From the 1930s, the Commonwealth Government gave mining exploration leases to various companies to mine bauxite on the Gove Peninsula,[1] the traditional lands of a number of clans of Yolŋu people. After French company GOMINCO started its explorations near the Yirrkala mission, the clans whose traditional lands were affected got together to work out how to counter this intrusion, as they had not been properly consulted. The move led to the Yirrkala bark petitions being presented to Parliament in 1963, as well as a subsequent court case known as the Gove land rights case (1968-1971), which ruled against the plaintiffs. After GOMINCO pulled out, Nabalco began operations in the area.[2] Later, the lease was transferred to Swiss Aluminium and began operating under Rio Tinto.[1]
In 2019, Galarrwuy YunupinguAM, an elder of the Gumatj clan, brought a native title claim on behalf of his clan, to the Full Court of the Federal Court of Australia.[3] He also sought compensation of $700 million for the harm caused to their land rights by Commonwealth laws and actions in taking the land, under the Native Title Act 1993 (NTA).[4] The claim sought financial compensation for land acquired by the Commonwealth in the Gove Peninsula in northeast Arnhem Land for bauxite mining purposes in the 1950s and 60s.[5]
Federal Court (2023)
The case was heard in 2023,[6][7] with the Federal Court ruling in Yunupingu's favour in May 2023[5] on a number of questions of law, holding that native title rights are equivalent to property rights for the purposes of Section 51(xxxi) of the Australian Constitution. It found that native title rights are valid property rights, and that native title holders are entitled to compensation on just terms if the Commonwealth Government seeks to acquire the property,[8] under the NTA of 1993.[9]
The arguments
According to Newcastle University law lecturer Bethany Butchers, three main issues were debated before the High Court:[1]
whether native title land can be acquired
whether the just terms guarantee applies to the territories
what role pre-Constitutional mining agreements play
The Commonwealth argued that native title rights were "inherently fragile" and unlike other property rights.[10] telling the High Court that it does not owe compensation for removal of native title rights because those rights are "inherently defeasible", meaning that it can be cancelled - that is, the rights could not be transferred and acquired by the Commonwealth. It argued that the "just terms" guarantee did not apply, and that it took ownership of minerals found in the are before the Constitution was created, by granting leases "reserving" the mineral rights for the Crown.[1]
It found the early pastoral leases did not remove any non-exclusive native title rights over minerals, meaning the Gumatj continued to have their rights until legislation was passed and mining leases were granted.[1]
The case has been referred to as the Gumatj compensation claim, or simply Gumatj.[13]
Follow-up
The remaining legal issues related to this matter will be returned to the Federal Court.[1]
The matter of how much compensation, and to whom it should be paid, was not included in the judgment, and it is likely to be some years before agreement is reached. Mediation overseen by an experienced retired Federal Court Judge and a Federal Court Registrar began in August 2025, to try to reach agreement among various Indigenous parties to identify those who hold native title to the claim areas. It is expected to be complete in January 2026.[13]
Significance
The case is one of the most significant tests of native title since the Mabo decision in 1992.[9] It had long been understood that native title holders are entitled to compensation where rights were extinguished or impaired after the commencement of the Racial Discrimination Act 1975 (31 October 1975), but often assumed that it would not apply to acts taken before that. However, the Gumatj case has established that compensation claims against the Commonwealth for actions taken before 1975, when that was not done on "just terms", which was nearly always the case before Mabo.[14][1]
The decision may provide for potential actions by other native title holders to seek compensation from the Commonwealth Government for acquiring native title land elsewhere in Australia. It does not apply to state governments,[4] only the territories administered by the Commonwealth Government, such as the Northern Territory and the Australian Capital Territory (and limited to acts done by the Commonwealth before 1978 and 1988 respectively[1]). It affects only land owned by the Crown, not private land.[15][14]
12"Glacial progress of developments in native title compensation". Ashurst. 9 September 2025. Archived from the original on 13 October 2025. Retrieved 7 January 2026. ...the Court has not yet ordered that the Commonwealth pay compensation to the Gumatj Clan. This decision is the legal step necessary to allow the Gumatj Clan to progress their claims that the 1939 vesting of minerals in the Crown and the grant of certain leases between the 1930s-1960s are "compensable acts" under the Native Title Act. It will be some years before the claim is fully resolved, not least because the question of who holds native title for the compensation claim area has not yet been determined.
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