Making sense of Yunupingu v Commonwealth (2025): What's this all about?
There is no part of this place that was not, is not, cared for, loved by, an Aboriginal or Torres Strait Islander nation
There are no trees, rivers, hills, stars, that were not, are not, someone’s kin
— Ambelin Kwaymullina, Living on Stolen Land
The Yunupingu v Commonwealth (2025) High Court case marks a pivotal shift for native title in Australia. Legal scholars have described this as one of the most significant tests of native title since the Mabo proceedings in 1992.
The past few nights I tried to make sense of it all because:
1. it feels significant
2. it's complex, and
3. legal terms and big words can be confusing
After reading dozens of articles by people way more smartypants than me, this is my attempt to break down what this case means, why it matters, and how it connects to a 60-year journey for Aboriginal and Torres Strait Islander recognition.
Author’s note: This wasn't intended as a blog post. It evolved from my synthesis of notes from articles I've read about this case. As I didn't track all sources, I haven't included citations.
What is native title?
Before diving in, it's worth clarifying that native title refers to the recognition by Australian law of Indigenous peoples' traditional rights and interests in land and waters according to their traditional laws and customs. Unlike other property rights, native title has historically been limited in how it can be used economically and has been treated as uniquely vulnerable to extinguishment.
When legal experts talk about native title being "extinguished," they mean it can be permanently cancelled or terminated through government actions like granting certain leases or changing land use. Once extinguished, native title rights cannot be revived—even if the government action that extinguished them ends. This "extinguishment doctrine" (doctrine is a legal principle established through court decisions) has made native title particularly fragile compared to other property rights, which is why the Yunupingu case's recognition of native title as Constitutional property is so significant.
What's the backstory?
The case represents the culmination of a 60+ year legal and political struggle that began with the Yirrkala Bark Petitions of 1963 - historically significant documents that represented the first formal assertion of Indigenous land rights presented to the Australian Parliament
Dr Yunupingu, who initiated the 2019 compensation claim leading to the 2025 ruling, was 15 years old when the original Bark Petitions were created
His father, Mungurruwuy, was a senior Gumatj leader who brought together 13 Yolngu estate groups to protest government land excision for bauxite mining at the Gove Peninsula
The original 1960s conflict specifically concerned bauxite mining without consultation or compensation—the same issue finally addressed in the 2025 decision
The Yolngu people have been central to two landmark developments in Australian common law: first in the 1971 Milirrpum v Nabalco case, and now in the 2025 Yunupingu case
In Milirrpum v Nabalco (1971), the rejection of their claim was based on the "ceded colony" argument (the legal doctrine that Indigenous peoples' rights were extinguished when the British Crown claimed sovereignty). Simply put, the judge basically said "yes, I can see you have Yolngu law, but sorry, I can't recognise it as property under Australian law"
The 1971 case set the stage for the later recognition in Mabo that pre-existing laws of Indigenous traditional owners were recognised by Australian laws
In 2019, Dr Yunupingu brought two specific claims in the Federal Court: seeking a determination of native title, and seeking compensation for effects on native title from certain executive and legislative acts done between 1911 and 1978
The Federal Court ruled in favour of Dr Yunupingu, but the Commonwealth appealed to the High Court, leading to this landmark 2025 decision
This 2025 judgment finally resolves the fundamental problem in the 1971 case—the recognition of native title as a form of property under Australian law
The High Court's determination overturns decades of legal precedent that had treated native title as a "vulnerable right" (one that could be extinguished or diminished without proper compensation)
What were the findings of the 2025 High Court ruling?
