Western Australia v Ward; Attorney-General (Nt) v Ward;Ningarmara v Northern Territory;Ward v Crosswalk Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,Gummow,Hayne JJ,McHugh J,Kirby J,Callinan J
• Judgment Date: 08 August 2002
• Neutral Citation: [2002] HCA 28,2002-0808 HCA E
• Court: High Court
• Docket Number: Matter No P59/2000 Matter No P63/2000 Matter No P67/2000
• Date: 08 August 2002

The State of Western Australia

Appellant

and

Ben Ward & Ors

Respondents

The Attorney-General of the Northern Territory

Appellant

and

Ben Ward & Ors

Respondents

Cecil Ningarmara & Ors

Appellants

and

The Northern Territory of Australia & Ors

Respondents

Ben Ward & Ors

Appellants

and

Crosswalk Pty Ltd & Ors

Respondents

[2002] HCA 28

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

Matter No P59/2000

Matter No P62/2000

Matter No P63/2000

Matter No P67/2000

P59/2000, P62/2000, P63/2000 and P67/2000

HIGH COURT OF AUSTRALIA

Western Australia v Ward

Aboriginals – Native title to land – Extinguishment – Extinguishment by grant of interest in land – Inconsistency between native title rights and interests and rights and interests under allegedly extinguishing grants – Adverse dominion test rejected.

Aboriginals – Native title to land – Native Title Act 1993 (Cth) – Previous exclusive possession acts – Previous non-exclusive possession acts – Past acts – Intermediate past acts – Public works.

Appeal – Federal Court of Australia – Nature of appeal – Rehearing – Principles applicable.

Aboriginals – Native title to land – Extinguishment – Partial extinguishment – Suspension of native title rights and interests – Partial extinguishment and suspension under the Native Title Act 1993 (Cth).

Aboriginals – Native title to land – Extinguishment – Crown lands – Particular kinds of transactions respecting Crown lands – Pastoral lease under Land Acts of Western Australia – Mining lease under Mining Acts of Western Australia – Reserves – Special purposes lease – Special lease – Resumption of land under the Land Act 1933 (WA) and Public Works Act 1902 (WA) – Grant to occupy land – Grant of leased reserve – Vacant Crown land.

Aboriginals – Native title to land – Validity of past acts – Racial Discrimination Act 1975 (Cth) – Inconsistency of State law authorising grant of interest in land.

Aboriginals – Native title to land – Rights in relation to land or waters – Cultural knowledge.

Constitutional law (Cth) – Territories – Relationship between Commonwealth and Territory laws.

Words and phrases –‘past acts’, ‘intermediate period acts’, ‘exclusive possession’, ‘previous exclusive possession acts’, ‘previous non-exclusive possession acts’, ‘non-exclusive pastoral leases’, ‘public works’, ‘works’, ‘category A past act’, ‘category B past act’, ‘category C past act’.

Australian Waste Lands Act 1855 (Imp), s 7.

Western Australia Constitution Act 1890 (Imp), s 3.

Federal Court of Australia Act 1976 (Cth), ss 24, 27.

Native Title Act 1993 (Cth), Pt 1, Pt 2 Div 1 (ss 11, 14, 15, 16, 19), Pt 2 Div 2 (ss 17, 20), Pt 2 Div 2A, Pt 2 Div 2B (ss 23B, 23C, 23E, 23F, 23G, 23J), Pt 2 Div 4 (s 45), Pt 2 Div 5, ss 223, 225, 226, 228, 231, 238, 242, 245, 248A, 248B.

Native Title Amendment Act 1998 (Cth).

Racial Discrimination Act 1975 (Cth), ss 9, 10.

Aboriginal Heritage Act 1972 (WA).

Land Act 1898 (WA), Pt I (ss 3, 4, 15, 16, 32, 33), Pt III, Pt V (s 62), Pt VI, Pt VII, Pt VIII, Pt IX, Pt X (ss 92, 93, 94, 95, 96, 97, 98, 99, 102, 104, 106, 107), Pt XI, Pt XII (ss 135, 138, 142, 143, 144, 150, 151, 154).

Land Act Amendment Act 1905 (WA), s 10.

