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THURSDAY, AUGUST 8, 2002

Australia's highest court on Thursday denied an Aboriginal tribe's claim to natural resources on thousands of acres of land in the western part of the country.

In a landmark decision, the High Court said native title does not include ownership of oil, minerals or other assets. Only hunting, gathering, fishing and related uses are allowed, Chief Justice Murray Gleeson wrote.

"No native title right or interest in minerals or petroleum was established," the lengthy and complex 406-page ruling stated.

The immediate effect of the decision is to deny the Miriuwung-Gajerrong Tribe proceeds from the largest diamond mine in the world. By the time the Argyle mine leases were granted in 1983, the Court said Aboriginal rights to the land had been extinguished "some time between 1970 and 1973."

But the 4-3 ruling leaves open a number of questions stemming from the tribe's native title claim, first filed in 1994. A 1998 determination was set aside and the case was referred to a a lower court to reconsider the extent of Aboriginal rights to the area.

The majority did point out that the tribe needs to show traditional "interest" before any claim can be considered. "[T]here was no evidence of any traditional Aboriginal law, custom or use relating to petroleum," the court said.

The dissenters on the High Court agreed with the majority regarding the terminated native title. But two judges went further and supported strict rules against recognizing Aboriginal claims.

Justice Ian D.F. Callinan, in his opinion, said Australia should not look to federal Indian law in the United States, or other international sources. He rejected a 1938 U.S. Supreme Court decision which determined the Shoshone Tribe of Wyoming owned the minerals below its treaty-created reservation.

Callinan added that native claims of religious and spiritual connections are not compatible with European principles of common law. "I do not disparage the importance to the Aboriginal people of their native title rights, including those that have symbolic significance," he wrote.

"I fear, however, that in many cases because of the chasm between the common law and native title rights, the latter, when recognised, will amount to little more than symbols," he said.

Justice Michael H. McHugh wrote a separate opinions but supported Callinan's ruling.

Justice Michael D. Kirby agreed with the Court's findings on extinguished title but cautioned against setting blanket precedents. "Recognition of the native title right to protect cultural knowledge is consistent with the aims and objectives" of federal law, he wrote.

Federal law allows Aboriginals to make native title claims which have been normally interpreted as hunting, fishing, gathering and traditional and ceremonial uses. However, these claims, once affirmed, do not grant ownership to the lands.

Tribes can also negotiate with the industry to share in developments such as mining but have no veto authority.

Get the Decision:
Western Australia v Ward; Attorney-General (NT) v Ward; Ningarmara v Northern Territory [2002] HCA 28 (8 August 2002)

Prior Determination:
Ben Ward & Ors v State of Western Australia & Ors [1998] 1478 FCA (24 November 1998)

Relevant Links:
Indigenous Law Resources - http://www.austlii.edu.au/au/other/IndigLRes
The Miriuwung and Gajerrong Families and Heritage Land Council - http://www.austlii.edu.au/au/special/rsjproject/remote/mglc
High Court of Australia - http://www.hcourt.gov.au