The different approach of the Appeal Court majority and Justice Lee to Canadian authority reflects the continuing division amongst the Australian judiciary over the relevance of North American precedent to the development of Australian native title law.In the final analysis, in relation to the areas where native title was found to subsist, only in a small number of areas (eg certain remote islands, reserves etc) was that native title found to be free from any extinguishment by inconsistent interests.

The man who brought the claim, Ben Ward, told a crowd of media waiting outside the court, he's frustrated by the decision. At another level, it might be seen as a high-level conceptual debate … Law in relation to native title At [44] to [51], Cooper J extracted the law as stated in the leading High Court decisions relating to the definition of native title in s. 223 of the NTA, the requirements for a determination of native title under s. 225 and proof of native title. The Appeal Court upheld the findings of Justice Lee in relation to the claimants’ traditional connection with the sites in question - this is not surprising given the relatively late European settlement of the area and its continuing remoteness. Australia v Ward (‘Ward ’) came to define native title a decade later, it was a right transformed.

The WA & NT governments, and the Miruwong Gajerrong, then applied to the High Court to appeal that decision. It's on this appeal which the High Court today delivered it's decision.

It is comprised of an underlying title complemented by a superimposed layer of

This protection of native title rights is important, since, as the High Court said, native title cannot be revived once it has been extinguished.Site & Contents are © 2020 Human Rights Law Centre.The Human Rights Law Centre is endorsed as a Deductible Gift Recipient.We acknowledge and pay our respects to the Traditional Owners owners of the land on which we work and live. Obviously, much of what follows is subject to what the High Court creates as the law in the next round of appeals from any of these native title decisions, as the current state of binding High Court authority on legal aspects like the nature of native title rights, their interaction with other rights, and the tests for extinguishment (including partial extinguishment) of native title by contrary governmental and other actions is still in a state of infancy and very open-ended in its meaning and application. The thousand page ruling is still being digested, but firstly, lets put the case in context.In April 1994, the Miriuwung and Gajerrong people lodged a native title claim covering 8,000 square kilometres of the East Kimberley and a portion of the Northern Territory. Under this State Agreement, the State granted various mineral leases for iron ore. A series of native title cases in 2002 reviewed the position in Mabo [No 2]. Native title rights and interests are based on laws and customs that pre-date the British acquisition of sovereignty; they are distinct from the rights granted by government such as statutory land rights of the kind found in the According to the National Native Title Tribunal (2013): "The native title rights and interests held by particular Aboriginal people will depend on both their traditional laws and customs and what interests are held by others in the area concerned. It is important to know, for example, not only whether the law allows native title to be extinguished over part of the area covered by a lease or project, but also whether the law allows some native title rights (eg exclusive native title ownership) to be extinguished while others in the bundle of native title rights (eg regular access for traditional purposes) might still remain.

Since then, the mine pit has been filled with water, the town completely removed and the land restored.Alexander Brown and others (on behalf of the Ngarla People) applied for native title determinations regarding the land and waters of the Pilbara region, including the Leased Land. This is the descriptor of unimpaired native title also found in the In areas where native title was found to exist subject to partial extinguishment by inconsistent interests, the Court determined that native title consisted of non-exclusive rights to:Emphasis must be placed upon the qualification of the word "resources" with the term "traditional" – a reflection of the majority’s finding that native title to minerals and petroleum had been extinguished by State and Territory legislation.

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