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Western Australia v Ward: Rolling Back Native Title in the Kimberleys

By Bryan Horrigan and Simon Young - posted Saturday, 4 March 2000

On 3 March 2000, the Full Federal Court handed down its decision on six appeals relating to a 1998 Native Title determination in favour of the Miriuwung and Gajerrong people and the Balangarra Peoples in the East Kimberley District. This was a landmark native title claim, involving a range of interests and covering some 7900 square kilometres. It included part of the township of Kununurra, Lake Argyle and Lake Kununurra, part of the Ord River irrigation area, the Argyle Diamond Mine and the Keep River National Park in the Northern Territory. It also included some vacant Crown land and Crown land that had been leased or reserved for various purposes (eg conservation, preservation of Aboriginal art, mining or pastoral activities).

The complexity of the issues and the commercial importance of the claim are reflected in the fact that the appeal hearing ran for 15 days – making it one of the longest appeals in the Federal Court’s history. Appeal submissions ran into thousands of pages.

The immediate practical significance of the case lies in the fact that the appeal decision significantly "peeled back" the substantial native title determination made by Justice Lee in 1998. 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. However, unlike Justice Lee, the Appeal Court found that substantial extinguishment of the native title rights and interests of the claimants had occurred.


The legal significance of the appeal lies in the fact that the majority judgement of Justices Beaumont and von Doussa clarifies a number of important points relating to the extinguishment of native title by inconsistent statutory grants to third parties. It appears highly likely however that the decision will be further appealed to the High Court.

A Continuing Traditional Connection?

Much of the original trial of the claim, heard by Justice Lee in 1998, concerned the existence of the requisite "connection" between the claimants and the various sites in question. It was necessary for the claimants to establish that this "connection" was present at the time of European acquisition of sovereignty over the areas (1829 for Western Australia and 1825 for the Northern Territory) and has been maintained through to the present via the observance (as far as practicable) of traditional laws and customs.

Justice Lee’s flexible approach to the identification of communities and the establishment of descent, and his findings on the connection issue (based on extensive evidence including detailed anthropological, archaeological, genealogical, linguistic and historical material) were upheld by the Appeal Court. Accordingly, the basic prerequisite for the continued existence of native title was confirmed to be present in a range of areas, even in the absence of recent or regular visits to certain remote sites, and even where the continuing connection was a mere "spiritual" or "cultural" one as opposed to a physical one (for example in areas where the activities of European settlement prevented direct physical access to traditional lands).

Such a clear articulation of the lack of a need for actual physical presence to satisfy the "maintenance of connection" requirement highlights the legalistic nature of the finding by the High Court in the Fejo decision that once native title has been extinguished by a freehold grant, it could not revive if the land came to be held again by the Crown. The Appeal Court majority in this case was aware of the logical tension here – they quoted the comment in Fejo that maintenance of connection is a necessary prerequisite to subsisting native title but is not, of itself, enough in the face of legal extinguishment (apparently even legal extinguishment arising from temporary circumstances).

Extinguishment – the Hows and Whys

However, on the more legalistic issue of extinguishment, the majority of the Appeal Court (Justices Beaumont and von Doussa) departed from the reasoning of Justice Lee in significant respects. In the course of applying the Wik and Fejo "inconsistency of incidents"1 test to determine whether statutory grants by the Crown were inconsistent with the continued enjoyment of native title, the two majority judges made a number of important points.

First, they held that there is no requirement under Australian law that rights granted by the Crown to parties other than the native title holders be "permanently" inconsistent with native title, or actually be exercised, in order to extinguish the native title. The Appeal Court majority found that Justice Lee had departed from the "inconsistency of interests test" in adopting Canadian precedent which suggested that extinguishment required actual use 2 of land by the holder of an interest which is permanently inconsistent with the native title rights and interests.

Interestingly however, the Court appeared to introduce some ambiguity into the absence of a "permanency" requirement when they stated their "general proposition" that "an inconsistent grant of statutory rights, other than for a finite short time, will extinguish native title rights to the extent of inconsistency": (at para 85 of the judgment). This statement leaves the door open to a future revival of the argument that native title may revive where a short term but totally inconsistent interest ceases.

