Brown v Western Australia

Case [2012] FCAFC 154

FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154

Citation: Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154
Appeal from: Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498
Parties: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEPOLE) v STATE OF WESTERN AUSTRALIA and BHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD
File number: WAD 225 of 2010
Judges: MANSFIELD, GREENWOOD & BARKER JJ
Date of judgment: 5 November 2012
Catchwords:

NATIVE TITLE – consideration of the question whether the exercise of Executive and Legislative power of the State of Western Australia in entering into the Iron Ore (Mount Goldworthy) Agreement (1964) with particular joint venturers and enacting the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (the “1964 Act”) conferred rights upon the joint venturers which had the effect of extinguishing the native title rights and interests of the Ngarla People in relation to an area of land and waters the subject of Mineral Leases 235 and 249 issued under the provisions of the 1964 Act within the Pilbara region of Western Australia – consideration of the bespoke nature of the arrangements made between the State of Western Australia and the joint venturers

NATIVE TITLE – consideration of the content of the determined native title rights and interests of the Ngarla People – consideration of the rights and interests granted to the joint venturers in the area of land and water the subject of the claim – consideration of the application of the principles governing extinguishment of native title rights and interests in undertaking a comparison of rights – consideration of the reservations contained in the terms and conditions of the 1964 Agreement as ratified by the 1964 Act

Legislation:

Income Tax Assessment Act 1936 (Cth) ss 187, 88
Native Title Act 1993 (Cth) ss 223, 24, 228, 13A, 23, 249C, 245, 211
Racial Discrimination Act 1975 (Cth)
Federal Court Rules 1976 (Cth) Order 29, rule 2
Acts Amendment (Iron Ore Agreements) Act 2000 (WA)
Acts Amendment (Mount Goldsworthy, McCamey’s Monster and Marillana Creek Iron Ore Agreements) Act 1994 (WA)
Fauna Conservation Act 1974 (QLD) s 7
Government Agreements Act 1979 (WA) ss 2, 3, 4
Iron Ore (Mount Goldsworthy) Agreement Act 1962 (WA)
Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) ss 4, 5
Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1963 (WA)
Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1971 (WA)
Land Act 1898 (WA)
Land Act 1933 (WA) ss 106, 116
Mines Regulation Act 1946 (WA)
Mining Act 1904 (WA) ss 277, 276, 3, 42, 45, 47, 48, 51, 53, 59, 61, 63, 64, 65, 26, 28, 30, 66, 8
Mining Act 1978 (WA) s 5
Public Works Act 1902 (WA) s 96
Cases cited:

Brown (on behalf of the…

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Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154
Case
[2012] FCAFC 154
Decision Date

CaseChat Overview and Summary

The case of Brown v Western Australia involved the Ngarla People contesting the extinguishment of their native title rights by the State of Western Australia. Specifically, the dispute centred around the Iron Ore (Mount Goldsworthy) Agreement (1964) and the subsequent Iron Ore (Mount Goldsworthy) Agreement Act 1964, which granted mineral leases to joint venturers. The Ngarla People argued that these arrangements had extinguished their native title over certain areas in the Pilbara region of Western Australia.

The central legal issues the court had to decide were whether the executive and legislative actions of the State of Western Australia in entering into the Iron Ore Agreement and enacting the related legislation effectively extinguished the native title rights of the Ngarla People. This required the court to consider the nature of the rights conferred to the joint venturers under the Agreement and whether these rights were inconsistent with the continued existence of native title rights. The court also needed to determine the content of the native title rights of the Ngarla People and whether the rights granted to the joint venturers were inconsistent with those native title rights.

The court concluded that the terms of the Iron Ore Agreement and the 1964 Act conferred rights upon the joint venturers that effectively extinguished native title rights over the areas subject to the mineral leases. The court found that the joint venturers were granted rights that were inconsistent with the continued existence of native title. This conclusion was based on the exclusive possession granted to the joint venturers and the fact that the leases covered the entire area in question. The court also noted that any future development by the joint venturers would further extinguish native title rights. The court upheld the primary judge's decision and dismissed both the appeal and the cross-appeal. No orders for costs were made due to the overlap in the parties' contentions.

