Commonwealth of Australia v Yunupingu [2025] HCA 6.

Appeal by the Commonwealth from a decision of the Full Court of the Federal Court which held in favour of the Gumatj Clan. The late Dr Yunupingu AM, on behalf of the Gumatj Clan, had sought a determination of native title in relation to an area of the Gove Peninsula in North East Arnhem Land and a claim for the payment of compensation for “past acts” under the Native Title Act 1993 (Cth) (NTA).

In dismissing the appeal (with costs and by majority, 6 to 1), the High Court affirmed the decision of the Federal Court that the Commonwealth is liable for compensation over the impact of mining on native title rights on an area in the Gove Peninsula.
The appeal raised three important questions of law which the High Court addressed in its judgement as follows:

1. Whether the power conferred on the Commonwealth Parliament by s 122 of the Constitution to make laws for the government of a territory extends to making a law with respect to the acquisition of property otherwise than on ‘just terms’ within the meaning of s 51(xxxi) of the Constitution.
   The answer is it does not.
2. Whether an extinguishment by or under a law of the Commonwealth of native title recognised at common law before the commencement of the Native Title Act on 1 January 1994 constituted an acquisition of property within the meaning of s 51(xxxi).
   The answer is it did.
3. Whether the grant of a pastoral lease in 1903 by the Governor of South Australia under the Northern Territory Land Act 1899 (SA) (“the Northern Territory Land Act”) had the effect of extinguishing any non-exclusive native title rights over minerals on or under the subject land. The answer is it did not.

See report for the judgement

The matter will now return to the Federal Court to determine the quantum of compensation payable by the Commonwealth for the past acts that extinguished or impaired the native title rights of the Gumatj Clan.

The Federal Court will also need to work out what ‘just terms’ means in the context of the High Court ruling that the constitutional right to ‘just terms’ extends to loss of native title rights.
This is a landmark decision. Claims by other native title holder groups are expected to follow.