Australia’s Constitutional Guarantee for Property Rights Applies to Native Title
18.03.25
Guarantees that protect people’s rights against government action are few and far between in the Australian Constitution. One exception is the assurance in section 51(xxxi) that if the Commonwealth takes someone’s property, it must give just terms compensation. In last week’s decision, Commonwealth v Yunupingu, the High Court confirmed that Aboriginal native title holders also share in the protection of that constitutional guarantee.
The immediate consequence is for the Gumatj, a clan of the Yolngu people in Northeast Arnhem Land. Their leader, the late Yunupingu, launched a legal claim for compensation in 2019 for the historic extinguishment of native title in the time before self-government, when the Northern Territory was subject to direct rule by the Commonwealth.
The Gumatj are claiming compensation for the extinguishment and impairment of native title caused by the Commonwealth taking ownership of minerals in the Northern Territory in 1939 and opening up Yolngu land in the 1960s to bauxite mining on a massive scale.
The Commonwealth attempted to knock out much of the claim with three arguments, two of them about the Constitution and one about native title law. Nearly two years ago, the Full Federal Court rejected those arguments. The Commonwealth appealed to the High Court. After hearing argument in Darwin last year in August, the High Court has unanimously dismissed all three Commonwealth arguments, although one dissenting judge found an alternative basis for accepting the Commonwealth’s native title argument.
There are geographical and other limits to the scope of the decision, and there were many technical issues involved. One of the most interesting aspects of the reasoning is the values which underpin it. The Court said the extinguishment of native title is an acquisition of property that requires just terms because, fundamentally, that is what equality before the law demands. This was also ultimately a decision about the rule of law. The Commonwealth can only act consistently with the limits on its constitutional power. And that includes where Aboriginal property rights are the ones being acquired.
These values guided the Court in dismissing the Commonwealth’s two constitutional objections.
Constitutional Objection 1: Just Terms and the Territories
The Commonwealth’s first claim was that it is immune to the constitutional guarantee when making laws for the Territories, despite having to give just terms when it acquires property in the rest of Australia. The Court rejected that argument, over-ruling a decision from 1969 (Teori Tau v Commonwealth) that has been heavily criticised over the years, including by many High Court judges. That is a win for all 700,000 Australians who live in places like the Northern Territory and Canberra.
Time had been running out for what was a poorly reasoned and unconvincing decision from the 1960s. To use the Court’s phrase, “the tide of history” was running strongly in favour of treating Territorians like other Australians, long before this week’s decision finally buried that old and much-criticised decision.
Constitutional Objection 2: Nature of Native Title – ‘Inherently Defeasible’
On the second argument, the Commonwealth claimed that native title was originally recognised in 1992 only on the basis that it was inherently defeasible, because it could be extinguished by the Crown granting title to someone else over the top of it. Because this characteristic was allegedly a wired-in feature of native title’s recognition, when the Commonwealth extinguished native title it did not rise to being an acquisition of property under the Constitution. Notably, this exceptional category of inherently defeasible rights has only ever applied to statutory rights created by Parliament, such as social security benefits or the rebate a pathologist received for bulk-billing under Medicare.
The Court rejected the inherent defeasibility argument. Legally native title is enforceable at common law, but subject to extinguishment authorised by legislation. For the Court, that is enough to define the legal terms on which native title was recognised in Mabo v Queensland (No 2) in 1992. There is no call to go an extra mile and consign it to a category that was invented to explain why amending or abolishing various statutory rights is not an acquisition of property. To do that would diminish the Indigenous rights that exist under traditional law. And, the High Court said, it would also undermine the fundamental motivating factor for the original decision in Mabo, which was equality before the law in the legal recognition of property rights.
Beyond the Yunupingu litigation, the Court’s decision clarifies that the Commonwealth is liable for native title compensation for validated official acts done across the Northern Territory in the years after 1911, when the Commonwealth took it over from South Australia. That will influence decisions on all sides across the Northern Territory, in litigation and negotiations over compensation for native title extinguishment. Previously parties had focused on the statutory right to compensation under the Native Title Act 1993 (Cth), which was commonly thought to become relevant only after October 1975, when Australia’s federal Racial Discrimination Act commenced. Effectively, the decision opens up in the Northern Territory the availability of compensation backwards another 64 years to 1911.
A Win for Rule of Law and Equality before the Law
This is an important outcome for Aboriginal groups in the Northern Territory. More broadly, the Court has resisted pressure from the Commonwealth in its opening submissions about fiscal consequences and restated a commitment to rule of law and equality before the law. Notably the States have a freer hand under their constitutions and historically most native title extinguishment is attributable to them. But after the decision in Yunupingu, we now know for sure that native title is a property right, alongside other property rights, that enjoys protection under the Constitution.
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Sean Brennan is Director of the Indigenous Legal Issues Project at the Gilbert + Tobin Centre of Public Law and was the Director of the Centre itself from 2014-2018. He teaches and writes mainly in the areas of constitutional law, native title and Aboriginal land rights.
