State of WA v Ward & Ors, A-G for NT v Ward & Ors

These proceedings concerned appeals from decisions of the Full Court of the Supreme Court of Western Australia and the Court of Criminal Appeal of the Northern Territory, brought by the State of Western Australia and the Attorney-General for the Northern Territory respectively. The core of the dispute involved the interpretation and application of the *Native Title Act 1993* (Cth) and the extent to which native title rights and interests could be recognised and protected in the face of existing pastoral leases. The matter ultimately came before the High Court of Australia.

The High Court was required to determine, among other things, whether the extinguishment of native title by the grant of a pastoral lease under the *Land Act 1933* (WA) and the *Crown Lands Act 1992* (NT) was absolute, or whether native title rights could co-exist with or be revived upon the termination of such leases. A key issue was the correct interpretation of the phrase "in accordance with the provisions of this Act" within the context of the *Native Title Act 1993* (Cth), particularly concerning the validation of past acts and the effect of subsequent legislative amendments on native title rights.

The Court engaged in a detailed analysis of the legislative history and intent of both the *Native Title Act 1993* (Cth) and the relevant state and territory legislation governing pastoral leases. It considered the nature of native title as a burden on the Crown's interest in land and the effect of the grant of pastoral leases on that burden. The Court applied principles of statutory interpretation, focusing on the clear language of the *Native Title Act 1993* (Cth) and its interaction with the common law of native title. The reasoning involved distinguishing between the extinguishment of native title by the grant of a lease and the extinguishment of native title by the exercise of rights conferred by that lease.

The High Court ultimately held that the grant of a pastoral lease under the relevant legislation did not necessarily extinguish native title entirely, but rather conferred rights on the pastoral lessee that were inconsistent with the continued enjoyment of native title rights. However, the Court found that native title was not extinguished by the mere grant of the lease itself, but rather by the exercise of rights granted under the lease that were inconsistent with native title. The appeals were allowed in part, with the matter remitted for further consideration of specific native title claims.