Orders

Orders of the court

1. The appeal be upheld.

2. The cross-appeal by the State and the joint venturers be dismissed.

3. The parties to submit proposed forms of final orders within 30 days.

4. The parties to make further submissions on the question of costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Background

Background to the litigation

I have had the benefit of reading the reasons for judgment of Mansfield J in draft. However, because I take the view that many of the features of the bespoke Mount Goldsworthy arrangements made between the State of Western Australia and the joint venturers in 1964, 1966 and 1973 confer exclusive possession (for the purposes of the relevant agreement) of the lease areas in the joint venturers, subject however, to the proper construction of the grant in the context of all of the reservations from the grant, I have examined aspects of those matters in some detail together with other questions going to the “inconsistency of incidents” issue. Background and context On 30 May 2007, the Court made a consent determination under the provisions of the Native Title Act 1993 (Cth) that native title rights and interests subsist in the Ngarla People in relation to an area of land and mainland waters within the Pilbara region of Western Australia defined as “Determination Area A” within a broader application area (comprising two determination applications on behalf of the Ngarla People) of land and waters: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (the “Consent Determination”). An area of land and waters called “Unclaimed Areas” was excised from Determination Area A. That area is not presently relevant. Also excised from Determination Area A was an area of land and waters described as “Determination Area B” defined in the Consent Determination by reference to a map (described as Attachment 1) and Second Schedule. Determination Area B comprises, as defined in Second Schedule, the “land and waters the subject of Mineral Lease (Special Agreement) ML235SA [“ML 235”] and sections 1, 2, 7, 8 and 9 of Mineral Lease (Special Agreement) ML249SA [“ML 249”] and land and waters [bounded and contained within particular coordinates recited in Second Schedule]”, within the broader application area. One part therefore, the presently relevant part, of Determination Area B is the area the subject of ML 235 and ML 249. Unless otherwise stated, a reference to ML 249 is always a reference to the identified sections of ML 249 falling within the claim area. The leases are jointly referred to as the “Mount Goldsworthy Leases”. These leases were granted by the State of Western Australia to particular joint venturers in 1966 (ML 235) and 1973 (ML 249) pursuant to the terms of an agreement called the Iron Ore (Mount Goldsworthy) Agreement (the “Agreement”) made on 15 October 1964 between the State of Western Australia and the joint venturers. The Agreement was approved and given effect by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) (the “1964 Act”). The principal proceeding out of which this appeal arises concerned a separate determination (pursuant to O 29 r 2 of the earlier Federal Court Rules) of whether those parts of Determination Area B comprising the land and waters the subject of the Mount Goldsworthy Leases are subject to communal or group native title rights and interests for the purposes of s 223 of the Native Title Act subsisting in the Ngarla People or whether each of the native title rights and interests in the bundle of rights and interests have been extinguished by the rights granted to the joint venturers in 1964, 1966 and 1973 as an exercise of sovereign executive and legislative power of the State of Western Australia. The answer to that question was determined by the primary judge by framing the controversy between the parties in a way that required the Court to answer and the parties to address, relevantly, five questions capturing the range of circumstances relevant to the central question.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Her Honour at [209] considered that the Joint Venturers rights which remain for the duration of the life of the leases to make for further exploration and development of the area, contemplates that further extinguishment in undeveloped areas could occur in the future. In the event of the Joint Venturers, after exploration, developing new mines and infrastructure. native title will have been extinguished once the land on which that development occurs is identified. CONCLUSION For those reasons, in my judgment, the decision of the primary judge is correct, and the answers which her Honour provided to the five questions are correct. It follows that I would dismiss both the appeal and the cross appeal. In the circumstances, I would make no order as to the costs of the appeal or the cross appeals. They were heard together, and the contentions had a considerable degree of overlap in consideration of both the factual material and the authorities. I appreciate that my view differs from the conclusion of Greenwood and Barker JJ on the second of the two issues to be decided. There is much to be said for the conclusion they have reached on the second issue, but I have felt constrained by the decision of the Full Court in De Rose No 2 to respectfully differ from their conclusion. I have had the benefit of reading the reasons for judgment of Mansfield J in draft. However, because I take the view that many of the features of the bespoke Mount Goldsworthy arrangements made between the State of Western Australia and the joint venturers in 1964, 1966 and 1973 confer exclusive possession (for the purposes of the relevant agreement) of the lease areas in the joint venturers, subject however, to the proper construction of the grant in the context of all of the reservations from the grant, I have examined aspects of those matters in some detail together with other questions going to the “inconsistency of incidents” issue. Background and context On 30 May 2007, the Court made a consent determination under the provisions of the Native Title Act 1993 (Cth) that native title rights and interests subsist in the Ngarla People in relation to an area of land and mainland waters within the Pilbara region of Western Australia defined as “Determination Area A” within a broader application area (comprising two determination applications on behalf of the Ngarla People) of land and waters: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (the “Consent Determination”). An area of land and waters called “Unclaimed Areas” was excised from Determination Area A. That area is not presently relevant. Also excised from Determination Area A was an area of land and waters described as “Determination Area B” defined in the Consent Determination by reference to a map (described as Attachment 1) and Second Schedule. Determination Area B comprises, as defined in Second Schedule, the “land and waters the subject of Mineral Lease (Special Agreement) ML235SA [“ML 235”] and sections 1, 2, 7, 8 and 9 of Mineral Lease (Special Agreement) ML249SA [“ML 249”] and land and waters [bounded and contained within particular coordinates recited in Second Schedule]”, within the broader application area.

