Brown v Western Australia (No 2)

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FEDERAL COURT OF AUSTRALIA

Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498

Citation: 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 PEOPLE) v STATE OF WESTERN AUSTRALIA and BHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD
File number: WAD 6185 of 1998
Judge: BENNETT J
Date of judgment: 21 May 2010
Corrigendum: 29 July 2010
Catchwords: NATIVE TITLE – common law extinguishment – particular non-exclusive native title rights agreed to exist subject to extinguishment – mineral leases granted pursuant to an agreement between the State and leaseholders ratified by specific legislation – purposes of agreement extended beyond mining – leaseholders conducted open cut mining, built a township and other infrastructure on one third of the leased area – the mine and town now closed and area rehabilitated – whether mineral leases conferred right of exclusive possession – whether rights granted by the mineral leases are inconsistent with the native title rights – whether grant of mineral leases extinguished the native title rights over the entire leased area or only the developed leased areas – relevance of actual exercise of rights by the leaseholders or by the native title holders - relevance of rehabilitation
Legislation:

Native Title Act 1993 (Cth) Part 2 Div 2, 2B and Div 3 Subdiv 1, s 245

Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA)
Mining Act 1904 (WA)
Mining Act 1978 (WA)

Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 referred to
Daniel v State of Western Australia [2003] FCA 666 considered
Daniel v State of Western of Australia [2003] FCA 1425 considered
De Rose v South Australia (No 2) (2005) 145 FCR 290 applied
Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied
King v Northern Territory (2007) 162 FCR 89 considered
Neowarra v State of Western Australia [2003] FCA 1402 cited
Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 discussed
State of Western Australia v Ward (2002) 213 CLR 1 applied
Western Australia v Ward (2000) 99 FCR 316 discussed
Wik Peoples v State of Queensland (1996) 187 CLR 1 considered
Wilson v Anderson (2002) 213 CLR 401 cited
Yanner v Eaton (1999) 201 CLR 351 considered
Dates of hearing: 14 and 15 July 2009
Date of last submissions: 11 September 2009
Place: Perth
Division: General
Category: Catchwords
Number of paragraphs: 233
Counsel for the Applicants: Ms R Webb QC, Ms C Tan
Solicitors for the Applicants: Pilbara Native Title Service
Counsel for the First Respondent: Mr G Ranson
Solicitors for the First Respondent: State Solicitor for Western Australia
Counsel for BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation…
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Details
Case
[2010] FCA 498
Decision Date

CaseChat Overview and Summary

In the matter of Brown v Western Australia (No 2), the court was required to determine whether the grant of mineral leases pursuant to an agreement between the State of Western Australia and the leaseholders, and subsequently ratified by specific legislation, extinguished particular non-exclusive native title rights in certain areas. The leaseholders conducted open cut mining, built a township and other infrastructure on one third of the leased area, and the mine and town have since been closed and the area rehabilitated. The legal issues the court needed to decide were whether the mineral leases conferred a right of exclusive possession, whether the rights granted by the leases were inconsistent with the native title rights, and whether the grant of the leases extinguished the native title rights over the entire leased area or only the developed areas. The court also needed to consider the relevance of the actual exercise of rights by the leaseholders or by the native title holders, and the relevance of rehabilitation.

The court held that the grant of the Mt Goldsworthy Leases did not confer a right of exclusive possession such that any native title rights and interests were wholly extinguished. However, the rights granted pursuant to the leases and the Agreement were inconsistent with the continued existence of any of the determined native title rights in the area where the mines, town sites and associated infrastructure were constructed. The granted rights were not inconsistent with the continued existence of any of the determined native title rights in those parts of the relevant claim area which had not been developed in exercise of the rights under the leases and the Agreement. All of the determined native title rights in respect of the developed areas were wholly extinguished, and native title was wholly extinguished in the areas of the mine, the town sites and associated infrastructure, which was the Goldsworthy Area of Interest.

