Marshall ACJ
In this matter, the Court considers the extent to which the Ngadju people’s native title rights and interests have been extinguished by other rights that exist in the area. The Ngadju People (the applicants) hold native title rights in what Marshall ACJ described as the ‘Ngadju trial area proceeding’. Ngadju native title rights were recognised in Graham v Western Australia [2012] FCA 1455 and Western Australia v Graham [2013] FCAFC 143 (2013) 305 ALR 452. The respondents include: the State of Western Australia, St Ives Gold Mining Company Pty Ltd and BHP Billiton Nickel West Pty Ltd.
The Ngadju People’s native title rights and interests as recognised in previous cases include the right to:
hunt and fish (excluding commercial fishing), to gather and use the natural resources of the area, such as food and medicinal plants and trees, timber and ochre and to have access to and use of potable water;
live, to camp, to erect shelters and other structures and to travel over and visit;
do the following activities:
engage in cultural activities;
conduct rituals or ceremonies;
hold meetings; and
teach the physical and spiritual attributes of places and areas of importance on or in the land and waters;
have access to, maintain and protect, places and areas of importance on or in the land and waters, including Dreaming sites, waterholes and ceremony grounds; and
share or exchange subsistence and other traditional resources obtained on or from the land and waters.
The Ngadju people and the State had already reached agreement on a range of matters relevant to extinguishment. This case involved resolution of identified issues which remained in dispute. This included a determination that a grant of freehold in the claim area had extinguished native title and also that, in most instances, certain special leases, roads and gravel pits had extinguished native title. A table of the issues agreed and disagreed on is provided in the case as Annexure A.
The main issue of dispute for the court in this matter is whether:
the mining leases issued by the State prior to 1968 under the Mining Act 1904 (WA) are inconsistent with the native title rights and interests held by the Ngadju people.
His Honour recognised that some of the current mining operations in the Ngadju trial claim are subject to mineral leases granted prior to 1968. These leases are labelled as (ML1500150 and ML1500151) in Schedule 1, Table 10 of the State’s initial written submission. It follows that some leases granted under the 1904 Act, including those identified above, have continued to operate despite the 1904 Act being repealed. Such leases according to His Honour have been preserved by s5 (1) of the Mining Act 1978 (WA), which came in to operation in 1982.
In paragraph 8, Marshall ACJ indicated that the mineral leases granted by the State under the 1904 Act will only extinguish the native title rights and interests if they give the leaseholders rights which are inconsistent with those native title rights and interests held by the Ngadju People (identified in Graham v Western Australia [2012] FCA 1455). In considering the content of the rights granted under the mineral leases, in paragraph 10 his Honour applied the reasoning in Western Australia v Brown [2014] HCA 8, stating that the relevant mineral leases in Brown are relevantly indistinguishable to the ones under current consideration and they did not extinguish native title rights and interests. Marshall ACJ further stated that the leases in Brown had the effect that the native title rights and interests could not be exercised for as long as the leaseholders held rights under the mineral leases.
Accordingly, in the present case the rights granted under the mineral leases were found to not be inconsistent with the claimed native title rights and interests. The native title rights are not extinguished by the mining activity, but merely remain incapable of exercise in the areas of that activity whilst it continues. The rights might be suppressed but are not extinguished.
The State and mining companies argued that the 1904 Act gives leaseholders the right to exclude others from trespass. His Honour rejected that submission stating at [14] that:
the right to exclude “others” from the area of the mining operation, and the accompanying legislative provisions which deem such persons to be trespassers, do not affect the position that when the mining interests cease to exercise their rights to mine or when those rights come to an end, Ngadju native title rights will remain unaffected; see Western Australia v Brown at [64].
Marshall ACJ further stated that, even if there exists a right to remove a Ngadju person from a mine site in exercise of the mining lease, this does not mean that native title is extinguished.
There was also discussion about whether certain leases were ‘bespoke’ or tailor made for certain circumstances. His Honour stated that there is little doubt that the mining leases pre 1968 were tailor made for the exploitation of nickel and related material. They did not give general rights to mine an area but were limited to mine for a particular purpose. However, after the judgment in Brown, the focus has shifted to identifying the rights obtained under the leases to see if the rights granted under them are inconsistent with native title rights. In that sense the decision in Brown rendered the distinction between the pre and post 1968 leases “sterile”.