Court ruling new ground on title

A HIGH Court decision last week has implications for Native Title claims within WA.

The High Court upheld an earlier Federal Court finding that Native Title did not exist in the absence of proof of a continual physical link and the practise of traditional laws and customs.

This means Aboriginal Native Title claimants who have at some time been dispossessed of their traditional land may have much less chance of proving a claim than previously thought.

This is likely to result in more negotiated agreements between governments, industry and claimants, rather than court claims, according to Blakiston & Crabb senior counsel Mark Gerus.

Mr Gerus said the decision was very important in that it had clarified a definition of Native Title under the Native Title Act.

For WA, it was an important decision because it went further than the recent High Court Miriuwung-Gajerrong judgment.

In that claim for land in the north of WA, proof of connection was generally accepted before the court was asked to determine whether Native Title had been extinguished through government action.

This latest decision gives a better idea of the strengths of claims. Evidence from claimants has already been taken in the northern Goldfields Wongatha claim, but expert evidence is yet to be heard.

Minter Ellison senior associate Mark Gregory said such cases were often now decided in two parts, firstly to establish Native Title rights, before determining if they had or had not been extinguished, by, for example, the granting of leases.

Deputy Premier Eric Ripper said the WA Government’s preference was for mediated settlement of Native Title issues, either through a determination of Native Title by consent, or by the negotiation of outcomes outside the Native Title process.

Last week’s High Court decision was for a claim by the Yorta Yorta Aboriginal community with regard to land in northern Victoria and southern New South Wales.

The court said the claimants had not proven continual acknowledgment and observance of traditional laws and customs.