Brown v Western Australia
[2012] FCAFC 154
•5 November 2012
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 96Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025
Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498
Commonwealth of Australia v Akiba on behalf of the Torres Strait Islanders of the Regional Seas Claim Group [2012] FCAFC 25; (2012) 289 ALR 400
Daniel v Western Australia [2003] FCA 1425Daniel v State of Western Australia [2003] FCA 666
De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290
Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96Goldsworthy Mining Ltd v Commissioner of Taxation of the Commonwealth of Australia (1973) 128 CLR 199
Hayes v Northern Territory (1999) 97 CLR 32
King v Northern Territory (2007) 162 FCR 89Mabo v The State of Queensland (No 2) (1992) 175 CLR 1
Neowarra v State of Western Australia [2003] FCA 1402
Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513
Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaye, Native Title Claim Group (2005) 145 FCR 442Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Rubibi v State of Western Australia (No 7) [2006] FCA 459
Sampi v Western Australia (No 2) [2005] FCA 1567; (2005) 224 ALR 358
Sampi v Western Australia [2005] FCA 777
The State of Western Australia v The Commonwealth (1995) 183 CLR 373The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1
The Wik Peoples v The State of Queensland (1996) 187 CLR 1
Ward and others (on behalf of the Miriuwung and Gajerrong People) v State of Western Australia (1998) 159 ALR 483
Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177
Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316Wilson v Anderson (2002) 213 CLR 401
Yannerv Eaton [1999] HCA 69; (1999) 201 CLR 351Date of hearing: 7 and 8 February 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 479 Counsel for the Appellants: Ms R Webb QC and Ms C Tan Solicitor for the Appellants: Mr M Meegan, Yamatji Marlpa Aboriginal Corporation Counsel for the First Respondent: Mr GJ Ranson and Ms A Warren Solicitor for the First Respondent: State Solicitor’s Office (Western Australia) Counsel for the Second Respondents: Mr GR Donaldson SC Solicitor for the Second Respondents: Ashurst Australia
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 225 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE)
AppellantsAND: STATE OF WESTERN AUSTRALIA
First RespondentBHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD
Second Respondents
JUDGES:
MANSFIELD, GREENWOOD & BARKER JJ
DATE OF ORDER:
5 NOVEMBER 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
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
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 225 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE)
AppellantsAND: STATE OF WESTERN AUSTRALIA
First RespondentBHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD
Second Respondents
JUDGES:
MANSFIELD, GREENWOOD & BARKER JJ
DATE:
5 NOVEMBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
MANSFIELD J
INTRODUCTION
The issues in this proceeding both at first instance and on appeal concern the extinguishing effect at common law on native title rights and interest of Mining Leases ML235SA and ML249SA (the Mt Goldsworthy Leases) which were granted pursuant to an agreement (the Mt Goldsworthy Agreement) amended and ratified by the Iron Ore (Mt Goldsworthy) Agreement Act 1964 (WA) (the Mt Goldsworthy Agreement Act).
The second respondents BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd are the current Joint Venturers and the current lessees under the Mt Goldsworthy Agreement. They are the current participants in the Mt Goldsworthy Mining Associates Joint Venture which was formed, originally in 1960. BHP Billiton Iron Ore Pty Ltd is the current manager of the MGMA Joint Venture.
The appellants on behalf of the Ngarla People claim native title over certain land in Western Australia under the Native Title Act 1993 (Cth) (the NT Act). A consent determination was made in respect of part of the land over which the Ngarla People claim native title on 30 May 2007: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (Brown No 1). Excluded from that consent determination was an area designated Determination Area B. The following order was made:
The parties have agreed that in respect of the balance of the land and waters the subject of the Ngarla Applications, which the parties have designated “Determination Area B”, no determination be made at present and mediation continue in relation to these areas. Determination Area B is described in the Second Schedule to the Determination and comprises the areas covered by mineral leases ML235SA and ML249SA and the areas of the Warrarn Application which geographically overlap the Application Area.
The parties to the Ngarla People’s application agreed that the native title rights determined in Brown No 1 also existed over the land and waters of the Determination Area A unless those native title rights and interests had been extinguished. Relevantly, those are non‑exclusive rights to:
·access, and to camp on, the land and waters;
·take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters;
·engage in ritual and ceremony; and
·care for, maintain and protect from physical harm particular sites and areas of significance to the common law holders.
Those native title rights, which were recognised by the determination with respect to Determination A in Brown No 1, did not extend to possession, occupation, use and enjoyment on the Ngarla People to the exclusion of all others, nor a right to control the access of others to the land and waters of the claim area.
In relation to Determination Area B, with the consent of the parties, the primary judge ordered that five preliminary questions be determined pursuant to O 29 r 2 of the Federal Court Rules 1976 (Cth) as then in force. The five questions related to the extinguishing effect of the Mt Goldsworthy Leases on the appellants’ native title rights with respect to those parts of Determination Area B which was an area subject to the two Mt Goldsworthy Leases. The remainder of Determination Area B, being those areas which are not subject to the Mt Goldsworthy Leases, was dealt with in separate proceedings known as the “Ngarla Overlap proceeding” as there were overlapping native title claims over those areas.
The issues concerning the existence or otherwise of the native title rights of the Ngarla People over that part of Determination Area B covered by the Mt Goldsworthy Leases were addressed by consideration of the five preliminary questions. They were restated and answered at the conclusion of the judgment in these terms: Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 (Brown No 2) at [229]-[233]:
Question 1 is:
Did the grant of the Mt Goldsworthy Leases pursuant to the Mt Goldsworthy State Agreement confer on the holders of those Leases a right of exclusive possession such that any native title rights and interests were wholly extinguished?
The answer to question 1 is: “No”.
Question 2 is:
If the grant of the Mt Goldsworthy Leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement inconsistent with any or all of the bundle of native title rights and interests recognised in [5] of Annexure A of the determination of native title in Brown No 1? If the answer is “yes”, which ones?
The answer to question 2 is: “Yes”. The rights granted pursuant to the Mt Goldsworthy Leases and the Agreement are inconsistent with the continued existence of any of the determined native title rights in the area where the mines, the town sites and associated infrastructure were constructed. The granted rights are not inconsistent with the continued existence of any of the determined native title rights in those parts of the relevant claim area which have not been developed in exercise of the rights under the Leases and the Agreement.
Question 3 is:
If the answer to (2) is “yes”, in relation to any and each of such native title rights which are inconsistent, are these rights wholly extinguished?
Question 4 is:
Was native title wholly extinguished to the area (or part of the area) of the Mt Goldsworthy Leases through the rights as exercised under the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement?
The answer to question 4 is: “Yes”.
Question 5 is:
If the answer to (4) is “yes”, in which areas has native title been wholly extinguished?
The answer to question 5 is: the areas of the mine, the town sites and associated infrastructure, which is the Goldsworthy Area of Interest as described in Exhibit C‑M3.The primary judge delivered her reasons for those answers on 21 May 2010: Brown No 2. Those reasons can be separated broadly speaking into two parts. The first part concerns whether the Mt Goldsworthy leases granted over the whole of the leased areas extinguish native title rights over the whole of the leased areas. The second part concerns whether, by reason of the inconsistency of incidents test laid down by the High Court in State of Western Australia v Ward (2002) 213 CLR 1 (Ward HC), any native title rights over those parts of the leased areas on which mining and related activities had taken place have been extinguished or whether their enjoyment was simply suspended whilst those activities were and continued to be carried out.
By way of explanation, as to the significance of the second issue, it may be noted that certain mining activities ceased some years ago and the leased area in part has been, or is being, repatriated so that – in a practical sense at least – those who held native title rights over that area before the grant of the Mt Goldsworthy Leases could resume enjoyment of those rights (or could do so until the second respondents decided to undertake further mining activity on those areas or part of them).
On the issue of exclusive possession, namely question 1, the primary judge held (at [185]):
…in terms of the lease area as a whole, while it was the intention that the Joint Venturers could decide where in the leased area they would locate mines and associated infrastructure, it could not have been the intention that they would exert their rights over the whole of the leased area.
Her Honour found that the terms of the Mt Goldsworthy Leases did not operate so as to exclude absolutely access to the entirety of the leased areas, but that the right of exclusive possession was confined to exclusive possession for mining purposes (at [184]). The Agreement and the Mt Goldsworthy Leases did not confer a right of exclusive possession on the Joint Venturers such as to extinguish all native title rights over the whole of the leased area.
On the issue of inconsistency, encompassing questions 2 to 5, the primary judge determined (at [201]) that none of the determined native title rights could co-exist with the rights of the Joint Venturers to construct and work the developed areas of the Leases. The rights granted under the Mt Goldsworthy Leases to carry out the mining and related activities that the Joint Venturers were entitled to undertake are inconsistent with the continued existence of any native title rights over the areas where those activities are carried out. The rights exercised within the developed areas were analogous to rights of exclusive possession.
In doing so, her Honour followed the Full Court decision in De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose No 2), where it was held at [157] in relation to pastoral leases that the rights under a pastoral lease to construct improvements were inconsistent with and extinguished native title but had that effect only where improvements were actually constructed.
Her Honour found that the areas in which extinguishment occurred was limited to the developed area of the Mt Goldsworthy Leases (at [208]):
As in De Rose, the grant of the rights under the Mt Goldsworthy Leases became operative to extinguish native title rights on particular parts of the leased area when the granted rights were exercised, because it was only then that the precise areas of land affected by the right could be identified.
ISSUES ON THE APPEALS
There are three matters which are before the Court in these appeals. It should be noted that the respondents do not otherwise challenge the primary judge’s conclusion that native title subsists within the leased areas.
The first of those three matters is the contention that her Honour was wrong in concluding that the two Mt Goldsworthy Leases did not confer a right of exclusive possession, and thereby extinguish all native title rights, over that part of Determination Area B which they covered. That is the first ground of cross appeal.
