Western Australia v Ward - Statement (8 August 2002)

The four appeals in which reasons for judgment have just been published concern claims for the determination of native title rights and interests, under the Native Title Act 1993 (Cth), in relation to land and waters in the Kimberley region of Western Australia and the Northern Territory. They were appeals from a decision of the Full Court of the Federal Court, which in turn was dealing with an appeal from a judge of the Federal Court.

The appeals raise many issues. A summary of the principal conclusions of the majority of the Court is set out at the end of the joint reasons of Gaudron, Gummow, Hayne JJ and myself with which, subject to some reservations, Kirby J generally agrees.

At the outset, a question arose as to the nature of the appeal to the Full Court. The relevant legislation was amended in certain respects between the time of the original application and the decision of the Full Court. This Court has held that the Full Court was bound to apply the law as it existed at the time of its decision. Essentially that was the Native Title Act as amended to that time, the Racial Discrimination Act 1975 (Cth), and certain legislation of Western Australia and the Northern Territory. To the extent that the Full Court approached the matter differently, its decision has been reversed by this Court.

It then became necessary for this Court to express its own conclusions on the issues that arose for decision, to the extent that the findings of fact in the Full Court made this possible. Insofar as this was not possible, the issues will need to be considered further by the Full Court in the light of the reasons of this Court.

This Court has held that there can be partial extinguishment of native title rights and interests, and has stated the principles to be adopted in deciding whether native title rights and interests have been extinguished in whole or in part.

Numerous kinds of dealing with land are considered in the joint reasons.

Some kinds of dealing are held to have wholly extinguished native title rights and interests.

Other kinds of dealing extinguished some native title rights and interests, but did not necessarily extinguish all native title rights and interests. For example, the grant of a pastoral lease under the relevant Western Australian or Northern Territory legislation, or the grant of a mining lease under the relevant Western Australian legislation extinguished any native title right to control access to land or to be asked for permission to use or have access to land.

Pastoral leases did not give a right of exclusive possession of the land and did not necessarily extinguish all native title rights and interests. To the extent that rights and interests granted by a pastoral lease were not inconsistent with native title rights and interests, the rights and interests under the lease prevailed over, but did not extinguish, native title rights.

A similar position applies in relation to mining leases generally.

The area the subject of the claim included a portion of the land the subject of the Argyle mining lease. This portion lies wholly within the boundaries of a reserve, and all native title rights and interests in respect of the land within that reserve had been extinguished before the Argyle mining lease was granted.

It was decided that reference to the Ord River Irrigation Project as a geographic or economic entity was not of assistance in resolving the issues in the case, and that determination of some of the issues raised in relation to land connected with that Project will require further findings of fact by the Full Court.

Any exclusive right to fish in tidal waters has been extinguished.

Apart from questions of extinguishment, there were also issues as to the existence of certain rights or interests.

The Court has held that the evidence establishes no native title right to or interest in any mineral or petroleum.

The native title rights and interests protected by the Native Title Act are rights in relation to land or waters where, among other things, the peoples concerned, by traditional laws and customs, have a connection with the land or waters. In so far as claims to protection of cultural knowledge go beyond denial or control of access to land or waters, they are not rights protected by the Native Title Act.

None of the principal parties has been completely successful. There will be no order as to the costs of the appeals in this Court.

This statement is not intended as anything other than a summary of some aspects of the Court's decision. It is not intended to be a substitute for the reasons of the Court or to be used in any later consideration of the Court's reasons.

High Court of Australia

Western Australia v Ward - Statement (8 August 2002)