Ratio Decidendi

Legal Principle Established

The appeal to this Court proceeded upon the same basis, namely that mechanisms for statutory extinguishment under the NT Act were not applicable, but that common law extinguishment informed the correct outcome of the issues. CONSIDERATION(1) Did the Mt Goldsworthy Leases extinguish native title rights over the whole of the leased areas It is convenient at this point to consider the relevant provisions of the Mt Goldsworthy Agreement Act and the terms of the Mt Goldsworthy Leases. It is the content of these instruments by which the respondents seek to establish that the terms of the Mt Goldsworthy Leases extinguish any native title over the area the subject of the leases. As the relevant material is largely non-contentious, the following is taken largely from the reasons of the primary judge. The Mining Act 1904 (WA) (the 1904 Mining Act) gave rise to three forms of mining leases: goldmining leases, mineral leases, and leases of reserves which were referred to as leases as authorised holdings. In addition to those forms of statutory leases under the 1904 Mining Act, there was a separate form of tenure that was referred to as a “right of occupancy”. There was no indication within the legislation itself, nor any authority since then, that rights of occupancy on temporary reserves as a matter of law conferred exclusive possession. In Ward HC at [290] the majority observed that the genesis of the repeal of the 1904 Mining Act and its replacement by the Mining Act 1978 (WA) (the 1978 Mining Act) was the abandonment of these different sorts of leases to instead have one standard mining lease. A right of occupancy could only be granted over an area of land that was the subject of what is referred to as a “temporary reserve”: ss 276 and 277 of the 1904 Mining Act. All of the large iron ore interests in Western Australia which were created prior to 1978 were created pursuant to the rights of occupancy on temporary reserve land, including the interests of the original Joint Venturers. Section 5 of the 1978 Mining Act is a saving provision which has the effect of keeping alive the 1904 Mining Act for the purpose of State Agreements which were entered into prior to 1978. It provides at sub (1):Nothing in this Act shall affect the provisions of any Act in force on the commencing date that approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement. As mentioned those rights of interest were surrendered when the mineral leases were granted pursuant to the State Agreement. The iron ore industry in Western Australia was developed pursuant to State Agreements, of which the Mt Goldsworthy Agreement was one. The Agreement was brought into force as the operative schedule to the Mt Goldsworthy Agreement Act. The Mt Goldsworthy Agreement is a “Government agreement” for the purposes of the Government Agreements Act 1979 (WA) (the Government Agreements Act). It provides that a Government agreement operates and takes effect from inception according to its terms, notwithstanding any other Act or law (s 3). Relevantly, Determination Area B is “subject land” for the purposes of the Government Agreements Act. Section 4 of the Government Agreements Act provides for offences where a person remains on subject land without lawful authority after having been warned to leave it and where a person prevents, obstructs or hinders any activity carried on pursuant to a Government agreement.