Ward, Ben & Ors on behalf of the Miriuwung Gajerrong People & Ors v State of Western Australia & Ors [1998] FCA 1478

FEDERAL COURT OF AUSTRALIA

NATIVE TITLE – determination of native title under the Native Title Act 1993 (Cth) - meaning of "native title" – meaning of "identifiable community" – existence of sub-groups ("estate groups") within an identifiable community – meaning of "traditional laws and customs" – capacity of traditional laws and customs to evolve – boundaries of an identifiable community – interaction and overlapping of communities.

EVIDENCE – proof of native title – rules of evidence - proof of aboriginal connection with claim area at sovereignty – proof of maintenance of connection – historical evidence – oral histories - linguistic evidence – "primary" evidence of witnesses – anthropological evidence – genealogical evidence – need for proof of biological descent - observance of traditional laws and customs – dreaming evidence.

NATIVE TITLE – extinguishment – meaning of extinguishment – distinction between regulation and extinguishment of native title - onus of proof – extinguishment by grant of freehold – Crown grants - permit to occupy Crown land prior to issue of Crown grant – extinguishment by the grant of leases - pastoral leases – conditional purchase leases – "special leases" – leases of reserves – extinguishment by the grant of licences - extinguishment by the creation of reserves – meaning of "vesting" – extinguishment by use of reserves – extinguishment by the grant of mining tenements - mining leases – general purpose leases – exploration licences – extinguishment by resumption and acquisition of Crown lands from pastoral leases – extinguishment by legislation – national parks legislation– wildlife conservation legislation – extinguishment by dedication of land for purpose of roads – extinguishment by the vesting of a national park and leases to "Conservation Land Corporation" - extinguishment by application of limitation periods – extinguishment by the proclamation of an "Irrigation District" – extinguishment by declaration of a townsite – extinguishment by the creation of a lake.