Western Australia v Ward

Case [2002] HCA 28


HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

Matter No P59/2000

THE STATE OF WESTERN AUSTRALIA  APPELLANT

AND

BEN WARD & ORS RESPONDENTS

Matter No P62/2000

THE ATTORNEY-GENERAL OF THE
NORTHERN TERRITORY   APPELLANT

AND

BEN WARD & ORS RESPONDENTS

Matter No P63/2000

CECIL NINGARMARA & ORS   APPELLANTS

AND

THE NORTHERN TERRITORY OF
AUSTRALIA & ORS   RESPONDENTS

Matter No P67/2000

BEN WARD & ORS   APPELLANTS

AND

CROSSWALK PTY LTD & ORS  RESPONDENTS

Western Australia v Ward

Attorney-General (NT) v Ward
Ningarmara v Northern Territory
Ward v Crosswalk Pty Ltd
[2002] HCA 28
8 August 2002
P59/2000, P62/2000, P63/2000 and P67/2000

ORDER

1.   Each of the appeals is allowed.

2.   Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.

3.   There is no order as to the costs of the appeals in this Court.

4.   The costs of the proceedings at trial and in the Full Court of the Federal Court, both before and after the making of this Court's orders disposing of these appeals, are to be in the discretion of the Full Court.

On appeal from the Federal Court of Australia

Representation:

Matter No P59/2000

R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the appellant (instructed by the Crown Solicitor for Western Australia)

M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))

J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)

W Sofronoff QC and G M G McIntyre for the third respondents (instructed by the Kimberley Land Council)

Matter No P62/2000

T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the appellant (instructed by the Solicitor for the Northern Territory)

M L Barker QC and R H Bartlett for the first respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))

J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)

Matter No P63/2000

J Basten QC with K R Howie SC and S A Glacken for the appellants (instructed by the Northern Land Council)

T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the first respondent (instructed by the Solicitor for the Northern Territory)

B O'Loughlin for the second respondent (instructed by Clayton Utz)

R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the third respondent (instructed by the Crown…

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Details
AGLC
Western Australia v Ward [2002] HCA 28
Case
[2002] HCA 28
Decision Date

CaseChat Overview and Summary

The case of *Western Australia v Ward* concerned appeals to the High Court of Australia regarding native title claims. The central dispute involved the extent to which various grants of interests in Crown land by the State of Western Australia had extinguished or suspended native title rights and interests. The parties involved were the State of Western Australia and various native title claimants.

The High Court was required to determine several key legal issues. These included the correct interpretation and application of the *Native Title Act 1993* (Cth) concerning the extinguishment and suspension of native title by "past acts," particularly "previous exclusive possession acts" and "previous non-exclusive possession acts." The Court also had to consider the validity of such past acts in light of the *Racial Discrimination Act 1975* (Cth) and the nature of the extinguishment or suspension caused by specific types of grants, such as pastoral leases, mining leases, reserves, and special leases, under Western Australian legislation. The Court was also asked to reconsider the "adverse dominion" test previously applied in native title extinguishment cases.

The High Court's reasoning involved a detailed analysis of the *Native Title Act 1993* (Cth) and its interaction with State legislation. The Court rejected the "adverse dominion" test, finding it inconsistent with the statutory framework. Instead, the Court focused on whether the rights conferred by the grants were so inconsistent with the continued existence of native title rights and interests that they necessarily extinguished or suspended them, either wholly or partially. The Court considered the specific nature of each grant and the rights it conferred, applying principles of statutory interpretation to determine the effect on native title.

The High Court allowed each of the appeals, setting aside the orders and determinations of the Full Court of the Federal Court. The matters were remitted to the Full Court for further hearing and determination, with costs in the High Court to be borne by the parties and costs in the lower courts to remain within the discretion of the Full Court.

Orders

Orders of the court

1. Each of the appeals is allowed.

2. Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.

3. There is no order as to the costs of the appeals in this Court.

4. The costs of the proceedings at trial and in the Full Court of the Federal Court, both before and after the making of this Court's orders disposing of these appeals, are to be in the discretion of the Full Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GAUDRON, GUMMOW AND HAYNE JJ

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