Commonwealth v Yunupingu: A Constitutional Case Testing Commonwealth Liability for Aboriginal Dispossession
This post is part of a series of commentaries presented at the Gilbert + Tobin Centre of Public Law seminar on ‘Native Title and the Constitution: Past and Future Prospects’.
30.10.2024
For more than 40 years, cases initiated by Aboriginal people have tested the interpretation of key constitutional provisions in Australia’s highest court. Since Mabo v Queensland (No 2), the High Court of Australia has also been instrumental in defining and confining possibilities for what First Nations groups might achieve through the vehicle of native title. That has included ten test cases on extinguishment law, the Yorta Yorta decision that set a high legal bar for proving continuity of connection, and the Timber Creek case about statutory rights to compensation for the extinguishment of native title.
Another such moment of reckoning has arrived for First Nations people, and for the High Court in the development of native title law and its interpretation of the Constitution.
On 9 August, the High Court sitting in Darwin reserved judgment on the answer to three questions of law posed on appeal in Commonwealth v Yunupingu. This blog post will explore what the litigation is about, how the parties argued their position in Darwin and why the case is significant.
The Yunupingu litigation
In general terms, Yunupingu is about the applicability of the just terms guarantee in the Constitution to native title. The key question is this: when the Constitution says in s 51(xxxi) that an acquisition of property by Commonwealth law requires just terms to be paid, does that just terms guarantee apply to the historical extinguishment of native title held by Aboriginal people in the Northern Territory?
The Commonwealth says that the guarantee of just terms does not apply, or at least not to the most common methods by which extinguishment occurred (inconsistent grants to a third party or reservations of an interest to the Crown). Though such actions did extinguish native title, the Commonwealth says they were not an ‘acquisition of property’ for the purposes of s 51(xxxi) that would attract just terms.
The Aboriginal parties, to the contrary, say that a Commonwealth law for the Territory that led to native title extinguishment was a law for the acquisition of property to which the just terms guarantee applies.
The Yunupingu case comes about because from 1911, when the Commonwealth accepted the surrender of the ‘Northern Territory of South Australia’ by that southern State, until 1978, when it became a self-governing territory, the Northern Territory was subject to direct Commonwealth administration. Under the Northern Territory (Administration) Act 1910 (as successively amended), the Commonwealth made ordinances to regulate, for example, the Crown ownership of minerals and the creation of mining leases. There are thus Commonwealth laws in play that are said by the plaintiffs to be laws with respect to the acquisition of property.
The High Court hearing in August arose at a relatively early stage in the overall litigation, that nonetheless commenced nearly five years ago. In late 2019, on behalf of the Gumatj clan of the Yolngu people of Northeast Arnhem Land, the now deceased Aboriginal leader Yunupingu commenced legal proceedings in the Federal Court of Australia. Ultimately, the Gumatj seek to recover compensation for official acts done on their traditional lands during the mid 20th century, while the Northern Territory was subject to this form of direct rule by the Commonwealth.
The claim rests amongst other things on the following. By the Mining Ordinance 1939, the Commonwealth vested ownership of virtually all minerals in the Crown. Between 1958 and 1969, the Commonwealth also granted mining leases over parts of the claim area that led to the establishment of a huge bauxite mine, associated infrastructure, and the adjoining company town of Nhulunbuy (formerly Gove).
Yolngu people famously protested and resisted these latter actions, first through the political process with the Yirrkala Bark Petitions to the Federal Parliament in 1963, and then later through the courts with Australia’s first attempted native title claim in Milirrpum v Nabalco decided in 1971 by Blackburn J. Having been unable to protect their traditional lands by these methods more than half a century ago, Yolngu people now seek to mobilise the Constitution and the compensation provisions of the Native Title Act 1993 (Cth) to obtain redress for the harms that were caused by the Commonwealth’s actions.
The parties separated out several preliminary questions of law to address threshold issues, the answers to which will substantially determine what happens next in the Yunupingu litigation. The separate questions were first heard by a bench of three Federal Court judges, who found in favour of the Aboriginal parties in May 2023 (see post by Aaron Moss). The Commonwealth was granted special leave to appeal to the High Court regarding two constitutional questions, as well as one question concerned with native title extinguishment law that is not addressed in this post.
