Commonwealth v Yarmirr & Ors.doc- Yarmirr & Ors v NT

This matter concerned an application by the Commonwealth of Australia for special leave to appeal from a judgment of the Full Court of the Federal Court of Australia. The respondents, Yarmirr and others, were Indigenous Australians who claimed native title rights and interests in the sea country off the coast of the Northern Territory, specifically in the waters of the Wessel Islands. The dispute arose from the Commonwealth's assertion of rights to control and manage these waters, which the respondents contended were inconsistent with their native title rights.

The primary legal issue before the High Court was whether the native title rights and interests claimed by the respondents, as recognised by the Federal Court, were extinguished by the exercise of rights and powers by the Commonwealth under various Commonwealth statutes, including the *Fisheries Act 1952* (Cth) and the *Navigation Act 1912* (Cth). The court was required to determine the extent to which these statutory rights and the activities undertaken pursuant to them were inconsistent with the continued existence of native title in the sea country.

Gummow J, in chambers, considered the arguments presented by both parties regarding the extinguishment of native title. The central legal principle applied was the test for inconsistency between native title rights and the rights conferred by Commonwealth legislation. This test requires an assessment of whether the rights granted by the legislation are so comprehensive or exclusive as to necessarily prevent the exercise of native title rights. The judge noted that the determination of inconsistency is a question of fact and degree, requiring a careful examination of the specific statutory provisions and the nature of the native title rights asserted. The application for special leave to appeal was ultimately granted.