Full Court Minute Books

Case D5/2023

Commonwealth of Australia v. Yunupingu (on behalf of the Gumatj Clan OR Estate Group) & Ors

Case No.


Case Information

Lower Court Judgment

22/05/2023 Federal Court of Australia (Mortimer CJ, Moshinsky & Banks-Smith JJ)

[2023] FCAFC 75


Constitutional law – Constitution, s 51(xxxi) – Acquisition of property on just terms – Extinguishment of native title – Where principal proceeding is application for compensation under Native Title Act 1993 (Cth) for alleged effects of grants or legislative acts on native title in period after Northern Territory became territory of Commonwealth in 1911 and before enactment of Northern Territory Self-Government Act 1978 (Cth) – Whether Full Court erred by failing to find that just terms requirement contained in s 51(xxxi) of Constitution does not apply to laws enacted pursuant to s 122 of Constitution, including Northern Territory (Administration) Act 1910 (Cth) and Ordinances made thereunder – Whether Wurridjal v Commonwealth (2009) 237 CLR 309 should be re-opened – Whether Full Court erred in failing to find that, on facts set out in appellant’s statement of claim, neither vesting of property in all minerals on or below surface of land in claim area in Crown, nor grants of special mineral leases capable of amounting to acquisitions of property under s 51(xxxi) of Constitution because native title inherently susceptible to valid exercise of Crown’s sovereign power to grant interests in land and to appropriate to itself unalienated land for Crown purposes.

Native title – Extinguishment – Reservations of minerals – Whether Full Court erred in failing to find that reservation of “all minerals” from grant of pastoral lease “had the consequence of creating rights of ownership” in respect of minerals in Crown, such that Crown henceforth had right of exclusive possession of minerals and could bring an action for intrusion.


19/10/2023 Hearing (SLA, Canberra)

01/11/2023 Notice of appeal

13/11/2023 Hearing (Single Justice, Canberra by video-connection)

28/03/2024 Written submissions (Appellant)

28/03/2024 Chronology (Appellant)

27/05/2024 Written submissions (Respondents)

01/07/2024 Reply

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