After hearing arguments over three days the High Court Justices dismissed the Commonwealth's appeal and delivered a landmark judgment. The key findings include:
Native title as Constitutional property: Native title now qualifies as property protected under section 51(xxxi) of the Australian Constitution, requiring just terms compensation (fair market value payment) when the government acquires it. Before this ruling, governments could take or restrict native title rights without paying fair compensation
Limits on territories power: The Commonwealth cannot use the Territories power (section 122) to avoid providing just terms compensation when acquiring native title rights. This is significant because territories like the Northern Territory are governed differently from states - they're directly administered by the Commonwealth, which previously claimed special powers over them
Equal treatment of property: Aboriginal property governed by Indigenous laws must be treated equally with all other property under the Constitution
Extended historical compensation: For territories like Northern Territory and potentially ACT, compensation for historical extinguishment extends back to 1911 (when territories were transferred to Commonwealth control), not just to 1975 when the Racial Discrimination Act took effect
Recognition of pre-colonial connection: The court acknowledged the deeper connection to Country that existed long before European settlement, before the British claimed sovereignty, and before Australia's Federation in 1901. This recognises that Aboriginal and Torres Strait Islander peoples' relationship with land predates and transcends colonial legal frameworks
Protection of mineral rights: The Court found that early pre-Constitution pastoral leases did not extinguish non-exclusive native title rights over minerals, meaning the Gumatj Clan continued to have these rights until legislation and mining leases took effect in the 1930s to '60s. This substantially extends native title recognition by including valuable mineral resources that were previously considered outside native title rights
The matter will return to the Federal Court to resolve remaining legal issues, but the High Court's decision firmly establishes that taking away native title rights is like taking property, and fair compensation must be provided.
Could this affect more than Commonwealth land?
While the just terms requirement (Constitutional guarantee of fair compensation) technically applies only to the Commonwealth, not states, this High Court decision has wider significance:
Racial Discrimination Act effects: The Racial Discrimination Act 1975 will likely require states to provide compensation for extinguishment of native title from 1975 onward. This landmark legislation prevents governments from treating Indigenous land rights differently from other property rights, effectively extending the compensation principle nationwide
Philosophical and legal shift: The recognition that native title existed before colonisation creates a stronger moral and legal foundation for fair compensation by all Australian governments
Judicial interpretation: Courts may now interpret state property acquisition laws through this new Constitutional perspective
Resource sector engagement: This Constitutional shift from viewing native title as a "vulnerable right" to a substantial property right will change how resource companies engage with traditional owners across Australia
What is the practical significance?
Aboriginal and Torres Strait Islander peoples hold interests in 60-70% of Australia's land mass (up to 90% in northern Australia), yet these interests have been legally vulnerable and economically restricted
The resources sector, with 60% of Australian projects operating on land covered by Native Title claims, has operated under a system that allowed mining tenements (legal rights granted to companies to explore or mine specific areas) to restrict native title rights without just terms compensation. Think of it like inheriting your childhood home—the same place where your father and grandfather were raised, where you'd planned to raise your own children—only to discover you have almost no legal rights to it. Others can decide its fate, alter or damage it without your permission, and you have no power to stop them or get them to pay you back when they break something
The granting of mining tenements has restricted native title rights—placing traditional custodians in positions where negotiation was their only option, without true veto power. In other words, Aboriginal and Torres Strait Islander peoples had to accept whatever terms were offered because they lacked the legal standing to truly protect their interests
Native title has been one of only four statutory land title regimes in Australia that prohibits rights being sold, leased, or mortgaged. Using the home analogy again, think of it like owning a house but being unable to sell it, rent it out, or use it as security for a loan
By establishing native title as Constitutional property, the Yunupingu judgment addresses the fundamental limitation of native title's lack of "fungibility" (ability to be converted, exchanged or sold) that has restricted economic development opportunities
This landmark determination represents a shift from the quantitative expansion of native title (covering more land) to a qualitative transformation of what native title means legally and economically. In simpler terms, it's not just about how much land is recognised under native title, but about strengthening what native title holders can actually do with that land
What's the bottom line?
The Yunupingu case transforms how Australia treats Indigenous land rights - elevating them to full property rights with Constitutional protection. This watershed moment has profound financial and policy implications for governments, potentially leading to compensation claims across Australia and requiring a new approach to engagement with traditional owners.
Legal scholars are comparing this to the original Mabo case in terms of importance. It's a full circle moment that completes a journey that began with those Bark Petitions back in 1963 - a genuine milestone in Aboriginal and Torres Strait Islander peoples' long fight for proper recognition and economic justice.
After the 2023 referendum, it gives me hope to see Constitutional recognition of traditional Indigenous law (or Lore) and connection to Country. To riff off Dennis Denuto "It's the vibe of it. It's the Constitution. It's Mabo. It's justice. It's Lore."
In this case, the High Court has recognised what Aboriginal and Torres Strait Islander peoples have always known:
Australia always was, and always will be traditional Aboriginal and Torres Strait Islander land.
