The decision upholding native title as a property right is a win for the long-running Gumatj case but is also said to have ‘long-term ramifications’
A high court decision on native title has the potential to be as significant as the Mabo case and influence even the land beneath Parliament House, experts say.
The court dismissed a commonwealth appeal on Wednesday over whether it may be liable for up to $700m in compensation for bauxite mining at Gove in north-east Arnhem Land.
The late Gumatj leader Dr Yunupingu, a renowned land rights activist, originally brought the case in 2019 alongside an application for native title on behalf of his people.
In May 2023, the federal court found native title rights and interests are property rights, and their extinguishment is an acquisition and therefore must be made under “just terms”. This applied to land in the Northern Territory, but there were similarities with land in the ACT.
The federal court found Gumatj land was not acquired “on just terms” before being leased to the Swiss-Australian mining consortium Nabalco in 1968.
In its decision on Wednesday, the high court upheld the federal court’s decision.
“Native title recognises that, according to their laws and customs, Indigenous Australians have a connection with country,” the judgment read.
“It is a connection which existed and persisted before and beyond settlement, before and beyond the assertion of sovereignty and before and beyond federation.
“It is older and deeper than the constitution.”
Dr Ed Wensing, an honorary research fellow at the Australian National University’s Centre for Aboriginal Economic Policy Research, said “this decision is like Mabo 2 in many respects”. The 1992 high court decision established the principle of native title in common law.
“This will have long-term ramifications,” Wensing said.
“The effect of this decision, strictly speaking, is only to the NT and most likely the ACT, but will this case also affect other compensation cases in other places all over the country? Most probably.”
However, Wensing said the exact ramifications could take years to emerge. Even the claim in the Yunupingu matter may take a decade to resolve, he said.
Greg McIntyre SC, who was the lead solicitor in the Mabo case and is a former president of the Law Council of Australia, told Guardian Australia that the decision strengthened native title and put to rest fears that land rights principles underpinning the legislation could be unpicked or dismantled.
“There have been statements in the high court and, to a lesser extent, taken on by federal courts, saying that native title was fragile and capable of being easily turned or extinguished,” he said.
“This now stops that discussion.”
Native title can be granted on freehold land or land covered by a pastoral lease, but mining leases are taken to at least partially extinguish native title. Many mining leases predate the Native Title Act.
McIntyre said the decision that lands must be acquired on “just terms” has significant implications that could mean governments may be liable for higher compensation claims.
In the Northern Territory, he said, that window for compensation could date back to 1903. “So what we’re looking at is that it’s potentially going to result in larger quantities of compensation,” he said.
McIntyre said Wednesday’s decision was the result of a hard-fought battle waged over decades by the Gumatj people.
“They’ve had the longest fight in the sense that they went to the Northern Territory supreme court in the late 60s. They presented their bark petitions to the parliament,” he said.
McIntyre said while the decision specifically concerned the NT, it could have implications for the ACT.
“Obviously, the ACT hasn’t always been there,” he said. “It only came into existence after federation. So it’ll be from the time the ACT was established that this decision [will have effect] – that’s when you start calculating your compensation.”
The Northern Land Council (NLC) has several current native title matters before the federal court.
The NLC chief executive, Yuseph Deen, said the council was proud to have supported the Gumatj people throughout this case.
“The NLC is assessing the complex and far-reaching impact of this decision on native title holders across our region,” Deen said.
“The Northern Land Council welcomes this pivotal development in the law and is considering next steps.”
The attorney general, Mark Dreyfus, said in a statement on Wednesday that complex issues remained in the case.
“The commonwealth appealed to the high court to settle critical constitutional issues in this case,” he said. “This decision clarifies the constitution’s application to those issues for parties to this and future matters.
“While the high court has considered significant aspects of this matter, the case will now return to the federal court to resolve other remaining complex issues.”