Gumatj clan leader and Yunupingu’s brother, Djawa Yunupingu, said the full Federal Court decision could open up a slew of new compensation claims for traditional owners.
“The ramifications of these findings are significant, potentially impacting all native title in the NT acquired by the Commonwealth between 1911-1978.”
While the court has not decided the amount of compensation owed to the traditional owners of the mine site in Arnhem Land – it gave both Yunupingu and the government’s lawyers more time to make their cases on this question on Monday – legal experts have previously suggested the claim could hit $700 million.
Under section 51 of the Constitution, the Commonwealth can acquire property “on just terms”. This power is typically used to buy land to build public infrastructure.
But Yunupingu, alongside several other traditional owners, told the court that when the federal government used this power to enter a lease, first held by Nabalco and now by Swiss Aluminium, for bauxite mining in Arnhem Land in 1968, they did so without their consent and therefore unjustly.
The Commonwealth argued that section 51 of the Constitution did not apply to the territories, citing a 1969 case where the High Court rejected the claims of Papuans from Bougainville Island opposing a copper mine.
But the full Federal Court said this was “somewhat surprising” as the 2009 Wurridjal decision, in which three Maningrida residents won a case overturning the acquisition of their township near Alice Springs under the NT Intervention as it was not “on just terms”.
It also rejected the government’s claim that native title should not be recognised as a form of property when it came to the Constitution as it was “inherently defeasible” as there were so many circumstances in which the Commonwealth could extinguish it.
Djawa Yunupingu said the case reflected his brother’s “enormous contribution” and was “a continuance of his life’s work … to have native title properly recognised as the heart of the identity of all First Nations people”.
“Although my brother did not live to hear today’s judgment, he would have been pleased that the Federal Court’s decision recognised the fundamental right of First Nations People to be treated equally by Australian law,” he said.