Ward v State of Western Australia [2006] FCA 1848

Northeast Kimberley Region

Registered on the National Native Title Register

Between: Ben Ward, Kim Aldus, Frank Chulung, Sheba Dignari, Nancy Bilyai, Carol Hapke, Maggie John, Jerry Moore, Pamela Simon, Chocolate Thomas (Applicants) and State of Western Australia, Ningbingi Ningguwung Aboriginal Corporation, Carlton Hill Pty Ltd, Crosswalk Pty Ltd, Rosewood Station Pty Ltd, JSW Holdings Pty Ltd, John Leslie Woodhead, Alan Maxwell Wilson, Telstra Corporation Limited, National Native Title Tribunal (Respondents)

Judge: North J

Where made: Wijilawarrim (Molly Springs)

Determination

Native title exists in parts of the determination area

It consists of exclusive and non-exclusive native title rights and interests.

Native title holders

Native title is held by the Miriuwung, Gajerrong, Doolboong, Eardenybeng and Gija groups.

Exclusive native title exists over parts of the determination area

This is the possession, occupation, use, and enjoyment of the areas described in Schedule 2 of the determination to the exclusion of all others.

Schedule 2 of the determination (see details via the URL link above) describes these areas as three reserves and one leasehold area. They are shaded pink in Schedule 1 (see attached pdf below).

Non-exclusive native title exists over parts of the determination area

These native title rights and interests exist over the areas described in Schedule 3 as the Carlton Hill, Ivanhoe, and Rosewood Pastoral Leases and two reserve areas (shaded green in Schedule 1).

They include the right to:

• access;
• hunt, fish, gather and use the resources of the land and waters, including the flowing, tidal and intertidal waters, but not for commercial purposes;
• take and use ochre, to the extent that ochre is not a mineral under to the Mining Act 1904 (WA);
• live on and erect temporary shelters;
• light camp fires;
• engage in cultural activities;
• maintain and protect places of importance; and
• share or exchange traditional resources.

Other (non-native title) rights and interests in the determination area include those of:

• Hooker Corporation Ltd;
• Rosewood Station Pty Ltd;
• Crosswalk Pty Ltd;
• Carlton Hill Pty Ltd;
• persons who have the care, control, and management of certain Reserves (including an aerial landing ground, stock route, and two Aboriginal Reserves);
• certain leaseholders;
• certain mining tenement holders under the Mining Act 1904 (WA) and the Mining Act 1978 (WA);
• Advent Energy Ltd as a petroleum tenement holder;
• Alan Maxwell Wilson and Susan Wilson under the Deed of Easement dated 31 July 2002 with the State of Western Australia; and
• the public, including under the Compulsory Acquisition of Native Title Rights and Interests (Ord) and the Ord Final Agreement dated 6 November 2005, as amended from time to time.

See Schedule 7 of the determination for further information about the non-native title rights and interests.

In the case of conflict, the exercise of the non-native title rights and interests will prevail over the native title rights and interests.

Prescribed body corporate

The Miriuwung and Gajerrong #4 Aboriginal Corporation holds the native title in trust on behalf of the native title holders and performs the functions required under the Native Title Act 1993 (Cth).

Full text of the determination is available via the URL link above.

Background

In 1994, the Mirriuwung and Gajerrong people brought the first native title application in Australia. The case that dealt with it was the first contested hearing under the Native Title Act 1993 (Cth) (the NTA): a landmark case that established that the NTA provided for the partial and permanent extinguishment of native title and elaborated on the principles of extinguishment established in Wik Peoples v State of Queensland and Others [1996] HCA 40 (23 December 1996).

The case was first heard by Justice Lee in Ward v State of Western Australia [1998] FCA 1478, who spent 83 days on country hearing evidence. It was appealed to the Full Court of the Federal Court in State of Western Australia v Ward [2000] FCA 191, and then the High Court in Western Australia v Ward [2002] GCA 28 where it was remitted back to the Full Federal Court in Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 and resolved by the agreement of the parties.

Justice Lee's findings of fact were undisturbed and the present case is the final step in litigation that has continued for twelve years.

Details of Judgment

The application, in this case, was filed on 9 July 2004 under s 87 of the NTA which gives the Court power to make orders following the agreement of the parties.

The determination area is bounded on the north, west, and southern sides by the area which was the subject of the first Mirriuwung and Gajerrong determination.

In the first Mirriuwung and Gajerrong determination, Justice Lee heard evidence in relation to lands adjacent to the ultimate determination area: lands that are the subject of this present application. As Lee J's findings were not disturbed on appeal, they support the making of the determination in this case also.

Furthermore, Justice North was satisfied that the parties, in this case, had freely and on an informed basis come to an agreement. Accordingly, his Honour was satisfied it was appropriate to make the determination in the terms proposed.

Native title exists in parts of the determination area

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