Native title after Ward and Wilson

Abstract

[Introduction]:It has been widely reported that the Court ruled in Ward that native title claims cannot be made to minerals and petroleum in the ground. This is the practical result for most Australian jurisdictions. The Court interpreted a Western Australian statute vesting property in in situ minerals in the Crown as not allowing continued existence of native title to the minerals. There are similar statutes elsewhere: for example, Justice Drummond reached the same conclusion about Queensland in an early round of the Wik litigation. However, in New South Wales, where the device of asserting Crown property to minerals has not been used except for some coal, some minerals have been granted to private landowners while others have been 'reserved' to the Crown. The Ward ruling cannot apply to these reserved minerals. Native title claims to in-ground resources in New South Wales are unlikely to succeed as a matter of evidence - because people have trouble proving traditional rights to use them - rather than as a matter of law.