The State of Western Australia v Ward [2000] FCA 191
Native Title - meaning of native title - whether native title a bundle of rights - whether native title is a right to land - whether native title includes a right to maintain, protect and prevent the misuse of cultural knowledge - proof of native title - continuing connection - physical presence on the land not essential - proof of biological descent - observance of traditional laws and customs - estate groups within a wider community - overlapping of communities.
Native Title - determination of native title under Native Title Act 1993 (Cth) - requirements of s 225 - form of determination - identification of native title holders - jurisdiction to make a determination in favour of Aboriginal community in the absence of a referral to the Court under s 74 of an application for a determination of native title - effect of Native Title Amendment Act 1998 (Cth) - whether determination must cover the whole of the claim area.
Native Title - extinguishment - meaning of extinguishment - meaning of inconsistency - partial extinguishment - co-existence of rights to occupy, possess, use and enjoy - reasonable user - onus of proof - application of the presumption of regulatory in Crown grants - resumptions and acquisitions of Crown land from pastoral leases - creation and vesting of reserves - extinguishment by grant of leases - pastoral leases reserving rights of access for Aboriginal people - Western Australian mining leases and tenements - special leases - leases of reserves - conditional purchase leases - grants to third parties - permits to occupy Crown land prior to issue of Crown grant - whether extinguishment by the vesting of a national park - leases to Northern Territory Conservation Land Corporation - public works - whether extinguishment by the proclamation of an “Irrigation District” - whether extinguishment by declaration of a townsite - whether extinguishment by creation of a lake - whether extinguishment by dedication of land for the purpose of roads - extinguishment by legislation - wildlife conservation legislation - national parks legislation - application of limitation periods to native title claims.
Native Title - suspension - meaning of suspension - whether native title can be suspended.
[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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AGLC
Western Australia v Ward [2000] FCA 191
Case
[2000] FCA 191
Decision Date
CaseChat Overview and Summary
The case of Western Australia v Ward involves six appeals against a decision by Lee J which determined that native title exists in the "determination area" identified in an application under the Native Title Act 1993 (Cth) (NTA). The decision was made on behalf of the Miriuwung and Gajerrong people, and the Balangarra Peoples in respect of Booroongoong (Lacrosse Island). The appellants challenge the determination of native title, its scope, and the extinguishment of native title rights by various actions and interests created by the Crown. The legal issues before the court included the definition of native title, its extinguishment by various acts, and the jurisdiction to make a determination of native title in the absence of a referral under section 74 of the NTA. The court was also required to consider the effect of the Native Title Amendment Act 1998 (Cth) on the determination of native title.
The court considered the meaning of native title, its extinguishment, and the effect of various Crown actions on native title rights. The court found that native title is a bundle of rights, rather than a right to land, and includes a right to maintain, protect, and prevent the misuse of cultural knowledge. The court held that native title could be extinguished by various Crown actions, such as the resumption and acquisition of Crown land, the creation and vesting of reserves, the grant of leases, and the proclamation of an "Irrigation District." The court also found that the presumption of regulatory in Crown grants did not apply to extinguish native title, and that the onus of proof was on the party asserting extinguishment. The court considered the effect of the Native Title Amendment Act 1998 (Cth) on the determination of native title, and found that a determination must cover the whole of the claim area.
The court found that native title had not been extinguished in the determination area, save for certain freehold grants within the State, and certain reserved Crown lands that had been used in fact for roads or the erection of buildings or other fixtures and improvements for the purpose for which the Crown lands had been reserved, and their surrounding curtilages. The court also found that other interests had been created in the determination area by the Crown, such as interests held by one or more of the many parties to the proceedings as persons entitled to use reserves, or as lessees, licensees, permit holders, tenement holders, or holders of other interests obtained under or by reason of legislation of the State, Territory or Commonwealth.
The final orders of the court will depend on the outcome of the appeals and the court's determination of the various issues before it. The court may affirm, vary, or set aside the determination of native title made by Lee J, and may make orders in relation to the extinguishment of native title rights and the effect of various Crown actions on native title. The court may also consider the effect of the Native Title Amendment Act 1998 (Cth) on the determination of native title, and may make orders in relation to the scope and extent of the determination area.
