French, Justice Robert --- "Western Australia v Ward: devils and angels in the detail" (FCA) [2002] FedJSchol 14
WESTERN AUSTRALIA v WARD
DEVILS AND ANGELS IN THE DETAIL
Introduction
There is a movement in the exegesis of native title law in Australia reflected in two legal milestones, being the judgments of the High Court in Mabo (No 2) [1] and in Western Australia v Ward [2]. To a degree that movement is nothing more than the necessary development of native title law from the broad principles set out in Mabo (No 2) through their more detailed delineation and implementation in subsequent cases. Ward however reflects a shift to a more conservative approach to underlying principle and a greater emphasis on “black letter” law. That is evidenced by the emphasis placed upon the words of the Native Title Act 1993 in determining what will constitute native title or native title rights and interests. The judgment is indicative of judicial restraint in fleshing out the law and a focus on particularity rather than generality.
This paper refers to some of the salient features of the Ward decision particularly with respect to the concepts of native title, recognition and extinguishment. It does not canvass all the particular conclusions in the case about the effects of specific statutes and executive acts. In overview however, it can be said that the decision:
- foreshadows limited development of the common law of native title.
- accords the provisions of the Native Title Act primary importance in identifying the content of native title.
- eschews analysis of the metaphors of “recognition” and “extinguishment” which lie at the heart of the common law of native title.
- favours a statute based characterisation of native title as a bundle of rights.
- holds that native title, as a bundle of rights, may be extinguished in part or incrementally.
- specifically holds:
(i) that native title may be partially extinguished but is not necessarily wholly extinguished by pastoral leases and mineral leases in Western Australia.
(ii) that the vesting of land under the Lands Act 1933 (WA) may extinguish native title.
(iii) that native title rights and interests do not extend to subsurface minerals.
From Common Law to Statute – Mabo to Yanner
In
the preamble to the Native Title Act 1993, enacted in the aftermath of
the High Court’s decision in Mabo (No 2), it was said:
“It is particularly important to ensure that native title holders are now able to enjoy fully their rights and interests. Their rights and interests under the common law of Australia need to be significantly supplemented. In future, acts that affect native title should only be able to be validly done if, typically, they can also be done to freehold land and if, whenever appropriate, every reasonable effort has been made to secure the agreement of the native title holders through a special right to negotiate. It is also important that the broader Australian community be provided with certainty that such acts may be validly done.
A special procedure needs to be available for the just and proper ascertainment of native title rights and interests which will ensure that, if possible, this is done by conciliation and, if not, in a manner that has due regard to their unique character.”
The rights and interests to which the preamble refers are those arising under common law by virtue of the recognition of traditional indigenous title. Their nature and content derives from the traditional law and custom which defines the relationship between indigenous groups and their land and waters. They are not defined by the Act except to the extent that it attaches certain statutory incidents to them such as the right to negotiate or provides for their extinguishment or suppression in certain circumstances.
The central element of the definition of “native title” or “native title rights and interests” under the Act appears in s 223(1) under the sub-heading “Common law rights and interests” which provides:
“The expression native title or native title rights and interests means the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where:
(a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by the Aboriginal peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and
(c) the rights and interests are recognised by the common law of Australia.”
Hunting, gathering and fishing rights are included under subs (2) as are statutory rights and interests which have replaced or are the products of compulsory conversion of common law native title rights and interests. Paragraphs (a) and (b) reflect the principal common law rules for the recognition of native title set out in Mabo (No 2).[3] Paragraph (c) picks up, by reference, the remaining requirements for recognition. Subsection (2) expressly extends the definition to include the classes of right there identified. Against this background it is reasonable to suppose that the definition of native title and native title rights and interests in s 223(1) was intended to be declaratory of the common law, setting out the core requirements in pars (a) and (b) and, by the formula in (c), picking up any remaining requirements and allowing for the continuing development of the common law rules for recognition.[4]
Neither the preamble nor the critical elements of the definition of native title in s 223 have changed since the Act was passed. They can be read in light of the main objectives of the Act which are set out in s 3 and which are unchanged by amendment save for the reference to “intermediate period acts” in par (d):
“(a) to provide for the recognition and protection of native title; and
(b) to establish ways in which future dealings affecting native title may proceed and to set standards for those dealings; and
(c) to establish a mechanism for determining claims to native title; and
(d) to provide for, or permit, the validation of past acts, and intermediate period acts, invalidated because of the existence of native title.”
