Mansfield, Greenwood and Barker JJ
In this appeal, the Full Court of the Federal Court concluded that the Ngarla people’s native title rights over an area subject to mining leases ML235 and ML249 in Western Australia (the Mt Goldsworthy leases) had not been extinguished. In a 2:1 majority decision (Mansfield J dissenting), Greenwood and Barker JJ upheld the Ngarla people’s appeal and dismissed the respondents’ cross-appeal.
In 1964, Western Australia entered into the Mt Goldsworthy Agreement (the Agreement) with joint venture parties to develop iron ore mining in the Pilbara. Pursuant to the agreement, the joint venture parties obtained two mining leases in 1966 and 1973, which were granted for 21 years with an ‘indefinite right of renewal’. Rights under the mining leases were assigned to the current joint venture parties BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd, and Mitsui Iron Ore Corporation Pty Ltd.
The Ngarla people’s non-exclusive native title rights were recognised in a consent determination in May 2007 over an area of approximately 4,500 square kilometres at De Grey Station in Western Australia, designated as Determination Area A. The parties agreed to continue mediation in relation to Determination Area B, which partially overlapped with the Warrarn Application and with land covered by the Mt Goldsworthy leases.
In 2012, the Federal Court recognised the Ngarla people’s non-exclusive rights over Determination Area B. However, the primary judge identified two preliminary issues that needed to be addressed before a successful consent determination could be made:
Whether the grant of the Mt Goldsworthy leases gave the joint venturers a right of exclusive possession, such that any native title rights in the area were wholly extinguished; or
Whether the Ngarla people’s non-exclusive native title rights continued to exist, but due to inconsistency with the Mt Goldsworthy leases, were either extinguished or suspended for the duration of the mining leases.
These issues were dealt with by applying common law principles of extinguishment, as the Mt Goldsworthy leases pre-date both the Racial Discrimination Act 1975 (Cth) and Native Title Act 1993 (Cth) regimes.
At first instance, Bennett J found that the joint venturers did not have a right to exclusive possession over the whole of the leased area. However, her Honour concluded that the rights granted under the Mt Goldsworthy leases were inconsistent with native title and had the effect of extinguishing the Ngarla people’s non-exclusive native title rights in the specific areas where they had been exercised. Both of these findings were challenged on appeal.
Exclusive possession
Greenwood and Barker JJ concluded that the joint venturers enjoy a right of exclusive possession in the whole of the leased areas for the purposes of the Agreement, even if activities are only conducted at selected places within the lease area at a particular time.
However, after taking into account the reservations in the Agreement, the majority judges held that the joint venturers’ rights were limited. They did not have a right to exclude all others for all purposes, as provisions in the Agreement contemplated that third parties could continue to use facilities operated by the joint venturers; that the state might issue mining leases to other parties in the area; that third parties pass over the area; and that the joint venturers would rehabilitate the area upon completion. The tenure obtained by the joint venturers was therefore secure, but for limited duration and for limited purposes.
Mansfield J delivered a dissenting judgment, in which he upheld the primary judge’s decision on this issue. His Honour concluded that the joint venturers enjoyed no right of exclusive possession over the whole area. Although they had the right to occupy the area for the purposes of the Agreement, it was not intended that they would exercise their rights over the totality of the lease area or that they could exclude third parties from areas where mining was not taking place.
Inconsistency of incidents test
Greenwood and Barker JJ concluded that there was no clear and plain intent to extinguish all native title rights in the lease area. They held that the joint venturers’ rights to exclusive possession have a ‘temporal element.’ As Greenwood J observed, it is not inevitable that the joint venturers will continue to renew the leases; instead, they may choose to abandon them, or may exhaust iron ore deposits in the area, or in seeking a new mineral lease, need to comply with the future act provisions of the Racial Discrimination Act and Native Title Act. Due to this temporal inconsistency between the two sets of rights, Greenwood and Barker JJ concluded that the exercise of the joint venturers’ rights had the effect of preventing the exercise of native title rights by the Ngarla people, for as long as the joint venturers continue to hold the rights.
By contrast, Mansfield J agreed with the primary judge’s decision and concluded that the Ngarla people’s native title rights were extinguished in the developed sections of the lease area. The Ngarla people’s native title rights continue to exist in the non-developed sections, but may be extinguished in the future if further mining operations are carried out.
Conclusion
A majority of the Federal Court recognised the Ngarla people’s non-exclusive native title rights in a determination area subject to the Mt Goldsworthy leases. However, the majority ordered that the Ngarla people are prevented from exercising these rights for as long as the joint venturers continue to hold rights under the Mt Goldsworthy Agreement and leases.