The Constitutional Relationships Between 'Just Terms' Acquisition, Territories, and Native Title: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia
16.06.2023
On 22 May 2023, the Full Court of the Federal Court of Australia (Mortimer CJ, Moshinsky and Banks-Smith JJ) delivered judgment in Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75 (Yunupingu), a decision regarding the intersection between native title and constitutional law.
In short, the Court reached two key conclusions, rejecting the Commonwealth's submissions.
The restriction in section 51(xxxi) of the Constitution – that acquisitions of property must be on just terms – applies to laws made under s 122 of the Constitution (the territories power).
As non-statutory rights, native title rights are not ‘inherently defeasible’, or specially susceptible to extinguishment by a valid exercise of the Crown’s sovereign power, as that term is understood in the context of s 51(xxxi) of the Constitution. Accordingly, native title rights are ‘proprietary’ in nature and capable of being "acquired" within the meaning of s 51(xxxi) of the Constitution.
The Court also held that when assessing the ratio decidendi of a judgment on a demurrer containing multiple grounds, the appropriate object of analysis is each individual ground of the demurrer, rather than the Court's overall decision.
This post explores each of these aspects of the Court's decision, and outlines their significance for public lawyers more generally.
The Gove Compensation Claim
The proceedings involved two applications made under s 61 of the Native Title Act 1993 (NTA) by Yunupingu, on behalf of the Gumatj Clan or Estate Group, related to the resource-rich Gove Peninsula, in north-east Arnhem Land in the Northern Territory. The claimants sought a determination of native title over this land and sought compensation ‘for the alleged effects on native title of certain executive and legislative acts done after the Northern Territory became a territory of the Commonwealth in 1911, but prior to the coming into force of the Northern Territory Self-Government Act 1978 (Cth)’: Yunupingu, [1]-[2]. All the alleged acts took place before the entry into force of the Racial Discrimination Act 1975 (Cth), and were thus alleged to be 'past acts' as that term is employed in the NTA: Yunupingu, [8], [40].
Several separate questions were submitted to the Full Court, exercising original jurisdiction, for determination: Yunupingu, [10]-[21]. This post is concerned with the Commonwealth's 'constitutional arguments': Yunupingu, [45(b)].
The Relationship Between s 51(xxxi) and 122 of the Constitution
The Commonwealth's first constitutional argument was that ‘the just terms requirement contained in s 51(xxxi) of the Constitution does not apply to laws enacted pursuant to s 122 of the Constitution’: Yunupingu, [45](b)(i). It was submitted that this result was compelled by the High Court's decision in Teori Tau v Commonwealth (1969) 119 CLR 564 (Teori Tau), which was relevantly unaffected by its subsequent decision in Wurridjal v Commonwealth (2009) 237 CLR 309 (Wurridjal): Yunupingu, [46].
In Teori Tau, a decision dealing with mineral rights ordinances passed with respect to the (then) Territory of Papua and New Guinea, the High Court determined that the territories power in s 122 of the Constitution is ‘plenary in quality and unlimited and unqualified in point of subject matter’, and ‘akin to that possessed by the States ... to make laws for the compulsory acquisition of property without necessarily providing in those laws for terms of acquisition which can be seen in the circumstances to be just’: Teori Tau, 569-570.
Teori Tau was controversial. In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, Gaudron, Gummow and Kirby JJ (writing in the majority) argued that Teori Tau ought to be overruled. However, it was not until Wurridjal where matters came to a head. Wurridjal involved a proceeding, on demurrer, regarding the validity of two Acts of the Howard Government underpinning the "Northern Territory National Emergency Response" (or "Intervention"), passed under s 122 of the Constitution: the Northern Territory National Emergency Response Act 2007 (Cth) and the Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth). Each was impugned on the basis that the Act constituted an acquisition of property otherwise than on just terms, in contravention of s 51(xxxi) of the Constitution.
In that case, allowing the demurrer, a majority of the High Court observed that Teori Tau ought to be overruled. However, one of the judges in that majority (Kirby J) was in dissent as to the Court's final orders: Yunupingu, [249]-[250]. On this basis, the Commonwealth in Yunupingu submitted that Wurridjal did not formally overrule Teori Tau, as the observations of the Court's majority did not form part of the case's ratio decidendi: Yunupingu, [253]-[256]. The Commonwealth argued that in determining the ratio decidendi of a decision, the Court must ignore dissenting opinions and ‘any reasoning that is not necessary to an individual judge's decision’, counting only such reasoning that remains as is common to a ‘numerical majority of the members of the Court’: Yunupingu, [253].
