Commonwealth v Yarmirr & Ors, Yarmirr & Ors v NT

The case of *Commonwealth v Yarmirr & Ors, Yarmirr & Ors v NT* involved a dispute between the Commonwealth of Australia, the Northern Territory, and the traditional owners of the sea country off the coast of the Northern Territory, represented by the Yarmirr family. The traditional owners sought to exercise their native title rights and interests in the waters and seabed of the sea country, including rights to fish, hunt, and control access. The Commonwealth and the Northern Territory contested the extent and nature of these rights, particularly in relation to the public rights of navigation and fishing.

The High Court was required to determine whether native title rights and interests could exist in waters where public rights of navigation and fishing were recognised. Specifically, the court had to consider the implications of the *Mabo* decision and the *Native Title Act 1993* (Cth) for the recognition of native title in offshore areas. A key issue was whether the common law of Australia recognised native title rights in waters subject to public rights, and if so, how these rights coexisted.

The Court held that native title rights and interests can indeed exist in offshore waters, even where public rights of navigation and fishing are recognised. It reasoned that the common law, as established in *Mabo (No 2)*, recognises the continued existence of native title rights unless extinguished by a valid act of the Crown. The Court found that the existence of public rights of navigation and fishing did not necessarily extinguish native title rights in the same waters. Instead, these rights could coexist, with the native title rights being subject to the public rights. The Court emphasised that the nature and extent of native title rights would depend on the traditional laws and customs of the Indigenous people concerned, and that these rights would be exercised in a manner that did not unreasonably interfere with the exercise of public rights.

The High Court ultimately affirmed the existence of native title rights in the sea country, remitting the matter to the Federal Court for determination of the specific nature and extent of those rights and their relationship with public rights.