Commonwealth v Yarmirr

The High Court of Australia considered appeals in *Yarmirr v Northern Territory* and *Commonwealth v Yarmirr*. The central dispute concerned an application for the determination of native title in relation to the seas, sea-bed, and sub-soil within the territorial sea off the coast of the Northern Territory. The applicants sought to establish native title rights and interests in this area, which raised questions about the applicability of the *Native Title Act 1993* (Cth) and the recognition of native title in waters beyond the low-water mark.

The legal issues before the Court included whether the common law of Australia recognises native title in the territorial sea beyond the low-water mark, and whether such recognition is influenced by the legislative purpose of the *Native Title Act 1993* (Cth). The Court also had to consider the relevance of the concept of radical title, the effect of successive acquisitions of sovereignty over the territorial sea and sea-bed by the Crown, and the nature and effect of the rights and title to the territorial sea and sea-bed vested in the Northern Territory. Furthermore, the Court examined whether the evidence demonstrated that the applicants possessed rights under traditional law and custom to the possession, occupation, use, and enjoyment of the territorial sea and sea-bed to the exclusion of all others, including an exclusive right to fish, and whether such asserted rights were inconsistent with public rights to fish, navigate, and the international right of innocent passage.

The High Court ultimately dismissed the appeals with costs. The reasoning of the Court, while detailed and multifaceted, affirmed that native title can exist in the sea and sea-bed within the territorial sea. It was held that the common law of Australia, as informed by the *Native Title Act 1993* (Cth), recognises native title in these areas. The Court considered the historical acquisition of sovereignty and the legislative vesting of rights in the Northern Territory, but concluded that these did not extinguish native title. Crucially, the Court found that the asserted native title rights, including rights to exclusive possession and fishing, were not necessarily inconsistent with the public rights of navigation and passage, nor with the Crown's underlying title. The evidence presented was sufficient to demonstrate the existence of native title rights and interests in the claimed area.