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

The Commonwealth of Australia (the Commonwealth) and the Northern Territory (the NT) were respondents in proceedings brought by the Yarmirr and Ors (the applicants). The applicants, who were Indigenous Australians, sought to establish native title rights and interests in relation to certain sea country off the coast of the Northern Territory, specifically in the vicinity of the Crocodile Islands. The proceedings were heard by Gummow J in chambers.

The central legal issue before the court was whether the applicants had established native title rights and interests in the claimed area, particularly concerning the exclusive possession and control of the sea country, including the seabed and waters. This involved determining the nature and extent of traditional laws and customs that governed the applicants' relationship with the sea country, and whether these laws and customs had been continuously observed to the present day, notwithstanding the assertion of sovereignty by the Crown. The court was also required to consider the impact of various legislative regimes and the Crown's past dealings with the territory on the extinguishment or impairment of native title.

Gummow J's reasoning focused on the evidence presented regarding the traditional laws and customs of the applicants. The court examined the applicants' connection to the sea country, including their spiritual beliefs, their rights to hunt and fish, and their responsibilities for managing and protecting the resources within their traditional territory. The judge applied the principles established in *Mabo v Queensland (No 2)* and subsequent native title jurisprudence, which recognise that native title can coexist with Crown sovereignty, provided it has not been extinguished by a valid exercise of sovereign power. The court considered whether the acts of the Crown, such as the assertion of sovereignty and the enactment of legislation, had evinced an intention to possess the land and waters exclusively, thereby extinguishing native title. The evidence led by the applicants was crucial in demonstrating the continuity of their traditional laws and customs and their ongoing connection to the sea country, which supported their claim to native title rights and interests.