Barker J
In this matter, the Court heard an application for a determination of compensation under the Native Title Act 1993 (Cth) (NTA) by the traditional owners of the Gibson Desert Nature Reserve.
When the proceeding commenced in 2012, the compensation claim was founded on the allegation that, at material times immediately prior to the creation of the Gibson Desert Nature Reserve in 1977, the claimants had exclusive possession native title to the claim area. This included the native title right to control use of and access to the whole of the claim area.
In April 2014, the State of Western Australia filed an amended defence alleging that as a result of the grant of an oil licence over a prospecting area in 1921 or, alternatively, by later grants of exploration permits, the native title right to control use of and access to the entire claim area was extinguished. This would mean, for the purposes of the compensation claim, any native title was of a non-exclusive nature. See Ward v State of Western Australia (No. 2) [2014] FCA 825.
Questions before the Court
The Court ordered the following questions to be determined:
Question 1: Was Oil Licence OPA 26H (the 1921 licence) validly granted?
Question 2: If the answer to question 1 is yes, did the grant of that oil licence extinguish any native title right to control use of and access to the whole of the claim area?
Question 3: If the answer to question 1 or 2 is no, did the grants of permits to explore areas of PE 146H, PE 147H and PE 161H extinguish any native title right to control use and access to the whole of the claim area?
Question 1 - Was Oil Licence OPA 26H (the 1921 licence) validly granted?
Barker J considered the evidence provided by the State to support its contention that the oil licence was validly granted under the relevant legislation in 1921. His Honour was satisfied that the variety of documents including maps, microfilm and letters allowed him to infer that the oil licence was formally issued and that therefore the answer to question 1 was 'yes'.
Question 2 - did the grant of that oil licence extinguish any native title right to control use of and access to the whole of the claim area?
The claimant’s submission characterised the oil licence as a transitory and limited right to enter the land to prospect, operating to temporarily ‘regulate’ the right to control access. Their argument relied on the recent High Court decision in Akiba v Commonwealth of Australia (2013) 250 CLR 209 (Akiba) for the principle that the NTA contemplates that an act may interfere with the enjoyment or exercise of native title, without extinguishing those rights and interests.
On the other hand, the State and Commonwealth likened the case to Western Australia v Brown [2014] HCA 8 (Brown) which affirmed the principles of extinguishment set out in Western Australia v Ward [2002] HCA 8 (Ward). This endorsed the inconsistency of rights test which states, 'Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.'
In Brown, the High Court emphasised that the question of inconsistency was an objective inquiry requiring a comparison between the two sets of rights (citing Wik at [185]-[86]).
Reasoning
Barker J considered the relevant jurisprudence, in particular his Honour examined the various approaches of the bench in the High Court’s decision in Queensland v Congoo [2015] HCA 17. His Honour ultimately favoured application of the inconsistency of rights test as set out in Ward and Brown. At [178] his Honour decided that the rights granted to the licensee by the oil license were no different from the grants of the pastoral leases considered in Ward. They did not create exclusive possession rights in the licensee, but at the very least they did extinguish the exclusive native title right to control the use of and access to the subject area.
At [181] his Honour rejected the claimant’s reliance on Akiba to argue that the oil licence merely regulated the native title rights in question. This was because [at 197] Akiba concerned Queensland fishing legislation which controls activities carried out by native title rights holders. In this case, the oil licence was not like legislation, controlling native title holder activities. It gave the licensee the right to do certain things which were plainly inconsistent with the native title holders’ pre-existing right to control all outsiders.
Therefore his Honour declared at [200] that the answer to question 2 was ‘yes’.
Conclusion and orders
The Court ordered that:
Question 1 is answered 'yes'.
Question 2 is answered 'yes'.
It is, in the circumstances, unnecessary to answer Question 3.
The claimants submitted, in such circumstances, the remaining (non-exclusive) native title rights were validly extinguished by the vesting of the Gibson Desert Nature Reserve they would therefore be entitled to compensation under s 45 of the NTA.