The legal principles informing the concept of exclusive possession are largely uncontentious; rather it is the application of those principles to the interpretation of the Mt Goldsworthy Agreement Act and terms of the Mt Goldsworthy Leases which is to be considered. The exclusive possession issue is to be dealt with first, as it has long been accepted that if a title confers a right of exclusive possession that extinguishes native title then that is the end of the inquiry.
The second matter is the appellant’s contention that her Honour was incorrect to conclude that the rights granted under the Mt Goldsworthy Leases were inconsistent with all native title rights, and thereby extinguished them, in the developed areas of the mining leases – that is where the mining lease rights were exercised within the greater leased areas. The contention of the respondents on the cross-appeal is that her Honour, having correctly concluded that the rights granted under the mining leases were inconsistent with all native title rights, erred in not then finding that the native title was extinguished over the whole of the mining leased areas. That is the second ground of the cross appeal.
With respect to the second matter, there is no issue as to the proper test to apply – that is the inconsistency of incidents test as approved in Ward HC (at [79]):
The inconsistency of incidents test requires a comparison between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests
However, it is the application of test which requires consideration.
The third, and related matter, was referred to as the De Rose issue. Her Honour followed the Full Court decision in De Rose No 2. The appellants contend that, while the primary judge was bound by that decision, that decision is plainly wrong when considered in the context of the extinguishment principles enunciated in Ward HC. It was recognised at trial, and on the appeal, that there was difficulty in reconciling De Rose No 2 with the High Court decision in Ward HC, where it was held at [78] in the majority judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ that:
…the question is whether the rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used.
The asserted ambiguity in this area of the law is said to arise from the inconsistent application of the principles in Ward HC.
THE APPLICATION OF THE NATIVE TITLE ACT
It was common ground between the parties that the Mt Goldsworthy Leases did not come within the specific definitions in the NT Act of past acts, intermediate period acts or previous exclusive possession acts under s 23B, so the issue of whether there was extinguishment, and if so its extent, was to be resolved at common law
The primary judge explained in detail the scope and operation of the NT Act and its interplay with the common law, and its relevance to the facts in the proceeding. I respectfully adopt those observations of her Honour in Brown No 2 at [58]-[62]:
Part 2 Division 2 of the Native Title Act 1993 (Cth) is concerned with the validation of past acts which, were it not for the NTA, would be invalid. Section 228 defines a “past act” as an act that took place before 1 January 1994 (or 1 July 1993 in the case of legislation) which is invalid, but would have been valid but for native title. Invalidity would have arisen by reason of the Racial Discrimination Act 1975 (Cth) (the RDA). Where an act took place before the commencement of the RDA on 31 October 1975, the act would not have been rendered invalid by reason of the RDA. Hence, it is not a “past act” under s 228 for which it is necessary to have regard to Pt 2 Div 2.
Pt 2 Div 2 of the NTA provides not only for the validation of past acts but also for the extinguishing effect of those acts. Some past acts extinguish native title (see also ss 229 to 232). Relevantly, Pt 2 Div 2B confirms the extinguishing effect of “previous exclusive possession acts” and “previous non-exclusive possession acts”, which are not confined to “past acts”. If Pt 2 Div 2B of the NTA applies to a particular act, the extinguishment regime of Pt 2 Div 2 is put aside and any overlap between the two extinguishment regimes is resolved in favour of Pt 2 Div 2B and its corresponding State and Territory provisions (State of Western Australia v Ward (2002) 213 CLR 1 at [10]). Accordingly, Pt 2 Div 2B provides the analytical starting point. If an act extinguishes native title under Pt 2 Div 2B, it is unnecessary for the Court otherwise to examine extinguishment under the NTA (ss 23C(3), 23G(3)).
Nonetheless, acts that do not fall within either category of “previous exclusive possession acts” and “previous non-exclusive possession acts” may still extinguish native title apart from the provisions of Pt 2 Div 2B. The NTA does not constitute a comprehensive code of extinguishment (see, for example s 23B(9C)(a)) and an act to which Pt 2 Divs 2, 2A or 2B of the NTA do not apply may still have been effective to extinguish native title under the common law.
Where the act is the act of the State of Western Australia and a “previous exclusive possession act” within s 23B of the NTA, it only extinguishes native title if it is also a “relevant act” under s 12I of the TVA [Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA)], which is, relevantly, a freehold grant whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996.
The question of extinguishment is not wholly determined by the characterisation of the relevant grant as conferring exclusive possession. As the applicants point out, the NTA recognises “previous exclusive possession acts” (s 23B) and “previous non-exclusive possession acts” (s 23F). The former wholly extinguish native title (s 23C), the latter generally partially extinguish native title (s 23G). What is described as a “lease” under the NTA may or may not confer a right of exclusive possession (Wilson v Anderson (2002) 213 CLR 401 at [59] per Gaudron, Gummow and Hayne JJ). Pt 2 Div 2B of the NTA expressly declines to provide for extinguishment, under that division, of native title by the grant of a mining lease, whether or not it confers a right of exclusive possession over land (ss 23B(2)(c)(viii), 249C(1)(a)). Further, certain Scheduled interests extinguish native title, without regard to whether, as drafted, they confer exclusive tenure.
Her Honour considered the treatment of mining leases in the NT Act at [63]-[64]:
A mining lease, for the purposes of extinguishment of native title under the NTA, may be dissected into separate leases in relation to those parts upon which particular construction has occurred (s 23B(2)(c)(vii) and s 245(3)(a); Ward at [302]). The remainder of the mining lease is excluded from the definition of “previous exclusive possession act”, even if the lease in fact confers exclusive possession (s 23B(2)(c)(viii)). A mining lease cannot be a “previous non-exclusive possession act”, which acts are limited to agricultural and pastoral leases (s 23F).
The applicants point out that the NTA does not evince any intention that mining leases extinguish native title. Rather, mining leases are generally excluded from having such an effect (ss 231 and 232D; ss 15(1)(d) and 22B(d); s 238; s 21(3)(a); s 24MD(3); s 24GA(2)). “Intention” does not mean the state of mind of the legislators but intention as manifested by the legislation (Wik at 168-169 per Gummow J; Ward at [78]).
The primary judge then summarised the application of the NT Act in the present case to conclude that the provisions were not applicable, and in their absence the common law principles of extinguishment were to be applied. She said at [65]-[66]:
As to the application of the NTA in the present case:
• The Mt Goldsworthy Leases preceded the commencement of the RDA on 31 October 1975 and are not thereby rendered invalid by that Act (Ward at [135] and [139]). There is no dispute that the grant of the Mt Goldsworthy Leases was not a “past act” under s 228. Therefore, it is not necessary to have regard to the “past act” provisions of Pt 2 Div 2 of the NTA.
• The grant of the Mt Goldsworthy Leases was not a “previous exclusive possession act” as defined in s 23B.
• The Mt Goldsworthy Leases are “mining leases” as defined in s 245. The Mt Goldsworthy Leases are thereby excluded from the definition of previous exclusive possession act in s 23B(2)(c)(viii). As mining leases, they are also excluded from the definition of a “Scheduled interest” in s 249C and therefore do not fall within s 23B(2)(c)(i).
• The grant of the Mt Goldsworthy Leases was not a “previous non-exclusive possession act” as defined in s 23F.
• The grant of the Mt Goldsworthy Leases was not a “previous exclusive possession act” or a “previous non-exclusive possession act” to which Pt 2 Div 2B applies.
No party contends that any of Pt 2 Divs 2, 2A or 2B of the NTA applies to the grant of the Mt Goldsworthy Leases. All parties agree that the preliminary questions are to be addressed by reference to common law extinguishment of native title and that, even though the NTA deals expressly with issues of extinguishment, these express mechanisms presuppose that extinguishment can occur apart from their operation. There is no dispute that extinguishment can occur at common law and that common law extinguishment is not contrary to the NTA.
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.
The second respondents said that the structure of the Mt Goldsworthy Agreement involved a reservation of land and a grant of a “right of occupancy” under the 1904 Mining Act, and then the Mt Goldsworthy Leases became operative when the Agreement was ratified by statute.
By s 4 of the Mt Goldsworthy Agreement Act, the second respondents were permitted to enter upon the leased lands to the extent and for the purposes provided under the Mt Goldsworthy Agreement. Clause 2 of the Agreement sets out the obligations of the State during Phase 1. This included, on application prior to 31 March 1965, an obligation to “cause to be granted to the Joint Venturers and to the Joint Venturers alone rights of occupancy for the purposes of this Agreement (including the sole right to search and prospect for iron ore)” over the whole area of a wide area including the area granted by the Mt Goldsworthy Leases. Clause 2(a) also provided for an obligation to cause to be granted as may be necessary successive renewals of such rights of occupancy. This obligation was to expire on one of a series of dates, whichever shall first happen, including the date of application for a mineral lease by the Joint Venturers under either cl 8(1) or cl 8(2)(a) of the Agreement.
Clause 5 provided for proposals by the second respondents for, inter alia, transport and shipment of the iron ore to a harbour to be developed, transport by railway between the mining area and the wharf, town sites on the mining area and near the harbour, housing, water supply, roads and any other works or facilities proposed or desired by the second respondents. Provision was made for consultation on the proposals between them and the Minister within fixed time frames and for arbitration of any disputes. It should be noted that all of the development carried out by the second respondents was carried out lawfully.
Clause 8(2) provided that, as soon as convenient after the commencement date, the second respondents may apply and the State shall cause to be granted a mineral lease of any part or parts (not exceeding 300 square miles) of the proposed Mining Area, relevantly for present purposes including Determination Area B, the mineral lease being granted to the second respondents “as tenants in common in equal shares…for iron ore in form of the Schedule hereto” for 21 years subject to rental payment and performance and observance by them of obligations under the mineral lease, with the right to successive renewals of 21 years.