The Act is legitimately viewed as providing a framework for the determination of native title rights and interests recognised by the common law of Australia. It is consistent in its conception, structure and logic, with the proposition that the common law of native title is to be developed case by case in accordance with the incremental tradition of the judge-made law, providing the detail necessary to put flesh on the bones of the Mabo principles. That process was described by Lee J in the Waanyi case:
“Exegesis of the operation of the common law in respect of native title will take place in the judgments of Australian courts which consider and apply Mabo (No 2). There will be an incremental development of the law according to the particular facts of each case as those cases are brought to the courts for decision.”[5]
That view of incremental development was also apparent in the reference by Gummow J in Wik to the method of the common law “whereby principle is developed from the issues in one case to those which arise in the next”.[6] The centrality of the common law of native title was evidenced by s 12 of the Act which purported, albeit invalidly as it turned out, to give statutory force to the common law. That this section was beyond power does not mean that it may not evidence a legislative intention in respect of the balance of the provisions of the Act and in favour of its characterisation as a framework for the recognition of native title at common law.
In identifying the “constitutional character” of the Native Title Act the joint judgment of six of the seven Justices of the High Court in the Native Title Act case described it thus:
“The Act removes the common law defeasibility of native title, and secures the Aboriginal people and Torres Strait Islanders in the enjoyment of their native title subject to the prescribed exceptions which provide for native title to be extinguished or impaired. There are only three exceptions: the occurrence of a past act that has been validated, an agreement on the part of the native title holders, or the doing of a permissible future act.”[7]
In that judgment it was also reiterated that the content of native title is ascertained by reference to the laws and customs of the people who possess the title.[8] This approach did no injury to the proposition that the Act provides a framework for the recognition and protection of native title rights and interests recognised by the common law. So too, in Fejo the discussion of native title was cast in common law terms:
“Native title is neither an institution of the common law nor a form of common law tenure but it is recognised by the common law. There is therefore an intersection of traditional law and customs with the common law.”[9]
In Yanner v Eaton[10] the Court considered s 211 of the Act which immunises the enjoyment of native title rights and interests, in respect of hunting, fishing, gathering and cultural and spiritual activities, from certain prohibitions or restrictions imposed by Commonwealth, State or Territory law. Although s 223 was adverted to in its interaction with s 211, the Court’s discourse was centred on the concept of native title as recognised by the common law. The joint judgment of Gleeson CJ, Gaudron, Kirby and Hayne JJ expressly adopted the statement of Brennan J in R v Toohey; Ex parte Meneling Station Pty Ltd [11] that “Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights”. The judgment went on to refer to the “socially constituted fact of native title rights and interests that is recognised by the common law.
A greater emphasis upon statutory language was foreshadowed in Commonwealth v Yarmirr [12] The joint judgment [13] there declared that it was “... of the first importance... to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection”.[14] The “rights and interests with which the Act deals” were described by reference to the definition in s 223. They had to be rights and interests “in relation to land or water”[15] and they must be “possessed under the traditional laws acknowledged and the traditional conditions observed by the relevant peoples.”[16] This approach imported the proposition that s 223 carves out of the rights and interests of Aboriginal people, in relation to land and waters recognised by the common law, those which answer indicia which may be identified in the words of that section. It accords a substantive priority to the terms of the statute which is to some degree at odds with its genesis as a framework for the recognition of native title at common law.
Statute to Centre Stage – Western Australia v Ward
In
Ward the statute is at centre stage. In the joint judgment of Gleeson
CJ, Gaudron, Gummow and Hayne JJ, it was said:
“... it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo (No 2) or Wik.” [17]
The tone and language of the judgment is far from that of the Court in Mabo (No 2). The point of departure is now the language of the NTA. And in Ward it is the interaction of native title rights and interests, as defined by that Act, with a range of other statutes that dominate the reasoning.
In the joint judgment their Honours drew attention to s 10 which declares that native title is recognised and protected in accordance with the Act. They also referred to s 11(1) which provides that native title is not able to be extinguished contrary to the Act. The starting point therefore was to be “the meaning of native title”.[18]
Moving to their consideration of that meaning their Honours acknowledged the “essentially spiritual” connection between Aboriginal people and their country.[19] They acknowledged also “the difficulty of expressing a relationship between a community or group of Aboriginal people and the land in terms of rights and interests”.[20] That they held was required by the Act. It is interesting to ask why it could not have been said that that is what is required by the common law.
