Commonwealth v Yarmirr & Ors Yarmirr & Ors v NT & Ors

The High Court of Australia considered appeals and cross-appeals in *Commonwealth v Yarmirr* and *Yarmirr & Ors v Northern Territory & Ors*. The primary dispute concerned the nature and extent of native title rights and interests in the sea country off the coast of the Northern Territory, specifically in relation to the Anindilyakwa people. The proceedings involved the Commonwealth, the Northern Territory, and the Anindilyakwa people as native title holders.

The central legal issues before the High Court were whether the native title rights and interests claimed by the Anindilyakwa people extended to the waters of the sea country, and if so, what was the nature and scope of those rights. This included determining whether the common law of Australia recognised native title rights in relation to waters, and the extent to which those rights were extinguished or impaired by subsequent legislative and executive acts of the Commonwealth and the Northern Territory. The court also had to consider the relationship between native title rights and the rights of the Crown in the waters.

The High Court, in a majority decision, affirmed that native title can exist in waters, including the sea. The court reasoned that the common law of Australia, as developed through cases like *Mabo v Queensland (No 2)*, recognises the continuity of traditional laws and customs and the connection of Indigenous peoples to their traditional lands and waters. The judges applied principles of native title law, including the requirement for a demonstrable connection to the land and waters according to traditional laws and customs, and the test for extinguishment of native title by inconsistent legislative or executive action. The court found that the Anindilyakwa people had established native title rights and interests in the sea country, and that these rights had not been wholly extinguished by the subsequent acts of the Crown. The court clarified that native title rights in waters are not proprietary in the same way as land, but are rights to use and enjoy the waters and their resources, subject to the rights of the Crown and other lawful users.

The High Court ultimately allowed the appeal in *Commonwealth v Yarmirr* and dismissed the appeal in *Yarmirr & Ors v Northern Territory & Ors*, in part. The court varied the determination of native title made by the Federal Court, recognising the native title rights and interests of the Anindilyakwa people in the sea country, but with certain qualifications and limitations as determined by the High Court.