Commonwealth of Australia v Yarmirr and Ors v NT and Ors D9/2000

The Commonwealth of Australia sought to appeal a decision of the Federal Court of Australia concerning native title rights. The primary respondents were the Yarmirr people, who claimed native title over certain areas of the sea and seabed in the Northern Territory, specifically within the waters of Blue Mud Bay. The Northern Territory was also a party to the proceedings. The dispute centred on the nature and extent of the native title rights claimed by the Yarmirr people and whether these rights were extinguished by subsequent legislative and executive actions of the Commonwealth and the Northern Territory.

The High Court was required to determine, among other things, whether the native title rights claimed by the Yarmirr people in the sea and seabed were recognised by the *Native Title Act 1993* (Cth). Specifically, the court considered whether the common law of Australia recognised native title rights in relation to waters and the seabed, and if so, whether the legislative and executive acts of the Commonwealth and the Northern Territory had extinguished those rights. A key issue was the interpretation of the *Native Title Act* and its application to offshore areas.

Gummow J, sitting in chambers, considered the complex interplay between the common law recognition of native title and the statutory framework established by the *Native Title Act*. The judge analysed the historical extinguishment of native title by government acts and the specific provisions of the *Native Title Act* that preserved or recognised native title rights in offshore areas. The reasoning involved a detailed examination of the nature of the rights claimed by the Yarmirr people, including rights to hunt, fish, and control access, and how these rights related to the sovereign rights of the Crown over the sea and seabed. The judge applied principles of statutory interpretation and the established jurisprudence on native title, particularly concerning the extinguishment of native title by inconsistent grants or legislative regimes.

The application for leave to appeal was dismissed.