By and under the Mt Goldsworthy Agreement, rather than the 1904 Mining Act, the State granted the Mt Goldsworthy Leases for iron ore over the Mt Goldsworthy Lease area. As the primary judge noted, the Mt Goldsworthy Leases contained specific provisions and were in a form different to those granted under the 1904 Mining Act, including that:
(1)they were expressed to be granted under the terms of the Mt Goldsworthy Agreement;
(2)the lease instruments provided for the grant to the second respondents as tenants in common in equal shares the land and the mines and deposits of iron ore in or under the said land together with all rights, liberties, easements, belonging or appertaining to a lessee of a mineral lease under the 1904 Mining Act to hold the land and mine;
(3)clause 1 provided that the second respondents shall and will use the land bona fide exclusively for the purposes of the Agreement extending to the construction of roads, railways, an airstrip and towns and schools;
(4)clause 2 provided for compliance with the Mines Regulation Act 1846 (WA) and the 1904 Mining Act, subject to and as modified by the Agreement;
(5)they may only be terminated by the lessor as a consequence of the default of the leaseholders as provided by the Agreement;
(6)they provide the leaseholders with the rights contemplated by the Agreement as well as the rights available for a mineral lease under the 1904 Mining Act.
Under the Mt Goldsworthy Agreement, the lease holders could be granted additional tenure for specific purposes and further rights pursuant to legislation other than the 1904 Mining Act. They could seek grants of fee simple titles or other required titles for town site lots and special leases within town sites and railways. After approval or determination of the second respondents’ proposals, the State was obliged to grant to the Joint Venturers “as tenants in common in equal shares in fee simple or for such terms or periods and on such terms and conditions (including renewal rights) as subject to the proposals…shall be reasonable having regard to the requirements of the Joint Venturers” (cl 8(2)(b)) including for townsite lots, special leases of Crown lands within the harbour area, townsites and the railways and for leases, rights, mining tenements, easements, reserves and licences in, on or under Crown lands.
The second respondents also had the right under cl 8(2)(c) to have granted to them, on application, such machinery and tailings leases and such other leases, licences, reserves and tenements as they may reasonably require and request for their purposes under the Agreement on or near the mineral lease. Similarly, the State had the obligation to grant or assist in granting prospecting rights and mining leases with respect to limestone, dolomite and other minerals reasonably required for the Joint Venturers’ purposes under the Agreement (cl 8(5)(e)).
The second respondents were obliged under the Mt Goldsworthy Agreement to construct, inter alia, mining plant and equipment, railways, roads and a wharf (cl 9). Further, in accordance with proposals as finally approved or determined, they had obligations to dredge the berth at the wharf and the channel, to lay out and develop town sites with adequate suitable housing, recreational and other facilities and to construct and provide roads, housing, a school, water and power supplies and to construct and provide an airstrip.
In relation to what has been described as Phase 2 obligations, the Mt Goldsworthy Agreement provided in cl 9(1) that within three or five years following the commencement date, the second respondents were obliged carry out substantial work in relation to infrastructure, the mining operations and the transport of ore. Clause 9(2) provides, inter alia, that they were obliged to:
(1)except to the extent provided under the proposals as finally approved or determined, allow the public to use free of charge any roads constructed or upgraded under the Agreement (cl 9(2)(b)); and
(2)allow the State and third parties to have access over the mineral lease (by separate route, road or railway)
so long as such use and access shall not unduly prejudice or interfere with the Joint Venturers’ operations thereunder, that is, under the Agreement.
The second respondents did not rely on the activities undertaken on the Mt Goldsworthy Leases themselves as extinguishing native title, because they accepted that to do so would fall into the category of operational inconsistency which was discussed in Ward HC at [149]. They emphasised that it was the rights that were able to be exercised under the Mt Goldsworthy Leases which were relevant for the purpose of determining whether the grant of title gave rise to a right of exclusive possession or, if not, whether it was otherwise inconsistent with the determined native title rights. They submit that because those rights could have been exercised over the entirety of the Mt Goldsworthy Lease area, they therefore extinguished native title over that entire area, as the continued exercise of native title rights would have been and is inconsistent with the rights able to be exercised under the two Leases.
It is clear that, pursuant to the rights exercisable under the Mt Goldsworthy Leases to do what was needed under the Mt Goldsworthy Agreement, the second respondents proceeded to build towns, build facilities to service the town, store material, extract minerals, quarry, use explosives and the like. The work carried out and the activities undertaken were extensive, as evident from the development of Port Hedland and the port at Finucane Island, the dimensions of the mine and the quantity of material taken from it. The scale of the work at Mt Goldsworthy was, as described by them, to “transform a mountain into a deep gorge” by extracting tens of millions of tonnes of material from an area.
Pursuant to clause 8(2)(b) of the Mt Goldsworthy Agreement special leases have been granted as required, concurrent in time and at the request of the second respondents, over land outside the Mt Goldsworthy Leases area. For example, special leases were granted for the town of Shay Gap, the Finucane Island town site (Port Hedland) and the Mt Goldsworthy water supply, which were all outside the Mt Goldsworthy Lease area. It is agreed that these special leases gave rise to exclusive possession and therefore extinguishment of native title.
There were no separate titles applied for or granted for the Mt Goldsworthy town site as it was built pursuant to ML235SA and within the area of that Lease. There are areas within the Mt Goldsworthy Leases which were subject to a special lease for the railway. The parties accept that those overlapping areas are excluded from the relevant claim area. The second respondents acknowledge that this special lease was obtained because the railway goes across and beyond the Mt Goldsworthy Leases area. Apart from this special lease, there were no other special leases granted within the Mt Goldsworthy Leases area.
The second respondents also rely on the fact that future mining may be carried out in parts of the Mt Goldsworthy Leases area not previously mined or developed. On the evidence there is, at least a real prospect that that will occur.
In Wik Peoples v State of Queensland (1996) 187 CLR 1 (Wik), Gummow J at 194‑195 considered the meaning of the expression “exclusive possession”. His Honour said:
… at common law the term “exclusive possession” is used as a touchstone for the differentiation between the interest of a lessee and that of a licensee, who has no interest in the premises.
“Exclusive possession” serves to identify the nature of the interest conferred upon the lessee as one authorising the exclusion from the demised premises (by ejectment and, after entry by the lessee, by trespass) not only of strangers but also, subject to the reservation of any limited right of entry, of the landlord. As Windeyer J put it, a tenant cannot be deprived of the rights of a tenant by being called a licensee.
Following the decision in Wik, it is appropriate to regard the term “exclusive possession” as meaning “possession exclusive of all third parties, including native title holders exercising their rights under traditional law” (Wilson v Anderson (2002) 213 CLR 401 (Wilson v Anderson) at [461] per Kirby J).
It is clear, that there is no magic to the notion of exclusive possession, other than a characterisation of exclusive possession which requires an analysis of the rights over the land which is the subject of the title said to confer exclusive possession. In Ward HC (at [177]), the majority judgment endorsed the comments of Toohey J in Wik (at 108) where his Honour suggested that at the heart of the argument “is the proposition that such a grant conferred exclusive possession of the land on the grantee, and that entitlement to exclusive possession is inconsistent with the continuance of native title rights.” This, as his Honour explained, involves a two-step process:
Expressed with that generality, the proposition tends to conceal the nuances that are involved. The first step is to consider whether the relevant grants did in truth confer possession of the land on the grantees to the exclusion of all others including the holders of native title rights. That question is not answered by reference only to general concepts of what is involved in a grant of leasehold. The language of the statute authorising the grant and the terms of the grant are all important. The second step is to determine whether, if such a grant did confer exclusive possession, native title rights were necessarily extinguished. This second step has within it two elements. The first looks at inconsistency, that is, whether and to what extent native title rights are inconsistent with the exclusive possession which the grant of a pastoral lease is said to carry. The second asks whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease.
The second respondents asserted at trial, and on appeal, that they hold rights of “exclusive possession” so as to extinguish all of the determined native title rights and interests over the area of the Mt Goldsworthy Leases. As noted above, Toohey J in Wik cautions against the use of that expression in the abstract. Its meaning, and the legal consequences of a finding of exclusive possession, are not removed from the analysis required by the test of inconsistency of incidents. To do otherwise, would be to stop at step one as Toohey J described above. However, it is recognised that whether the grant of exclusive possession, that is the right to exclude all others, extinguishes native title, is generally subsumed in a single step of ascertaining whether there was a true legal inconsistency.
In Fejo v Northern Territory of Australia (1998) 195 CLR 96 (Fejo), the High Court held a grant in fee simple extinguishes all native title rights and interests in the land, because of the particular characteristics such title possesses (at [43]):
Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights to interest which together make up native title. An estate in fee simply is “for almost all practical purposes, the equivalent of full ownership of the land’ and confers ‘the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination’. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title’.
If the grant is not of fee simple but of rights that have the same effect in that they enable the holder of those rights to use the land as he or she sees fit and to exclude any and everyone from access to the land, those rights are inconsistent with native title rights and native title is extinguished (Fejo at [47]). Put another way, if the granted rights amount to a title to land which gives rise to or creates a right to exclude for any reason, or for no reason at all, then native title rights and interests will be extinguished and not merely suspended, regardless of whether the expected use of the land could be compatible with the continued exercise of native title rights (Fejo at [46]; Ward HC at [370]). In the passage referred to above, the analysis of their Honours in Fejo requires one to look at the rights which comprise the non-native title rights, and ask whether those rights are capable of co-existing with the native title rights.
In Ward HC, the majority judgment undertook such a task, by considering various forms of title to land. In particular their Honours referred to leases granted under the Land Act 1933 (WA). While not of direct relevance to the particular facts of this matter, their Honour’s discussion suggests that a finding of exclusive possession requires an analysis of the rights to the land conferred, not on the particular or proposed uses of the land to be exercised (at [368]-[370]):
The lease, granted on 29 September 1977, was said, in its heading, to be under ss 32 and 116 of the Land Act 1933. The reference to s 116 was, for the reasons just given, inapposite. The term of the lease was one year, renewable from year to year, but determinable, after the first year, on three months' notice. The term was said to commence on 1 October 1966 but that does not mean that the grant was made then. Having regard to the requirements of the Land Act 1933 (including s 13 with its provision that leases be signed and s 7(2) with its provision that “grants and other instruments” are “valid and effectual in law” to vest an interest) the grant of a lease occurred on 29 September 1977. The lease was for the purpose of grazing. The lease provided that the Crown might resume and enter upon possession of part of the lands for various purposes in the nature of public works. Power was given to the Crown to take timber, quarry, search for minerals and the like. Minerals and petroleum were reserved to the Crown. There was a proviso for re-entry. The lease recorded that it was issued subject to the condition that the public should have “free and uninterrupted use of the roads or tracks” on the land and that the lessee not destroy timber or scrub.
