Brennan, Sean --- "The Northern Territory Intervention and Just Terms for the Acquisition of Property" [2011] UNSWLRS 17

Last Updated: 11 March 2011

The Northern Territory Intervention and Just Terms for the Acquisition of Property

Sean Brennan, University of New South Wales

This paper is available for download at http://law.bepress.com/unswwps/flrps11/art17/

Citation

This article was published in the Melbourne University Law Review (2009) 33, pp. 957-983.

Abstract

In Wurridjal v Commonwealth the High Court considered a constitutional challenge to one aspect of the federal intervention into remote Aboriginal communities in the Northern Territory. Plaintiffs from Maningrida argued that the imposition of a five year lease over Aboriginal land, in favour of the Commonwealth, was an ‘acquisition of property’ for the purposes of s 51(xxxi) of the Constitution and that the relevant legislation failed to provide just terms. A majority of judges rejected two aspects of the Commonwealth’s demurrer. They accepted that the constitutional guarantee of’ just terms’ applies to acquisitions effected by the Territories power in s 122 of the Constitution. This has wider significance for Territory residents and overturns the Court’s 1969 decision in Teori Tau v Commonwealth. A majority also agreed that the involuntary lease amounted to an ‘acquisition of property’. This re-affirmed the strength of property rights held by Aboriginal groups over more than 40% of the Northern Territory. But the Commonwealth defeated the challenge due to majority acceptance of the third ground of the demurrer. The plaintiffs failed to establish an absence of just terms. However, the reasoning was case-specific and unanswered questions about ‘just terms’ for the culturally distinct property rights held by Aboriginal people.