Utemorrah v Commonwealth

The applicants, members of the Utemorrah community, sought to restrain the Commonwealth of Australia from enacting legislation that would extinguish native title rights and interests in certain areas of Western Australia. The applicants contended that the proposed legislation was invalid because it would contravene the *Racial Discrimination Act 1975* (Cth) by discriminating on the ground of race. The matter came before Toohey J of the High Court of Australia.

The central legal issue before the Court was whether the proposed legislation, which would extinguish native title rights and interests, constituted an unlawful act of racial discrimination under the *Racial Discrimination Act 1975* (Cth). Specifically, the Court had to determine if the extinguishment of native title, which was held by Indigenous Australians, was discriminatory on the ground of race, and if so, whether the *Racial Discrimination Act 1975* (Cth) provided a basis for restraining the Commonwealth from enacting such legislation.

Toohey J considered the nature of native title and its connection to race. His Honour found that native title is inherently linked to the race of Indigenous Australians. The proposed legislation, by singling out and extinguishing these rights and interests, treated Indigenous Australians less favourably than other Australians who held property rights. His Honour concluded that the *Racial Discrimination Act 1975* (Cth) prohibited such racially discriminatory treatment, and therefore, the Commonwealth could be restrained from enacting legislation that contravened this prohibition. The Court granted an injunction restraining the Commonwealth from proceeding with the proposed legislation.