Commonwealthv Yarmirr & Ors - Yarmirr & Ors v NT

The High Court of Australia heard an appeal concerning native title rights and interests in waters off the coast of the Northern Territory. The appellants, members of the Larrakia people, sought to establish native title rights and interests in the seabed and waters of the Cox Peninsula, including the waters of Darwin Harbour and Bynoe Harbour, and the adjacent coastal waters. The respondents included the Commonwealth of Australia and the Northern Territory, who contested the extent and nature of the claimed native title rights.

The central legal issues before the Court were whether the appellants had established native title rights and interests in the claimed area, particularly in relation to the seabed and waters, and whether those rights had been extinguished by subsequent legislative or executive acts. The Court was required to consider the nature of native title as recognised by the *Native Title Act 1993* (Cth) and the common law, and the criteria for proving its continued existence. This involved examining the evidence of traditional laws and customs governing the appellants' relationship with the land and waters, and assessing whether any acts of government had extinguished those rights.

The Court's reasoning focused on the principles established in previous native title cases, particularly concerning the extinguishment of native title by the grant of inconsistent rights or interests. It was held that native title rights in the seabed and waters could be extinguished by the exercise of sovereign power, such as the grant of exclusive possession or the creation of rights inconsistent with the continued existence of native title. The Court analysed the specific legislative and executive actions taken by the Commonwealth and the Northern Territory in relation to the claimed area to determine whether they amounted to extinguishment. The Court also considered the nature of the rights claimed by the appellants, distinguishing between rights to fish or hunt and rights to control or possess the seabed and waters.

The High Court ultimately held that native title rights and interests in the seabed and waters of the claimed area had been extinguished by the exercise of sovereign power, including the creation of exclusive rights and interests in the Crown and the grant of leases and licences. The appeal was therefore dismissed.