Applying these principles to Wurridjal, the Commonwealth argued that Kirby J's reasons ‘are not to be taken into account in any respect’, as his Honour was in dissent as to the result of that case: Yunupingu, [254](a). Once Kirby J's reasons were removed, the overruling of Teori Tau was not a "point of law that is common to at least four of the six members of the majority that was an actual step in the reasoning that led to the demurrer being upheld" in Wurridjal. Thus, the decision did not have that effect: Yunupingu, [254(b)-(e)]. Rather, the ratio decidendi in Wurridjal was said to be that the challenged legislation afforded just terms (regarding certain rights held by the Arnhem Land Aboriginal Land Trust), and otherwise did not acquire certain individuals’ rights to enter upon and use or occupy the affected land: Yunupingu, [254](f).
The Full Court rejected this argument, holding it was bound to decide that Wurridjal overruled Teori Tau, such that the territories power in s 122 of the Constitution ‘is conditioned by’ the just terms requirement in s 51(xxxi): Yunupingu, [57](a)-(b).
In Yunupingu, the Full Court argued that the key question was not the correctness of the Commonwealth's principles for identifying the ratio decidendi of a decision, but rather whether these principles ‘are to be applied to the conclusion reached on each ground of the demurrer in Wurridjal, or to the overall decision to allow the demurrer’. The Full Court considered the former was the correct analysis: Yunupingu, [258]. Observing that the resolution of a question of law on a demurrer is ‘analogous to the resolution of questions on a case stated or special case’, which gives a final (in the sense of authoritative and binding) ‘answer on the question of law involved’, the Full Court in Yunupingu held that ‘a ratio decidendi may be extracted from the reasoning of those judges who constitute the majority on each question’: Yunupingu, [261]-[265].
The Full Court in Yunupingu observed that the first question of law raised by the demurrer in Wurridjal was ‘were the Acts relevantly subject to the just terms requirement in s 51(xxxi) of the Constitution?’. A majority of the Court answered that question ‘yes'. In answering that question, the Full Court in Yunupingu held that four of the justices in Wurridjal (including Kirby J) considered, contrary to Teori Tau, that ‘a necessary step in their reasoning was the proposition that s 51(xxxi) applies to an acquisition of property pursuant to a law made only under s 122’. Resultantly, the Full Court considered itself bound to reach a like conclusion in this case: Yunupingu, [266]-[278].
Are Native Title Rights 'Inherently Defeasible'?
The Commonwealth's second constitutional argument was that native title rights and interests are not capable of being 'acquired' within the meaning of s 51(xxxi). Rather, the Commonwealth argued those rights and interests are ‘inherently defeasible', or 'inherently susceptible' to extinguishment by a valid exercise of the Crown’s sovereign power – derived from its radical title – to grant interests in land and to appropriate to itself unalienated land’: Yunupingu, [280].
Jurisprudence on s 51(xxxi) has indicated that the question of whether rights are 'inherently defeasible' determines whether those rights are 'proprietary' in nature, and thus capable of being acquired by the Commonwealth. The Commonwealth argued that native title rights and interests necessarily lacked this 'proprietary' nature, as common law must ‘“recognise" native title for that title to be enforceable in the post-colonisation legal system', with such recognition 'being conditional on the overriding power of the Crown to deal with the land (or waters)’: Yunupingu, [280].
The Full Court rejected the Commonwealth's argument, holding that the ‘single constant thread’ in the s 51(xxxi) jurisprudence is that the concept of ‘inherent defeasibility’ is confined to statutory rights - that is, rights ‘created by Parliament, and then altered, adjusted or extinguished by Parliament’: Yunupingu, [360]. Native title rights and interests, being rights or interests in identified land or waters (cf. NTA, s 223) which are ‘not a creature of the common law' and burden the Crown's radical title, are fundamentally different, and ‘quintessentially proprietary’ in nature: Yunupingu, [444], [447]-[448], [463].
