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 Mr. Yunupingu and others. 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 proceedings involved an appeal from the Federal Court of Australia.

The primary 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, including the waters above it, in areas where the Crown held underlying title. This involved determining the scope of rights that could be recognised as native title, particularly in the context of the common law of Australia and the statutory framework established by the *Native Title Act*. The court also had to consider the implications of the Crown's sovereign rights and interests in the seabed for the recognition of native title.

Gageler CJ, delivering the judgment, reasoned that native title rights and interests are not extinguished by the Crown's assertion of sovereignty or its grant of rights in relation to the seabed. His Honour affirmed that native title is a burden on the Crown's underlying title, not a separate interest. The court applied the principles established in *Mabo v Queensland (No 2)* and subsequent native title jurisprudence, emphasising that native title can coexist with, and be recognised subject to, the rights of the Crown. The recognition of native title rights over the seabed depends on the continued existence of traditional laws and customs of the native title holders that confer rights and interests in relation to that area. The court found that the Gumatj people had established native title rights and interests in the seabed and waters.

The High Court dismissed the appeal, upholding the Federal Court's determination that native title rights and interests of the Gumatj Clan or Estate Group extended to the seabed and the waters above it.