GAGELER CJ, GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ
COMMONWEALTH OF AUSTRALIA APPELLANT
AND
YUNUPINGU (ON BEHALF OF THE GUMATJ CLAN OR ESTATE GROUP) & ORS RESPONDENTS
Commonwealth of Australia v Yunupingu
[2025] HCA 6
Date of Hearing: 7, 8 & 9 August 2024 Date of Judgment: 12 March 2025
D5/2023
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation
S P Donaghue KC, Solicitor-General of the Commonwealth, S B Lloyd SC and N Kidson KC with C J Klease for the appellant (instructed by Australian Government Solicitor)
A R Moses SC with K S Anderson and J D Alderson for the first respondent (instructed by Bowden McCormack)
N Christrup SC, Solicitor-General for the Northern Territory, and S J Wright SC with L S Peattie for the second respondent (instructed by Solicitor for the Northern Territory)
C L Lenehan SC with T M Wood for the 25th to 28th respondents (instructed by Mills Oakley)
S A Glacken KC and G A Hill SC with J R Wang for the 29th and 32nd respondents (instructed by Northern Land Council)
R J Webb KC with C I Taggart for the 34th respondent (instructed by Crown Law (Qld))
P J F Garrisson SC, Solicitor-General for the Australian Capital Territory, with H Younan SC and L A Coleman for the Attorney-General for the Australian Capital Territory, intervening (instructed by Government Solicitor for the Australian Capital Territory)
C S Bydder SC, Solicitor-General for the State of Western Australia, with A B Sanchez-Lawson for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
Submitting appearances for the fourth to tenth, 12th, 13th, 16th, 19th, 21st to 23rd, 31st and 33rd respondents
No appearance for the third, 14th, 15th, 18th, 20th and 30th respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Commonwealth of Australia v Yunupingu
Constitutional law (Cth) – Legislative power – Acquisition of property on just terms – Where Gumatj Clan or Estate Group of Yolngu People claim entitlement to compensation under Native Title Act 1993 (Cth) for "past acts" "attributable" to appellant – Where Gumatj Clan claim past acts attributable to appellant are specified appropriations to appellant and grants to third parties of interests in land in Gove Peninsula in Northern Territory – Where appropriations and grants occurred between 1939 and 1969 by or under ordinances made by Governor-General under Northern Territory (Administration) Act 1910 (Cth) – Where Gumatj Clan claim each appropriation or grant invalid at time it occurred to extent inconsistent with native title rights and interests in relation to land then recognised at common law – Whether power conferred on Commonwealth Parliament by s 122 of Constitution to make laws for government of territory extends to making law with respect to acquisition of property otherwise than on just terms within meaning of s 51(xxxi) of Constitution – Whether extinguishment…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Commonwealth of Australia v Yunupingu [2025] HCA 6
Case
[2025] HCA 6
Decision Date
CaseChat Overview and Summary
The Commonwealth of Australia appealed to the High Court of Australia against a decision concerning the entitlement of the Gumatj Clan or Estate Group of the Yolngu People to compensation for "past acts" attributable to the Commonwealth. The Gumatj Clan claimed that these past acts, comprising appropriations of land and grants to third parties on the Gove Peninsula between 1939 and 1969, were invalid to the extent they were inconsistent with native title rights recognised at common law at the time. These appropriations and grants were made under ordinances enacted by the Governor-General pursuant to the Northern Territory (Administration) Act 1910 (Cth).
The High Court was required to determine several key legal issues. Firstly, it had to consider whether the legislative power conferred on the Commonwealth Parliament by s 122 of the Constitution, to make laws for the government of a territory, extended to making laws concerning the acquisition of property otherwise than on just terms, as stipulated by s 51(xxxi) of the Constitution. Secondly, the Court needed to decide whether the extinguishment of native title, recognised at common law prior to the commencement of the Native Title Act 1993 (Cth), constituted an acquisition of property within the meaning of s 51(xxxi). Finally, the Court was asked to determine whether a pastoral lease granted in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) had the effect of extinguishing non-exclusive native title rights over minerals located on or under the subject land.
The Court reasoned that the power under s 122 of the Constitution to make laws for the government of a territory is plenary and is not limited by s 51(xxxi) in relation to the acquisition of property. It held that the extinguishment of native title by or under a law of the Commonwealth, even if it occurred before the enactment of the Native Title Act, did not constitute an acquisition of property for the purposes of s 51(xxxi). The Court further found that the grant of the 1903 pastoral lease did not extinguish non-exclusive native title rights over minerals. The appeal was dismissed, and the Commonwealth was ordered to pay the costs of the Gumatj Clan.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ
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Ratio Decidendi
Legal Principle Established
Established by:
GAGELER CJ, GLEESON, JAGOT AND BEECH-JONES JJ