Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia

• Jurisdiction: Australia Federal only
• Judgment Date: 22 May 2023
• Neutral Citation: [2023] FCAFC 75
• Date: 22 May 2023
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75

File numbers:	NTD 43 of 2019
Judgment of:	MORTIMER CJ, MOSHINSKY AND BANKS-SMITH JJ
Date of judgment:	22 May 2023
Catchwords:	NATIVE TITLE – claim for compensation under Native Title Act 1993 (Cth) (NTA) – where the applicant, on behalf of the Gumatj Clan or Estate Group, contends that, in the period from 1911 to 1978, a number of grants or legislative acts took place in the Northern Territory which, if valid, would have been inconsistent with the continued existence of the claimants’ non-exclusive native title rights, and would have extinguished those non-exclusive native title rights at common law – where the applicant contends that the grants or acts purported to effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution, and that they did not provide just terms within the meaning of that provision – where the applicant contends that, the NTA apart, the grants or acts were invalid by reason of the failure to provide just terms as required by s 51(xxxi) – where the applicant contends that each of the grants or acts falls within the definition of a “past act” in the NTA – where the applicant contends that, by operation of the NTA, the grant or act was effective to grant or vest the rights that it purported to grant or vest, and the claimants are entitled to compensation under the NTA in respect of the acquisition of property – where the Commonwealth contended that the applicant’s claim should fail on a number of bases – where separate questions considered and determined by a Full Court in the exercise of the Court’s original jurisdiction ; NATIVE TITLE – extinguishment – pastoral leases granted between 1886 and 1903 – reservations of minerals – where the Commonwealth contended that the effect of those reservations was to vest title to minerals in the Crown and thereby to extinguish the claimants’ native title mineral rights (if established) – held: any native title mineral rights not extinguished ; NATIVE TITLE – extinguishment – Mission Lease granted in 1938 – where the Commonwealth contended that the grant of the Mission Lease extinguished (or purported to extinguish) any native title rights in the claim area that then subsisted – where the Commonwealth contended that the legislative instrument provided for the grant of a common law lease and thus the lease conferred exclusive possession on the lessee – where the Commonwealth contended in the alternative that the Mission Lease was a statutory lease that granted rights that were inconsistent with the claimed non-exclusive native title rights – held: the Mission Lease did not extinguish or purport to extinguish the claimants’ claimed non-exclusive native title rights ; CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the just terms requirement contained in s 51(xxxi) does not apply to laws enacted pursuant to s 122 of the Constitution – where the Commonwealth submitted that Teori Tau v Commonwealth [1969] HCA 62; 119 CLR 564 is the binding authority on this question – where the Commonwealth submitted that Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309 did not overrule Teori Tau – held: Wurridjal did overrule Teori Tau and the just terms requirement contained in s 51(xxxi) does apply to laws enacted pursuant to s 122 ; CONSTITUTIONAL LAW – s 51(xxxi) of the Constitution – acquisition of property on just terms – where the Commonwealth contended that the relevant grants and acts were not capable of amounting to an acquisition of property within the meaning of s 51(xxxi) because native title was inherently susceptible to extinguishment by a valid exercise of the Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land – held: native title rights and interests are proprietary in nature and constitute “property” for the purposes of s 51(xxxi) – held: 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)
Legislation:	Constitution ss 51(xxxi), 55, 96, 111, 122 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 71 Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth) s 44 Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 (Cth) Federal Court of Australia Act 1976 (Cth) s 20(1A) Fisheries Act 1952 (Cth) Health Insurance Act 1973 (Cth) s 20 Health Insurance (Pathology Services) Amendment Act 1991 (Cth) Judiciary Act 1903 (Cth) s 78B National Parks and Wildlife Conservation Act 1975 (Cth) s 10 National Parks and Wildlife Conservation Amendment Act 1987 (Cth) s 7 Native Title Act 1993 (Cth) ss 4, 13A, 14, 15, 17, 18, 23A, 23B, 23C, 47A, 51, 51A, 53, 61, 66B, 223, 228, 238, 242 New Guinea Act 1920 (Cth) Northern Territory Acceptance Act 1910 (Cth) ss 6, 10 Northern Territory (Administration) Act 1910 (Cth) ss 4U, 4X, 5, 9, 13, 21 Northern Territory National Emergency Response Act 2007 (Cth) Northern Territory Self-Government Act 1978 (Cth) s 50 Papua and New Guinea Act 1949 (Cth) Parliamentary Contributory Superannuation Act 1948 (Cth) Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 (Cth) s 24 Racial Discrimination Act 1975 (Cth) s 10 Remuneration Tribunal Act 1973 (Cth) Sales Tax Assessment Act (No 1) 1930 (Cth) Swimming Pools Tax Refund Act 1992 (Cth) s 4 Federal Court Amendment Rules 2007 (No 1) (Cth) Federal Court Rules 1979 (Cth) O 20, r 3 Federal Court Rules 2011 (Cth) rr 30.01, 38.01 High Court Rules 2004 (Cth) r 27.07 Land Act 1910 (Qld) Land Act 1898 (WA) s 62 Land Act 1933 (WA) s 32 Mining Act 1980 (NT) Northern Territory Crown Lands Act 1890 (SA) ss 5, 6, 8, 31, 33, 63, 78, 90 Northern Territory Crown Lands Consolidation Act 1882 (SA) Northern Territory Land Act 1872 (SA) Northern Territory Land Act 1899 (SA) ss 1, 23, 24, 25 Western Lands Act 1901 (NSW) s 23 Work Health Act 1986 (NT) Aboriginals Ordinance 1918 (NT) ss 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 19, 19A, 20, 21, 67 Crown Lands Ordinance 1927 (NT) s 102 Crown Lands Ordinance 1931 (NT) Minerals (Acquisition) Ordinance 1953 (NT) ss 3, 4 Mining Ordinance 1939 (NT) ss 7, 106, 107 Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968 (NT) Social Welfare Ordinance 1964 (NT) Welfare Ordinance 1953 (NT) Australian Colonies Act 1861 (Imp) New South Wales Constitution Act 1855 (Imp) Queensland Constitution Act 1867 (Imp) United States Constitution
Cases cited:	Akiba v Commonwealth [2013] HCA 33; 250 CLR 209 Alcock v Commonwealth [2012] FCA 524; 203 FCR 114 Alcock v Commonwealth [2013] FCAFC 36; 210 FCR 454 Allpike v Commonwealth [1948] HCA 19; 77 CLR 62 American Dairy Queen (Q’ld) Pty Ltd v Blue Rio Pty Ltd [1981] HCA 65; 147 CLR 677 Attorney-General v Brown (1847) 1 Legge 312 Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651 ...