Warning to Aboriginal and Torres Strait Islanders: this article contains the name of a deceased person.

On 12 March 2025, the High Court of Australia (‘the Court’) issued its much-awaited decision on the case of Commonwealth of Australia v Yunupingu. The Court held that any actions undertaken by the Commonwealth that extinguished or impaired native title rights without just term compensation prior to the enactment of the Racial Discrimination Act 1975 constitute invalid acquisitions of property under section 51(xxxi) of the Australian Constitution. The judgment not only sets a precedent for compensation claims regarding actions by the Commonwealth that predate 1975, but also highlights the potential of Freedom of Religion or Belief (FoRB) as a complementary legal framework in strengthening Indigenous Peoples’ land claims.

Background

The two applications, a determination and a compensation application, filed in 2019 against the Commonwealth by the deceased Yolngu activist Dr. Galarrwuy Yunupingu, on behalf of the Gumatj clan, were the latest in the Yolngu Peoples’ long-standing pursuit of native title recognition in the Gove Peninsula in Arnhem Land, Northern Territory. From 1911 to 1978, the Commonwealth Government held exclusive legislative authority over the Northern Territory enacting multiple ordinances, including mining leases in the claim area. The Gumatj Clan contended that under section 61 of the Native Title Act 1993 (Cth), which recognises the rights and interests of Aboriginal and Torres Strait Islanders on lands and waters according to their traditional law and customs, the actions of the Commonwealth constituted an acquisition of property other than on just terms, therefore compensable under section 51(xxxi) of the Australian Constitution. The Court upheld the Gumatj Clan’s argument, marking a significant development in native title jurisprudence. Before this judgment, native title holders were entitled to compensation only for acts by the State and Commonwealth that contravened the Racial Discrimination Act which occurred after its enactment.

Indigenous Land Claims as Sacred Land Claims

While the judgment primarily centres on native title compensation, it explicitly acknowledges the unique nature of the native title and its deriving set of rights, which cannot be equated to common law proprietary rights and significantly intersect with religious rights [134,137]. The definition of native title provided by Justice Gordon in the relevant section encompasses two elements that characterise the relationship that Indigenous communities worldwide maintain with their ancestral territories, which, despite the cultural specificities, is one of the main defining traits of their identity. The first element is the distinctive spiritual value that indigenous lands and water hold for the indigenous communities, crucial for the perpetuation of their religious practices [133,134]. The second aspect is the collective dimension of native title and the deriving rights which differ from the concept of ownership as it is framed in common law in that it involves a long-lasting communal use of their territories and a collective enjoyment of the connected rights [141,142].

Advantages of Resorting to FoRB in Strategic Litigation

By affirming that the native title expresses a religious relationship, the decision of the Court offers the possibility to invoke the guarantees afforded by the international legal apparatus on FoRB, instead of relying exclusively on property rights, and aligns with the relevant articles of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

In International Human Rights Law (IHRL), the legal framework of FoRB is essentially grounded in article 18 of the Universal Declaration of Human Rights (UDHR), together with the other instruments based upon it, notably the legally binding articles 18 and 27 of the International Covenant on Civil and Political Rights (ICCPR). However, the religious rights of Indigenous Peoples, inextricably tied to their lands and waters, are specifically protected under articles 12 and 25 of the UNDRIP, which rearticulate the existing norms on FoRB, broadening their scope to include Indigenous Peoples’ interests.

Resorting to FoRB in Indigenous land claims presents different advantages. FoRB is well-established in IHRL and many national legal systems recognise it at a constitutional level, making it less susceptible to being overridden by competing rights. Whereas property or land rights are usually narrowly defined and offer a less comprehensive range of protections, FoRB intersects with other human rights, thus covering the multidimensional interests typically linked with Indigenous Peoples’ land claims. Furthermore, the legal standing of FoRB, confirmed by supporting jurisprudence internationally, fosters greater accountability on the part of governments and private entities making it a resourceful means in strategic litigation.