Their Honours then spoke of the expression “native title” or “native title rights and interests” as being elaborately defined in s 223 of the Act. They accepted that pars (a) and (b) of subs 223(1) were based upon what Brennan J said in Mabo (No 2) but went on:
“It is, however, of the very first importance to recognise two crucial points: that section 11(1) of the NTA provides that native title is not able to be extinguished contrary to the NTA, and that the claims that give rise to the present appeal are claims made under the NTA for rights that are defined in the statute.” (emphasis added)
Their Honours then moved to particular aspects of the construction of the provisions of s 223(1).
The Idea of Native Title
At one time it seemed that the
underlying concept of native title as an expression of communal responsibility
and ownership would
find favour with the Court rather than the idea of it as a
bundle of rights. In an important Northern Territory land rights case,
Brennan
J spoke of the relationship of indigenous people to their country as:
“Primarily a spiritual affair rather than a bundle of rights.” [21]
That characterisation was approved in Yanner v Eaton .[22] An holistic concept of native title was also evident in the declaration by the High Court in Mabo (No 2) that:
“...the Meriam people are entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands.” [23]
The declaration was made despite the elaborate subdivisions of entitlements among the Meriam people. Mabo (No 2) was about the common law of Australia for when it was decided there was no Native Title Act. According to the principles it set out native title is a right or set of rights, whether expressed severally or holistically, that are determined at common law. They are unique within the common law. Their uniqueness derives from the variety of traditional, indigenous relationships to country that can be recognised. But there are no common law analogues which can accommodate the full range of spiritual relationships with country.
Despite what it derived from Brennan J’s judgment in Mabo the joint judgment in Ward focussed upon the words of s 223, defining native title, not as words from Brennan J’s judgment, but as the words of an Act of Parliament. On that basis, the three paragraphs (a), (b) and (c) of s 223(1) each identifies a necessary characteristic of rights and interests if they are to qualify as native title rights and interests. The first requires the Court to identify the traditional laws and customs “... but, no less importantly, the ... rights and interests in relation to land or waters which are possessed under those laws or customs”.[24] This is a distinct inquiry from that needed for par (b) which requires applicants to show that there is a connection with the land or waters “by those laws and customs”. Practically speaking the evidence necessary to make out each characteristic will probably be the same and the Court recognised that. But logically there are two distinct matters to be established under the Act.
The statutory definition indicates that native title rights and interests derive from the traditional law and custom not from the common law. The function of the common law is “recognition” of rights and interests and this is mentioned in par (c) of s 223. The joint judgment then said:
“To date, the case law does not purport to provide a comprehensive understanding of what is involved in the notion of ‘recognition’.” [25]
Their Honours did not do anything to flesh out that crucial metaphor. It is crucial because the requirement in par (c) is that “the rights and interests comprising native title are recognised by the common law of Australia”. (emphasis added) However, indirectly they seemed to accept that recognition does not of itself affect traditional laws and customs or the rights and interests which arise under them. In respect of extinguishment their Honours seem to suggest that it does not apply to cases in which native title ceases to exist because the continuing connection to country has ceased.
The judgment considered possible circumstances in which native title rights and interests might be possessed under traditional law and custom by people having a connection with land or waters under that traditional law and custom and yet not be recognised or protected by the common law. Their Honours referred to:
- Laws or customs which clash with the general objective of the common law of preservation and protection of society as a whole. No examples were cited to illustrate this possibility.
- The extent and limits of protection of native title rights and interests which were called in Mabo (No 2) “such legal or equitable remedies as are appropriate”. No decision has yet been made about what are appropriate legal or equitable remedies to protect native title.
- The
case where the connection with land has been maintained even though native title
rights have been extinguished as a matter of
law.
On this approach the content of native title under the NTA is defined by a particular subset of rights and interests of indigenous people in relation to land or waters. The subset is that which answers the description in pars (a), (b) and (c) of s 223.
