Mansfield, Dowsett and Jagot JJ
In this matter the Full Federal Court found that certain mining leases and subsequent re-grants, initially found to be invalid in a determination of native title made in favour of the Ngadju People in November 2014, were valid and complied with the future act provisions of the Native Title Act 1993 (Cth) (NTA).
The Court ordered the appeal be allowed, the determination of native title made on 21 November 2014 in WAD 6020 of 1998 be varied by deleting paragraph 12 of the determination, the cross-appeal be dismissed and directions made as to costs.
Background
The proceedings involved various appeals, cross-appeals, notices of objection to competency and a notice of contention considered by the Full Court, all arising from three decisions of the primary judge concerning the extinguishment of native title in Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516, Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 700, and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (the November reasons).
The parties to the three appeals were the Ngadju people, the State of Western Australia, Commonwealth of Australia and St Ives Gold Mining Company Pty Ltd and BHP Billiton Nickel West Pty Ltd (the miners).
Miners’ Appeal
The first of the appeals concerned terms of the determination of native title attached to the November reasons (Determination) and the primary judge's conclusion that the mining leases listed in Schedule 5A to the Determination were not valid future acts within the meaning of Part 2, Division 3 of the Native Title Act 1993 (Cth) (NTA).
Three groups of leases were in issue:
2004/2006 leases, which were granted, renewed, and then re-granted
73 leases, which were granted, renewed, and then further renewed
Leases ML 15/150 and ML 15/151, which were dealt with by the primary judge but were outside the scope of the determination.
The miners considered the primary judge erred in finding that the mining leases were not valid future acts.
The parties were in dispute as to whether the relevant mining leases had been granted under the Mining Act 1904 (WA) (1904 Act) or the Nickel Refinery (Western Mining Corporation Limited) Agreement 1968 (1968 Agreement), authorised by the Nickel Refinery (Western Mining Corporation Limited) Agreement Act 1968 (WA). This issue affected the interpretation and application of the Mining Act 1978 (WA) (1978 Act), which came into force in 1982.
The Ngadju people argued that the leases were granted under the 1968 Agreement, before the enactment of the NTA, which meant the leases had not been granted in compliance with the right to negotiate provisions; an essential pre-condition to their validity under s 24IC of the NTA.
The miners argued that the leases were granted under the 1904 Act and this was the only source of power. The 1968 Agreement was a contract which created contractual rights and obligations but did not contain any source of power to grant a mining lease.
The Full Court accepted the Miners' submissions as being consistent with legal authority. The 1968 Agreement could not be the source of the power to grant the mining leases because the State cannot give itself a right to alienate Crown land through a contract. The leases were granted contractually under the 1968 Agreement, and as matter of power, under the 1904 Act. When the 1904 Act was replaced, all of the mining leases subject to the 1968 Agreement were deemed to be mining leases under the 1978 Act, became 'all mineral' leases and the 1968 Agreement was unaffected.
The leases were subsequently removed from the 1968 Agreement and re-granted under the 1978 Act. The miners argued that removal of the leases from the 1968 Agreement did not affect native title and if it operated as a renew or re-grant the leases were valid future acts either as lease renewals under s 24IC or because cl 2(1) of the 1978 Act (which gave the holder of the mining lease a priority right to apply for a further lease) was an 'offer, commitment, arrangement or undertaking' under s 24IB of the NTA.
The Full Court held that s 24IB(a) did not apply because the making of an application for a mining lease renewal to the Minister, who has a discretion to deal with it as the Minister thinks fit, is not the 'exercise of a legally enforceable right' and the priority right of renewal in cl 2(1) of the 1978 Act was only a right to lodge an application. It was not an 'offer, commitment, arrangement or undertaking' about whether the lease would be re-granted as a result.
The Full Court rejected the Ngadju people's argument that the re-granted leases had created a larger proprietary interest than the original leases as the mining rights were more extensive and no longer subject to the contractual obligations of the 1968 Agreement.
The Full Court held that the 2004/2006 leases and 73 leases were permitted lease etc. renewals under s 24IC of the NTA and the right to negotiate requirements did not apply because the rights created by the re-grant or renewal were no different to the rights created in the earlier leases.
It followed that the primary judge had erred, the miners’ appeal should be allowed and orders made amending the determination of native title to reflect the conclusions of the Court.
Paragraph 8A(c) appeal
Some mining interests listed in paragraph 8A(c) of the Determination still remained and there was disagreement amongst the parties about the requirements of orders containing a determination of native title and how the wording should recorded the relationship between the Other Interests recorded in Schedule 5A and the native title rights recognised in the Determination.
The Full Court noted that it was difficult to understand how any of the arguments about paragraph 8A(c) of the Determination rose above mere drafting preference and no error in the drafting had been established. Accordingly, the cross-appeal of the Ngadju People was dismissed.
The Full Court noted that if there were jurisdiction to adopt personal drafting preferences the miners' version best fulfilled the purpose of s 225 of the NTA.
Paragraph 12 Appeal
The State and the Ngadju people agreed that paragraph 12 of the Determination (historical mining tenements granted ‘subject to survey’ which were found to be invalid) should be deleted but disagreed about the nature of the error and the method of correction.
The State contended that the judge erred because a lack of a survey does not invalidate the leases. The Ngadju people alleged that the issue was not before before the judge and a determination should not have been made on that issue.
The Court held there was nothing in the the primary judge's reasons or the submissions filed on behalf of the Ngadju people to establish that a survey was a condition precedent to the granting of the lease or any indication in the 1904 Act that a failure to carry out a survey invalidates the grant.
The Full Court rejected the Ngadju people's arguments that the appeal lacked competence and observed that whether paragraph 12 of the Determination was there as a result of error by the primary judge in not realising the Ngadju people had changed their case and did not press that issue because there were no such tenements or error by the primary judge in concluding that a mining lease was necessarily invalid if it was granted before survey, the error is able to be, and should be, corrected on appeal.
The Court allowed the State’s appeal on that basis.