Native Title as Property: Yunupingu v Commonwealth

In May 2023, a Full Federal Court in Yunupingu v Commonwealth decided unanimously that native title is 'property' within the terms of s 51(xxxi) of the Constitution. In its defence, the Commonwealth argued the native title recognised at common law in the landmark 1992 Mabo [No 2] decision was susceptible to an exercise of the radical title of the Crown without any duty to pay compensation. Special leave to appeal was sought by the Commonwealth and has been granted. This novel constitutional issue will now be conclusively determined by the High Court of Australia. Although a simple yes or no is all that is required to answer whether native title is property within s 51(xxxi), at another level it calls into question the still-unsettled terms of the legal relationship between the Crown and the Indigenous peoples of Australia.

James Cook University law review

James Cook University Law Review

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1839-2792

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