Commonwealth v Yarmirr & Ors- Yarmirr & Ors v NT

The High Court of Australia considered the native title rights of the respondents, the Yarmirr people, in relation to the waters and sea country off the coast of the Northern Territory, specifically the waters of Blue Mud Bay. The proceedings involved the Commonwealth of Australia and the Northern Territory as respondents, who challenged the determination of native title by the Federal Court. The core dispute concerned the nature and extent of the native title rights and interests held by the Yarmirr people in the waters, including the seabed, and whether these rights were extinguished by subsequent legislative acts.

The primary legal issues before the High Court were whether the common law recognised native title rights in waters, including the seabed, and if so, what was the nature of those rights. The Court also had to determine whether the asserted native title rights of the Yarmirr people had been extinguished by the operation of the *Fisheries Act 1952* (Cth) and the *Northern Territory Fisheries Act 1979* (NT), and by the grant of pastoral leases. The Court was required to consider the relationship between native title and other proprietary interests, and the effect of legislative regulation of fisheries on native title rights.

The High Court, in a majority decision, affirmed that native title can exist in waters, including the seabed, and that the rights and interests of the Yarmirr people in the sea country were not extinguished by the fisheries legislation or the pastoral leases. The Court reasoned that the common law recognises rights to use and enjoy waters and the resources within them, and that the legislative regulation of fisheries, while impacting the exercise of those rights, did not extinguish them entirely. The Court applied principles of extinguishment, holding that only legislative acts clearly demonstrating an intention to extinguish native title would have that effect. The grant of pastoral leases was found not to be inconsistent with the continued existence of native title rights in the waters.

The High Court dismissed the appeals by the Commonwealth and the Northern Territory, upholding the Federal Court's determination of native title in favour of the Yarmirr people in relation to the sea country.