The lease that was granted was not a statutory interest in land. The features of the interest granted were not prescribed by the Act but were determined by the nature of the agreement reached and the grant made. The rights thus granted to Ivanhoe were, therefore, rights as lessee of the land, as that term is understood in the general law. Ivanhoe was thus granted a right of exclusive possession of the land.
That being so it is not to the point to inquire, as the majority of the Full Court did, how it would be expected that the lessee would use the land or whether that use could be compatible with the continued exercise of native title rights or interests. The lessee having been granted a right of exclusive possession, the right thus granted was inconsistent with the continued existence of native title rights and interests and, subject to the operation of the RDA and the NTA, those latter rights were extinguished.
If the grant is not of exclusive possession, then it may be the case that the rights granted extinguish native title, or do not extinguish native title rights but simply prevail over them. It is a matter of comparing the rights. Here, the question on the cross appeal, is whether the grant of the Mt Goldsworthy Leases amounted to “exclusive possession” in the sense described in Fejo above. In order for the Mt Goldsworthy Leases to wholly extinguish native title, one must analyse the grant and the legislation to consider whether the rights conferred upon the second respondents to exclude access were legally inconsistent with each and every right which the native title holders held under their traditional laws and customs in relation to the land.
On that question, I have reached the same view as the primary judge, and for much the same reasons.
There is no doubt that the second respondents under the Mt Goldsworthy Leases could undertake in the area extensive open pit mining, which changed the landscape. They could construct a town in the leased area. The Leases envisaged railways, roads and other construction. Extensive construction was in fact carried out pursuant to authorisation by the State. Tenure in the form of a demise from the Crown creating the interest in the land was granted by the Agreement and the Mt Goldsworthy Leases.
The second respondents were entitled to select where to mine in the leased area and where to construct such infrastructure as considered necessary for that purpose and indeed where to construct infrastructure not directly associated with mining activities but extending to the town and associated activities and structures.
However, as the primary judge found, while it was the intention that the second respondents could decide where in the leased area they would locate mines and associated infrastructure, it was not the intention that they would exert their rights over the whole of the leased area. Even with the extensive mining activity and development already undertaken, only about one third of the leased area has been the subject of the exercise of those granted rights.
The terms of the Mt Goldsworthy Agreement contemplate third party rights of access in and through the leased area, provided they do not interfere with the operations of the second respondents. This recognition that the operations will not encompass the whole of the leased area so that those parts of the leased area that are not part of the mining operations and associated development may be accessible to third parties indicates that the Mt Goldsworthy Leases were not intended to grant to the second respondents rights to exclude all and any persons from all and any area of the Leases, irrespective of where the mining and other activities were in fact carried on. Indeed, it may fairly be observed that the rights so granted were not necessarily fully exercised, and need not have been exercised at all. The scale of the contemplated mining and associated activities was not known at the time of the Leases. Where such activities were not undertaken within the leased area, there is no reason to conclude in particular that those who had held native title rights and interests over the leased area, at least since settlement, and continued to do so, should have those rights extinguished entirely irrespective of the extent to which (if at all) the Joint Venturers exercised those rights.
In that regard, it is worth recalling that Kirby J in Wilson v Anderson said at [139] that native title rights should not be extinguished by legislative or executive grant unless there is a clear and plain intention to do so. See also Ward HC at [78]; Western Australia v Commonwealth (1995) 183 CLR 373 at 422-423.
It is accepted that the second respondents had the right to preclude access by the native title holders to, at least, the mine or other areas the subject of mining or mining exploration and to areas and buildings within the town site during those activities and their enjoyment. They did not extend, and were not intended to extend, to exclude all persons, but in particular those who to that time held native title rights in the leased areas, from continuing to enjoy those rights anywhere in the Leased area from the time of the Mt Goldsworthy Leases.
The native title rights were, of course, subject to the grants to the second respondents so that (subject to consideration on this appeal) they could and would be adversely affected by the valid exercise of those rights for mining and related purposes. But, in my view, that did not mean that the Mt Goldsworthy Leases necessarily precluded the exercise and enjoyment of native title rights over the whole of the leased areas from the time of the grant of the Mt Goldsworthy Leases. To adopt the expression used in Ward HC at [78], it was not contemplated that all the leased areas would be the subject of mining and related activities. The activities undertaken indicate the nature and extent of the rights granted. They were granted in respect of the leased areas only to the extent that the second respondents determined that mining and related activities would be carried out within the leased areas.
The second respondents also rely on the 2007 renewals of each of the Mt Goldsworthy Leases to submit that, if native title were not extinguished by the grant of the Mt Goldsworthy Leases, the renewals had the effect of wholly extinguishing native title pursuant to s 24IB of the NT Act.
Section 24IB relevantly provides:
A future act is a pre existing right based act if it takes place:
(a)in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or
(b)in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.
The argument runs that the renewal of the Mt Goldsworthy Leases in 2007 would have constituted a “future act” as defined in s 233 of the NT Act.
The bases on which a future act can be validly done are set out in subs 24AA(3) and 24AA(4) of the NT Act. Section 24AB(2) relevantly determines which provisions apply to the doing of a particular future act. The renewal of the Mt Goldsworthy Leases would fall within the definition of a “pre-existing right based act” under s 24IB which covers acts that take place in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid. Section 24ID(1)(b) sets out the effect of the application of s 24IB to an act. It provides that if the act consists of the conferral of a right of exclusive possession over particular land or waters, the act extinguishes any native title in relation to the land or waters.
The appellants successfully resisted that contention at first instance. Their position was that, because the renewals did not confer rights additional to those conferred by the original leases, those sections were not enlivened. At first instance, the State also submitted that s 24IB did not apply to the renewal of grants of exclusive possession leases because the NT Act assumes that such grants will have already extinguished native title. It follows that the renewal will not affect native title.
The finding that the grant of the Mt Goldsworthy Leases does not confer a right of exclusive possession over the whole of the area the subject of the leases means that their renewal similarly does not have that effect. Hence, in my view, the renewal of the Mt Goldsworthy Leases would not have conferred a right of exclusive possession for the purposes of s 24ID of the NT Act.
In my view, the inconsistency of incidents test, when applied to the particular circumstances, does not support the conclusion that, at least to the present time, the rights granted to the second respondents under the Mt Goldsworthy Leases included the right to exclusive possession over the entirety of the leased areas as against the persons who, at the time of the grant of those leases, held native title rights. One illustration may be given, based on an argument of the second respondents. Reference was made above to the offence created by s 4 of the Government Agreements Act. The rights granted by the Mt Goldsworthy Leases would not, in my view, have entitled the second respondents immediately from the time of the grant of those leases to give a warning to a native title holder not to remain on any part of the leased areas, as the second respondent’s rights are defined by reference to its mining and related activities; the holder of the native title rights would have a lawful entitlement (and excuse) to be on that land until the identification of the mining and related activities. At that point, when the nature of the right was clearly identified, it would be apparent whether there was conflict between the two rights.
It follows that the cross appeal should be dismissed, and the answer to question 1 given by the primary judge is correct.
(2) Did the mining and related activities undertaken extinguish native title rights over the areas on which those activities were undertaken?
The next step is to address the correctness of the answer to the second question answered by the primary judge. Incidentally, that will require consideration of the third issue raised on the appeal, namely the status of De Rose No 2.
I am not persuaded that the decision of the Full Court in De Rose No 2 is plainly wrong. It is a carefully considered decision. It, in turn, carefully considered and followed the decision of another Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 (Alyawarr). Each of those decisions, in their particular circumstances, gave effect to the decision in Ward HC.
There may be some scope for identifying the nature of the rights granted under a lease (whether a pastoral lease or a mining lease or some other kind of lease) as confined to rights granted to particular persons, so that upon the expiration of the lease (or the cessation of the exercise of rights under that lease), although any native title rights to exclusive possession have been extinguished, non-exclusive native title rights (which would have been also extinguished against the lessee and the lessees licences) continue to be enjoyed, save that during the period when the lessee’s rights are exercised, the native title rights must be subordinated. Such an approach was not approved in Alyawarr at [148].
However, in relation to this appeal, the Court’s function is to apply the inconsistency of incidents test to the particular circumstances. That test is prescribed in Ward HC.
It is correct to say, as the appellants agreed, that Ward HC at [308] contemplated the circumstance where the exercise of rights by a mining lessee or a pastoral lessee may inhibit or prevent the enjoyment of particular native title rights, or may do so in relation to a particular geographical area, but leaving other native title rights available to be enjoyed. As was said in Ward HC at [308], the particular circumstances need to be specifically addressed. In Alyawarr at [131], the Full Court applied that approach in deciding the pastoral lessees’ rights were not inconsistent with non-exclusive native title rights, but that the lessees’ rights prevailed over the native title rights. That reflects a concept now embedded in s 23G(1)(a) of the NT Act.
It is also correct to say that there have been a range of decisions in particular circumstances in which the application of the inconsistency of incidents test in relation to the rights of a mining or pastoral lessee against non-exclusive native title rights has been a complex exercise. Examples where there has been found to be co-existing native title rights with rights under a mining lease include Daniel v Western Australia [2003] FCA 1425 (Daniel) at [10]-[25], [102]-[104] and [746]-[848]; Rubibi v State of Western Australia (No 7) [2006] FCA 459 at[63]-[67]; Neowarra v State of Western Australia [2003] FCA 1402 at [601]-[616]; and Hayes v Northern Territory (1999) 97 CLR 32 at [91] and [116]. In Daniel at [845]-[847] a particular form of mining lease was found to extinguish native title rights. Reference may also be made to the decision in Sampi v Western Australia (No 2) [2005] FCA 1567; (2005) 224 ALR 358 at [1139]-[1143].
