Client Update: Native Title – 8 August 2002
The High Court speaks on Native Title
In brief: The High Court today handed down its decision in two significant native title cases: Western Australia v Ward [2002] HCA 28 and Wilson v Anderson [2002] HCA 29.
The Ward decision means that native title rights and the right to negotiate process will be ongoing features of the Australian legal landscape.
In both decisions, however, the High Court has not gone as far as claimants sought. The court has placed practical limitations on future claims.
It will be necessary to examine each of the issues and reflect upon the various state provisions before a definitive guide as to the impact of these judgments can be delivered.
In the meantime, it is clear that:
- there could be partial extinguishment of native title rights;
- there are no native title rights to, or interest in, minerals and petroleum in Western Australia;
- any exclusive rights to fish in tidal waters had been extinguished;
- a mining lease under the relevant Western Australian legislation extinguished any native title right to control access to land, or to be asked for permission to use, or have access to, land but does not necessarily extinguish all native title rights;
- in so far as claims to protection of cultural knowledge go beyond denial of, or control of, access to land or water, they are not rights protected by the Native Title Act.
In Wilson v Anderson, the Court distinguished leases under the NSW Western Lands Act from the leases considered previously in Wik and found that the New South Wales lease did confer exclusive possession and so native title had been extinguished.
This decision will mean that large areas of rural New South Wales are no longer capable of being subject to native title claims and the right to negotiate procedure. It will also raise questions in relation to other equivalent leases in all jurisdictions as to whether or not they confer exclusive possession.
For many mining companies and others, the negotiation processes that they are involved in will continue. What will change is that there will be clarity in relation to a number of specific issues, as well as the background knowledge that the current approach of the High Court is not to take an expansive view of native title rights.
We are in the process of preparing a full summary, which we will make available to you shortly. In the meantime, if you have any queries do not hesitate to contact any of the partners set out below.