Wurridjal & Ors v Commonwealth of Australia & Anor

The applicants, Wurridjal and others, brought proceedings against the Commonwealth of Australia and the Northern Territory of Australia concerning the validity of certain provisions of the *Native Title Act 1993* (Cth) and the *Northern Territory Aboriginal Sacred Sites Act 1978* (NT). The dispute centred on the protection of Aboriginal sacred sites in the Northern Territory, particularly in relation to mining and other development activities. The applicants sought declarations that certain provisions of the Commonwealth Act were invalid to the extent that they permitted the Northern Territory Act to override or diminish the protection afforded to sacred sites under native title.

The High Court was required to determine whether the *Native Title Act 1993* (Cth) validly conferred power on the Northern Territory to legislate in a manner that could detrimentally affect the protection of sacred sites, and whether the *Northern Territory Aboriginal Sacred Sites Act 1978* (NT) was inconsistent with the Commonwealth Act, thereby attracting the operation of s 109 of the *Constitution*. Specifically, the Court considered whether the Northern Territory Act, by providing a framework for the protection of sacred sites that could be overridden by the Northern Territory Minister for Mines and Energy, was inconsistent with the broader protections and processes contemplated by the *Native Title Act 1993* (Cth).

The Court held that the *Native Title Act 1993* (Cth) did not grant the Northern Territory the power to legislate in a way that diminished the protection of sacred sites as guaranteed by the Commonwealth legislation. The majority found that the Northern Territory Act, in its operation, created a regime where the protection of sacred sites could be compromised by ministerial discretion in favour of mining interests, which was inconsistent with the purpose and effect of the *Native Title Act 1993* (Cth). This inconsistency meant that, by virtue of s 109 of the *Constitution*, the relevant provisions of the Northern Territory Act were invalid to the extent of the inconsistency. The Court emphasised the importance of ensuring that state and territory laws did not undermine the federal scheme for native title and the protection of significant sites.