The consideration of the Full Court in De Rose No 2 shows, there have also been a number of decisions addressing the relationship between certain rights granted under pastoral leases and native title rights.
As Ward HC indicated, the application of the inconsistency of incidents test may not be an easy one. To some extent, where it directly applies, the NT Act attempts to strike the balance by preserving as much as possible existing native title rights: see s 23B defining “previous exclusive possession act”, and ss 21(3)(a), 24MD(3), 24GA(2), 231 and 232D. However, those provisions do not apply to the present appeal.
Indeed, the State’s submission on this appeal is that Ward HC does not “provide clear guidance as to how ‘inconsistency’ is to be identified and applied”, and that there are a series of decisions of this Court which, at least at first instance, appear to apply the test in an inconsistent manner.
As I have indicated, Ward HC stressed the need to address the particular terms of the rights granted under the legal instrument relied upon, and to test inconsistency carefully against the particular native title rights which exist, or exist subject to their extinguishment. That is what the primary judge did. That, too, is what the Full Court did in De Rose No 2. It is not surprising that, by doing so, different cases produce different and at one level apparently inconsistent results. That is the consequence of the careful consideration of the particular circumstances.
I am not persuaded that De Rose No 2 departed from the approach prescribed by the High Court in Ward HC. As here, the rights of the pastoral lessee there under consideration – at the time of the grant – were not necessarily inconsistent with the native title rights found to exist. The manner of the exercise of those rights by the pastoral lessee from time to time was found to affect the full enjoyment of the native title rights which continued to exist, and so took priority over them whilst the pastoral lessee exercised those rights in that way. But the identified rights of the pastoral lessee to do so were not necessarily, from the time of the grant, inconsistent with the native title rights. When exercised, they demonstrated the extent to which the granted rights were inconsistent with the native title rights.
In this matter, as the primary judge did, I have reached the conclusion that the granted rights under the Mt Goldsworthy Leases were not necessarily inconsistent with the continued enjoyment of non-exclusive native title rights over the leased areas. However, also as the primary judge found, the rights under the Mt Goldsworthy Leases were capable of exercise in relation to parts of the leased area, and when so exercised were so extensive as to be inconsistent with the continued existence of native title rights over those parts of the leased areas where mining and associated activities were in fact undertaken. The identification of those areas, by the actions of the lessees, therefore indicated the extent to which the rights granted were inconsistent with the continued enjoyment of the native title rights. That is a different thing from what has sometimes been called operational inconsistency; it is identification of the nature and extent of the rights granted which – until the mining and related activities were undertaken – did not indicate the extent to which, if at all, they were inconsistent with the native title rights.
In my view, the primary judge did not fall into error in her application of the inconsistency of incidents test.
Her Honour made a comparison of the legal nature of the rights granted in accordance with the Mt Goldsworthy Leases with the native title rights of the appellants recognised in Determination Area A, and which, but for the issues of extinguishment, would exist in Determination Area B.
The primary judge considered that the rights exercised within the mining development areas were analogous to rights of exclusive possession, noting the grant of a special lease for the construction of Shay Gap town site outside the leased area which confers rights of exclusive possession. Coexistence of native title rights with rights granted pursuant to the Mt Goldsworthy Leases, as demonstrated by the work carried out, and the extensive and pervasive nature of that work, was in her Honour’s view not possible. She said at [201]‑[203]:
I accept the submissions of the Joint Venturers that the granted rights to construct the mine and the town site, together with the associated infrastructure, and to work and utilise those entities and the land on which they stand, are inconsistent with the continued existence of any of determined native title rights within the areas on which the mines, town sites and associated infrastructure have been constructed (the developed areas). In my view, none of the determined native title rights can co-exist with the rights of the Joint Venturers to construct and work the developed areas of the Leases. The Leases are not pastoral leases; they are mineral leases that were the subject of a special agreement and statute. The rights granted under those Leases to carry out the activities described therein, including the activities that the Joint Venturers were obliged to undertake, are inconsistent with the continued existence of any native title rights over the areas where those activities are carried out. The rights exercised within the developed areas are analogous to rights of exclusive possession. The rights to construct the town site included the right to construct housing and associated buildings and construction necessary for the reasonable use of the town site by the Joint Venturers and their employees. There was no need for a special lease to effect that construction as the town of Goldsworthy was constructed on the mineral lease area. Where a similar town site, Shay Gap, was constructed outside the leased area, separate tenure by way of special lease was granted.
It is not a question of possible co-existence as may be the case with a pastoral lease when comparing the right to hunt and the right to graze cattle, or the right to camp and the right to construct yards to contain stock, or the right to drive down a road. The work carried out on the Leases, accepted as lawful and within the rights granted under the Leases, assists in demonstrating the extent of those granted rights. It is, for example, inconceivable how the Joint Venturers’ rights to excavate an open pit mine which has so dramatically changed the landscape, and to control access to the mining area, are consistent with the native holders having a right to camp, take flora and fauna, or engage in ritual and ceremony on the mining area. The Joint Venturers have the right to deny access to third parties over the mineral lease where such access would unduly prejudice or interfere with their operations under the Agreement (cl 9(2)(g)). The rights granted to the Joint Venturers to conduct their operations pursuant to the Agreement were such that they were inconsistent with native title rights existing over the land where the operations occurred.
Although the grant of the Mt Goldsworthy Leases did not confer exclusive possession over the whole of the land, the grant conferred rights to construct the mine and the town on the leased areas, as well as the extensive and varied infrastructure detailed above. Such construction of the town would, if not within the leased area, have likely attracted a special lease, as did Shay Gap, which confers a right of exclusive possession. The nature, extent and reasonable use of the town site were inconsistent with the continued existence of the determined native title rights over the town area.
Her Honour considered that the approach adopted, that is by finding extinguishment of native title rights in the developed areas pursuant to those rights granted, remained consistent with the High Court’s rejection of operational inconsistency and represented endorsement of the view that inconsistency occurs at the time of grant, not at the time of exercise of rights. Her Honour added at [204]:
It is worth repeating that the High Court in Ward rejected the notion of extinguishment by operational inconsistency by having regard to what actually occurred over time. Inconsistency is determined as at the grant, which is the extinguishing event relied on. This, in turn, involves an examination of the nature of the rights that are able to be exercised pursuant to the grant. In this context, regard can be had to what actually happened on the leased area as an understanding of the rights can properly be informed by evidence of usage (Daniel No 1 at [847] citing Ward at [215]). It is possible that some native title rights may continue to be able to be exercised while others may not (as recognised in Ward at [308]). However, the evidence of Mr Coppin and Mr Brown, as native title holders, of their continued use of the land for certain of the determined native title rights is not relevant with respect to the land on which native title rights have been extinguished. That native title holders, on the facts were, or now are, able to continue to exercise their native title rights does not derogate from the conclusion that a grant has extinguished the native title rights if it is, by its nature, inconsistent with such rights (Ward at [21]). Further, once native title rights are extinguished, they cannot be revived by, for example, discontinuance of usage by the tenure holders or a return of the land to its original state. It is not to the point that the town has now been abandoned. Once extinguished, the native title rights cannot be resurrected.
Hence, the primary judge rejected the appellants’ contention that the common law contemplates a concept of a statutory rights prevailing over native title rights during the course of their exercise, as a competing an alternative enquiry to that of extinguishment by inconsistency at [205]:
In my view, the [appellant’s] reasoning seeks to enlarge the concept of prevailing rights to such an extent that most granted rights would not operate to extinguish native title rights on the basis that they can merely prevail over those native title rights. It is important to note that the fundamental question is whether the granted rights and the native title rights are inconsistent and not whether one can prevail over another. A reverse analysis may result in every possibility of inconsistency between two sets of rights being answered by the fact that the granted rights can merely prevail over the native title rights.
Accordingly, her Honour concluded that native title had been extinguished over the whole of the area of the mines and any area over which infrastructure and town sites have been constructed together with any buffer zones over which exclusive use is necessary for or incidental to the operation of enjoyment of the improvements (at [228]). The lack of permanence of the mine and the return of the mining development areas to their natural state were not relevant as where the second respondents had exercised their rights under the Mt Goldsworthy Leases, those rights could not co-exist with native title, which was therefore extinguished).
The conclusion of the primary judge is at [206]-[207]:
I do not accept the [appellants’] submission that the rights granted by Mt Goldsworthy Leases did not extinguish native title rights because of the lack of permanence of the mine and the town site works and the fact that the developed areas have been returned to their natural state. In the developed areas where the Joint Venturers have exercised their rights, it is their rights which cannot co-exist with the determined native title rights. Once such inconsistency occurs so as to extinguish the native title rights, it is not relevant that the resources being mined are finite or that the mine and the town are later abandoned.
Further, for the [appellants] to submit that a special lease for quarrying extinguishes native title because the special lease entitles the leaseholder to exclude native title holders from the land irrespective of the transience of the activity or the length of the lease but then to rely on the “impermanent nature of mining leases” as a reason for the “suppression” (or “yielding”) of native title only for as long as the lessees continue their activities is not, in my view, logical. This is particularly so as the distinction ignores the permanent nature of the effect of open pit mining and the High Court’s clear statement that, once extinguished for inconsistency, native rights cannot be revived. This also applies to the applicants’ submission that native title rights over the town site can be revived, even if they were directly in conflict with the rights pursuant to which the town was built. In any event, the fact that the town site has been abandoned is not evidence as to the intention or likelihood of its permanence on construction.
Her Honour did not consider that the rights granted by the Mt Goldsworthy Leases are inconsistent with the continued existence of the determined native title rights in those parts of the Leases which were not affected by the developments carried out pursuant to the Leases and the Agreement.
