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Commonwealth challenges $700m native title claim in High Court

The Commonwealth Government has filed a special leave application in the High Court to challenge a landmark Federal Court ruling on compensation that could be worth millions of dollars in the Northern Territory.

The Federal Court claim sought $700 million from the Commonwealth under the Native Title Act 1993 over the acquisition of land for mining on the Gove Peninsula in north-east Arnhem Land.

It was brought by Aboriginal land rights champion Yunupingu, who died in April, on behalf of his people, Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth of Australia [2023] FCAFC 75.

He argued the Commonwealth failed to act on “just terms”, as required under the Constitution, when it acquired land and leased it to Swiss mining company Nabalco in 1969. The lease was taken over by Rio Tinto in 2007.

In May the court ruled the Commonwealth was liable for compensation but has yet to determine whether the Gumatj clan, or another group, held native title.

When the case was brought in 2019, lawyers suggested that if the court ruled against the Commonwealth, it could “potentially invalidate every grant of freehold or leasehold title in the Northern Territory since 1911″, and expose the Commonwealth to plenty of new native title claims.

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In its leave application, the Commonwealth contended it was not bound by the “just terms” requirement under the Constitution between 1911 and 1978, the year the NT was granted self-government.

Commonwealth Attorney-General Mark Dreyfus said it was appropriate the case be settled by the High Court “so that parties to this and future matters have clarity and certainty about the law in this area”.

“I recognise the significant contribution that Yunupingu has made to First Nations land rights in Australia. Initiating this landmark case was one of many actions he took to build a better future for his people,” Mr Dreyfus said.

“This case raises important legal issues including very significant constitutional issues that go beyond the native title context.

“The application of these constitutional issues in the context of native title compensation is new and the Federal Court decision represents the first time these issues have been judicially determined in that context.”

The High Court will now decide whether it will allow an appeal by the Commonwealth.

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