The confinement of native title by its statutory definition means that it is a pale reflection of the reality of the connection to country. Indeed the joint judgment acknowledges the difficulty of expressing, solely in terms of rights and interests, the essentially spiritual relationship between an Aboriginal community and its country, which imposes responsibilities as well as conferring rights. It went on to say:
“Yet that is required by the NTA. The spiritual or religious is translated into the legal. This requires the fragmentation of an integrated view of the ordering of affairs into rights and interests which are considered apart from the duties and obligations which go with them.” [26]
In so saying their Honours exposed the artificial and incomplete nature of the recognition of native title under the NTA. In fairness it must be said that recognition at common law is burdened by similar limitations. The decision ensures however that, by tying the central elements of native title down to statutory words, the Court has potentially limited the scope for the development of common law of native title. The alternative position would view pars (a), (b) and (c) of s 223(1) as declaratory of the common law as it presently stands and not intended to limit its development.
Connection
Paragraph (b) of the definition of native title in s 223(1) requires that, by their traditional laws and customs, the indigenous people have a connection with the land or waters. This was said to be of importance in deciding whether the maintenance and protection of cultural knowledge is a matter with which the NTA is concerned. The fact that cultural knowledge may be possessed under traditional laws and customs does not mean that, by those laws and customs, there is a connection with the land or waters in question.[27] In the Full Court of the Federal Court in Ward, the majority judges, Beaumont and von Doussa JJ, did not think that a right to protect and prevent the misuse of cultural knowledge was a right in relation to land of a kind that could be the subject of native title. This was challenged in the High Court, but the challenge failed. The essential point against a native title right to protect cultural knowledge was that the traditional laws and customs under which it was said to arise were not laws and customs by which the indigenous people had a connection to land.[28] In addition, the right to protect cultural property would amount to something approaching a new kind of intellectual property. So it was said:
“The ‘recognition’ of this right would extend beyond denial or control of access to land held under native title.”[29]
Connection – Physical Presence
The nature of the connection with land or waters necessary to establish native title was also considered but seen as governed by indigenous law and custom:
“Whether there is a relevant connection depends, in the first instance, upon the content of traditional law and custom and, in the second, upon what is meant by ‘connection’ by those laws and customs.”[30]
It was accepted that there may be cases where the way in which land and waters are used will reveal aspects of the relevant connection under traditional law and custom:
“But the absence of evidence of some recent use of the land or waters does not, of itself, require the conclusion that there can be no relevant connection.”[31]
In particular, the Judges expressed no view on when a spiritual connection with the land would suffice. There was, in that regard, a somewhat disparaging reference to the Western Australian submissions as apparently intending spiritual connection to mean “any form of asserted connection without evidence of continuing use or physical presence”.
Native Title as a Bundle of Rights
In considering the correct test for extinguishment of native title rights and interests, the Full Court of the Federal Court had held that native title rights and interests were to be seen as a bundle of rights the separate components of which could be separately extinguished. The joint judgment in the High Court held this to be correct having regard to the distinction reflected in the NTA itself between “complete extinguishment” and extinguishment “to the extent of any inconsistency”. Callinan J put it thus:
“...the Native Title Act...contemplates the possibility of partial extinguishment by the use of expressions ‘partial extinguishment’ and ‘complete extinguishment’ and is therefore to same effect as the concept of native title as a bundle of rights capable of incremental or partial extinguishment as recognised in the passages in ... cases ... referred [to] in Yanner.”
There is no doubt that the idea of native title as a bundle of rights detracts from the extent to which it can reflect the content of traditional laws and customs. On the other hand, it makes partial extinguishment possible and in that sense something may be better than nothing. Ritter has suggested that the High Court’s view on this point may have left the edifice of native title structurally weaker than if the Court had decided that it was a form of unitary estate.[32]
The joint judgment saw utility in the idea of native title as a bundle of rights:
“The metaphor of ‘bundle of rights’ which is so often employed in this area is useful in two respects. It draws attention first to the fact that there may be more than one right or interest and secondly to the fact that there may be several kinds of rights and interests in relation to land that exist under traditional law and custom. Not all of those rights and interests may be capable of full or accurate expression as rights to control what others may do on or with the land.” [33]
While the “bundle of rights” can be accepted as a useful analytical tool it may impoverish native title by limiting the extent to which holistic concepts, of the kind used in the Mabo determination, can be deployed in describing it.
Extinguishment
The Court did not deal in any significant way with the development of a theory of extinguishment within the common law of recognition of native title. However, the joint judgment spoke of extinguishment as “... the withdrawal of recognition by the common law”.[34] So extinguishment fits into the statutory definition of native title by negating the recognition that is required under par 223(1)(c) of the NTA.
