The Commonwealth v Yarmirr [2001] HCA 56

The Commonwealth v Yarmirr [2001] HCA 56

The majority of the High Court held that, while non-exclusive native title rights and interests—such as rights to hunt, fish, and traverse for personal, domestic or non-commercial communal needs in accordance with traditional law and custom—can be recognised by the common law in respect of the sea and sea-bed beyond the low-water mark, such rights do not confer exclusive possession, occupation, use and enjoyment of the sea and sea-bed to the exclusion of all others. The existence of public rights to fish, to navigate, and the international right of innocent passage are fundamentally inconsistent with exclusive native title rights and prevent their recognition at common law or under the...

Parties
Appellant: The Commonwealth of Australia; Respondents: Mary Yarmirr & Ors; Respondents: The Northern Territory of Australia & Ors
Jurisdiction
Australia
Judgment Date
11 October 2001
Procedural Posture
Appeal / Final Appellate Decision by High Court
Outcome
Commonwealth's appeal dismissed; claimants' (Yarmirr & Ors) appeal dismissed; determination of non-exclusive native title as previously made affirmed; both appeals dismissed with costs.
Legal Topics
Native Title, Territorial Waters, Sovereignty, Sea Bed Rights, Aboriginal Customary Law, Recognition of Native Title at Common Law, Public Rights to Fish and Navigate
Constitutional Law Aboriginal and Torres Strait Islander Law Property Law International Law Native Title Territorial Waters Sovereignty Sea Bed Rights +3 more

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Parties

The Commonwealth of Australia

Appellant

Mary Yarmirr & Ors

Respondents

The Northern Territory of Australia & Ors

Respondents

Procedural Posture

Appeal / Final Appellate Decision by High Court

Legal Issues

  1. 1 Does the common law of Australia recognise native title rights and interests in sea, sea-bed and sub-soil seawards of the low-water mark?
  2. 2 Do public rights to fish and navigate and the international right of innocent passage extinguish exclusive native title rights?
  3. 3 What is the effect of relevant legislation, including the Native Title Act 1993 (Cth) and related Acts, on the recognition or extinguishment of native title in offshore areas?

Ratio Decidendi

The majority of the High Court held that, while non-exclusive native title rights and interests—such as rights to hunt, fish, and traverse for personal, domestic or non-commercial communal needs in accordance with traditional law and custom—can be recognised by the common law in respect of the sea and sea-bed beyond the low-water mark, such rights do not confer exclusive possession, occupation, use and enjoyment of the sea and sea-bed to the exclusion of all others. The existence of public rights to fish, to navigate, and the international right of innocent passage are fundamentally inconsistent with exclusive native title rights and prevent their recognition at common law or under the...

Court Disposition

Commonwealth's appeal dismissed; claimants' (Yarmirr & Ors) appeal dismissed; determination of non-exclusive native title as previously made affirmed; both appeals dismissed with costs.

Orders

  • Appeals dismissed with costs.