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BEN WARD and ORS on BEHALF of the MIRIUWUNG GAJERRONG PEOPLE and ORS V STATE of WESTERN AUSTRALIA and ORS - BC9806200

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BEN WARD and ORS on BEHALF of the MIRIUWUNG GAJERRONG PEOPLE and ORS V STATE of WESTERN AUSTRALIA and ORS - BC9806200 Page 1 1 of 1 DOCUMENT: Unreported Judgments Federal Court of Australia BEN WARD AND ORS ON BEHALF OF THE MIRIUWUNG GAJERRONG PEOPLE and ORS v STATE OF WESTERN AUSTRALIA AND ORS - BC9806200 FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY LEE J WAG 6001 of 1995 17-20 February, 21-25 July, 29 July-1 August, 4-8, 18, 25-27 August, 1-5, 15-19, 22-25, 29 Sep- tember-2 October, 3, 24-26 November, 1-5, 8-9, 12, 17 December 1997, 21-23, 27-30 January, 2-6, 9-13, 16-19 February, 30 March-3 April, 6-9 April, 23 October 1998 , 24 November 1998 NATIVE TITLE -- determination of native title under the Native Title Act 1993 (Cth) -- meaning of "native ti- tle" -- 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 sover- eignty -- proof of maintenance of connection -- historical evidence -- oral histories -- linguistic evidence -- "pri- mary" 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 extin- guishment of native title -- onus of proof -- extinguishment by grant of freehold -- Crown grants -- permit to oc- cupy Crown land prior to issue of Crown grant -- extinguishment by the grant of leases -- pastoral leases -- con- ditional purchase leases -- "special leases" -- leases of reserves -- extinguishment by the grant of licences -- ex- tinguishment by the creation of reserves -- meaning of "vesting" -- extinguishment by use of reserves -- extin- guishment 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 legisla- tion -- 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 Corpora- tion" -- extinguishment by application of limitation periods -- extinguishment by the proclamation of an "Irriga- tion District" -- extinguishment by declaration of a townsite -- extinguishment by the creation of a lake. NATIVE TITLE -- Native Title Act 1993 (Cth) -- effect of Act on concept of native title at common law -- mean- ing of "affects" native title -- jurisdictional limits of a determination under the Native Title Act 1933 (Cth) -- "past acts" -- effect of the Native Title Amendment Act 1998 (Cth) -- "previous exclusive possession acts" -- "previous non-exclusive possession acts" -- effect of the Titles Validation Act 1995 (WA). Sale of Waste Lands Act 1842 (Imp) Public Health Act 1875 (UK) Native Title Act 1993 (Cth) Pt2 Div 2A; Pt2 Div 2B (23B, 23C, 23F, 23G); s3, s10, s11(1), s13, s14, s15(2), s16, s19, s47, s47A, s47B, s56, s57, s61, s68, s81, s82, s211, 213(2), 223(1) (3), 225, 226, 227, 228(3), 229(3) (4), 239(c), 242, 248, 249C, s251D, s253; Sch 1 Page 2 Native Title Amendment Act 1998 (Cth) Sch 5, Pt5, Item 24 Judiciary Act 1903 (Cth) s39B(1A)(c) Lands Acquisition Act 1955 (Cth) s6, s8 Aboriginal Affairs Planning Authority Act 1972 (Cth) PtIII; s20(3)(c), s23(b) s23(c) s23(e), s24, s27, s30(c) Telecommunications Act 1975 (Cth) s16(2) Acts Interpretation Act 1901 (Cth) s8, s8A Racial Discrimination Act 1975 (Cth) s9 Western Australia Agreement (Ord River Irrigation) Act 1968 (Cth) Mining Act 1978 (WA) s8, s82(1)(b), s85, s86, s87, s88 Petroleum Act 1967 (WA) s5 Territory Parks and Wildlife Conservation Act (NT) s12(1) s12(7), s13(3) s13(4), s18, s122 Parks and Wildlife Commission Act (NT) s19, s20, s21, s22, s27, s29, s39(1), s39(6) Land Acquisition Act 1978 (NT) Crown Lands Act 1992 (NT) PtIV Miscellaneous Acts Amendment (Aboriginal Community Living Areas) Act 1978 (NT) Jetties Act 1926 (WA) Land Act 1933 (WA) PtIII (29(g), 29(1)(g), 31, 32, 33, 34B, 37, 37B); PtVI (102, 105, 106(1) (2), 109); PtVII (116, 116(14), 117, 118CA); s3, s7, s10, s13, s23, s46, s47, s56, s140, s141, s163, s164, s229; Schs 4, 19, 21 Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) Pt4; s7, s8, s9, s10 Natives (Citizenship Rights) Act 1944 (WA) Aboriginal Land Rights (Northern Territory) Act 1976 (NT) State Trading Concerns Act 1916 (WA) s6 Agriculture and Related Resources Protection Act 1976 (WA) s105(ia) Land Act 1898 (WA) s3, s4, s9, s12, s13, s16, s39, s41, s41a, s42, s55(4) s55(6), s62, s75, s92, s107, s135, s145, s152; Schs 3, 9, 24, 29 Land Act Amendment Act 1934 (WA) Mining Act 1904 (WA) s3 Petroleum Act 1936 (WA) s4 Land Drainage Act 1925 (WA) s6 Wildlife Conservation Act 1950 (WA) s6, s23, s32C