The Court recognised that native title is ‘communally held’ and ‘intertwined with and un-severable from the spiritual and lived experiences and beliefs of those people who hold it’: Yunupingu, [447]-[448]. Although such rights are ‘defeasible’ in the sense that they are vulnerable to extinguishment, this does not render the rights ‘inherently defeasible’ in the same manner as statutory rights, because – unlike the elimination of statutory rights – ‘[l]aws that diminish native title confer an identifiable proprietary benefit on others’: Yunupingu, [460]-[467]. Extinguishment of native title rights does not relevantly render those rights 'fragile', because, as the Full Court explained at [459]:
[w]hat is extinguished by a grant of rights intended to be inconsistent with native title in certain land is not the traditional laws and customs which give rise to the claimants’ native title. The normative systems of First Nations Peoples remain. Traditional laws and customs are not dependent for their existence on any recognition by the Crown. They have existed for generations prior to colonisation, they continue to exist, and they can be enforced as between First Nations Peoples. They can continue to have normative force amongst those who are bound by them. What (if anything) is extinguished is the title to certain land; the “title” is the nomenclature for what is recognised by Australian common law, and what may cease to be recognised by Australian law, with the corresponding effect or benefit that the burden on the Crown’s radical title is removed.
This separately sourced, ‘proprietary character’ of native title underpins the ‘whole framework of the NTA': Yunupingu, [467]. For that reason, the Full Court concluded that ‘native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi)’, and – thus – ‘a grant or act that extinguishes native title rights and interests is capable of amounting to an acquisition of property within the meaning of s 51(xxxi)’: Yunupingu, [478].
Closing Observations
As the Full Court observed, resolution of the constitutional questions in Yunupingu raised issues of ‘constitutional law of the highest significance’. The decision markedly contributes to the complex jurisprudence on the inter-relationship between s 51(xxxi) and 122, and also represents a full-throated defence of the sui generis, enduring nature of native title rights and interests: Yunupingu, [257].
The decision is likely to have significant implications for native title compensation applications. For the Gumatj, presuming they can establish native title rights and interests in the subject land, the possible compensation payable as a result of the extinguishing effect of the challenged grants has been estimated to total approximately $700m. However, the potential ramifications of this decision are far from contained to the present claimants. Gumatj clan leader Djawa Yunupingu, the brother of the named applicant in this case, has stated that the Full Court's conclusions ‘are significant, potentially impacting all Native Title in the [Northern Territory] acquired by the Commonwealth between 1911-1978’.
The greater clarity provided by the Full Court's decision ought to be warmly welcomed by public law and public lawyers. However, it is unlikely to be the last word on this issue. Setting aside the looming prospect of an application by the Commonwealth for special leave to appeal from the Full Court's decision, it ought to be recalled that intermediate and inferior courts are ‘bound directly’ by High Court authorities: Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609 at [98]-[99] (Leeming JA). They are not bound by ‘another court’s interpretation of what the High Court said’: Commonwealth Bank of Australia v Kojic (2016) 249 FCR 421 at [149] (Edelman J). Rather, such interpretations hold only persuasive value, buttressed by the doctrine of comity between intermediate courts: Obeid v Lockley (2018) 98 NSWLR 258 at [237]-[239] (Leeming JA). In that respect, until the High Court itself rules on the continued life of Teori Tau and the ratio of Wurridjal, the persuasive value of the Full Court's decision in Yunupingu rises or falls on the perceived strength of the Full Court's reasoning in the eyes of subsequent judges.
Finally, it is also appropriate to observe that this decision marked one of the many notable contributions to Australian life by the late Yunupingu, whom the Prime Minister described as a ‘leader’, a ‘statesman’, and a man who ‘walked in two worlds with authority, power and grace, and ... worked to make them whole — together’. Sadly, Yunupingu passed away on 4 April 2023, shortly before the Full Court's decision. Although this claim had only been on foot since 2019, these proceedings mark yet another example of the tragic, and tragically common, impacts on indigenous peoples of the length and complexity of native title proceedings in the Federal Court: see, eg, Yaegl People #1 v Attorney-General of New South Wales [2015] FCA 647 at [5].
This post refers to the Applicant only by his surname, in accordance with the wishes of his family.
Aaron Moss is a Senior Lawyer at Clayton Utz, and an Adjunct Researcher at the University of Tasmania, Faculty of Law.
Suggested citation: Aaron Moss, ‘The Constitutional Relationships Between 'Just Terms' Acquisition, Territories, and Native Title: Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75’ on AUSPUBLAW (13 June 2023) <https://www.auspublaw.org/blog/2023/6/the-constitutional-relationships-between-just-terms-acquisition-territories-and-native-title-yunupingu-on-behalf-of-the-gumatj-clan-or-estate-group-v-commonwealth-of-australia-2023-fcafc-75/>