Like the Full Court, the joint judgment rejected the “adverse dominion” test applied by Lee J at first instance in deciding whether or native title was extinguished in the claim area. That test required a plain and clear expression of intention by Parliament to bring about extinguishment. It also required that there be some act done under the authority of the relevant statute which demonstrated the exercise of permanent adverse dominion by another. Further, there was to be actual use of the land permanently inconsistent with the continued existence of native title. The joint judgment agreed that the Full Court was correct to reject this approach. So where there has been a grant of rights over land in which native title subsists the question is whether the “... rights are inconsistent with the alleged native title rights and interests”. Reference to activities on the land is only relevant to the extent that it focuses attention upon the right pursuant to which the land is used. [35]
The joint judgment also rejected the idea of degrees of inconsistency advanced by North J, who dissented on the Full Court of the Federal Court. It was said:
‘Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.” [36]
The joint judgment therefore also rejected the concept of suspension of native title rights and interests at common law which had been advanced by North J. It accepted that the NTA itself provides for suspension of rights by the so called non-extinguishment principle. It again referred to the bundle of rights concept in this connection:
“... it is a mistake to assume that what the NTA refers to as ‘native title rights and interests’ is necessarily a single set of rights relating to land that is analogous to a fee simple. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement.”[37]
Occupation Not Enough
In his first instance judgment, Lee J said he was satisfied that there was a Miriuwung and Gajerrong community which had an ancestral connection with the pre-colonisation Aboriginal people of the area. He concluded that “it follows that the communal title in respect of the claim area is the title of the Miriuwung and Gajerrong people” [92]. The High Court in the joint judgment, consistently with its view that native title is best understood as a bundle of rights, said:
“Standing alone, the fact of occupation is an insufficient basis for concluding that there was what the primary judge referred to as ‘communal title in respect of the claim area’ or a right of occupation of it. If, as seems probable, those expressions are intended to convey the assertion of rights of control over the land, rights of that kind would flow not from the fact of occupation, but from that aspect of the relationship with land which is encapsulated in the assertion of a right to speak for country.” [38]
Their Honours went on to say that consideration of extinguishment must begin with identification of rights and interests possessed under traditional laws and customs. It is not right to start with a general assertion that the applicants “have possession, occupation, use and enjoyment ... to the exclusion of all others” and then to break it down into its constituent parts.
The Racial Discrimination Act 1975
The joint
judgment in the end is largely a judgment about the circumstances in which and
the extent to which native title is validly
extinguished by inconsistent laws or
acts. In approaching this question, the joint judgment referred to the
different kinds of acts
or dealings alleged to have had extinguishing
effect.[39] As a
preliminary it discussed the way in which the provisions of the Racial
Discrimination Act 1975 operate upon discriminatory State legislation.
Importantly, it noted two kinds of discriminatory State laws which would fall
foul
of s 10 of that Act:
- A State law which provides for the extinguishment of land titles generally but provides for compensation only in respect of non-native title. Here the extinguishment would be valid, but the Racial Discrimination Act would create a right of compensation for native title holders.
- A
State law which extinguishes only native title and leaves other titles intact.
This would be rendered invalid by virtue of s 109 of the Constitution as
inconsistent with the Racial Discrimination
Act.[40]
Particular Conclusions About Extinguishment
The joint judgment came to a number of conclusions about the effect of particular State laws and grants on native title rights and interests. Each of these conclusions and the reasoning which supports them would probably warrant a separate note.
Three of the most important findings of the Full Court adverse to the Miriuwung Gajerrong peoples’ claim were reversed in the High Court. These related to the extinguishing effect of the Ord River Project, the grant of pastoral leases and the grant of mineral leases. In the Full Court of the Federal Court it had been said that the Project should be considered as a whole when assessing the effect of its implementation upon native title rights and interests. But this approach is said to have led the Full Court into error. In the joint judgment of the High Court it was made clear that what was required was an analysis of the legal effect of the various grants made under a variety of laws for the purpose of establishing the project. The actual administrative management of the project did not of itself involve the idea of operational inconsistency giving rise to extinguishment of native title. But what was of immediate importance, according to the High Court, was the first point:
“... namely that the identification of the project does not displace the necessity to determine issues of extinguishment by reference to particular items of legislation.” [41]
This required “a clear understanding” of the relevant provisions of the land law of Western Australia. The focus was on the particular laws and grants affecting native title rather than broad brush characterisation of their combined global effects.