Conservation and Land Management Act 1984 (WA) s11 Land Act Amendment Act 1917 (WA) s33(3) Land Act Amendment Act 1963 (WA) s24 Northern Territory Crown Lands Act 1890 (NT) Crown Lands Ordinance 1927 (NT) s21 Crown Lands Ordinance 1931 (NT) Crown Lands Ordinance 1978 (No 3) (NT) s24(2) Special Purposes Leases Act 1953 (NT) Crown Lands Act 1978 (NT) Associations Incorporation Act (NT) Validation of Titles and Actions Act 1994 (NT) s7 Transfer of Land Act 1893 (WA) s18, s52, s68 Titles Validation Act 1995 (WA) s4, s5, s6, s7, s10, s19 Wyndham Freezing, Canning and Meat Export Works Act 1918 (WA) Public Works Act 1902 (WA) s10, s17, s18 Local Government Act 1960 (WA) s266, s267, s288, s294A Aboriginal Heritage Act 1972 (WA) Limitation Act 1935 (WA) Rights in Water and Irrigation Act 1914 (WA) PtIII; s3, s28, s29, s62(1) s(3)(a) National Parks Authority Act 1976 (WA) s18, s22, s41 Jetties Act 1926 (WA) Page 3 Fauna Protection Act 1950 (WA) s6, s14, s15, s16, s22, s23 Native Administration Act 1905 (WA) Fauna Conservation Act 1974 (Qld) Fisheries Act 1905 (WA) Aborigines Act 1905 (WA) s39 Soil Conservation Act 1945 (WA) Land Acquisition and Public Works Act 1902 (WA) s32 Interpretation Act 1984 (WA) s16(3) Fish Resources Management Act 1994 (WA) Transport Co-ordination Act 1966 (WA) Constitution Act 1982 (Can) s35(1) Fisheries Act, RSC 1970 Wildlife Act 1982 (BC) Land Regulations for the Kimberley District 1880 (WA) Agriculture and Related Resources (Property Quarantine) Regulations 1981 (WA) reg10 Land Regulations 1981 (WA) reg10 Land Regulations 1882 (WA) reg3, reg29, reg33, reg78, reg82, reg85; Sch 11 Land Regulations 1887 (WA) reg2, reg3, reg59, reg61, reg101, reg105; Sch 9 Regulations Under "The Northern Territory Crown Lands Act 1890" (NT) reg39 Federal Court Rules O29 r2(a) The Constitution s51(xxvi), s127 R M Berndt, "Traditional Aboriginal Life in Western Australia: as it was and is", (Ch 1), Aborigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Australia Press, 1979) R M Berndt, "Traditional Concepts of Aboriginal Land", Aboriginal Sites, Rights and Resource Development, Editor: R M Berndt, (Academy of Social Sciences in Australia, Proceedings, 5th Academic Symposium, 1981) R M and C H Berndt, "The World of the First Australians. Aboriginal Traditional Life: Past and Present" (5th Ed), (Canberra: Aboriginal Studies Press, 1992) P Biskup, "Not Slaves, Not Citizens", (Brisbane: University of Queensland Press, 1973) G Buchanan, "Packhorse and Water Hole - With the First Overlanders to the Kimberley", (Sydney: Angus and Robert- son, 1934) M Durack, "Kings in Grass Castles", (Great Britain: Corgi Books, 1973 (1st published 1959)) A P Elkin, "Aboriginal-European Relations in Western Australia: An Historical and Personal Record", (Ch 24), Abo- rigines of the West. Their Past and Their Present, Editors: R M and C H Berndt, (Nedlands: University of Western Aus- tralia Press, 1979) A P Elkin, "Social Organisation in the Kimberley Division", Oceania 2, 3, (1932) 296 A P Elkin, "The Australian Aborigines - How to Understand Them" (2nd Ed), (Sydney - London: Angus and Robertson, 1943) B Fitzpatrick, "The Australian Commonwealth: A Picture of the Community 1901 - 1955", (Melbourne: Cheshire, 1956) Hon Justice R S French, "Courts under the Constitution, (1998) 8 JJA 7 T P Fry, "Land Tenures in Australian Law", Res Judicatae 3, (1947) 158 J Gagne, "The Content of Aboriginal Title at Common Law: A Look at the Nishga Claim", (1982-83) 47 Sask Law Rev 309 Page 4 D Gal, "Implications Arising from the Operation of the Native Title Act for the Existence of native Title on Pastoral Leases", (1997) 71 ALJ 487 N Green, "Forrest River Massacre", (Fremantle: Fremantle Art Centre Press, 1995) P Hasluck, "Black Australians" (2nd Ed), (Melbourne: Melbourne University Press, 1970) P M Kaberry, "The Forrest River and Lyne River Tribes of North-Western Australia. A Report on Fieldwork", Oceania 5, 4, (1935) 408 P M Kaberry, "Totemism in East and South Kimberley, North-West Australia", Oceania 8, 3, (1938) 265 K Maddock, "Owners, Managers and the Choice of Statutory Traditional Owners by Anthropologists and Lawyers", (Ch 13), Aborigines, land and land rights, Editors: N Peterson and M Langton, (Canberra: Australian Institute of Abo- riginal Studies, 1983) K Maddock, "The Australian Aborigines - A Portrait of their Society" (2nd Ed), (Ringwood: Penguin, 1982) K McNeil, "The Meaning of Aboriginal Title", (Ch
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