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…
Grounds of appeal
[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
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