Reconciling Inconsistency: Native Title Rights and State Agreement Ratification

The Western Australian Supreme Court of Appeal (‘WA SCA’) and the Federal Court’s interpretation of Western Australia’s State Agreement ratification provisions has diverged over the last decade resulting in conflicting decisions. Since 2003, the operation of these provisions and the Government Agreement Act 1979 (WA) (‘GA Act’) was settled in the state context. However, in 2016, the issue became important in the Native Title jurisdiction, requiring the Federal Court to examine State Agreement ratification. In 2021, in a minority decision, Edelman J of the High Court provided a different approach to interpreting the GA Act and ratification<br/>provisions. Applying this interpretation would significantly affect future decisions that examine this aspect of State Agreements. It would mean that some WA SCA precedents must be overruled, and some Federal Court decisions were wrong. This article examines the jurisprudence of the High Court, the WA SCA and the Federal Court discussing State Agreement ratification and considers the effect of applying Edelman J’s interpretation in the future. Justice Edelman’s approach could provide new avenues and arguments for Native Title holders and other litigants challenging rights granted pursuant to State Agreements.