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

The Full Federal Court heard an appeal in *Commonwealth of Australia v Yunupingu (on behalf of the Gumatj Clan or Estate Group) & Ors*. The dispute concerned the interpretation and application of the *Native Title Act 1993* (Cth) and, in particular, the determination of native title rights and interests in relation to certain offshore areas. The respondents, representing the Gumatj Clan or Estate Group, sought to have their native title recognised over areas including the seabed and waters within the territorial sea adjacent to Arnhem Land. The Commonwealth of Australia was the appellant, challenging aspects of the primary judge's determination.

The central legal issues before the Full Federal Court were whether native title rights and interests could be recognised in relation to offshore areas, specifically within the territorial sea, and if so, what the nature and extent of those rights and interests were. The court was required to consider the implications of the *Mabo* decision and subsequent legislative amendments to the *Native Title Act*, particularly concerning the extinguishment of native title by the Crown's sovereign rights and interests in offshore areas. The court also had to determine whether the evidence presented established a connection to country in accordance with traditional laws and customs for these offshore areas.

The Full Federal Court applied established principles of native title law, including the recognition of native title as a burden on the Crown's interest in land and waters. The judges considered the effect of the *Seas and Submerged Lands Act 1973* (Cth) and its interaction with the *Native Title Act*. They reasoned that while the Crown possesses sovereign rights and interests in offshore areas, these do not necessarily extinguish native title entirely, but rather may be inconsistent with certain aspects of it. The court analysed the evidence of traditional laws and customs to determine if the respondents maintained a sufficient connection to the offshore areas to support a native title claim.

The Full Federal Court allowed the appeal in part, setting aside the primary judge's determination in relation to certain offshore areas and remitting those matters for redetermination. The court clarified that native title can exist in offshore areas, but the specific rights and interests must be proven to be consistent with the Crown's sovereign rights and interests.