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Western Australia v Ward (2002) 191 ALR 1 (8 August 2002)

Category: Case Law
Binomial Name: High Court of Australia
Sub Category:Case Law
Location:Northern Territory and Western Australia, Australia
The claim area consisted of approximately 8,000 square kilometers situated partly in the East Kimberley region of Western Australia and partly in the Northern Territory. The area claimed included the Ord River irrigation area, Lake Argyle and Lake Kununurra, the township of Kununurra, the Glen Hill pastoral lease, land subject to mining tenements, part of the Argyle diamond mine, Keep River and Mirima National Parks, some Aboriginal owned freehold in the Northern Territory, some grazing leases, areas of unallocated Crown land that had formerly been pastoral lease land, various reserves, three islands in the Cambridge Gulf and part of the intertidal zone of the Gulf.
Subject Matter:Native Title | Recognition of Native Title or Traditional Ownership
URL: http://www.austlii.edu.au/au/cases/cth/HCA/2002/28.html
Summary Information:
The decision of the High Court made on 8 August 2002 in Western Australia v Ward (2002) 191 ALR 1, now known as 'the Ward decision', relates to a native title claimant application by the Miriuwung and Gajerrong Peoples over areas of land in Western Australia and the Northern Territory.
Detailed Information:
In April 1994, the Miriuwung and Gajerrong People filed an application with the National Native Title Tribunal seeking recognition of their native title rights. As mediation between the groups proved unsuccessful, the application was referred to the Federal Court in 1995.
The decision handed down by Justice Lee in 1998 applied the common law principles from Mabo (No. 2) as well as Canadian cases. Justice Lee set out the grounds on which native title could be proven and held that despite much interference as a result of European impact the necessary degree of connection with the claim area has been maintained by the Applicants and their ancestors.
The decision was appealed to the Full Bench of the Federal Court. The Full Bench decision was handed down in 2000.
The Full Court rejected by majority the appeals of the WA State and NT Governments, but upheld many of their appeals in relation to extinguishment.
The Full Bench decision of the Federal Court was appealed to the High Court.
In this case the High Court concentrated on the nature and principles of extinguishment in its decision. The two questions it considered were:
- whether there can be partial extinguishment; and
- the principles for determining extinguishment.
In summary, the High Court:
- determined that the operation of the Native Title Act 1993 (Cth) does provide for the partial and permanent extinguishment of native title rights and interests;
- affirmed and elaborated the principles for extinguishment established in Wik, including confirming that native title rights and interests can co-exist with other interests; and
- returned to the characterisation of native title used in Mabo (No. 2), proof of which is based in traditional laws and customs and not on occupation.
The effect of the orders appeared to set Justice Lee's original determination on foot, subject to the matters finally determined by the majority of the High Court. The remaining matters were addressed by the Federal Court in the consent determination of native title that settled the claim, Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (9 December 2003). This decision was handed down as a consent determination of native title. It set aside the determination originally made by Justice Lee to the extent that it affected land in Western Australia, and set out the terms of a consent determination of native title. The parties agreed that native title existed in some parts of the area and did not exist in others. The determination is recorded in two entries on the National Native Title Register (of determinations). (See the Related Agreements link to Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (9 December 2003)).

Related Entries

Agreement
  • Gregory National Park CLC Indigenous Land Use Agreement (ILUA)
  • Trephina Gorge Nature Park Indigenous Land Use Agreement (ILUA)
  • Nangkiriny v State of Western Australia [2004] FCA 1156 (8 September 2004)
  • Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (Northern Territory)
  • James on behalf of the Martu People v Western Australia [2002] FCA 1208 (27 September 2002)
  • Simpson's Gap National Park Extension Indigenous Land Use Agreement (ILUA)
  • Emily and Jessie Gaps Nature Park - Heavitree Range Extension Indigenous Land Use Agreement (ILUA)
  • Alice Springs Telegraph Station Historical Reserve Indigenous Land Use Agreement (ILUA)
  • Kuyunba Conservation Reserve 1 Indigenous Land Use Agreement (ILUA)
  • Dulcie Range National Park Indigenous Land Use Agreement (ILUA)
  • Harrison Dam Conservation Area Indigenous Land Use Agreement (ILUA)
  • Finke Gorge National Park Indigenous Land Use Agreement (ILUA)
  • Ewaninga Rock Carvings Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • Chamber's Pillar Historical Reserve Indigenous Land Use Agreement (ILUA)
  • Arltunga Historical Reserve Indigenous Land Use Agreement (ILUA)
  • Devil's Marbles Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • N'Dhala Gorge Nature Park Indigenous Land Use Agreement (ILUA)
  • Corroboree Rock Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • Davenport Range National Park Indigenous Land Use Agreement (ILUA)
  • Mac Clark (Acacia Peuce) Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • Kuyunba Conservation Reserve 2 Indigenous Land Use Agreement (ILUA)
  • Native Gap Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • Watarrka National Park and Leaseback Area Indigenous Land Use Agreement (ILUA)
  • Rainbow Valley Conservation Reserve Indigenous Land Use Agreement (ILUA)
  • Ruby Gap Nature Park Indigenous Land Use Agreement (ILUA)
  • West MacDonnell National Park Indigenous Land Use Agreement (ILUA)
  • Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (Western Australia Area 1)
  • Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 (Western Australia Area 2)
  • Organisation
  • High Court of Australia
  • Legislation
  • Native Title Act 1993 (Cth)
  • Parks and Reserves (Framework for the Future) Act 2003 (NT)
  • People
  • Miriuwung Gajerrong People - Native Title Claimant
  • Case Law
  • The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors [1996] High Court of Australia (23 December 1996)
  • Mabo v Queensland [No 2] (1992) 175 CLR 1
  • Policy/Strategy
  • Parks and Reserves (Framework for the Future) Bill 2003

  • References

    Report
    High Court of Australia (2002) Western Australia v Ward; Attorney-General (NT) v Ward; Ningarmara v Northern Territory [2002] 191 ALR 1 (8 August 2002)

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