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High Court affirms primacy of the Native Title Act


Two landmark High Court decisions handed down today have confirmed the primary place of the Native Title Act 1993 (NTA) in determining where native title exists and the extent to which it may have been extinguished, the head of the National Native Title Tribunal has said.

In Western Australia v Ward, four of the five majority judges said: 'Yet again it must be emphasised that it is to the terms of the NTA that primary regard must be had, and not the decisions in Mabo [No 2] or Wik. The only present relevance of those decisions is for whatever light they cast on the NTA.' In the Ward case, the majority of judges decided, among other things:

  • What kind of rights and interests are protected by the Native Title Act
  • That some interests in land completely extinguish native title
  • That the Native Title Act provides that there can be partial extinguishment of native title
  • Native title rights to minerals and petroleum are extinguished by Western Australian natural resource legislation
  • That the absence of evidence of some recent use of land by native title claimants does not, of itself, mean that they do not have relevant connection to the land to establish native title under the Native Title Act.

The majority also held that the grant of a pastoral lease in Western Australia:

  • extinguishes the native title right to control access to or the use of the land,
  • does not give exclusive possession to the pastoral leaseholder
  • means the rights of pastoralists to carry on their business prevail over any native title rights.

They also indicated that other native title rights might continue unaffected by the lease.

Additionally, it was found that some native title rights may coexist with mining leases granted in Western Australia.

Some matters have been sent back to the Federal Court to decide in accordance with the Native Title Act as amended in 1998.

Tribunal President Graeme Neate said the Ward decision had reinforced the need for land holders, governments and native title applicants to sit down together and discuss what native title rights might survive and decide the most practical ways of managing the coexisting rights.

'The majority of the Court has made it clear that, over areas where native title might exist, questions of extinguishment first require identification of native title rights and interests that are claimed to exist and then to compare those with other legal rights and interests to see whether and where native title survives,' Mr Neate said.
'When it comes to major mining and other projects, the Court has stressed the importance of looking at the history of the dealings with each parcel of land involved. This reinforces the need for parties to native title matters to sort through issues as they relate to particular claims and projects.'

Mr Neate said that numerous native title applications around Australia had been awaiting the High Court's direction on issues such as extinguishment and the extent of native title rights and interests. These included, among others, the Karajarri, Bardi Jawi and Ngaluma Injibandi claims in WA.

In Wilson v Anderson, also handed down today, six of the seven judges held that the grant of a perpetual grazing lease under the NSW Western Lands Act 1901 extinguished any native title in relation to the land.

'The decision will reduce the areas covered by native title applications in the Western Division of NSW and will focus our mediation on other areas in the west of the State where native title may exist.'
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Elisabeth Mealey
02-9235 6324