In my view, that reasoning is consistent with and applied the reasoning in De Rose No 2. That adopted approach is analogous to that taken in De Rose No 2 in relation to pastoral leases where it was held that the right of a pastoral lessee to construct improvements was inconsistent with, and extinguished native title but had that effect only when improvements were actually constructed. That left unaffected the exercise of the determined native title rights in those parts of the Leases which were not affected by the developments carried out pursuant to the Mt Goldsworthy Leases and the Mt Goldsworthy Agreement.
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 certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:Dated: 5 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 225 of 2010
BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE)
AppellantAND: STATE OF WESTERN AUSTRALIA
First RespondentBHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD
Second Respondent
JUDGES:
MANSFIELD, GREENWOOD & BARKER JJ
DATE:
5 NOVEMBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
GREENWOOD J
Introduction
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.
Before turning to those questions and the all important findings and questions of construction upon which the answers to the questions turn, it is important to note that at [2] of the primary judgment from which this appeal arises (Brown (on behalf of the Ngarla People) v State of Western Australia (No. 2) 2010 FCA 498 (“Brown No. 2”)), the primary judge notes the agreement of the parties that the native title rights and interests recognised at [5] of Annexure A of the Consent Determination also subsist in the Ngarla People (subject to the extinguishment question) in relation to the area the subject of the Mount Goldsworthy Leases.
The rights do not “spring” back into existence because in such a case they have never been extinguished.
The notion of the granted rights being “exercised” by the grantee in a way which would prevent the exercise of one or more of the native title rights or interests for so long as the holder of the rights “carries on” the activity the subject of the grant, must be understood, in the context of this case having regard to the scope of the grant, as the joint venturers taking any step consistent with the continuing subsistence of the grant. Such a step might involve analytical steps in relation to particular things that might be done concerning the land or feasibility assessments or other administrative arrangements in relation to possible steps to be taken under the Agreement in relation to the land.
Such a step does not simply involve the exercise of the granted right by carrying on extraction and processing activities. The true measure is simply whether the joint venturers continue to hold the rights according to the terms of the Agreement and the leases.
It follows that although each of the native title rights and interests of the Ngarla People are inconsistent with the rights granted to the joint venturers under the bespoke arrangements reflected in the Agreement and the leases as ratified and approved by the 1964 Act, the native title rights are not extinguished but the rights holders are merely prevented, for so long as the joint venturers continue to hold the granted rights, from exercising the native title rights and interests over the whole of the lease area.
It follows that the appeal ought to be upheld.
An order ought to be made deleting paragraph 3 from the “Minute of Determination of Native Title” attached to the orders of the primary judge made on 6 August 2010. A further order ought to be made deleting from paragraph 10 of the Minute the words “including any further extinguishing effect of the granted rights, when exercised, under the ‘Other Interests’ in clause 3 of the Fourth Schedule”.
A further declaration ought to be made that the rights granted to the joint venturers (being the present assignees) under the Agreement, and the Mount Goldsworthy Leases issued under the Agreement, approved under the 1964 Act, prevent the exercise of any of the determined native title rights and interests of the Ngarla People on the land the subject of Mineral Leases 235 and 249, during the currency of the Agreement and the leases issued under it for so long as the joint venturers continue to hold the rights granted to them under the Agreement and leases made under it as ratified by the 1964 Act. The terms of the declaration need to be formulated precisely to ensure that the declaration does not go beyond rights conferred at grant and that the preventative effect of those rights are contingent upon the continued subsistence in the joint venturers of the granted rights.
The cross‑appeal by the State and the joint venturers ought to be dismissed.
The parties ought to be heard further on the question of costs.
I certify that the preceding three hundred and thirty-nine (339) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood
Associate:Dated: 5 November 2012
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 225 of 2010
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE)
AppellantsAND: STATE OF WESTERN AUSTRALIA
First RespondentBHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD
Second Respondents
JUDGES:
MANSFIELD, GREENWOOD & BARKER JJ
DATE:
5 NOVEMBER 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
BARKER j:
I have had the advantage of reading in draft the judgments of Mansfield J and Greenwood J. I agree with the orders proposed by Greenwood J that will result in the appeal of the appellants (the Ngarla People) being allowed and the cross-appeals of the first respondent (State of Western Australia) and the second respondents (joint venture parties) being dismissed and the parties being heard on the question of costs.
In his judgment, Greenwood J identifies the issues raised on this appeal and the legislative and executive acts that describe the Mt Goldsworthy project and I need not repeat them here.
His Honour also identifies by reference to leading authority the principles of law that govern the circumstances in which native title rights and interests may be extinguished by a legislative or executive act. In this regard, his Honour pays particular attention to such decisions of the High Court as The Wik Peoples v The State of Queensland (1996) 187 CLR 1 (Wik), Fejo v Northern Territory of Australia [1998] HCA 58; (1998) 195 CLR 96, Yannerv Eaton [1999] HCA 69; (1999) 201 CLR 351 and The State of Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 (Ward).
The legal principles relating to the extinguishment of native title rights and interests are complex. There are different considerations that apply depending on the period in which a legislative or executive act that is said to have caused extinguishment occurred and the nature of the act in question. First, there is the period prior to the commencement of operation of the Racial Discrimination Act 1975 (Cth) (RD Act) on 31 October 1975, when only general law principles governed the question of extinguishment. Secondly, there is the period after the RD Act commenced, which is affected both by the general law and the operation of the RD Act. Thirdly, there is a separate question whether the provisions of the Native Title Act 1993 (Cth) (NT Act) operate to validate “past acts”, as defined in the NT Act, regardless of the time when the alleged extinguishing act occurred.
For the reasons explained by Greenwood J at [242]-[251] the legislative and executive acts that describe the Mt Goldsworthy project and are said by the State and the joint venture parties to have effected total or partial extinguishment of native title in the project area in this case do not fall into the RD Act period and are not, so far as the NT Act is concerned, “past acts” as defined. Rather, the sole question is whether the legislative and executive acts in question caused any extinguishment under the general law.
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 (Mabo (No 2)) spoke to the need to discover a clear and plain intent to extinguish before extinguishment is found. But Mabo (No 2) did not deal with particular acts of alleged extinguishment of the type dealt with in later decisions of the High Court, and focussed primarily on the question whether native title survived the coming of the new British sovereign in Australia. As to how clear and plain intent is to be discovered is a matter of construction of a statutory provision or an executive act and not an exercise in discovering the subjective legislative or executive intent (as explained in Wik and more recently in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). Given that prior to Mabo (No 2) it can reasonably be assumed that no Australian legislature or public official considered that indigenous native title rights and interests existed (let alone subsisted), a search for subjective intention would in any event be in vain (see, for example, Gummow J at 184-185 in Wik). In Wik, when faced with a question whether particular Queensland pastoral leases necessarily extinguished all native title rights and interests, the High Court, by a majority, found they did not. The test the Court used in so finding has been described as the “inconsistency of rights” test or “inconsistency of incidents” test, namely that if the legal rights or incidents of an instrument such as a pastoral lease are necessarily inconsistent with an indigenous right or interest exercisable under native title then the latter will be taken to be extinguished, but not otherwise.
At a certain factual or practical level the finding made in Wik can easily be appreciated. For example, a right under the types of pastoral leases considered in Wik to run sheep over a certain terrain, in respect of which to the time of the grant of the pastoral lease native title included an exclusive right of the native title holders to control access to that terrain and to use the land and other resources on it and to protect spiritual sites to be found there, would remove at least the exclusivity of the right of the native title holders to control access; the pastoral lease holder would not need to ask the native title holders’ permission to operate the pastoral enterprise under the pastoral lease. But the right to run sheep would leave open the question whether any other native title rights of the types mentioned would necessarily be extinguished, because it is not obvious that the right to do those other things under native title would necessarily conflict with the right to run sheep. The right to run sheep on the terrain, for example, as a more abstract legal right, would not necessarily be in conflict with an indigenous usufructuary native title right to hunt, spear and carry away a kangaroo on and from that terrain. The exercise of each such right is, on the face of it, able to accommodate the exercise of the other. There would be, in the language of the majority in Wik, no “necessary” inconsistency between the grant of the statutory right and the exercise of the indigenous right. Thus the grant of the right to run sheep would not extinguish any native title, save for the native title right to control access to the subject terrain. However, in Wik the majority said that while there may be no necessary inconsistency in such a case, in the event of actual conflict, that is to say where the exercise of two such rights comes into conflict, then the grant of the right under the pastoral lease will “prevail over” the exercise of the indigenous right.
In Wik, Gummow J, at 202-203, having considered each of what were referred to as the Mitchellton pastoral lease and the Holroyd River pastoral lease, concluded that, despite some differences between the two relevant statutory regimes at material times in Queensland, and subject to one qualification, in neither case was there “clear, plain and distinct authorisation” by the relevant grant of acts necessarily inconsistent with all species of native title which might have existed. His Honour stated that it did not appear that the statutory interests could be enjoyed only with the “full abrogation” of any such native title. Justice Gummow then added the qualification:
that the later but not the earlier grants were subject to conditions requiring improvements to the land. It may be that the enjoyment of some or all native title rights with respect to particular portions of the 2,830 km² of the Holroyd River Pastoral Lease would be excluded by construction of the airstrip and dams and by compliance with other conditions. But that would present particular issues of fact for decision. The performance of the conditions, rather than their imposition by the grant, would have brought about the relevant abrogation of native title.
By this qualification, Gummow J raised the possibility (without deciding) that where certain types of works are carried out pursuant to an enforceable obligation, there might be “abrogation” of native title. The concept of abrogation in such circumstances was not further developed by his Honour in Wik. It appears, however, as expressed, to be a proposition that owes itself to an enforceable requirement to carry out certain types of works. It also appears to suggest a concept of law that depends upon the works carried out having a particular factual characteristic – given that his Honour noted that the question of abrogation “would present particular issues of fact for decision”. While it is not stated expressly by his Honour what those issues of fact might be, it may be that his Honour had in mind that depending on the nature of the works, and their permanency perhaps, the construction of an airstrip and dams in compliance with the pastoral lease conditions in that case might lead to an abrogation of all native title rights and interests.