Land Act 1933 (WA), Pt I (ss 3, 7, 11, 13), Pt III (ss 29, 30, 31, 32, 33, 34), Pt V Div 1, Pt V Div 2, Pt V Div 3, Pt V Div 4, Pt VI (ss 106, 109), Pt VII, Pt IX (ss 162, 163, 164).

Mining Act 1904 (WA), ss 117, 122, 123.

Mining Act 1978 (WA), s 8, Pt III Div 3 (ss 29, 35), Pt IV Div 3 (ss 71, 73, 78, 82, 85), Pt IV Div 4, ss 113, 123.

Public Works Act 1902 (WA), ss 18, 34.

Rights in Water and Irrigation Act 1914 (WA), ss 2, 3, 4.

Titles Validation Act 1995 (WA).

Titles Validation Amendment Act 1999 (WA).

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), Pt 2 (ss 5, 6, 7, 8, 9, 10, 11), Pt 2A (s 12A), Pt 2B (ss 12I, 12J, 12K, 12L, 12M, 12N, 12O, 12P).

Titles (Validation) and Native Title (Effect of Past Acts) Amendment Act 1999 (WA).

Wildlife Conservation Act 1950 (WA), ss 6, 23.

Validation (Native Title) Act 1994 (NT), Pt 1 (ss 3, 3A, 3B), Pt 2 (ss 4, 4A, 4C), Pt 3 (ss 5, 6, 7, 8, 9), Pt 3C (ss 9L, 9M), Pt 4 (s 10), Pt 5 (s 11).

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 Solicitor for Western Australia)

M L Barker QC and R H Bartlett for the fourth respondents (instructed by the Aboriginal Legal Service of Western Australia (Inc))

W Sofronoff QC and G M G McIntyre for the fifth respondents (instructed by the Kimberley Land Council)

Matter No P67/2000

M L Barker QC and R H Bartlett for the appellants (instructed by the Aboriginal Legal Service of Western Australia (Inc))

N Johnson QC with M T McKenna for the first respondents (instructed by Hunt & Humphry)

J Basten QC with K R Howie SC and S A Glacken for the second respondents (instructed by the Northern Land Council)

T I Pauling QC, Solicitor-General for the Northern Territory and R J Webb for the third respondent (instructed by the Solicitor for the Northern Territory)

W Sofronoff QC and G M G McIntyre for the fourth and sixth respondents (instructed by the Kimberley Land Council)

R J Meadows QC, Solicitor-General for the State of Western Australia and C J L Pullin QC and K M Pettit for the fifth respondent (instructed by the Crown Solicitor for Western Australia)

D W McLeod with P L Wittkuhn for the seventh respondents (instructed by McLeod & Co)

H B Fraser QC with K R Jagger for the eighth respondents (instructed by Freehills)

Interveners:

Matter Nos P59/2000, P62/2000 and P63/200

D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)

B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

Matter No P67/2000

D M J Bennett QC, Solicitor-General of the Commonwealth with M A Perry and J S Stellios intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B M Selway QC, Solicitor-General for the State of South Australia with S T Hellams intervening on behalf of the Attorney-General for the State of South Australia (instructed by the Crown Solicitor for South Australia)

J L Sher QC with M T Ritter intervening on behalf of the Goldfields Land Council (instructed by the Goldfields Land Council Aboriginal Corporation)

G E Hiley QC with G R Donaldson intervening on behalf of the Pastoralists and Graziers Association of WA (Inc) (instructed by the Pastoralists and Graziers Association of WA (Inc))

B W Walker SC with S E Pritchard intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

G M G McIntyre with D L Ritter intervening on behalf of the Yamatji Barna Baba Maaja Aboriginal Corporation (instructed by Yamatji Barna Baba Maaja Aboriginal Corporation)

C F Thomson intervening on behalf of the Mirimbiak Nations Aboriginal Corporation (instructed by Mirimbiak Nations Aboriginal Corporation)

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.

Gleeson CJ, Gaudron, Gummow and Hayne JJ.

Introduction

1 The central issues in these four appeals from the Full Court of the Federal Court 1 were said to be whether there could be partial extinguishment of native title rights and...