French CJ, Hayne, Kiefel, Gageler and Keane JJ
This important case sets the precedent for an assumption that native title coexists with mining leases and clarifies that activity that impacts on the exercise of a native title right or interest does not necessarily extinguish that right or interest.
Background
In 1964, the State of Western Australia (the State) and some joint venturers entered the Mount Goldsworthy iron ore agreement (the agreement) under which the State granted mineral leases. Two of these leases (the leases) expired in 1986 but provided for a renewal of 21 years, which could be exercised from time to time. The leases were ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 and are, therefore, rights granted by statute.
The leases were both renewed and are still in force. However, the open pit mine closed in December 1982 and the town closed in 1992. The town has been completely removed and the land restored. The pit remains but is filled with water.
Throughout the progress of this matter, the Ngarla people sought recognition that their native title rights and interests were not extinguished, to any extent, by the grant of the mineral leases or by any subsequent activities on the leased land. The State and the joint venturers both claim that native title rights and interests were wholly extinguished over the whole of the area of the mineral leases.
Progress through the Courts
In May 2007, the Federal Court made a consent determination that the Ngarla people held native title in the Pilbara region of Western Australia, with respect to the claimed area except for the areas subject to the leases. The primary judge ordered the trial to the Full Federal Court (Mansfield, Greenwood and Barker JJ) to determine whether the grant of the mineral leases extinguished native title rights and interests in relation to the land subject to the leases.
On 22 February 2013, the Full Federal Court made a new determination that the Ngarla people’s native title rights and interests were not extinguished by the grant of the mineral leases. However, the Judges were divided in opinion about the consequences of the exercise of rights under the leases.
Mansfield J held that the orders and reasons of the primary judge were correct.
Greenwood J held that the native title rights and interests of the Ngarla people were not extinguished by the grant of the mineral leases but that the exercise of rights under the leases prevents the exercise of native title rights over any part of the leased land for so long as the joint venturers hold rights under the leases.
Barker J held that the native title rights and interests were not extinguished and could be exercised or enjoyed, except where such rights and interests were incompatible with activities conducted by the joint venturers. In such instances, the native title would yield.
The State appealed to the High Court on the basis that native title rights and interests were wholly extinguished over the whole of the area of the mineral leases or, in the alternative, native title rights and interests were extinguished 'in respect of those lands ... on which the [joint venturers] exercised their rights to develop and construct mines, a town and associated works'.
Considerations by the High Court (French CJ, Hayne, Kiefel, Gageler and Keane JJ)
The parties to this matter in the High Court had already reached agreement that, unless extinguished by the leases, the Ngarla people hold native title to the land over which the leases were granted. Therefore, the High Court only had to consider whether the grant of the mineral leases extinguish those native title rights and interests in relation to the land subject to the mineral leases.
In their joint judgment, the full bench of the High Court stated at [28] that the subsequent use of the land subject to the leases is irrelevant to the issue of extinguishment and, therefore, the differences between the members of the Full Federal Court was not relevant.
In considering whether native title was extinguished, the High Court applied the test from Western Australia v Ward [2002] HCA 28 (Ward) of whether the objective intention of parliament was to extinguish native title (wholly or in part).
The High Court found that the leases were not intended to, and did not confer exclusive possession on the leaseholders. Also, with respect to the decisions in Wik Peoples v Queensland (1996) 187 CLR 1 and Ward, the High Court stated at [55] the legal proposition that:
The grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if not accompanied by the grant of a right to exclude any and everyone from the land for any reason or no reason, is not necessarily inconsistent with, and does not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land.
The High Court also referenced the decision in Ward when considering the extent of any inconsistency of rights and interests and stated, at [38]:
There cannot be "degrees of inconsistency of rights". Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.
Importantly, and in a rejection of the notion of 'contingent extinguishment' proposed in De Rose v South Australia (No 2) (2005) 145 FCR 290, their Honours considered the distinction between the existence of native title rights and interests and the manner that those rights and interests could be exercised at [37] and [60]-[63]. The Court also held at [64] that:
The rights which the joint venturers had, and exercised, took and continue to take priority over the rights and interests of the native title holders for so long as the joint venturers enjoy and exercise those rights. Any competition between the exercise of the two rights must be resolved in favour of the rights granted by statute; but when the joint venturers cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected.
The High Court dismissed the State’s appeal and ordered that the determination by the Full Federal Court stand.