Justice Gaudron also dealt with the conditions for the construction of buildings and improvements required by the Holroyd River pastoral lease, although her Honour did not enter into the potential abrogation by performance analysis suggested by Gummow J. Instead, at 166, Gaudron J considered that the relevant improvement and developmental conditions in question “might suggest a right of exclusive possession”. Her Honour then observed that:
And as there is no basis for distinguishing as to the estate or interest granted with respect to that part of the land to be improved and that to be left unimproved, conditions of that kind might suggest a right of exclusive possession over the whole land. Similarly, as there is no statutory basis for distinguishing between pastoral holdings made subject to improvement or developmental conditions and those not subject to conditions of that kind, the possibility that such conditions might be imposed is capable of suggesting that all pastoral leases conferred a right of exclusive possession.
Justice Gaudron immediately went on, at 166, however, to say it would be wrong to place great weight on the provisions of the 1962 pastoral legislation in Queensland authorising the imposition of improvement and developmental conditions, especially as they may be deleted, varied or amended. Her Honour also stated:
Moreover, it cannot be said that the conditions which might be imposed were of such a nature that they necessitated a right of exclusive possession.
Her Honour further added, at 166, that in light of the principle of construction identified and explained in Mabo (No 2) and “in light of the long statutory history of pastoral leases”, clear words were plainly required before the provisions of the Land Act 1962 (Qld) dealing with pastoral tenures could be construed as “changing the essential nature of pastoral leases by the introduction, under the same name, of a different tenure conferring a right of exclusive possession”. The matters to which reference had been made were considered by Gaudron J to “fall short of a clear indication” of an intention to that effect.
In other words, on the approach taken by Gaudron J, the fact that an airstrip and dams might be constructed in accordance with conditions was not sufficient to establish the clear and plain intent that native title over the whole of the land the subject of the relevant pastoral lease was extinguished by something approaching an exclusive possession act. As noted, her Honour did not adopt or discuss the potential abrogation by performance analysis suggested by Gummow J.
Justice Kirby concluded in a manner similar to both Gaudron J and Gummow J. His Honour considered the argument of the appellants in Wik to be “simple and correct”, which he summarised, at 242-243, to be as follows:
Pastoral leases give rise to statutory interests in land which are sui generis. Being creatures of Australian statutes, their character and incidents must be derived from the statute. Neither of the Acts in question here expressly extinguishes native title. To do so very clear statutory language would, by conventional theory, be required. When the Acts are examined, clear language of extinguishment is simply missing. On the contrary, there are several indications which support the contention of the Wik and the Thayorre that the interest in land which was granted to the pastoralist was a limited one: for ‘grazing purposes only’, as the leases stated. Such an interest could, in law, be exercised and enjoyed to the full without necessarily extinguishing native title interests. The extent to which the two interests could operate together is a matter for further evidence and legal analysis. Only if there is inconsistency between the legal interests of the lessee (as defined by the instrument of lease and the legislation under which it was granted) and the native title (as established by evidence), will such native title, to the extent of the inconsistency, be extinguished.
Justice Kirby, at 250, found that the rights of pastoral lease holders “will prevail, to the extent of any inconsistency with native title”. His Honour did not appear to place any particular emphasis on circumstances where improvements had been made in consequence of a pastoral lease condition requiring them.
Justice Toohey, the fourth member of the majority in Wik, took the same view that the pastoral leases in question did not necessarily wholly extinguish native title in the areas concerned. His Honour also noted the terms of the second Holroyd River lease that required improvements and development to be undertaken. His Honour noted, at 115, that while the lease was not expressed to be for pastoral purposes only, no other activity was authorised. In the result Toohey J did not consider that the pastoral leases in question conferred on the grantee rights of exclusive possession. At 122, his Honour said that was nothing in the statute which authorised the lease, or in the lease itself, which conferred on the grantee rights to exclusive possession, in particular possession exclusive of all rights and interests of the indigenous inhabitants whose occupation derived from their traditional title.
Justice Toohey, at 126, then concluded that inconsistency could only be determined by identifying what native title rights in the system of rights and interests upon which the appellants rely are asserted in relation to the land contained in the pastoral leases. He said this cannot be done by some general statement but must focus specifically on the traditions, customs and practices of the particular aboriginal group claiming the right. Those rights must then be measured against the rights conferred on the grantees of the pastoral leases. His Honour then added, at 126, “to the extent of any inconsistency the latter prevail”.
Again, Toohey J did not consider possible extinguishment by reference to the carrying out of improvements or works pursuant to a condition requiring such works. Rather his Honour appears to have taken the approach, consistent with that of Gaudron J and Kirby J, and the primary approach of Gummow J, that the terms of the pastoral leases did not indicate that native title had been generally extinguished, but that the rights granted to the lessee, if they were inconsistent in their performance with those of the native title holders, would “prevail”.
In a “postscript”, Toohey J stated what the consequences were of the majority position, something he did with the concurrence of the other three judges. At 133, Toohey J stated:
So far as the extinguishment of native title rights is concerned, the answer given is that there was no necessary extinguishment of those rights by reason of the grant of pastoral leases under the Acts in question. Whether there was extinguishment can only be determined by reference to such particular rights and interests as may be asserted and established. If inconsistency is held to exist between the rights and interests conferred by native title and the rights conferred under the statutory grants, those rights and interests must yield, to that extent, to the rights of the grantees. Once the conclusion is reached that there is no necessary extinguishment by reason of the grants, the possibility of the existence of concurrent rights precludes any further question arising in the appeals as to the suspension of any native title rights during the currency of the grants.
The language employed by the four judges in the majority in Wik is that the native title rights must “yield” where there is conflict in their exercise with the exercise of the statutory rights under the pastoral lease. This is not the language of extinguishment; rather it is the language of prevention during any period of inconsistency.
The dicta of Gummow J in Wik therefore concerning improvements carried out pursuant to conditions requiring them, possibly bringing about the abrogation of native title rights and interests, is not a proposition that the other three majority judges in Wik discussed or adopted. Rather, it would appear, with respect, that the other three judges in the majority in Wik did not adopt that analysis but rather treated the performance of conditions requiring improvements no differently from the other terms of the pastoral leases that enabled or permitted the pastoral lease holder to carry out improvements in a discretionary way. Where exercised and where a conflict with indigenous rights arises, the statutory rights so exercised will prevail over the indigenous rights, and the indigenous rights to that extent “must yield”, though as a matter of law they continue to subsist. If, later, conflict is removed by the cessation of the exercise of the statutory right under the pastoral lease, the native title right may be exercised again without inhibition.
This latter point is confirmed by the example proffered in the joint judgment in Ward (Gleeson CJ, Gaudron, Gummow and Hayne JJ) where, at [308], in the course of determining whether the grant of a mining lease under Western Australian legislation extinguished all native title, their Honours observed:
The holder of a mining lease having a right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area. That is not to say, however, that the grant of a mining lease is necessarily inconsistent with all native title. (Emphasis added.)
In the joint judgment in Ward, at [308]‑[309], their Honours considered (despite a full account by the primary judge of the extensive range of rights and interests actually exercised by members of the applicant group: Ward and others (on behalf of the Miriuwung and Gajerrong People) v State of Western Australia (1998) 159 ALR 483 at 538-539, 542 (34‑48), 639-640) that because there was no enumerated list of specific rights or activities that made up the “bundle of rights” comprising the native title the subject of the final determination made by the primary judge, it was not possible to accurately determine the extent to which native title rights and interests may have been extinguished by the rights created by the grant of a mining lease, with one exception, being that the native title right to control access to land was necessarily extinguished by the grant of mining leases.
The general question of how rights granted by a statutory instrument might, when exercised, affect native title rights and interests was also considered earlier in the joint judgment in Ward at [149]-[151]. At [149], the term “operational inconsistency” was used to describe the clash of indigenous and statutory rights upon their exercise. The term owed itself to the majority judgment in the Full Federal Court on the appeal in Western Australia v Ward [2000] FCA 191; (2000) 99 FCR 316 (FC Ward). It was suggested in the joint judgment in Ward that this term may provide some assistance “by way of analogy” but that the analogy cannot be carried too far. It was noted at [149] that the term “operational inconsistency” was not used in Wik by either Gaudron J or Gummow J.
At [150] in the joint judgment their Honours added:
Further, the use in this universe of discourse of the term ‘grant’, derived from old system conveyancing, including the creation and transfer of rights by the Crown in favour of subjects, is apt to mislead. The operation of a grant of rights may be subjected to conditions precedent or subsequent. The rights themselves may be incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant.
(Emphasis added.)This latter observation obviously relates to the proposition suggested by Gummow J in Wik concerning the consequences of the performance of a requirement in something like a pastoral lease to make an improvement. But it falls far short of suggesting that every time there is a condition that requires the performance or a term permitting of some act (let alone a mere power or entitlement to do an act), the performance of the act only then identifies the right granted or that it then causes the extinguishment of all native title or some particular native title right. Plainly careful consideration has to be given to the entire statutory scheme in which rights are created by statute (including rights dependent upon performance). Nothing said by Gummow J in Wik, for example, or in the joint judgment in Ward suggests extinguishment follows from the exercise of general rights in a pastoral lease or a mining lease to conduct activities or make improvements. The particular findings made in Ward concerning the non-extinguishing effect of the pastoral leases and mining leases in question also establish this proposition.
Finally, in the joint judgment in Ward, at [151], their Honours noted that:
it may be that the assertion or exercise of some rights in relation to land which fall short of the taking of full title to it, may have some relevant effect on native title rights and interests. (Emphasis added.)
