By Tony Denholder and William Simons -
Snapshot
- Commonwealth v Yunupingu has reshaped native title law and will be cited as a landmark precedent in the years to come.
- The case revolved around the extent of the territories power in sections 122 and 51(xxxi) of the Constitution, and the nature of native title as a distinct form of property rights.
- This article unpacks the context and reasoning of this watershed decision, and looks forward to what may come next.
Sitting at the northeastern corner of Arnhem land in the Northern Territory is the Gove Peninsula, made famous in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Gove Land Rights Case’). There, Blackburn J held the traditional rights and interests of the Yolngu clan were not capable of recognition by the common law as property. The decision prompted the inquiry that established the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) which began returning land in the Northern Territory back to traditional owners.
Now, 53 years after the Gove Land Rights Case, and 32 years after Mabo v Queensland (No 2) [1992] HCA 23 (‘Mabo No 2’), native title rights in the Gove Peninsula have again reshaped native title law. In Commonwealth of Australia v Yunupingu [2025] HCA 6 (‘Commonwealth v Yunupingu’), the High Court held that pre-1975 acts by the Commonwealth which extinguished native title could be compensable as invalid acquisitions of property contravening the just terms guarantee in section 51(xxxi) of the Constitution.
Interestingly, this outcome was expressly contemplated in Mabo (No 2) (at [62]-[63]) and at the time of the enactment of the Native Title Act 1993 (Cth) (‘NTA’). While the decision will only impact land dealings by the Commonwealth, it will help inform how the right to native title compensation is understood.