The two constitutional questions embody the Commonwealth’s two different ways of denying that the just terms guarantee applies to these actions by the Commonwealth.
In simple terms, one Commonwealth argument is geographical, and the other is conceptual. The geographical argument is that people living in the Northern Territory were not protected by the constitutional property guarantee if the Commonwealth was relying solely on the territories power, its power in s 122 of the Constitution to make laws for the government of a territory. The conceptual argument is that the extinguishment of native title by an inconsistent grant or appropriation by the Crown to itself of a relevant interest is not an ‘acquisition of property’, because native title is by its nature an ‘inherently defeasible’ property interest and outside the coverage of s 51(xxxi).
The arguments before the Court
The Commonwealth’s conceptual argument
The Commonwealth led with and gave most time to Ground 2 of its appeal. This is the Commonwealth’s conceptual argument: that native title was qualified from the time of its first recognition in Mabo (No 2) by an inbuilt susceptibility to extinguishment. Native title is, the Commonwealth says, inherently defeasible to an exercise of relevant sovereign power. And thus, when that power was exercised by the Commonwealth in the Territory to make an inconsistent grant, or to assert a Crown interest inconsistent with native title, then it was not an acquisition of property for the purposes of s 51(xxxi). Because it was an inherent characteristic of the right as recognised by the common law that it could be legally terminated in this way, when it was terminated in that way it did not rise to the level of a constitutional ‘acquisition of property’.
In several cases since 1994, the High Court has categorised a valuable right as inherently defeasible and said it thus stands outside the protection offered by s 51(xxxi) when extinguished or modified. Every such case has involved rights created by Parliament. Everyone agrees native title is not a statutory right created by Parliament. But the Commonwealth leans heavily on observations made by Gummow J in one paragraph of his 1997 judgment in Newcrest Mining (WA) Ltd v Commonwealth – which was not a native title case – where he said the extinguishment of native title by inconsistent grant or reservation to the Crown should also be consigned to the inherent defeasibility category.
A wide range of arguments were put by Aboriginal parties to deny that native title should be treated this way. They included a critique of Gummow J’s brief reasons in Newcrest and of the idea that this category of inherent defeasibility travels beyond the statutory rights created by Parliament. The counter-arguments extend also, for example, to saying that the Commonwealth is collapsing an important distinction between the valuable property right that is native title on the one hand, and its external settings, the legal rules that at any given time govern the power of a parliament or government to extinguish it. (See also my article on this topic from 2004, and a post by William Isdale).
The Commonwealth’s geographical argument
The second constitutional argument from the Commonwealth is the geographical one. It harks back to an earlier idea that the Territories stand apart from the division of power between Commonwealth and State – the federal compact at the heart of the Constitution. That the Territories are in some sense structurally disjoined from the rest of the Constitution is said to be reinforced by the different wording and location of the legislative power in s 122 that gives the Commonwealth a broad authority to make laws for the government of a territory. The Commonwealth claims it is a purpose of the Constitution that the territories power in s 122 be flexible, to enable governance of territories that could differ widely from each other in terms of local conditions. Flexibility here translates into s 122 being free of constitutional limitations on law-making authority that otherwise apply to other Commonwealth legislative powers.
This disjunctive view of the Territories has been incrementally losing ground in the High Court to a more integrationist view since the late 1950s. Many would say that this integrationist view includes acceptance that the just terms constraint in s 51(xxxi) does apply to the exercise of the territories power, on the strength of what a majority of the High Court said in Wurridjal v Commonwealth in 2009, building on what was said in 1997 in Newcrest. However, the Commonwealth is insisting in the Yunupingu litigation that where a law for the acquisition of property is made solely under s 122, then the just terms guarantee does not apply. They seek to keep alive a precedent that others say has already been over-ruled: the case of Teori Tau v Commonwealth concerning a mining grant over traditional lands on Bougainville when that place was subject to Commonwealth legislative control, before Papua New Guinea became independent in 1975.