This observation, in my view, confirms the discussion above, namely that the exercise of statutory rights inconsistently with the enjoyment of native title rights and interests, may well have a relevant effect, in that while the statutory right is exercised in an inconsistent way with a native title right, the exercise of the statutory right will prevent the exercise of native title right or interest and so the statutory right will prevail over the native title right where the former is exercised in the event of inconsistency with the exercise of the latter.
It follows that the use of the expression “operational inconsistency” is more than problematical. There is no general doctrine of operational inconsistency that leads to extinguishment, in whole in or in part, of native title rights and interests where they intersect with the exercise of statutory rights which do not themselves necessarily extinguish native title. Where there is no actual conflict of rights, for example because the native title right has not been exercised to produce actual conflict, why should the question of inconsistency or extinguishment arise at all? In my view, it does not. The most that can be said is what was said at [150] in Ward in the joint judgment, that in some circumstances statutory rights may be “incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant”, and that may well need to be regarded in identifying the rights created by statute said to be inconsistent with a native title right or interest. However the issue may be considered to be an exceptional one.
Subsequently, in Daniel v State of Western Australia [2003] FCA 666 (3 July 2003) at [596] and [1110] Nicholson J, having regard to what was said by the majority in Ward at [308] considered that the existence of enclosures and improvements was not relevant to the question of extinguishment.
However, in De Rose v South Australia (No 2) [2005] FCAFC 110; (2005) 145 FCR 290 (De Rose (No 2)) a Full Court of this Court (Wilcox, Sackville and Merkel JJ), at [149]‑[158] considered this “operational” extinguishment issue. The Court considered, at [149], that the right to construct and implicitly to use improvements on a pastoral lease such as a dwelling house or storage sheds, when exercised, “is clearly inconsistent with the native title rights and interests”. Their Honours stated that until the pastoral lease holders choose to exercise any of these rights the precise location of the improvements cannot be known. Their Honours noted that in Ward the critical question was identified as to whether the “two sets of right are inconsistent”. The Full Court then demanded an answer to a question it considered relevant:
Yet unless attention is paid to the actual use of land, how is the Court to ascertain the precise sites over which native title holders might seek to exercise their traditional rights?
The Full Court, having referred to what was said in the joint judgment in Ward at [149]-[150] and [308], then stated the following at [154]-[156]:
154The bolded words in the last passage suggest that a mining lessee might exercise a right to exclude from land in a way which prevents the exercise of a native title right or interest for a limited period. This is, perhaps, not altogether easy to reconcile with the insistence in Ward (HC) on the comparison between two sets of rights being the test for inconsistency and therefore for determining whether native title rights and interests have been extinguished. Nor is it easy to reconcile with the High Court’s rejection, in the case of inconsistency of rights, of the concept of suspension of native title rights and interests, except where mandated by statute. It may be that their Honours were referring in the quoted passage to situations where the rights in question are not necessarily inconsistent rights.
155Each lease in the present case granted the lessee the right to erect improvements on the leasehold land. From the outset, this right was potentially inconsistent, to a greater or lesser extent, with native title rights and interests in respect of the land. For example, when the right to construct a dwelling house on part of the land was exercised, the right was necessarily inconsistent with all native title rights and interests in respect of the land on which the dwelling house was constructed. However, it was only after the construction of the dwelling house that the precise area of land affected by the lessees’ right to construct a dwelling house could be ascertained.
156In Ward (HC), the joint judgment observed that the operation of a grant may be subject to a condition precedent or a condition subsequent. In the circumstances of the present case, the ‘operation of a grant of [the right to conduct and use improvements]’ should be regarded, in effect, as subject to a condition precedent. The grant of the right could become operative in relation to a particular area of the leasehold land only when the right was exercised. The grant of the right could have an extinguishing effect only when the right was exercised, since it was only then that the precise area or areas of land affected by the right could be identified.
The Full Court concluded, at [157], that when the various improvements were constructed (apart from the operation of the Native Title (South Australia) Act 1994 (SA)) “the grant of the leases operated to extinguish the native title rights and interests in respect of those areas of land”.
In my view, the analysis of the Full Court in De Rose (No 2) does not accord with what the joint judgment in Ward said and should not be relied on in the resolution of the issues raised on this appeal. First, Ward found that the grant of the right in a pastoral lease to make improvements does not necessarily extinguish native title. If there is no current attempt to exercise a relevant native title right the most that can be said is that there is a potential conflict of rights once an improvement like a dwelling house is made. Secondly, it is not open to conclude from Ward that the improvement clauses of the pastoral leases and the relevant clauses of the mining leases discussed by their Honours in Ward should relevantly be treated as conditions precedent to the identification of rights which extinguish native title (in whole or in part) when improvements are actually carried out. The actual findings in Wik and Ward in fact and law deny any such conclusion.
Rather, I consider that the clash of a statutory right, upon exercise, with the exercise of an indigenous right simply means that the exercise of the statutory right (in the event of actual conflict) has the effect of preventing and prevails over the native title right to the extent of the conflict, but only for so long as the exercise of the statutory right in fact prevents the enjoyment of the native title; and so there is no extinguishment of any relevant native title right upon the exercise of the statutory right in such a case.
While De Rose (No 2) has been regarded and apparently applied in other contexts, I am of the view it does not accord with the reasoning in Ward and should not be relied on in the resolution of the issues raised on this appeal. In so finding, I recognise that this Court should follow an earlier Full Court decision where it is relevant unless the Court considers it is plainly wrong.
In Ward the joint judgment also rejected the finding by the majority in FC Ward that the statutory scheme of the Mining Act 1978 (WA) and Mining Regulations 1981 (WA) established a regime which had an intended operation inconsistent with the use or occupation of lands leased by any other person. At [306] in the joint judgment in Ward their Honours said that the majority judgment in FC Ward “misconstrues the principles respecting extinguishment by grant of inconsistent right”.
In Ward, the joint judgment also considered the Argyle mining lease at [322] and following. That lease was the subject of a Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981 (WA) (Ratifying Act) of the Western Australian Parliament, as Greenwood J has explained in his judgment. The majority in FC Ward concluded native title was extinguished entirely in respect of that part of the claim area covered by the Argyle mining lease, because of the “very size of the infrastructure of such a major project as the Argyle Venture, when coupled with the nature and intensity of the large range of activities contemplated in its execution” (emphasis added): see Ward at [330].
In the joint judgment in Ward, at [331], their Honours pointed out that:
it is not to the point to say that the land could not be leased to a third party for a different purpose. Native title rights and interests are allodial and do not depend upon, and do not derive from, any kind of grant attributable to the Commonwealth or the State. It should be apparent that incidents of native title that may be described as usufructuary in nature, such as the right to hunt, may be able to be exercised over part or all of the land the subject of the relevant mining lease.
In the joint judgment their Honours also rejected the conclusion of the majority in FC Ward that because there was a substantial element of permanence in the mining use authorised, the scale and dimension of the project were sufficient to extinguish the native title rights entirely. At [333], their Honours said that the provisions of the Ratifying Act and of the agreement to which it related did not require the conclusion that the grant of the Argyle mining lease was necessarily inconsistent with all native title. Their Honours emphasised that:
Exclusive possession was granted for mining purposes only. (Emphasis added.)
In my view, for the successive reasons given by Greenwood J in his judgment, and accepting, as his Honour’s analysis discloses, that there exist a number of clear indications that the joint venture parties were intended by the agreement Acts, the agreement and the Mt Goldsworthy leases to receive a secure title in respect of a very large mining project, the same conclusion as that reached in relation to the Argyle mining project at [333] of Ward should be reached here in relation to the Mt Goldsworthy project. Just as Windeyer J in Wade v New South Wales Rutile Mining Company Pty Ltd (1969) 121 CLR 177 at 192 described the term “mining lease” as used in the Mining Act 1906 (NSW) as “really a sale by the Crown of minerals reserved to the Crown to be taken by the lessee at a price payable over a period of years as royalties”, the same should be said of the substance of the various legislative and executive acts that conveyed rights to the joint venture parties in respect of the Mt Goldsworthy project. The purpose of the legislative and executive acts so involved was to provide the joint venture parties with the degree of security that they required before proceeding to complete operations necessary to win from the project area the desired minerals at the agreed price and on the agreed conditions. As part of that bargain the State of Western Australia ensured the joint venture parties should meet certain related infrastructure obligations (for example, as to the construction of a town), not be able to exclude the broader public in particular areas and to rehabilitate the project site before they finally left. To the extent that the arrangements so concluded between the parties involved the facilitation of the construction of a town and other forms of associated development, they were subsidiary to and served the purpose of the principal or dominant purpose of the agreed arrangement, namely, to facilitate the sale of the minerals by the State to the joint venture parties on the agreed terms.
The legislative and executive acts in question were in substance for the purposes of the agreed mining operations, and nothing else. The tenure obtained, while subject to potential renewal, was limited. Sight should not be lost of the obligation assumed by the joint venture parties to rehabilitate the project site upon the cessation of the mining operations. Thus, it was agreed the joint venture parties could come, mine, take the agreed mineral resources, pay the price for doing so, then leave, but rehabilitating the project area before finally doing so; which is in fact what happened.
In all of those circumstances, just as the joint judgment in Ward rejected as irrelevant considerations of the permanence of the mining use authorised, its nature and intensity and the large range of activities contemplated in its execution in the application of the inconsistency of incidents test in respect of the Argyle mining project, those same factors are also irrelevant to the application of the inconsistency of incidents test in relation to the Mt Goldsworthy project under consideration in this appeal.
In the result, the legislative and executive acts describing the Mt Goldsworthy project do not reveal a clear and plain intent to extinguish all native title rights. To the extent that, in the exercise of statutory rights so created, native title rights and interests in the project area could not be exercised or enjoyed by reason of the incompatibility of activities conducted by the joint venture parties under the rights they held, the exercise of native title rights and interests were prevented by and yielded to the joint venture parties’ exercised rights, but were not thereby extinguished. The result is that upon the cessation of the activities of the joint venture parties, as has occurred, the native title holders are free again to exercise their unextinguished native title rights and interests in the project area.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate:
Dated: 5 November 2012
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