Commonwealth vs Yunupingu- native title

In Commonwealth of Australia v Yunupingu (2025) HCA 6, the High Court of Australia delivered a judgment on 12 March 2025 that reshapes the constitutional landscape of native title and compensation.

The case, brought by the Gumatj Clan of north-eastern Arnhem Land through the late Dr Yunupingu and others, resolved whether the Commonwealth must provide just terms compensation under the Constitution when its historical acts extinguished native title rights in the Northern Territory.

Historical and Legal Foundations

The origins of the case trace back to longstanding claims about dispossession and compensation in the Gove Peninsula, an area subject to pastoral and mineral leases granted by the Commonwealth between the early 20th century and the 1970s. This includes a 1903 pastoral lease and subsequent Commonwealth ordinances, which were alleged to have extinguished native title without compensation.

The Gumatj Clan asserted that those acts had extinguished native title rights without adequate compensation, a gap in redress they sought to fill through constitutional and statutory avenues.

Native title is the recognition in Australian law that Indigenous peoples have pre-existing rights and interests in land according to their traditional laws and customs. Its modern legal foundation was set in Mabo v Queensland (No 2) (1992), where the High Court rejected the doctrine of terra nullius and acknowledged native title under the common law.

Terra nullius is a Latin term meaning “land belonging to no one.” In legal and historical contexts, it was used to justify the acquisition of territory on the basis that it was uninhabited or that the existing inhabitants did not have a system of law recognisable under European legal frameworks.

The Native Title Act 1993 (Cth) later provided procedures for recognising native title and compensating for its loss. Yunupingu emerges from this broader lineage of native title jurisprudence.

Between 1911, when South Australia surrendered the Northern Territory to Commonwealth control, and 1978, when the Territory gained self-government, the Commonwealth used its constitutional power to legislate for the Territory under section 122. During that period, ordinances were enacted and leases granted over vast areas, including land in the Gove Peninsula.

Among those was a 1903 pastoral lease granted under the Northern Territory Land Act 1899 (SA) and later mineral leases under ordinances such as the Mining Ordinance 1939 (NT).

The Gumatj Clan contended that these historical acts extinguished their native title rights and that the Commonwealth had not compensated them on “just terms” as required by section 51(xxxi) of the Constitution. That provision obliges the Commonwealth to provide fair compensation when it acquires property.

Until Yunupingu, it was uncertain whether that requirement applied to laws made under the territories power in section 122. Lower courts had reached conflicting views on this issue before the Full Court of the Federal Court answered preliminary constitutional questions in the Gumatj compensation proceedings.

Legal Considerations

The High Court was asked to determine three interrelated constitutional questions:

1. Does the just-terms requirement in section 51(xxxi) apply to laws enacted under the Commonwealth’s territories power in section 122? Earlier authority, such as Teori Tau (1969), had suggested that the just-terms guarantee did not apply to territory legislation, but that view had been eroded by subsequent case law and was ripe for authoritative resolution.

2. Can the extinguishment of native title rights constitute an “acquisition of property” within the meaning of section 51(xxxi)? This question required the Court to consider whether recognised but extinguished native title interests are property for constitutional purposes, thus attracting the just-terms guarantee if compulsorily acquired.

3. Did the 1903 pastoral lease extinguish native title rights over minerals, and how does that factual question affect the legal framework? While the factual circumstances of title and extinguishment were not resolved in Yunupingu, the Court clarified the legal principles that would govern such factual determinations in subsequent proceedings.

   
   

High Court Decision

By a majority, the High Court dismissed the Commonwealth’s appeal. The Court held that the territories power in section 122 is subject to the just-terms guarantee in section 51(xxxi. Laws enacted under the territories power that result in the acquisition of property cannot validly operate otherwise than on just terms. This represents a formal overruling of earlier authority to the contrary and closes a longstanding constitutional loophole.

The Court also confirmed that native title rights, once recognised at common law and not extinguished prior to the Native Title Act, constitute property for the purposes of the just-terms requirement. As a result, the extinguishment of native title by Commonwealth action may amount to an acquisition of property, attracting the constitutional obligation to provide just terms compensation. This means that historical acts that extinguished such rights without compensation may have occurred without constitutional authority.

On the specific question of the 1903 pastoral lease, the High Court clarified that determining whether such a lease extinguished native title rights depends on detailed factual inquiries distinct from constitutional doctrine. The Court did not make those factual determinations but provided the legal framework to guide their resolution in the Federal Court.

Wider Commentary

Sean Bowden, lawyer for the Gumatj people: “What are just terms when you’ve had your traditional Country taken from you without your consent, when you’ve had your sacred places destroyed in front of your eyes …?”

Greg McIntyre SC (former Mabo counsel and legal commentator): “There have been statements in the High Court and, to a lesser extent, taken on by federal courts, saying that native title was fragile and capable of being easily turned or extinguished … This now stops that discussion.”

Attorney-General Mark Dreyfus: “The government recognises the significant contribution that the late Dr Yunupingu made in initiating this case … This decision clarifies the Constitution’s application to those issues for parties to this and future matters.”

Aftermath and Ongoing Proceedings

Importantly, the High Court emphasised that Yunupingu was a constitutional ruling rather than a final assessment of compensation. Issues such as the historical existence and nature of native title rights in the relevant areas, and the quantification of compensation, will return to the Federal Court for detailed consideration under the Native Title Act.

The High Court did not award compensation in Yunupingu, and the amount of any compensation remains to be determined by the Federal Court in subsequent proceedings.

The decision reaffirms that constitutional protections are not confined to state jurisdictions but extend equally to territories. It also entrenches the constitutional status of native title as a form of property that attracts just-terms protection when compulsorily acquired by the Commonwealth.

Significance

Yunupingu is widely regarded as a landmark confirmation of Indigenous land rights in the constitutional order. It vindicates the long-standing legal position of the Gumatj people and clarifies that Indigenous property rights cannot be overridden without compensation comparable to other forms of property.

Native title holders and their legal representatives celebrated the ruling as a significant step toward constitutional justice, providing a direct pathway to claim compensation for historical dispossession.

By recognising that native title rights are property protected by the Constitution and that the territories power is subject to just-terms requirements, the decision potentially opens doors for claims relating to other historical acts across Australia.

Conclusion

Commonwealth of Australia v Yunupingu (2025) HCA 6 settles key constitutional questions about the scope of the territories power and the meaning of property under the Constitution. By ensuring that just-terms protection applies to territory laws and that native title is property for constitutional purposes, the High Court has reshaped the legal framework for native title compensation.

Future proceedings will determine how these principles translate into specific awards, but the decision itself marks a significant affirmation of Indigenous constitutional rights in Australia.