was governing over the NT during this time.”
Associate Professor Sean Brennan says the ruling will help other traditional owners in the NT make similar claims. (Supplied: UNSW)
But “it’s a different situation for states,” the Larrakia, Wadjigan and Central Arrernte man said.
According to section 51 of the constitution, the commonwealth has to pay an owner fairly if they acquire their property. It’s called the “just terms” guarantee. You might remember the iconic “it’s about the vibe” of the constitution line from the film The Castle? This is what that meant.
Associate Professor at UNSW’s Faculty of Law and Justice Sean Brennan said that constitutional guarantee only applies to the commonwealth.
“The states are in a very different position,” he said.
“It was clear the laws that extinguish native title, that most typically have taken away native title rights, are laws enacted by the states.”
He said these state laws include land laws and mining laws.
“The states don’t have in their constitutions a binding requirement to give ‘just terms’ compensation when they acquire property.”
Mr Brennan, who sat in on the hearings, agreed the win will help compensation claims from other Indigenous groups in the Northern Territory.
The mine at Gove Peninsula operating on Gumatj land was at the centre of the court case. (Supplied: Blue Douglas)
“It’s commonly thought that groups can recover compensation for native title back to 1975 [when Australia got a Racial Discrimination Act],” he said.
“In other words, the actions by government that took away Indigenous property rights for almost 190 years were thought not to be compensable under Australian law … from 1788 to 1975.
“What [Wednesday’s] decision does effectively is to push that date back in the Northern Territory to 1911.”
The Gumatj clan don’t yet have their compensation — this will be decided when the matter goes back to the federal court.
Native title ‘older and deeper than the constitution’
The Gumatj clan from north-east Arnhem Land have lived on their lands for thousands of years. (ABC News: Che Chorley)
Native title law recognises that First Nations people continue to hold rights and traditional customs over their lands and waters.
The legislation was enacted after the landmark case fought by Torres Strait Islander man Eddie Mabo dispelled the myth of terra nullius, meaning “land belonging to no one”.
“Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country,” Justice Gordon wrote in her judgement on Wednesday.
“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.“
Mr Benjamin says he welcomes the decision from the High Court and congratulates the Gumatj clan for their fight for land rights and recognition. (supplied: Facebook)
For Clinton Benjamin, Director of Native Title at the National Native Title Tribunal, those words were reassuring.
“She spoke directly to the connection which exists for native title holders, the connection to country,” he said.
“It’s not only recognised under Australian law but also clearly protected by the constitution, the same as any other ordinary land title or property is, so I think that is significant.”
Professor Cubillo said Wednesday’s ruling followed decades of land rights activism by the Yolngu people.
“As an Indigenous man from the Northern Territory and someone who’s studied settler law, it was really inspiring,” he said.
“It was also sad that Dr Yunupingu is no longer with us to see the outcome …
“I thought, has our High Court finally matured to respect Indigenous peoples as owners of this country?”
The late Dr Yunupingu who filed the case was a staunch advocate for Indigenous recognition and land rights. (Supplied: Peter Eve / Yothu Yindi Foundation)
Will this have an impact on private property?
When the Mabo decision was handed down in 1992, rumours circulated that private home and landowners would lose their properties — years later, the myth persists.
Mr Benjamin said that native title claims — or related compensation — do not impact private property held under freehold title — as it only relates to crown land.
“The hysteria built up when the Mabo [decision] was delivered has shown that over the last 30 years, native title hasn’t taken over people’s backyards,” Mr Benjamin said.
“It won’t affect private landholders at all.
“[The] decision is really looking at acts of the commonwealth in this instance and extinguishing or impairing native title rights of traditional owners, so people don’t have to worry.”