The Court considered the effect of the historic grant of pastoral leases in the Project area. It referred to the history of Western Australian land law. In the light of that history, pastoral leases themselves were seen as a “precarious interest” for limited purposes and “not to be understood as rendering unlawful what was previously a lawful use of the land by native title holders”.[42] So in like manner to the pastoral leases in Wik those granted in Western Australia did not necessarily extinguish native title even though they extinguished any right to control access to the land.
Resumption of land under pastoral leases for the purposes of the Project did not of itself extinguish native title for it did not involve the Crown acquiring a fee simple title. “Resumption did not give the Crown any larger title to the land than the radical title”.[43]
Again, contrary to the view of the majority in the Full Court of the Federal Court, the High Court found that the grant of mining leases was not necessarily inconsistent with the continued existence of all native title rights and interests. There was no doubt that some rights and interests were extinguished. But the grant of exclusive possession under a mining lease was directed at preventing others from carrying out mining and related activities on the relevant land. It did not follow that all others were necessarily excluded from all parts of the lease area.[44]
In these three areas that of the effect of pastoral leases, mineral leases and the Project taken as a whole, there seems to have been a major success for native title applicants in Western Australia.
It is apparent however that the finding in the joint judgment that the vesting of reserves under s 33 of the Land Act extinguishes native title has potentially a major impact in respect of areas where co-existing native title rights might be thought to have survived. This is particularly so in respect of national parks. It was reflected in a recent case in the excision of the Rudall River National Park from the Martu Consent Determination.
Conclusion
The approach of the High Court in Ward is very much the approach of black letter lawyers. It leads to mixed outcomes. It does not foreshadow either the death of native title or a new dawn for it. What it requires of those who represent indigenous people in this area are the age old skills of the good lawyer; to study the law closely, and to apply it with care, particularity and creativity to maximise the benefit of the outcomes to their clients.
[1] [1992] HCA 23; (1992) 175 CLR
1
[2] [2002] HCA 28; (2002) 191
ALR 1
[3] [1992] HCA 23; 175 CLR 1
at 59-60 and 70 (Brennan J), 86 and 110 (Deane and Gaudron JJ), 188 (Toohey
J)
[4] Compare,
however, Commonwealth v Yarmirr [1999] FCA 1668; (1999) 168 ALR 426 at 442-3 (Beaumont and
von Doussa JJ) with Yorta Yorta Community v Victoria [2001] FCA 45; (2001) 180 ALR 655
at 684-5 (Branson and Katz
JJ).
[5] North
Ganalanja Aboriginal Corporation v State of Queensland (1995) 132 ALR 565 at
592
[6] Wik
Peoples v Queensland[1995] HCA 10; (1995) 183 CLR 245 at
284
[7] Western
Australian v The Commonwealth [1995] HCA 47; (1995) 183 CLR 373 at
459
[8] Ibid
452-453
[9] Fejo
v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96 at
128
[10] [1999] HCA 53; (1999)
201 CLR 351
[11]
[1982] HCA 69; (1987) 158 CLR 327 at
358
[12] (2001)
184 ALR 113
[13]
Gleeson CJ, Gaudron, Gummow and Hayne
JJ
[14] Ibid at
119
[15] Ibid at
121
[16] Ibid at
122
[17]
Western Australia v Ward[2002] HCA 28; (2002) 191 ALR 1 at
19
[18] 191 ALR at
15
[19] 191 ALR at
15
[20] 191 ALR at
15
[21] R v
Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at
357.
[22] [1999] HCA 53; (1999)
201 CLR 351.
[23]
Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at
217.
[24] 191 ALR
at 17.
[25] 191
ALR at 17.
[26]
191 ALR at
15-16
[27] 191
ALR at 17
[28]
191 ALR at
31-32
[29] 191
ALR at 31
[30]
191 ALR at 32
[31]
191 ALR at 32
[32]
Ritter, Fin de siecle: Western Australia v Ward [2002] 5 Native Title
News 162.
[33]
191 ALR at 40
[34]
191 ALR at 37
[35]
191 ALR at 35
[36]
191 ALR at 37
[37]
191 ALR at 37
[38]
191 ALR at
39-40
[39] 191
ALR at 40
[40]
191 ALR at 44
[41]
191 ALR at 56
[42]
191 ALR at 66
[43]
191 ALR at
71-72
[44] 191
ALR at 97