Yarmirr v Northern Territory, [2001] HCA 56, was an application for the determination of native title

Native title

Native title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...

 to seas, sea-bed and sub-soil, appealed to the High Court of Australia

High Court of Australia

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

.

Application

The application was made on behalf of a number of clan

Clan

A clan is a group of people united by actual or perceived kinship and descent. Even if lineage details are unknown, clan members may be organized around a founding member or apical ancestor. The kinship-based bonds may be symbolical, whereby the clan shares a "stipulated" common ancestor that is a...

 groups of Aboriginal

Indigenous Australians

Indigenous Australians are the original inhabitants of the Australian continent and nearby islands. The Aboriginal Indigenous Australians migrated from the Indian continent around 75,000 to 100,000 years ago....

 people to an area of seas and sea-beds surrounding Croker Island

Croker Island

Croker Island is an island in the Arafura Sea off the coast of the Northern Territory, Australia, 200 km northeast of Darwin. It is separated from Cobourg Peninsula in the west by Bowen Strait, which is 2.5 km wide in the south and up to 7 km in the north, and 8.5 km long. In...

 in the Northern Territory. The native title rights and interests claimed included the right to exclusive possession.
The case established that traditional owners do have native title of the sea and sea-bed, however common law rights of fishing and navigation mean that only non-exclusive native title can exist over the sea.

The case aimed to determine, under Territorial application of the Native Title Act 1993 (Cth)

Native Title Act 1993

The Native Title Act of 1993 provides for determinations of native title in Australia. The Act was passed by the Keating Labor Government in response to the High Court's decision in Mabo v Queensland...

:

• Whether common law
  Common law
  Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
  
   applies to territorial sea beyond low-water mark
• Whether common law recognises native title in territorial sea beyond low-water mark
• Whether recognition by common law influenced by legislative purpose of Native Title Act 1993 (Cth)
• Relevance of concept of radical title
• Effect of successive acquisitions of sovereignty
  Sovereignty
  Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
  
   over the territorial sea and sea-bed by the Crown
  The Crown
  The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
  
   in right of the United Kingdom
  United Kingdom
  The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
  
   in 1824 and the Crown in right of the Commonwealth
  Commonwealth
  Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
  
  by the Seas and Submerged Lands Act 1973 (Cth)
• Nature and effect of right and title to the territorial sea and sea-bed vested in the Northern Territory by the Coastal Waters (Northern Territory Title) Act 1980 (Cth).

Determination

The judge, Olney J, determined members of the Croker Island community have a non-exclusive native title right to have free access to the sea and sea-bed of the claimed area for all or any of the following purposes:

1. to travel through or within the claimed area;
2. to fish, hunt and gather for the purpose of satisfying their personal, domestic or non-commercial communal needs, including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;
3. to visit and protect places which are of cultural and spiritual importance;
4. to safeguard their cultural and spiritual knowledge.

The claimed area was defined by maps attached to the application for determination. It included the seas and extended to land or reefs within the proposed boundaries. Native title of Croker Island and other islands within the claimed area had been granted in 1980 and were not within the claim.

Appeal

Both the Commonwealth and the claimants appealed the original determination, the Commonwealths' appeal was upheld and the claimants' dismissed. The determination was thus amended so as to be restricted to and apply to the internal waters of the Northern Territory, including the inter-tidal zone both of the mainland and of the islands within the claimed area.

The claimants were ordered to pay the costs of both the claimants' and the Commonwealth's appeals.