Experts say the High Court’s decision on native titles is as important as the MABO case and could even affect the land under parliament.
The court on Wednesday dismissed a federal appeal over whether he could be liable for compensation for bauxite mining at Goves on land in Northeast Arnhem.
Dr. Yunuping, the leader of the late Gumatj, is a well-known land rights activist and originally brought the case in 2019 on behalf of his people with an application for a native title.
In May 2023, the federal court found that the rights and interests of the native title are property rights, and its extinction is an acquisition and therefore must be carried out under “fair terms.” This applied to lands in the Northern Territory, but there were similarities in lands in the law.
A federal court found that Gumatj’s land was not acquired “on just terms” before it was leased to the Swiss and Australian mining consortium Nabarco in 1968.
In Wednesday’s decision, the High Court upheld the federal court’s decision.
“Native titles recognize that, according to their laws and customs, indigenous peoples in Australia have connections with the country,” the judge read.
“It is a connection that has continued to exist before and after a settlement, beyond sovereignty claims, and beyond the Federation.
“It’s older and deeper than the Constitution.”
“This decision is in many ways like Mabo 2,” said Dr. Ed Wensing, an honorary researcher at the Aboriginal Economic Policy Research Center at Australian National University. The 1992 High Court decision established the principles of native titles in common law.
“This has long-term consequences,” Wensing said.
“Strictly speaking, the effect of this decision is only on NT and perhaps actions, but does this case also affect other compensation cases elsewhere around the country? Perhaps?”
But Wensing said it could take years for the exact effects to appear. Even the claims of Yunupinga’s problem could take 10 years to resolve, he said.
Greg McIntyre SC, the lead lawyer in MABO and former president of the Australian Law Council, told Guardian Australia that the decision would strengthen the native title and rest the fear that the land rights principles that underpin the law could be unresolved or demolished.
“There was a statement in the High Court and, to a lesser extent, it was handed over to federal courts and stated that the native title is vulnerable and can easily be revolved or vanished,” he said.
“This stops that discussion now.”
Native titles can be granted on freehold lands or lands covered in idyllic leases, but mining leases are taken at least in part to wipe out the native title. More mining leases than the native title method.
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McIntyre said the decision that the land must be acquired on “conditions” has important implications, meaning that the government could be liable for higher compensation claims.
In the Northern Territory, the compensation window could date back to 1903, he said.
McIntyre said Wednesday’s decision was the result of a fierce battle that took place over decades by the people of Gmudge.
“They had the longest fight in the sense that they went to the Northern Territory Supreme Court in the late ’60s. They presented Congress with a bark petition,” he said.
McIntyre said the decision, which is particularly relevant to NT, could have an impact on the law.
“Obviously, this act wasn’t always there,” he said. “It only existed after the Commonwealth, and therefore this decision was from the time the law was established. [will have effect] – That’s when you start calculating your rewards. ”
Northernland Council has some current native title matters before federal court, but declined to comment on the High Court’s findings this week.
Attorney General Mark Dreyfus said in a statement Wednesday that there remained complex issues in the case.
“The federal appealed to the High Court to resolve important constitutional issues in this case,” he said. “This decision will clarify the application to these issues to the parties to the Constitution, and future issues.
“The High Court considers important aspects of this issue, but this case will return to federal court to resolve the rest of the complicated matters.”
