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The Martu Native Title judgement - a coda

By Jennifer Clarke - posted Wednesday, 16 October 2002

On 25 September, several news sources reported WA deputy premier Eric Ripper's comment that Martu claimants would "be very disappointed" to have Rudall River National Park excluded from their native title settlement the following day.

Mr Ripper blamed the national park's exclusion on the recent High Court ruling in Ward (the Miriuwung-Gadjerrong case) that the vesting of land in trustees for public purposes extinguished native title. This ruling applied to another WA national park in Ward - the "trustee" was the national parks authority. Rudall River is 2.5 times the size of the Grand Canyon National Park.

Even if it is covered by the Ward ruling, it is most inappropriate as a matter of policy that areas of this size, remoteness and traditional significance be treated as places in which Aboriginal interests cannot exist for such technical reasons.


Mr Ripper's comment is disingenuous on two levels. First, his government advocated for the 'extinguishment by vesting' ruling all the way to the High Court, undeterred by its rejection at lower levels. Second, if the state government is so worried about the unhelpful nature of native title law, it can always look for another way to give the Martu land.

For example, it could grant them an ordinary title to the park, or introduce special land rights legislation for their benefit. Has it avoided such alternatives because they could allow more genuine 'recognition' of Martu 'ownership', rather than the token recognition of land use rights?

Rudall River National Park appears to have been created in 1977, after the Commonwealth Racial Discrimination Act was enacted. In Ward, the High Court ruled that, because such parks are not created on other private land, native title holders should be paid compensation for this discrimination. Wouldn't a land grant be better for the Martu than a cash payment?

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About the Author

Jennifer Clarke is a Canberra lawyer

Other articles by this Author

All articles by Jennifer Clarke
Related Links
Australian National University – Faculty of Law
Indigenous Landrights factsheet (pdf)
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