Commonwealth of Australia v Yunupingu

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.