Marshall J
This case involved the resolution of issues that had unintentionally not been dealt with in Graham v Western Australia [2014] FCA 516 (the initial judgment). In the initial judgment, the Court dealt with the extent to which the Ngadju people’s native title rights and interest had been extinguished, including with respect to mining leases granted under various instruments.
The unresolved issues related mainly to the issue of validity of certain mining tenements granted in 2004, 2006 and 2007. Marshall J determined most of the unresolved issues and, for the two outstanding matters, ordered the applicant (the Ngadju people) and the State (first respondent) to case management to resolve:
the issue of mining leases granted between 1 January 1994 and 23 December 1996; and
an overlap between areas known as the L63/40 and UCL/034 areas.
Marshall J ordered that his reasons in this matter are to be read together with the reasons provided in the initial judgment.
The Court then examined the following issues in contention.
Leases granted 24 December 2004
The WMC State Agreement was a tailor made agreement under which mineral leases could be granted that required leaseholders to undertake obligations not featured in mining leases under the 1904 or 1978 Mining Acts. The WMC State Agreement was terminated in 2008 and WMC mineral leases were progressively “normalised”. This meant the leases were released from the terms of the WMC State Agreement and allowed to be developed outside those obligations.
209 mining leases were granted on 24 December 2004 as part of the normalisation process.
At issue was whether the granting of these leases constituted future acts or intermediate period acts or category C past acts under the Native Title Act 1993 (Cth) (NTA), so as to extinguish native title in the Ngadju Trial area. Marshall J held that the granting of these leases was invalid to the extent that the leases affected native title in that area on the basis that they could not be considered as:
intermediate period acts under s 232A NTA, as they were not entered in to between 1 January 1994 and 23 December 1996;
permissible future acts. The leases were not granted in accordance with the WMC State Agreement and, therefore, they could not be categorised as permissible leases under either s 24IB NTA (a future act that is a pre-existing right-based act) or 24IC NTA (a future act that is a permissible lease renewal); and
category C past acts, for the purposes of ss 24OA and 28 NTA, because the leases were too different from the WMC mineral leases. Hence His Honour concluded that because they do not fall in any of the categories under the NTA the leases are invalid to the extent that they affect native title in that area.
Leases granted 6 October 2006
Marshall J also noted that leases granted on 6 October 2006, at issue in this case, could not be materially distinguished from the leases granted on 24 December 2004. Therefore, the granting of the 2006 leases were also held not to affect native title in the area.
Leases renewed on 18 December 2007
There were 75 leases in this category. In December 2007, these leases ceased to exist as WMC mineral leases and were renewed, subject to the Nickel Ferry Agreement Act 2008 (the 2008 Act). The 2008 Act operated so that:
future renewals would be undertaken pursuant to the Mining Act 1978 (WA); and
invalid renewals of some of the leases, including (ML15/150 and ML15/151), were legalised.
Marshall J found that the granting/renewing of the leases under the 2008 Act did not constitute a past act (or a valid future act) and were invalid to the extent that they affect native title because:
the granting or renewal did not take place on or after 1 January 1994, as required under s 228 NTA;
the difference in character of the WMC mineral leases to leases granted under the Mining Act 1978 did not render the leases a past act; and
the leases cannot be future acts under s241C NTA, mainly because the rights given to the leases in the Mining Acts are different from the rights under WMC State Agreements.
Special lease 332/1059, Special lease 3116/3838, Special Lease 0778/42 & Current Road 2
Marshall J found that none of these leases extinguished native title because there was not enough evidence to show they were validly granted., In the case of Road 2, that there was no evidence it existed.
Freehold parcel CT 2683/901
Some of this freehold parcel overlaps the claim area. The respondent’s evidence had no relevance to the overlap area and Marshall J found that the area of overlap did not extinguish native title.
Mining leases granted between 1 January 1994 and 23 December 1996
The Court noted that it had dealt with the issue in paragraph [102] and [103] of the initial judgement, however, as the parties were subsequently in dispute on this issue, Marshall J referred it to a case management conference.
s 47B NTA issue
With respect to unallocated Crown land, Marshall J found that the initial judgment did not sufficiently reflect an agreement between the Ngadju people and the State that, except for two areas, the Ngadju people occupied that land. Marshall J also determined that the two areas would are also occupied by the Ngadju people. Therefore, s 47B NTA applied to enliven native title.
Acts affecting native tittle
With respect to public works, the initial judgment did not identify each particular act affecting native title. Marshall J noted that ss 225(c) and 225(d) NTA requires that a determination of native title includes ‘the nature and extent of any other interests in relation to the determination area’ and their relationship with the identified native title rights and interests. His Honour concluded that, because a native title determination is a determination in rem,[1] each particular act affecting native title should be set out in a final determination.
Area necessary or incidental to water bores
The status of seven water bores was not addressed in the initial judgment. It was initially agreed that the water bores were public works, however the outstanding issue in this matter, relates to the area necessary to the water bores. Marshall J concluded that about one quarter of an acre per water bore is an appropriate area necessary or incidental to the water bores.
Typographical errors and omissions
Marshall J then identified and corrected typographical errors and omissions in the initial judgement case. More importantly, in paragraph [36], he notes that the initial judgment did not include ‘the right of exclusive possession in relation to land and waters above the high water mark.’ His Honour also points out that the initial judgment should have clarified that although historical petroleum tenements cover the entire claim area and distinguish exclusive native title rights and interests, such extinguishment must be disregarded in areas where ss 47A or 47B NTA apply.