Western Australia v Ward

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Citation: Western Australia v Ward (2002) 191 ALR 1

This information can be found in the Textbook: Edgeworth et all, Sackville and Neave's Property Law Cases and Materials, 8th edition, Lexis Nexis, 2008, pp. 247-9 [2.93]; 278-84 [3.119]

Contents

Background Facts

  • This case concerned three separate native title claims.

Legal issues

Judgment

Nature and incidents of native title

  • A ‘spiritual’ connection does not equate with common law rights and interests.
  • However, s 223 of the Act requires courts to make exactly that connection.
  • The native title rights in s 223 are derived from traditional laws and customs, not from the common law. The statute recognises these rights and interests, but case law cannot elaborate on this, as it is founded in a wholly different culture.

Pastoral Leases Conferring Rights of Exclusive Possession

  • A 'clear and plain intention' to extinguish native titles rights is determined objectively, by checking whether the rights conferred by the grant are inconsistent with alleged native title rights.
  • A lease conferring the right to exclusive possession (ie, a lease which allows one to exclude others) would confer rights which are inconsistent with native titles rights, and thus extinguish it.
  • When determining whether a lease confers exclusive possession, one does not simply determine automatically from the classification of the lease (ie, a 'pastoral lease'). The classification or 'name' of the lease is irrelevant - each lease is examined individually to determine whether it confers exclusive possession.
  • In this case, the lease did not confer the rights to exclusive possession because the claimants could pass over the land and do all kinds of things. The lease did not allow the owner to take steps to exclude them from the land.
    • It should be noted that certain native titles rights were extinguished (since they were inconsistent with the rights of the grantee). These include the rights to control access to and to make use of the land.
  • The court also considered the issues of mining leases and the public right to fish:
    • Do mining and petroleum leases extinguish native title rights?
      • Well, those things were never mentioned in aboriginal law so no native title right or interest with regards to mining was established in the first place.
      • Even if they can prove that such a native title right exists, it would have been extinguished by the statutes related to mining etc, since all those things are vested in the Crown.
    • Right to fish:
      • The claimants had, under customary law, exclusivity to fish (ie, they excluded other aboriginals etc). This right is now extinguished since the common law has always had a public right to fish and navigate over waters. The rights are inconsistent, and the common law prevails.

References

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