Mansfield, Dowsett, Jagot JJ
In this matter, various appeals, cross-appeals, notices of objection to competency, and a notice of contention were 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  FCA 516 (the May reasons), Graham on behalf of the Ngadju People v State of Western Australia  FCA 700 (the July reasons), and Graham on behalf of the Ngadju People v State of Western Australia  FCA 1247 (the November reasons). The parties to the three appeals included St Ives Gold Mining Company Pty Ltd and BHP Billiton Nickel West Pty Ltd (the miners), the Ngadju people, the State of Western Australia and the Commonwealth.
The first of the appeals concerned the terms of paragraph 8A of the determination of native title contained in the November reasons, which stated as follows:
- To the extent that the Other Interests described at Schedule 5A cover areas of land and waters where the Ngadju People's native title rights and interests exist, those native title rights and interests are as described in  above.
- The Other Interests described at Schedule 5A do not cover areas of land and waters where the native title rights and interests described at  above exist.
- The relationship between the native title rights described in  above and the Other Interests identified in Schedule 5A is that to the extent that one or more of those Other Interests is inconsistent with the continued existence, enjoyment or exercise of those native title rights and interests, the Other Interest is invalid as against those native title rights or interests so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests.
The primary judge concluded 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).
The miners considered that the primary judge erred in finding that the mining leases were not valid future acts. The Ngadju people filed a notice of contention, stating that in any event, the leases had not been granted in compliance with the right to negotiate provisions contained in Subdivision P of Part 2, Division 3 of the NTA, which constitutes a pre-condition to the satisfaction of s 24IC of the Native Title Act 1993 (Cth).
The present decision concerned three groups of leases:
- The 2004/2006 leases, which were granted, renewed, and then re-granted
- The 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 parameters of the determination.
The parties filed extensive submissions on the construction and applicability to the relevant mining leases of the Mining Act 1904 (WA) (1904 Act), Mining Act 1978 (WA) (1978 Act), Nickel Refinery (Western Mining Corporation Limited) Agreement (1968 Agreement) and the Nickel Refinery (Western Mining Corporation Limited) Agreement Act 1968 (WA) (Agreement Act). The parties were in dispute as to whether the relevant mining leases had been granted pursuant to the Mining Act 1904 or the 1968 Agreement and Agreement Act, an issue which then affected the interpretation and application of the Mining Act 1978, which came into force in 1982.
The Miners’ argued that the 1904 Act was the source of power for the grant of the leases, not the 1968 Agreement, as was held by the primary judge. They considered that the 1968 Agreement was created contractual rights and obligations, but did not, as the Ngadju people contended, contain any source of power to grant mining leases.
The Full Court accepted the Miners' submissions as being consistent with legal authority, which states that dealings with minerals by the Crown can only be authorised by statutory authority, not contractual arrangements. The Full Court rejected the Ngadju people's reliance on Brown on behalf of the Ngarla People v Western Australia  FCAFC 154 as authority for their contentions, holding that it was also consistent with established authority, because the relevant leases in that case had been granted under the relevant agreement with the authority of the ratifying legislation. The Court emphasised the critical difference between a government agreement which, by statute, is approved and operates and takes effect according to its terms, notwithstanding any other Act or law, and a government agreement which, by statute, is itself enacted. The former situation is of contractual force and effect only, as states cannot give to itself a right to deal with Crown land through contract. As such, the Court held that the government agreement could not be the source of the power to grant the mining leases. In the present case, the leases were granted contractually under the 1968 Agreement, and as matter of power, under the 1904 Act.
The Court accepted the miners’ contention that the 1978 Act applied to all mining leases subject to the 1968 Agreement and had the effect of removing from those leases the limitation that only Nickel could be mined.
The remaining arguments brought by the Ngadju people in relation to the impact of the 1978 Act were dismissed on the basis that they were based on the incorrect notion that the source of power was the 1968 Agreement. The Court reiterated that the statutory rights granted to the miners under the leases were in addition to those in that agreement, and were not inconsistent with each other.
Submissions were filed as to whether the 2004/2006 leases and the 73 leases were invalid future acts as was found by the primary judge. The leases were initially granted under the 1904 Act and subject to the 1968 Agreement. The 2004/2006 leases were excised from that agreement with the amendments made to it in 2001 and 2002. The 73 leases were no longer subject to the 1968 Agreement after its termination in 2008. The primary judge held in his Honour’s July reasons that the leases were invalid as far as they affected native title by virtue of their renewal, which he considered had created new rights and interests, and brought them outside of the ambit of Category C past act provisions of the NTA.
The Full Court held that s 24IB (pre-existing right-based acts) of the NTA did not apply to the 2004/2006 leases, but s 24IC (permissible lease etc. renewals) was satisfied, making the leases valid future acts. In doing so, the Court rejected the notion that the re-granted leases constituted a larger proprietary interest than the original leases, in ruling that mining leases under Western Australian statutes do not create a proprietary interest. The Full Court also reiterated that the mining leases created under statute, and the amendments or cessation of the contractual rights and obligations created under the 1968 Agreement effected no changes to the leases themselves.
It followed that the Full Court held that the primary judge had erred, and the miners’ appeal should be allowed.
Paragraph 8A(c) Appeal
The terms of paragraph 8A(c) formed the basis of another appeal involving the miners, the Ngadju people as well as the State of Western Australia (the State) and the Commonwealth. The appeal concerned whether that paragraph complies with the requirements of ss 94A and 225(d) of the NTA. Section 94A requires that an order making a determination of native title must include the details of the matters listed in s 225, which defines ‘determination of native title’. Section 225 requires the determination to outline the relationship between the native title rights and interests and the other interests in relation to the determination area.
The Ngadju people contended that paragraph 8A(c) should be amended to reflect the phrasing of s 227 of the NTA. In response, the miners and the Commonwealth argued that s 94 requires that the determination give details of the matters in s 225, not merely repeat the language of that section, and the details should include both the invalidity of the other interests to the extent to which native title is affected and the validity of those interests to the extent that native title rights and interests are not affected. Those parties argued that the paragraph only dealt with the former. Their Honours held that the arguments put by the parties (the State contended that the primary judge had not erred in respect of the paragraph), did not express anything more than drafting preferences and did not warrant the level of error warranting appellate review. The cross-appeal brought by the Ngadju people was dismissed on that basis.
Paragraph 12 Appeal
A dispute arose between the Ngadju people and State about the terms of paragraph 12 of the determination, which held that the historical mining tenements that were granted ‘subject to survey’ were invalid because there was no evidence that that pre-condition had been satisfied. Both parties argued that the paragraph should be deleted, but disagreed about the basis for the deletion and the method for removing it. The State contended that the judge erred because a lack of a survey does not invalidate the leases, whereas the Ngadju people alleged that the issue was not argued before the judge and therefore a determination should not have been made on that issue. A consent order was not agreed upon in response to the State’s appeal, but rather the Ngadju people filed a notice of objection to competency.
In rejecting the submissions of the Ngadju people, the Full Court relied on the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority  HCA 28; (1998) 194 CLR 355 in which it was held that the issue of validity should be determined by asking whether it was the purpose of the legislation that an act that breaches a provision of the legislation should be invalid. The Court held that the primary judge did not conduct such an inquiry, nor did the submissions filed on behalf of the Ngadju people establish that the carrying out of a survey was a condition precedent to the granting of the lease. To the contrary, it was clear from their Honour’s interpretation of the 1904 statute that a survey was not a pre-condition to a grant and there was no indication that a failure to carry out a survey invalidates a grant. The Court allowed the State’s appeal on this issue on that basis.