Dr Galarrwuy Yunupingu mentioned the planned case at the Garma opening ceremony. (ABC News: Tim Leslie)
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Top End Indigenous leader Galarrwuy Yunupingu’s $700 million Federal Court challenge will set a precedent for further claims around the country, legal experts say.
- Dr Yunipingu announced his intention to lodge a native title compensation claim during August’s Garma Festival
- Indigenous academic Marcia Langton said basing the case on a phrase “on just terms”, made famous by the film The Castle, could break new legal ground
- In Western Australia, Indigenous leaders have filed a $290 billion compensation claim against the WA Government using a different legal approach
Former Australian of the Year Dr Yunupingu is seeking compensation from the Commonwealth on behalf of his people, the Gumatj clan, over the acquisition of land in the Gove Peninsula in 1969.
The claim will argue the Commonwealth failed to act “on just terms” when the land was acquired to build a mine as the mining company came to Gove Peninsula without properly asking the landowners.
The Federal Government granted a mining lease to Swiss company Nabalco in the early 1960s — a lease that was then taken over by Rio Tinto in 2007.
A 2015 photo of the bauxite refining facility on the Gove Peninsula, showing the power plant stacks. (Steven Schubert: ABC Rural)
University of New South Wales Dean of Law George Williams said if the case was successful, there would likely be more to come.
“If it can be shown that the constitution gives them compensation, then this may simply be the first of other instances, so this may end up being a major test case, and it may be one that a number of people, particularly Aboriginal groups, but also landowners, will be watching with great interest,” he said.
Professor Williams said the “on just terms” argument had been argued previously, but Dr Yunupingu’s case would be more complex.
“Many people have argued this point in the High Court, they deserve compensation because their property has been taken by the Commonwealth, and this is based upon on a prevision in the constitution that says ‘the Commonwealth can take a person’s property but in acquiring it must give just terms,'” he said.
“It’s a well-travelled path, but in this case there will be some additional complexities because it’s involving events a long time ago and also involving questions around Aboriginal land rights and native title.”
Dr Yunupingu is seeking compensation from the Commonwealth on behalf of his people, the Gumatj clan, over the acquisition of land in the Gove Peninsula in 1969. (Flickr: John Benwell)
‘It looks at the law in a very fresh way’
Indigenous academic Marcia Langton said basing the case on the phrase “on just terms”, made famous by the 1997 Australian film The Castle, could break new legal ground.
“What’s so interesting about this case is that it looks at the law in a very fresh way, takes another tack and it’s a very interesting tack, and I think lawyers all over the country will want to see what the Gumatj are claiming,” she said.
Professor Langton believes comparisons with fictional character Darryl Kerrigan and his legal quest to save his home in The Castle, highlights the significance of what the Yolngu people in Arnhem Land are trying to achieve.
“The Castle was great. It was a very clever way of explaining difficult constitutional law. Yes, one would certainly be helped in understanding this problem by watching The Castle,” she said.
Prior to Dr Yunupingu launching his case last week, the Gumatj group watched and monitored the developments in the $2.5 million Timber Creek native title case that set a legal precedent.
The Timber Creek claim was the first time the High Court examined the Native Title Act’s compensation provisions, including how to put a price on intangible harm caused by disconnection with country.
Traditional owners were awarded $15,000 in compensation per hectare for economic and emotional damages.
But Professor Langton stressed the two cases were “very different”, though the Timber Creek claim gave traditional owners “hope that compensation was payable”.
“This is a very different matter from the compensation case recently involving a small area of land at Timber Creek where the High Court ruled in favour of the native title holders,” she said.
Intentions made during Garma
Dr Yunipingu announced his intention to lodge a native title compensation claim during August’s Garma Festival.
Speaking at a lectern in Arnhem Land, Dr Yunupingu took his audience back to 1969 when his people were asked to leave their homes on the Gove Peninsula to make way for a bauxite mine.
He blasted mining companies for “destroying” dreaming sites.
“They have damaged our country, without seeking advice from us, and they have damaged a whole lot of dreamings, and dreamings that were important to Aboriginal people in land claims and land rights,” Dr Yunipingu said.
“They have come, getting ‘OK’ from the PM and the government to come all the way up and started digging and insulting the country, and that’s what I’m going to be claiming.”
The Gumatj people are not the only Australian traditional owners taking governments to court over land claims.
In Western Australia, Indigenous leaders last week filed an unprecedented compensation claim against the West Australian Government that could become one of the world’s biggest legal payouts.
Noongar people of south-west WA are pursuing more than $290 billion for “spiritual damage” caused by loss of their traditional land.
Minister for Indigenous Affairs Ken Wyatt was contacted for comment but was unavailable.
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