James v State of Western Australia [2010] FCAFC 77

Legislation considered: 
Racial Discrimination Act 1975 (Cth)
s 109 Constitution
s 228(2) Native Title Act 1993 (Cth)

Sundberg, Stone and Barker JJ

This matter concerns the native title claim of the Martu people of the Western Desert area of Western Australia which was in the process of mediation. The presiding member of the National Native Title Tribunal had referred two questions relating to the proceeding to the Court, as it was considered that this would expedite the reaching of an agreement. The dispute concerned various mining leases held over the area.

The first question asked if the grant of a lease is a ‘past act’ (as defined in s 228(2) of the Native Title Act 1993 (Cth) (NTA)) for the purposes of Part 2 of the Titles (Validation) Act and Native Title (Effect of Past Acts) Act 1995 (WA).

The Court suggested that s 228(2) of the NTA, which defines a ‘past act’, asks whether, aside from the NTA, the grant of the mining lease was invalid to any extent. In this instance, it was invalid, by operation of s 10(1) of the Racial Discrimination Act 1975 (Cth) (RDA) because it did not allow the native title landholders to own and inherit property, including the right to be immune from the arbitrary deprivation of property to the same extent as enjoyed by any other landholder. These two laws are therefore inconsistent, and thus, s 109 of the Constitution will privilege the Commonwealth law (RDA) and render the State law invalid. Accordingly, the mining lease is a ‘past act’.

The Court concluded that since it had been decided that the leases were past acts, each of the leases was a category C past act, as defined in s 231 of the NTA; a past act constituting the grant of a mining lease.