Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors

The High Court of Australia considered a dispute between the Commonwealth of Australia and the Gumatj Clan or Estate Group, represented by its senior traditional owner, Mr. Yunupingu. The core of the dispute concerned the interpretation and application of the *Native Title Act 1993* (Cth) and, in particular, the nature of native title rights and interests in relation to the seabed. The Gumatj Clan sought to establish native title rights over the seabed adjacent to their traditional lands in Arnhem Land, Northern Territory, asserting that these rights included rights to control access and to take resources.

The central legal issue before the High Court was whether native title rights and interests, as recognised under the *Native Title Act*, could extend to the seabed, and if so, what the nature and scope of such rights would be. Specifically, the court had to determine whether the Gumatj Clan's traditional laws and customs recognised rights and interests in the seabed that were consistent with the recognition and protection of native title under the Act, particularly in light of the Crown's sovereignty and proprietary interests in the seabed. The court also considered the implications of the *Mabo* decision and subsequent legislative amendments to the *Native Title Act* for the recognition of native title in offshore areas.

The High Court's reasoning focused on the principles established in *Mabo (No 2)* and the statutory framework of the *Native Title Act*. The court affirmed that native title is a communal title derived from traditional laws and customs and that it can extend to offshore areas, including the seabed, provided that the traditional connection and rights are proven. The judges analysed the evidence presented by the Gumatj Clan regarding their traditional laws and customs, which demonstrated a deep and continuous connection to the sea country, including rights to fish, hunt, and navigate, and to control access by others. The court applied the test for establishing native title, requiring proof of an unbroken chain of connection and the existence of traditional laws and customs that recognised rights and interests in the claimed area at the time of sovereignty.

The High Court ultimately held that the Gumatj Clan had established native title rights and interests in the seabed adjacent to their traditional lands. The court recognised that these rights included rights to control access to the sea country, to take resources, and to maintain their spiritual and cultural connection to the area. The decision affirmed the capacity for native title to exist in offshore areas and clarified the nature of the rights that can be recognised under the *Native Title Act* in such contexts.