Attorney-General of the Northern Territory v Ward [2003] FCAFC 283

FEDERAL COURT OF AUSTRALIA

Attorney-General of the Northern Territory v Ward [2003] FCAFC 283 NATIVE TITLE – Terms of determination basically agreed but disputes on some items – Whether it is necessary exhaustively to identify the holders of native title rights and interests – Whether it is necessary to identify all those rights and interests – Discussion of other contested words and phrases. Western Australia v Ward [2002] HCA 28; 191 ALR 1 applied. Native Title Act 1993 (Cth) s 225 ATTORNEY-GENERAL OF THE NORTHERN TERRITORY v BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE, CECIL NINGARMARA & ORS, DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES WAG 6296 of 1998 CECIL NINGARMARA & ORS v NORTHERN TERRITORY OF AUSTRALIA & STATE OF WESTERN AUSTRALIA W 6020 of 1999 WILCOX, NORTH and WEINBERG JJ 9 DECEMBER 2003 KUNUNURRA (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAG 6296 of 1998

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

BETWEEN: ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

APPELLANT

AND: BEN WARD & ORS ON BEHALF OF THE MIRIUWUNG AND GAJERRONG PEOPLE

FIRST RESPONDENT

CECIL NINGARMARA & ORS

SECOND RESPONDENT

DELORES CHEINMORA & ORS ON BEHALF OF THE BALANGARRA PEOPLES

THIRD RESPONDENT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 6020 of 1999

ON REMITTER FROM THE HIGH COURT IN P62 of 2000 and P63 of 2000

BETWEEN: CECIL NINGARMARA & ORS

APPELLANT

AND: NORTHERN TERRITORY OF AUSTRALIA

FIRST RESPONDENT

STATE OF WESTERN AUSTRALIA

SECOND RESPONDENT

JUDGES: WILCOX, NORTH and WEINBERG JJ

DATE OF ORDER: 9 DECEMBER 2003

WHERE MADE: KUNUNURRA (HEARD IN PERTH)

THE COURT NOTES THAT: A. In April 1994, Ben Ward and others ('the first applicants') lodged a native title application in relation to a claim area covering approximately 7,900 square kilometres in the north-west of Western Australia and certain lands in the Northern Territory ('the NT claim area'). B. In the course of proceedings in the Federal Court of Australia, Cecil Ningarmara and other Aboriginal people who claimed to have an interest in the NT claim area became the second applicants in the proceedings. C. On 24 November 1998, following a lengthy trial, Lee J handed down judgment and made a determination that native title existed in relation to the whole of the area under claim (other than certain areas where native title had been extinguished), including the NT claim area. D. Various parties before the trial judge appealed to the Full Court of the Federal Court, which handed down judgment in relation to the appeals on 3 March 2000. The Full Court set aside the determination made by the trial judge and substituted its own determination of native title which differed from that of the trial judge. E. Pursuant to special leave granted by the High Court of Australia, certain matters were taken on appeal to that Court, which delivered its judgment on 8 August 2002. Order 2 of the orders made by the High Court reads as follows: 'Paragraphs 4 and 6 of the orders of the Full Court of the Federal Court made on 3 March 2000, the whole of the order of the Full Court of the Federal Court made on 11 May 2000 and the determination of native title made on 11 May 2000 are set aside and the matters remitted to the Full Court for further hearing and determination.' F. The parties that have an interest in the NT claim area are the first and second applicants, the Northern Territory of Australia and the entities identified in clause 8 of the determination set out below. G. The parties have reached an agreement as to the terms of a determination of native title to be made in relation to the NT claim area. H. Those parties referred to in Recital F acknowledge that the rights and interests of the native title holders in the land and waters of the NT claim area, possessed under their traditional laws and customs, but not all of which may be recognised by the common law, are: (a) ownership of the land and waters; (b) giving or refusing permission to non-native title holders to occupy or use the land and waters; (c) speaking for and making decisions about the land and waters; (d) hunting, gathering and using the natural resources and giving or refusing permission to non-native title holders to do so; (e) managing the spiritual forces associated with the land and waters; (f) protecting places of significance, and caring for the land and waters; and (g) safeguarding the cultural knowledge associated with them. I. The parties acknowledge that in relation to those parts of the NT claim area comprising Northern Territory Portions 3541, 3542 and 3863, being Aboriginal community living areas within the Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act (NT), it was the conclusion of the Full Court of the Federal Court that: (a) s 47A of the Native Title Act 1993 (Cth) ('the Act') applied, with the effect that any extinguishment of native title rights and interests by the grants themselves, or by the creation of any other prior interest in relation to the areas, must be disregarded; and (b) the native title rights and interests in those portions of land comprise possession, occupation, use and enjoyment to the exclusion of all others, subject, however, to s 47A(3) of the Act. J. The parties have further agreed to apply to the Federal Court for a consent order for a determination that native title exists in relation to the NT claim area. K. The parties accept that the effect of this determination is that the members of the estate groups identified in clause 3, and the persons identified in clause 4, of the determination, are acknowledged as the native title holders for the NT claim area in accordance with the traditional laws acknowledged and the traditional customs observed by them. L. No nomination pursuant to section 56(2) of the Act in relation to the holding of native title in trust has been made. BEING SATISFIED that a determination in the terms sought by those parties would be within the power of the Court, and it appearing to the Court appropriate to do so, and by consent of those parties,