Commonwealth v Yarmirr & Ors, Yarmirr & Ors v Cth

The High Court of Australia considered the native title rights of the Yolngu people in the waters of the Wessel Islands, off the coast of Arnhem Land, Northern Territory. The proceedings involved the Commonwealth of Australia and the native title claimants, represented by Ms. Yarmirr and others. The central dispute concerned the nature and extent of the native title rights and interests held by the Yolngu people in the sea country, particularly in relation to the Crown's asserted rights and interests in those waters.

The High Court was required to determine whether native title could exist in waters beyond the low-water mark, specifically in the territorial sea. It also had to consider the relationship between native title rights and the rights of the Crown in the territorial sea, including the extent to which the Crown's sovereignty and legislative power might extinguish or be inconsistent with native title. Further issues included the nature of the rights claimed by the native title holders, such as rights to hunt, fish, and navigate, and how these rights were to be recognised and protected under the *Native Title Act 1993* (Cth).

The Court affirmed that native title can exist in waters beyond the low-water mark, including the territorial sea, provided that the traditional laws and customs of the native title holders demonstrate a connection to those waters. The judges applied principles of common law and the *Native Title Act*, recognising that native title is a bundle of rights and interests recognised by common law. They held that the Crown's sovereignty over the territorial sea did not automatically extinguish native title, but rather that the existence and scope of native title would depend on the specific traditional laws and customs of the claimants and the extent to which they were inconsistent with the exercise of Crown sovereignty. The Court emphasised that native title rights are not absolute and can be limited by the exercise of valid legislative and executive power by the Crown, but that such limitations must be clearly established.

The High Court ultimately held that the native title claimants held native title rights and interests in the sea country, including the territorial sea. The Court remitted the matter to the Federal Court for determination of the precise nature and extent of these rights and for the making of appropriate orders, including the determination of non-exclusive native title rights to hunt, fish, and navigate within the claimed area.