Secondly, the Appeal Court extrapolated from previous statements of principle by the High Court that it is possible for "partial extinguishment" to occur – where some only of the "bundle of rights" that make up native title are extinguished by the conferral of inconsistent rights. Justice Lee had rejected the notion of "partial extinguishment", preferring the approach, again based upon Canadian precedent, that regulation or inconsistency may impair rather than extinguish the native title rights and interests. According to Justice Lee, "partial extinguishment" would only occur in a geographical sense – not through the reduction of any "bundle of rights" in relation to a particular area.

This difference in approach is significant. 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. 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. In those areas, the native title rights and interests were determined to comprise an entitlement as against the whole world to possession, occupation, use and enjoyment of those areas. This is the descriptor of unimpaired native title also found in the Mabo (No 2) case concerning country in the Torres Strait Islands.

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:

  1. possess, occupy, use and enjoy the land;
  2. make decisions about the use and enjoyment of the land;
  3. access the land;
  4. use and enjoy the traditional resources of the land; and
  5. maintain and protect places of importance under traditional laws, customs and practices in the area.

However, in accordance with the principles in the Wik decision, it was held that these rights and interests would yield to the interests of other parties (created by legislative or executive action) to the extent of any inconsistency. Indeed, the draft determination of the court in the majority judgment says not only this, but also that some of the determined native title rights are not rights of possession and use of land to the exclusion of all others and that all determined native title rights are subject to regulation, control, and limitation by valid Australian laws. These are legally uncontroversial principles governing native title and its recognition under Australian law, but their application can significantly curtail the nature and range of native title rights exercisable in practice over an area of land or waters.

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. Further, notably absent from the majority’s definition of native title rights and interests was the right (included by Justice Lee) to maintain, protect and prevent the misuse of cultural knowledge associated with the areas. The majority considered that this was not a right in relation to land of the kind that can be the subject of a determination of native title. It was, rather, a personal right residing in the custodians of the cultural knowledge, independent of rights which can be the subject of a native title determination.

Broader Implications for Governments, Business, and Indigenous People

What are the implications of this Miriuwung-Gajerrong decision and other recent decisions on native title, such as the High Court’s 1999 Yanner decision about regulation of native title hunting rights and the late 1999 Federal Court Croker Island appeal about native title rights over coastal seas?

These decisions indicate that Australian courts below the level of the High Court are progressively refining but nevertheless still struggling to varying degrees with the elements and nuances of the legal tests for extinguishment of native title articulated by the High Court in landmark native title decisions like Mabo (No 2), Wik, Fejo, and Yanner. While much legal ink will be spent on these legal aspects in opinions and judgments to come, some patterns are emerging. 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. Witness the different approaches to the legal question of extinguishment of native title in the Miriuwung-Gajerrong decision.

Nevertheless, it is now less likely that native title rights will be found to include free-wheeling rights of commercial use and exploitation of resources in native title areas, at least to the detriment of competing commercial or governmental rights. In both the Croker Island appeal and the Miriuwung-Gajerrong appeal, extensive Indigenous claims to use, control, and benefit from commercial exploitation of resources in native title areas have been scaled back by the courts in light of competing commercial and governmental rights, particularly under legislation.

Accordingly, the projected expansion of native title rights predicted or expected in some quarters after Wik has momentarily stalled. Still, mixed signals emerge from the latest series of Federal Court decisions. The Federal Court’s trial decision in the Miriuwung-Gajerrong matter in late 1998 in Ward v Western Australia3, concerning Indigenous opportunities to share in the fruits of the development of native title land as well as rights to make decisions about the use of native title land, signified an important development in the nature and scope of native title rights under Australian law.

In that case, Justice Lee decided that the native title rights of the Miriuwung and Gajerrong People included rights "to use and enjoy resources", "to trade in resources", "to control the use and enjoyment of others of resources", and "to receive a portion of any resources taken by others". The judge’s decision also recognised native title rights "to maintain and protect places of importance under traditional laws, customs and practices" and "to maintain, protect and prevent the misuse of cultural knowledge of the common law [native title] holders".

