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 Gumatj people claimed native title over an area of the seabed off the coast of Arnhem Land, asserting that their traditional laws and customs recognised rights and interests in this area. The Commonwealth contested the extent and nature of these claimed rights, particularly in relation to the Crown's sovereignty and proprietary interests in the seabed.

The central legal question before the High Court was whether the Gumatj people held native title rights and interests in the seabed, and if so, the nature and scope of those rights. This involved determining whether the traditional laws and customs of the Gumatj people recognised rights and interests in the seabed that were not extinguished by subsequent legislative or executive acts of the Crown. Specifically, the Court had to consider the implications of the *Seas and Submerged Lands Act 1973* (Cth) and the *Petroleum (Submerged Lands) Act 1967* (Cth) on any asserted native title rights. The Court was also required to assess the evidentiary basis for the Gumatj claim and the correct legal framework for assessing the existence and content of native title rights in the offshore.

The High Court ultimately held that native title rights and interests can exist in the seabed. The Court reasoned that the *Native Title Act 1993* (Cth) contemplates the recognition of native title in areas beyond the low-water mark, provided that the traditional laws and customs of the Indigenous people demonstrate a connection to that area. The Court clarified that the extinguishment of native title by legislative acts requires a clear and plain intention to do so, and that the *Seas and Submerged Lands Act 1973* (Cth) did not, in itself, extinguish all native title rights in the seabed. The Court emphasised the importance of examining the specific nature of the rights asserted under traditional law and custom, and how those rights interact with the rights of the Crown. The Court found that the Gumatj people had established native title rights and interests in the seabed, including rights to control access, hunt, fish, and perform ceremonies.

The High Court ordered that native title exists in the claimed area of the seabed, and that the Gumatj people hold these rights and interests. The Court remitted the matter to the Federal Court of Australia for further proceedings to determine the precise nature and extent of these rights and to make any necessary determinations regarding compensation or future dealings.