Orders
Orders of the court
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Background
Background to the litigation
There are six appeals before the Court. Five appeals (the “principal appeals”) are against orders made by Lee J on 24 November 1998 which determined that native title exists in the “determination area” being part of the claim area identified in an application lodged under the Native Title Act 1993 (Cth) (the NTA) on 6 April 1994. His Honour determined that native title is held by the Miriuwung and Gajerrong people, and in respect of that part of the “determination area” known as Booroongoong (Lacrosse Island) native title is also held by the Balangarra Peoples. The decision under appeal is reported as Ward and Others v State of Western Australia and Others (1998) 159 ALR 483. In the course of these reasons references to the judgment will be identified by pages of this report. The sixth appeal concerns a consequential costs order.Background The application for determination of native title was commenced on behalf of the Miriuwung and Gajerrong people pursuant to ss 13(1) and 61(1) of the NTA as it then stood (the old Act). The NTA was later substantially amended by the Native Title Amendment Act 1998 (Cth) which came into operation on 30 September 1998 (the new Act). The description of the area over which native title was claimed covered land and waters in the north of Western Australia (the State) and adjacent land in the Northern Territory (the Territory). The main part of the claim area was in the north-east of the State. The remainder is a contiguous part in the Territory (the Territory area). The claim area lies generally within the region known as the East Kimberley. The claim area includes parts of the present township of Kununurra, and Lake Kununurra and Lake Argyle. The total claim area is approximately 7,900 square kilometres. The claim area represents a considerable variety of ecological areas ranging from mangrove coastal flats and drowned mouths of river valleys at the northern and westernmost physical boundaries to grassy alluvial plains supporting savanna forests and woodlands, deep gorges cut between sandstone divides and massive limestone outcrops associated with underlying basalt. Climatically the area lies within the tropical and sub-tropical zones, but most of the land surface experiences arid to semi-arid conditions characterised by high temperatures and winter drought. From approximately December to April the area comes under the influence of the “wet” season. The “dry” season follows, becoming warm and dusty around mid-August, continuing to late October or early November when rain may begin. The claim area concerned vacant Crown land, reserved Crown land, Crown land in a pastoral lease granted to the Aboriginal Lands Trust, and several small areas of freehold land. Waters in the claim area include water situated within the inter-tidal zone. Separate claims for the determination of native title have been made, but not yet determined, by the Miriuwung and Gajerrong people in respect of land which adjoins the claim area. To the north of Kununurra, and extending westward to the coastal areas and to the south-east, the Miriuwung and Gajerrong people have made application for a determination in respect of a large area of land in the State held under pastoral leases issued under State legislation. The Miriuwung and Gajerrong people have also made application for the determination of native title in respect of a large adjoining area of land in the Territory held under pastoral leases issued under Territory legislation.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Preparation of the matter for trial was controlled by detailed directions. The trial commenced on 17 February 1997, much written and documentary material having been filed in advance of that date. The hearing extended in stages over many months, there being in all eighty-three hearing days. Evidence was taken at various sites in, or proximate to, the claim area. Judgment was delivered on 24 November 1998. Judgment at first instance The trial judge held:·that the claim area, and surrounding lands, were inhabited by organised communities of Aboriginal inhabitants at the time of sovereignty - 1829 in respect of the colony of Western Australia, and 1825 in respect of the Territory (that being the date when the Territory was included within the boundaries of the colony of New South Wales). The Aboriginal people who occupied the claim area at sovereignty functioned under elaborate traditions, procedures, laws and customs which connected them to the land. It followed that the Aboriginal communities which occupied the claim area at sovereignty possessed native title in respect of that land;·that the Miriuwung and Gajerrong community had maintained a connection with the ancestral communities which held the native title at sovereignty, and had maintained connection with the land to which native title applied, save for a small area to the west of Goose Hill near Wyndham known as Parry Lagoon. This small area was omitted when defining the “determination area”. Lee J held that the Miriuwung community and the Gajerrong community were once occupants of adjacent territories which overlapped in part. They shared economic and ceremonial links, knowledge of Dreaming myths, Dreaming tracks and Dreaming sites such that the Miriuwung and Gajerrong had now become regarded as a composite community with shared interests;·the claim of the Territory applicants could not be separated from the claim on behalf of the Miriuwung and Gajerrong people of which the Territory applicants were part;·in respect of Booroongoong, the Balangarra Peoples which had ancestral connections with Aboriginal people from the western side of the Gulf had separate and distinct traditions and connections in respect of Booroongoong from those observed and followed by the Gajerrong people, such that any determination of native title should take account of the interests of the Balangarra Peoples in Booroongoong;·save that in respect of freehold grants within the State, and in respect of certain reserved Crown lands that had been used in fact for roads or the erection of buildings or other fixtures and improvements for the purpose for which the Crown lands had been reserved, and their surrounding curtilages, more particularly identified in the Second Schedule to the judgment (at ALR 642), native title had not been extinguished in the determination area; and·other interests had been created in the determination area by the Crown, the nature and extent of which are more particularly identified in the Third Schedule to the judgment (at ALR 644). Those other interests included interests held by one or more of the many parties to the proceedings as persons entitled to use reserves, or as lessees, licensees, permit holders, tenement holders, or holders of other interests obtained under or by reason of legislation of the State, Territory or Commonwealth.