Commonwealth of Australia v Yarmirr and Ors D7/2000

The Commonwealth of Australia sought to appeal a decision of the Federal Court of Australia concerning native title rights. The respondents, the Yarmirr and Ors, were Indigenous individuals who claimed native title over the sea country of the Wessel Islands, located off the coast of the Northern Territory. The dispute centred on the nature and extent of native title rights in relation to waters and the seabed, and the implications of the *Native Title Act 1993* (Cth) for these rights.

The primary legal issue before the High Court was whether native title rights, as recognised under the *Native Title Act 1993* (Cth), could exist in relation to waters and the seabed, and if so, what the nature of those rights were. Specifically, the Court had to consider the relationship between native title and the Crown's sovereignty, and whether the recognition of native title in waters extinguished or impaired the Crown's rights and interests. The Court also had to determine the extent to which the *Native Title Act 1993* (Cth) provided for the recognition and protection of native title rights in relation to offshore areas.

Gummow J, sitting in chambers, considered the application for leave to appeal. His Honour's reasoning focused on the established principles of native title law, particularly as developed in cases such as *Mabo v Queensland (No 2)* and *Western Australia v Ward*. He affirmed that native title is a burden on the Crown's radical title and that its recognition does not extinguish underlying Crown sovereignty. Gummow J found that the Federal Court's determination that native title rights could exist in relation to waters and the seabed was consistent with these principles. He also considered the specific provisions of the *Native Title Act 1993* (Cth) concerning offshore native title.

Leave to appeal was granted.