Importantly, the judge’s order recognising these amplified native title rights was itself qualified on its terms, so that the native title rights which it recognised were held to be concurrent rights and interests in relation to some areas and the exercise of those concurrent native title rights was recognised as being subject to legal regulation and possible erosion because of legislation or the nature and extent of contrary interests created by the Crown4.

Lee J’s amplification of native title rights in his formal order in the Miriuwung-Gajerrong matter was significantly curtailed on appeal by the Full Federal Court in Western Australia v Ward5. Significantly, as noted above, the later judgment limits the native title rights and interests to "a right to possess, occupy, use and enjoy the land", "a right to make decisions about the use and enjoyment of the land", "a right of access to the land", "a right to use and enjoy the traditional resources of the land", and "a right to maintain and protect places of importance under traditional laws, customs and practices". Those rights are also made subject to other interests created by the Crown; no native title rights or interests in minerals and petroleum in the State or Territory remains; the native title rights and interests are non-exclusive; and they are subject to ordinary "regulation, control, curtailment or restriction by valid laws of Australia"6.

This is a significant curtailment of native title rights in relation to use and exploitation of minerals as well as rights concerning cultural knowledge. Indeed, the disagreement between the dissenting judge and the majority justices in the Miriuwung-Gajerrong case about recognition of a native title right to maintain, protect, and prevent misuse of cultural knowledge has implications for correlative developments in the law of Indigenous rights, particularly in the realm of copyright law, intellectual property, and Indigenous rights.

While the majority decision in the Miriuwung-Gajerrong case affirms exclusive Crown ownership of minerals, as did Justice Drummond’s trial decision in the Wik case, the vesting of minerals and other natural resources in the Crown will still need to be assessed in each Australian jurisdiction under the particular statutory conditions which prevail there. Moreover, in light of the High Court’s Yanner decision and the acceptance of non-exclusive governmental rights over water in the Miriuwung-Gajerrong decision itself, there will continue to be room for argument about the exclusivity of legislative and executive vesting of ownership or control over natural resources in the Crown to the complete exclusion of all native title. The Yanner and Miriuwung-Gajerrong cases provide perfect illustrations that native title rights can sometimes exist concurrently with governmental rights of control over an area or its resources. This has implications for land and resource management regimes, water rights, irrigation and hydro-electric schemes, control of fauna and resources, statutory vesting regimes, and licensing and regulation of activities including activities pursuant to traditional native title rights.

The extensive coverage of anthropological, genealogical, historical, linguistic, and other evidence of traditional laws and customs in the Miriuwung-Gajerrong matter again demonstrates the unsuitability of native title litigation for solving native title disputes except as a last resort, given the attractiveness of less costly and less time-consuming alternatives like negotiated agreements with Indigenous groups.

In terms of the relationship between native title and leases, a number of things are becoming clearer in light of the Miriuwung-Gajerrong decision. First, sufficiently wide statutory reservations in favour of Indigenous rights of access and use under the authorising legislation in any State and Territory for pastoral leases will mean that a pastoral lessee does not necessarily have a right of exclusive possession and that at least some native title rights might be exercised concurrently with the lessee’s rights. At the same time, limiting those statutory reservations in favour of Indigenous rights to unimproved and undeveloped areas of a lease means that native title might well be extinguished over developed and improved areas including homesteads and intensively used production and farming facilities. The most important elements are whether the legislation and instruments of title governing pastoral or similar leases reserves any Indigenous rights, and whether the commercial rights conferred can be characterised as exclusive rights rather than non-exclusive rights to occupy and use the land only for particular farming and commercial purposes and not to the exclusion of all other rights over the area (including native title).

