Mansfield, Greenwood & Barker JJ
This matter involves the finalisation of an appeal from the Federal Court to the Full Federal Court. The Appellants are Alexander Brown and others on behalf of the Ngarla people, the first respondent is the state of Western Australia, and the second respondents are BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd.
On 5 November 2012, the Full Court published the principal judgment in these proceedings: Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154. At the conclusion of those proceedings, the Court ordered that the Ngarla peoples’ appeal be upheld, and the parties submit proposed forms of final orders for further consideration. The Ngarla people and the state each submitted a minute of proposed determination of native title. The mining companies supported the version proposed by the state. However, the Ngarla people and the state were unable to agree upon the terms of the minute of proposed determination of native title.
The point of disagreement between the parties arose out of Greenwood J’s principal judgment. Greenwood J asserted the view that a broad preventative effect should occur in relation to native title rights and interests when a mining grant is in place. However, this was not the view asserted by Mansfield J or Barker J. The point of confusion between the parties was whether native title rights and interests are suspended while a mining grant is in place, despite the relevant mining company ceasing mining activity on the relevant land. The state and the mining companies supported the claim that native title rights and interests should not be exercised on lands covered by the grant until that grant expires.
However, after considering the principal judgments handed down by Greenwood J, Mansfield J, and Barker J, the Court agreed that the correct minute of proposed determination of native title are that of those orders proposed by the Ngarla people, which provided for the narrower view of the preventative effect, adopted by Barker J. That is, the existence of a relevant grant will not preclude the Ngarla people from exercising their native title rights and interests on the land in circumstances where the mining activity on those lands has ceased.