NATIVE TITLE – determination of native title under the Native Title Act1993 (Cth) - meaning of “native title” – meaning of “identifiable community” – existence of sub-groups (“estate groups”) within an identifiable community – meaning of “traditional laws and customs” – capacity of traditional laws and customs to evolve – boundaries of an identifiable community – interaction and overlapping of communities.
EVIDENCE – proof of native title – rules of evidence - proof of aboriginal connection with claim area at sovereignty – proof of maintenance of connection – historical evidence – oral histories - linguistic evidence – “primary” evidence of witnesses – anthropological evidence – genealogical evidence – need for proof of biological descent - observance of traditional laws and customs – dreaming evidence.
NATIVE TITLE – extinguishment – meaning of extinguishment – distinction between regulation and extinguishment of native title - onus of proof – extinguishment by grant of freehold – Crown grants - permit to occupy Crown land prior to issue of Crown grant – extinguishment by the grant of leases - pastoral leases – conditional purchase leases – “special leases” – leases of reserves – extinguishment by the grant of licences - extinguishment by the creation of reserves – meaning of “vesting” – extinguishment by use of reserves – extinguishment by the grant of mining tenements - mining leases – general purpose leases – exploration licences – extinguishment by resumption and acquisition of Crown lands from pastoral leases – extinguishment by legislation – national parks legislation– wildlife conservation legislation – extinguishment by dedication of land for purpose of roads – extinguishment by the vesting of a national park and leases to “Conservation Land Corporation” - extinguishment by application of limitation periods – extinguishment by the proclamation of an “Irrigation District” – extinguishment by declaration of a townsite – extinguishment by the creation of a lake.
NATIVE TITLE – Native Title Act 1993 (Cth) – effect of Act on concept of native title at common law – meaning of “affects” native title – jurisdictional limits of a determination under the Native Title Act 1933 (Cth) - “past acts” - effect of the Native Title Amendment Act1998 (Cth) – “previous exclusive possession acts” – “previous non-exclusive possession acts” – effect of the Titles Validation Act 1995 (WA).
Sale of Waste Lands Act 1842 (Imp) Public Health Act 1875 (UK)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ward v Western Australia [1998] FCA 1478
Case
[1998] FCA 1478
Decision Date
CaseChat Overview and Summary
This case involves a claim for the determination of native title by three groups of applicants over a large area of land and waters in the north of Western Australia and adjacent land in the Northern Territory. The applicants are the Miriuwung and Gajerrong people, the Balangarra Peoples, and Cecil Ningaramara and others. The respondents include the State of Western Australia, the Northern Territory, and various companies and individuals with interests in the land. The applicants sought a determination of native title under the Native Title Act 1993 (Cth). The court was required to decide the legal issues of whether native title exists in the claim area, whether it has been extinguished by various legislative acts and executive actions, and if so, to what extent. The court also had to determine the nature and extent of the native title rights and interests, if any, in relation to the claim area. The court found that native title exists in the claim area for the Miriuwung and Gajerrong people and concurrently for the Balangarra Peoples on Lacrosse Island. However, native title had been extinguished in certain areas by the creation of roads, reserves, and other interests. The court declared that native title exists in the "determination area" save for the areas of land or waters described in the 2nd Schedule. The nature and extent of the "native title rights and interests" and the "other interests" in relation to the "determination area" were also outlined. The court ordered that within twenty-eight days the common law holders of native title are to file any minute of proposed determination under ss 56 and 57 of the Native Title Act 1993 (Cth).