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Western Australia v Ward (2002) 191 ALR 1 (8 August 2002)
|Binomial Name:||High Court of Australia|
|Sub Category:||Case Law|
|Location:||Northern Territory and Western Australia, Australia|
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|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|
|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.|
|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  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  FCAFC 283 (9 December 2003)).
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