Secondly, in relation to mining and related projects, it is becoming clearer that the right combination of wide-ranging legislation authorising grants of mining and related titles, relatively unrestricted instruments of title, and extensive activities conducted pursuant to the legislation and the instruments of title can result in the extinguishment of native title over part or all of such project areas, because of the impossibility of native title rights being exercised concurrently with such extensive commercial development. Miners and other developers will take some interim comfort from this part of the Miriuwung-Gajerrong decision, as well as its confirmation of exclusive Crown ownership of minerals and resources under the right legislation. At the same time, the decision does not create a general legal principle that mining leases extinguish native title. Much turned on the building of significant infrastructure (eg towns, airports, and roads) associated with the key mining leases, references to exclusive rights in relevant agreements and instruments, the extensive high-intensity activities associated with the mining and infrastructure projects, the granting of long-term leases (eg for 21 years, with rights to successive renewals), and the extensive statutory regimes involved, even for the mining leases over smaller areas. At the same time, the nature and range of the infrastructure projects and activities associated with the major leases and other land interests created for the large-scale Ord River Irrigation project and the Argyle Diamond Project are important features which will not be present in the features of smaller-scale mining operations.

Thirdly, despite some legislative attempts to make an ongoing physical connection with land an essential precondition for legally recognised native title rights, the majority judgment in the Miriuwung-Gajerrong decision accepts that physical separation from the native title area is not necessarily fatal to a native title claim, particularly if the claimants have maintained the connection in cultural or other ways. This has implications not only for the operation of some parts of the Native Title Act but also for ongoing policy analysis and criticism of that Act’s treatment of native title, domestically and internationally. Whatever their basis, the concluding observations of the United Nations Committee on the Elimination of Racial Discrimination in March 2000 about its perception of inconsistency between Australia’s new native title laws and Australia’s international obligations add to pressure in this area.

Finally, it is still too early to assess the interim impact upon mining and commercial titles, in terms of what those commercial title holders might or might not need to do differently after the latest series of native title decisions and before any High Court appeals are determined in the next 12-18 months. As all of these decisions show, so much depends upon the particular statutory regime and the particular instruments of title involved, as well as the nature of the activities authorised and actually conducted under them. There are few absolute principles and still many unresolved legal questions about Australian native title law, notwithstanding the increased certainty now offered legislatively by the Native Title Act and the enhanced guidance now available under the general law after this latest series of native title decisions.


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1. The Appeal Court majority described this test as requiring a comparison of the legal nature and incidents of the existing native title and of the statutory grant to determine whether the respective incidents are such that the native title rights cannot be exercised without abrogating rights created by the statutory grant (whereupon the native title rights are extinguished). The question is not whether the estate or interest had in fact been exercised in a way that was incompatible with the exercise of native title rights, but whether it was legally capable of being so exercised. See para 71.

2. The Appeal Court majority noted that conflict in actual use is only a material consideration where the grant itself does not extinguish native title, but the later exercise or performance of a power or condition contained in the grant does so (this is termed "operational inconsistency"). This distinction, based on differences in the approaches of the High Court judges in Wik, is not entirely clear.

3. (1998) 159 ALR 483

4. See the qualification in paragraph 5 of the judge’s order to the superficially expansive native title rights and interests recognised in paragraph 3 of that order, and note also the Full Federal Court’s clarification of the terms of Lee J’s order: see Western Australia v Ward [2000] FCA 191 at [40]-[41].

5. [2000] FCA 191; see the draft determination of Beaumont and von Doussa JJ (North J dissenting).

6. Exclusive rights to possession, occupation, use, and enjoyment of some limited areas, apart from certain public works in those areas, are also recognised.

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About the Authors

Professor Bryan Horrigan studied at Oxford University as a Rhodes Scholar and now works at the University of Canberra, where he is Director of the National Centre for Corporate Law and Policy Research and Deputy Director of the National Institute for Governance. He is the author of Adventures in Law and Justice - Exploring Big Legal Issues in Everyday Life.

Simon Young is a member of the Centre for Commercial and Property Law and the Research Concentration in Public and International Law at the Queensland University of Technology. He is one of the editors of the first major book to explore native title’s commercial dimensions in light of the Wik decision, entitled Commercial Implications of Native Title (The Federation Press, Sydney, 1997). He is also part of a team teaching a master of laws course at QUT on native title, called "Native Title Law, Policy, and Practice", with native title resources and links located on the course’s web site.

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