THE STATE OF WESTERN AUSTRALIA v BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES AND CARNEGIE MINERALS NL AND PECAN HOLDINGS PTY LTD WAG6003 OF 1996
LEE J PERTH 18 NOVEMBER 1996
IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 6003 OF 1996
B E T W E E N: THE STATE OF WESTERN AUSTRALIA
Applicant
and
BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First Respondents
and
CARNEGIE MINERALS NL AND
PECAN HOLDINGS PTY LTD
Second Respondents
MINUTE OF ORDER
JUDGE MAKING ORDER: LEE J
DATE OF ORDER: 18 NOVEMBER 1996
WHERE MADE: PERTH
THE COURT ORDERS THAT:
The "appeal" be dismissed.
The applicant pay the costs of the first respondents.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. WAG 6003 OF 1996
B E T W E E N: THE STATE OF WESTERN AUSTRALIA
Applicant
and
BEN WARD AND OTHERS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLES
First Respondents
and
CARNEGIE MINERALS NL AND
PECAN HOLDINGS PTY LTD
Second Respondents
CORAM: LEE J DATE : 18 NOVEMBER 1996 PLACE: PERTH
REASONS FOR JUDGMENT
In April 1994 the first respondents, as persons claiming to hold the native title, gave to the Registrar of the National Native Title Tribunal ("the Tribunal") an application for a "determination of native title" pursuant to ss13 and 61 of the Native Title Act 1993 ("the Act") in respect of an area of land situated in the Kimberley region of the State of Western Australia and in the Northern Territory. Section 225 of the Act defines "determination of native title" in the following terms:
"225.A 'determination of native title' is a determination of the following:
(a)whether native title exists in relation to a particular area of land or waters;
(b)if it exists:
(i)who holds it; and
(ii)whether the native title rights and interests confer possession, occupation, use and enjoyment of the land…
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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AGLC
Western Australia v Ward [1996] FCA 993
Case
[1996] FCA 993
Decision Date
CaseChat Overview and Summary
The case of Western Australia v Ward involved a dispute between the State of Western Australia, Carnegie Minerals NL, Pecan Holdings Pty Ltd, Ben Ward and others on behalf of the Miriuwung Gajerrong peoples. The first respondents, as persons claiming to hold native title, had applied to the National Native Title Tribunal for a determination of native title in respect of an area of land in the Kimberley region of Western Australia and in the Northern Territory. The State of Western Australia notified the first respondents of its intention to grant an exploration licence to the second respondents, which would have allowed them to explore for minerals on the land. The first respondents objected to the grant of the exploration licence, arguing that it would interfere with their traditional activities on the land and areas of particular significance to them. The State appealed the decision of the National Native Title Tribunal, which found that the proposed future act did not attract the expedited procedure and requested negotiation between the parties. The question of law on which the appeal turned was the proper construction of s237 of the Native Title Act 1993, and the court found that the Tribunal correctly applied the Act in determining that the proposed future act did not attract the expedited procedure. The appeal was dismissed with costs.
The legal issues in this case were whether the grant of an exploration licence under the Mining Act 1978 (WA) was a "future act" for the purpose of s233, or a "permissible future act" for the purpose of s235 of the Native Title Act 1993, and whether the proposed future act attracted the expedited procedure under s237 of the Act. The court found that the grant of an exploration licence was a future act that could be done if the native title holders instead held ordinary title, and that the proposed future act did not attract the expedited procedure because it was likely to interfere with the community life of the first respondents, interfere with areas or sites of particular significance to them, and involve major disturbance to the land and waters concerned. The court also found that the Tribunal properly understood that the question raised by s237(b) of the Act was whether the act of granting an exploration licence created rights the exercise of which would have the capacity to interfere with areas or sites of particular significance to the first respondents, and that if so, the issues raised by the objection were to be dealt with by negotiation to obtain the agreement of the native title party to the doing of the act. The court held that the Tribunal correctly applied the Act in determining that the proposed future act did not attract the expedited procedure.
The court's reasoning was based on the proper construction of s237 of the Native Title Act 1993, and the interdependence of the sections of the Subdivision B of Division 3 of Pt 2 of the Act which recognizes that a native title party has a right to object to the doing of a future act by a Government party and have the doing of such an act made subject to negotiation between the parties. The court held that a proper construction of s237 of the Act must have regard to the purpose of sub-s32(4), the terms of sub-s26(4) which specifies the limitations on the Commonwealth Minister's power to exclude a future act from the operation of the Subdivision, and s39, which sets out matters the Tribunal must take into account in making a substantive determination under s38 of the Act, namely, whether the proposed future act is to be prohibited, permitted or permitted subject to conditions. The court held that the Tribunal was required to assess the nature and quality of the proposed future act to determine whether it was "an act attracting the expedited procedure" and that the inquiry to be made pursuant to s237 was whether, on its face, the future act gave rise to powers, the exercise of which would infringe s237(a), (b) or (c) if connection of the native title party to the land or water "affected" by the proposed future act was pointed to by the material. The court held that the Tribunal properly understood that the question raised by sub-s32(4) and s237(b) of the Act was, if the existence of an area or site of particular significance to a native title party was pointed to by the material, did the act of granting an exploration licence create rights the exercise of which would have the capacity to interfere with such an area or site? If so the Act provided that the issues raised by the objection were to be dealt with by negotiation to obtain the agreement of the native title party to the doing of the act. The court held that in determining in the case before it that the proposed future act did not attract the expedited procedure, the Tribunal correctly applied the Act.
The final orders of the court were that the appeal be dismissed with costs. The applicant was ordered to pay the costs of the first respondents.