GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No D7/2000
THE COMMONWEALTH OF AUSTRALIA APPELLANT
AND
MARY YARMIRR & ORS RESPONDENTS
Matter No D9/2000
MARY YARMIRR & ORS APPELLANTS
AND
THE NORTHERN TERRITORY OF AUSTRALIA & ORS RESPONDENTS
The Commonwealth v Yarmirr
Yarmirr v Northern Territory [2001] HCA 56 11 October 2001 D7/2000 and D9/2000
ORDER
Appeals dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
Matter No D7/2000
D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios for the appellant (instructed by Australian Government Solicitor)
J Basten QC with K R Howie SC and S A Glacken for the first and ninth respondents (instructed by Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the second respondent (instructed by Solicitor for the Northern Territory)
G E Hiley QC with N J Henwood for the third, fourth, fifth, sixth and seventh respondents (instructed by Cridlands Lawyers)
No appearance for the eighth respondent
Interveners
R J Meadows QC, Solicitor-General for the State of Western Australia with K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
B M Selway QC, Solicitor-General for the State of South Australia with S E Carlton intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for the State of South Australia)
B A Keon-Cohen QC with C F Thomson intervening on behalf of the Mirimbiak Nations Aboriginal Corporation (instructed by Mirimbiak Nations Aboriginal Corporation)
G M G McIntyre with G M Irving and D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)
G M G McIntyre intervening on behalf of the Kimberley Land Council (instructed by Kimberley Land Council)
D F Jackson QC with S J Gageler SC intervening on behalf of the Lardil, Kaiadilt Yangkaal and Gangalidda Peoples (instructed by Chalk & Fitzgerald)
Matter No D9/2000
J Basten QC with K R Howie SC and S A Glacken for the appellants (instructed by Northern Land Council)
T I Pauling QC, Solicitor-General for the Northern Territory with R J Webb for the first respondent (instructed by Solicitor for the Northern Territory)
D M J Bennett QC, Solicitor-General of the Commonwealth and M A Perry and S B Lloyd with J S Stellios for the second respondent (instructed by Australian Government Solicitor)
G E Hiley QC with N J Henwood for the third, fourth, fifth, sixth and seventh respondents (instructed by Cridlands Lawyers)
No appearance for the eighth and ninth respondents
Interveners
R J Meadows QC, Solicitor-General for the State of Western Australia with K M Pettit intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
B M Selway…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Commonwealth v Yarmirr [2001] HCA 56
Case
[2001] HCA 56
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals in *Yarmirr v Northern Territory* and *Commonwealth v Yarmirr*. The central dispute concerned an application for the determination of native title in relation to the seas, sea-bed, and sub-soil within the territorial sea off the coast of the Northern Territory. The applicants sought to establish native title rights and interests in this area, which raised questions about the applicability of the *Native Title Act 1993* (Cth) and the recognition of native title in waters beyond the low-water mark.
The legal issues before the Court included whether the common law of Australia recognises native title in the territorial sea beyond the low-water mark, and whether such recognition is influenced by the legislative purpose of the *Native Title Act 1993* (Cth). The Court also had to consider the relevance of the concept of radical title, the effect of successive acquisitions of sovereignty over the territorial sea and sea-bed by the Crown, and the nature and effect of the rights and title to the territorial sea and sea-bed vested in the Northern Territory. Furthermore, the Court examined whether the evidence demonstrated that the applicants possessed rights under traditional law and custom to the possession, occupation, use, and enjoyment of the territorial sea and sea-bed to the exclusion of all others, including an exclusive right to fish, and whether such asserted rights were inconsistent with public rights to fish, navigate, and the international right of innocent passage.
The High Court ultimately dismissed the appeals with costs. The reasoning of the Court, while detailed and multifaceted, affirmed that native title can exist in the sea and sea-bed within the territorial sea. It was held that the common law of Australia, as informed by the *Native Title Act 1993* (Cth), recognises native title in these areas. The Court considered the historical acquisition of sovereignty and the legislative vesting of rights in the Northern Territory, but concluded that these did not extinguish native title. Crucially, the Court found that the asserted native title rights, including rights to exclusive possession and fishing, were not necessarily inconsistent with the public rights of navigation and passage, nor with the Crown's underlying title. The evidence presented was sufficient to demonstrate the existence of native title rights and interests in the claimed area.
Orders
Orders of the court
Appeals dismissed with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ
(dissent)