Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors Ward, Ben & Ors v The State of Western Australia & Anor [1996] FCA 334

Ward, Ben & Ors v The State of Western Australia & Anor Smith, Clarrie v The State of Western Australia & Ors Ward, Ben & Ors v The State of Western Australia & Anor [1996] FCA 334

The Tribunal erred in law in confining 'direct interference with community life' under s.237(a) to physical interference; non-physical interference may suffice. The remaining grounds of appeal fail; no legal onus of proof applies to the native title party and major disturbance to land is assessed according to ordinary community standards, not native title holders' standards. All cases remit to Tribunal for reconsideration of potential direct (not necessarily physical) interference with community life.

Parties
Appellant: Ben Ward & Ors; Appellant: Clarrie Smith; First Respondent: The State of Western Australia; Second Respondent: Australian United Gold NL; Second Respondent: CRA Exploration Pty Ltd; Third Respondent: BHP Exploration Pty Ltd; Fourth Respondent: Asian Mining NL and Sorna Pty Ltd
Jurisdiction
Australia
Judgment Date
09 May 1996
Procedural Posture
Appeal / Judgment
Outcome
Appeal upheld in part; remitted to Tribunal for further consideration of interference with community life.
Legal Topics
Expedited Procedure, Onus of Proof, Mining Exploration Licences, Interference With Community Life, Major Disturbance to Land, Protection of Aboriginal Sites, Construction of S.237 Native Title Act, Procedural Fairness
Native Title Administrative Law Expedited Procedure Onus of Proof Mining Exploration Licences Interference With Community Life Major Disturbance to Land Protection of Aboriginal Sites +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 9 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Ben Ward & Ors

Appellant

Clarrie Smith

Appellant

The State of Western Australia

First Respondent

Australian United Gold NL

Second Respondent

CRA Exploration Pty Ltd

Second Respondent

BHP Exploration Pty Ltd

Third Respondent

Asian Mining NL and Sorna Pty Ltd

Fourth Respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Tribunal erred in law in applying an onus of proof to the native title party under s.237 of the Native Title Act
  2. 2 Whether direct interference with community life under s.237(a) must be physical
  3. 3 Whether major disturbance in s.237(c) is assessed by standards of the broader community or native title holders

Ratio Decidendi

The Tribunal erred in law in confining 'direct interference with community life' under s.237(a) to physical interference; non-physical interference may suffice. The remaining grounds of appeal fail; no legal onus of proof applies to the native title party and major disturbance to land is assessed according to ordinary community standards, not native title holders' standards. All cases remit to Tribunal for reconsideration of potential direct (not necessarily physical) interference with community life.

Court Disposition

Appeal upheld in part; remitted to Tribunal for further consideration of interference with community life.

Orders

  • Parties to bring in agreed minute of orders to reflect reasons; if unable to agree within 7 days, each party to file proposed orders and submissions within 14 days.
  • Remitter to Tribunal limited to issue of whether there is likely to be direct (not necessarily physical) interference with community life in each case.