The Northern Territory as well as the Aboriginal parties argued strongly in Yunupingu that the Commonwealth was wrong about Teori Tau as a matter of precedent. And if not, then the surviving thread of Teori Tau the Commonwealth claims to exist did not apply to the actions taken on native title land in this case. And even if both those claims about existing authority are not sufficient, they said the High Court should, if necessary, re-open Teori Tau to over-rule it and find that the territories power in s 122 is constrained in all its operations by the just terms guarantee in s 51(xxxi).
The Commonwealth claimed that people in the Territory should be treated like people in a State, that is, unprotected by a constitutional guarantee of just terms against the exercise of power by the government of their local jurisdiction. It asked the Court to see the Commonwealth Parliament differently in this guise, governing locally for the Territory not nationally. The other parties disagreed by saying that people in the Territories should simply enjoy the same protection against uncompensated acquisitions of property as people in the States do, when it comes to acquisitions authorised by a Commonwealth law.
That choice between two asserted equality of treatment arguments is but one illustration that, for all its technicality, there are questions of competing values and constitutional morality lurking not far away in this case between which the judges might find they have to choose, whether they explicitly acknowledge things in those terms or not.
Significance
Yunupingu is significant for a range of reasons. It is eight years since Cunningham v Commonwealth, the last major High Court decision on s 51(xxxi) acquisitions of property. That too was an inherent defeasibility case. With five new members of the Court, Yunupingu will be an important insight into how the just terms guarantee and the inherent defeasibility concept are to be understood in the mid-2020s. The case poses questions about precedent and over-ruling. And it also continues the working out of the place of territories under the Australian Constitution.
Of cardinal importance is the significance of Yunupingu in native title terms, specifically in relation to Commonwealth liability for past dispossession.
The objective in this case is not to invalidate Commonwealth legislation, which is often the essence of a s 51(xxxi) challenge. That is because the federal Parliament validated titles in the Native Title Act in 1994, as briefly outlined below. The primary significance of the case is in the Commonwealth’s potential financial liability for native title compensation regarding validated official acts done between 1911 and 1978 in the Northern Territory, should the just terms guarantee be found to apply. This preliminary case is not about putting numbers on that liability. It is about ruling in or out decades of official action in the Northern Territory that had an adverse effect on native title, for the purposes of assessing that liability.
Answering that question has a very immediate legal impact on the prospects of the compensation claim launched in 2019 by the Gumatj. As a precedent, the wider effect will be to inform decisions on all sides across the Northern Territory, in litigation and negotiations over compensation for native title extinguishment. The scale, being Territory-wide and involving the Commonwealth, means it is clearly a matter of national political importance as well, with large policy questions at stake beyond the legalities dealt with in this post. And a general affirmation that s 51(xxxi) of the Constitution protects native title will have an enduring national legal significance.
Currently, for a limited and more recent subset of extinguishing acts, there is the possibility of statutory rights to compensation under the Native Title Act – as the Timber Creek litigation illustrated. Cases about this statutory right to compensation, so far, have related to extinguishing acts done after 1975. The presence of the Racial Discrimination Act in our legal system, constraining the behaviour of governments and parliaments from 30 October 1975 onwards, created the perceived need for retrospective validation of non-Indigenous titles back in 1993 when the original Native Title Act was made, with an accompanying right of compensation to the native title holder.
To summarise the native title significance of the Yunupingu litigation: to date, native title compensation has been a statutory right mostly understood to apply to extinguishment of native title after 1975, leaving uncompensated the thousands of acts of dispossession by grant and reservation that occurred in the first 187 years after colonisation. Success in this case would open up in the Northern Territory the availability of compensation backwards another 64 years to 1911. At the intersection of native title law and the Constitution, the judgment in Yunupingu will be one of the Court’s most consequential decisions in many years.
Sean Brennan is an Associate Professor at UNSW Law & Justice and Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law.
Suggested citation: Sean Brennan, ‘Commonwealth v Yunupingu: A Constitutional Case Testing Commonwealth Liability for Aboriginal Dispossession’ (30 October 2024) <https://www.auspublaw.org/blog/2024/10/commonwealth-v-yunupingu-a-constitutional-case-testing-commonwealth-liability-for-aboriginal-dispossession>