In summary, the court found that the mineral leases did not extinguish native title rights over the entire leased area, but only in the areas where development had occurred. The actual exercise of rights by the leaseholders or by the native title holders, and the relevance of rehabilitation, were considered in determining the extent of the extinguishment of native title rights. The decision provides clarity on the scope of extinguishment of native title rights in the context of mineral leases and development.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The remainder of Determination Area B, being those areas which are not subject to the Mt Goldsworthy Leases, is now being dealt with in separate proceedings known as the “Ngarla Overlap proceeding” (WAD 6185 of 1998, WAD 77 of 2005, part WAD 6003 of 2000 and part WAD 82 of 1998) as there are overlapping native title claims over those areas. Consequently, the only remaining questions to be dealt with in the present proceedings are the preliminary questions.THE AGREED FACTS The parties have filed a statement of agreed relevant facts. I have had regard to that statement of which the following is a summary. The fourth respondents BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd (the tenement holders) are, pursuant to assignment, the current ‘Joint Venturers’ under the Agreement and the current lessees of the Mt Goldsworthy Leases. They are the current participants in the Mt Goldsworthy Mining Associates (MGMA) Joint Venture which was formed, originally, in 1960. Goldsworthy Mining Limited (GML) was formed in 1965 as the operating company for the MGMA Joint Venture. BHP Billiton Iron Ore Pty Ltd (BHP BIO) is the current manager of the MGMA Joint Venture. I will refer to the Joint Venturers under the Agreement and the lessees of the Mt Goldsworthy Leases from time to time as the Joint Venturers. The original Joint Venturers submitted to the State of Western Australia (the State) a tender for the mining, transport and shipment of iron deposits at Goldsworthy. On 27 February 1962 the State and MGMA executed an agreement for the development of the iron deposits at Goldsworthy. Under this agreement the State was required, on the application of the original Joint Venturers, to grant to the original Joint Venturers a temporary reserve under the Mining Act 1904 (WA) (the Mining Act 1904) in respect of the ‘mining area’ identified in the agreement, being an area at and surrounding Goldsworthy. It also contained a term providing for the grant of a mineral lease over the “mining area” in terms of the lease scheduled to that agreement. The agreement was ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1962 (WA) (the 1962 Act) which came into force on 27 September 1962. The agreement was varied by the variation agreement ratified by the Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1963 (WA) (the 1963 Amendment Act) which came into force on 17 December 1963. On 15 October 1964 the Western Australian government and the MGMA executed the Agreement which was ratified by the Agreement Act which came into force on 23 December 1964. The Agreement Act repealed the 1962 Act and the 1963 Amendment Act. The Agreement has been varied three times, in 1971, 1994 and 2000. On each occasion the variation agreement was ratified by a State Act. Lease 235 was granted pursuant to an obligation of the State to do so under clause 8(2)(a) of the Agreement. The term of that lease commenced on 5 August 1965 and expires on 4 August 2028. Lease 235 was granted over land that comprised ‘Mining Area A’ as defined in the Agreement. Mining Area A encompasses Mt Goldsworthy.

Evidence

Evidence Before The Court

During the period from 1982 to 1983 all infrastructure, equipment and stockpiles, apart from the fence, were removed from the town site and mine. Substantial rehabilitation has occurred but the pit at Mt Goldsworthy remains, filled with water. The waste dumps from the mining operations form part of the landscape.Evidence about exercise of native title rights (claimed by the tenement holders to be irrelevant)Mr Miller To the knowledge of Mr Derrick Miller, the Deputy General Manager and then General Operations Manager for GML from 1974 until the close of Goldsworthy, at no time did any Aboriginal person request access to the area of the mining operations to exercise any native title right. Mr Miller says that if any Aboriginal person had requested access to the area of the mining operations to camp or hunt, that person would have been denied access. The applicants rely on evidence of two senior Ngarla People, Charlie Coppin and Alexander Brown.Charlie Coppin Mr Coppin’s evidence, in summary, is that as a young man he camped, mustered sheep and hunted in the area where the Goldsworthy mine and town site came to be located, before the mine was developed. Mr Coppin says that while the mine was operating he would go to the area, although he could not hunt or shoot because there were too many other people around. As to the current state of the township and mine site, Mr Coppin says that trees and bushes are now growing so that ‘you might not have known that there was once a town here’. He has visited the area since the town closed. The area is now a good hunting area and he often drives into the area and hunts for kangaroos with other Ngarla People. He also collects ochre from the area. He takes his family there to hunt and camp, up to once a month, not on the hill but down by the river. Mr Coppin says that he usually catches a couple of kangaroos in the mining lease area. He says that his people have always collected ochre from Mt Goldsworthy and that he continues to collect ochre in the mining lease area. He has also removed bark from a “partirri” tree growing just outside the mine site. Mr Coppin says that the Ngarla People used the bark of that tree to rub on their bodies to keep cool and to paint their bodies for their dances. Without needing to go into details of Mr Coppin’s evidence, it is not in dispute that different trees at the mine and at the old town site are of the types that were present before the mining operations commenced and are used by the Ngarla People. Mr Coppin says that there are sacred secret places around Mt Goldsworthy that are important for all Ngarla People, including Mt Goldsworthy itself. He says that there is a secret sacred song for the mountain, this being the mountain that has been subject to the open pit mining.Alexander Brown Mr Brown’s evidence is that the old Goldsworthy town and mine are within the Kitil Run with which he and his family have a connection. He says under Ngarla traditional laws and customs, he has a special responsibility to look after the areas within his Run and that if other people want to hunt or fish or gather bush food or other resources in Kitil country, which includes Mt Goldsworthy, they must seek his permission. Mt Goldsworthy (or Jirrinya) has always been an important place for the Ngarla People. He says that even though much of Jirrinya has been destroyed by mining activity, it is still “yinta" or a discrete site. Ngarla People still collect ochre there for ceremonies and law. Mr Brown says that he has a responsibility under traditional law and custom to visit and look after the places which include the areas in the mining site and to watch who goes to them because they are part of his father’s country. He says that the country has ‘come back alright’ since the Goldsworthy mining town was taken away. Mr Brown says that he drives as often as possible to Ngarla country to hunt, fish, collect bush food and medicine and to see that everything, including plant and sites, is well.Ord Ridley deposits (objected to as irrelevant by the applicants)

Decision

Reasons for decision

The Goldsworthy Area of Interest shown in the map M3 of Exhibit C is a polygon which encloses the mine area, the township, the golf course and airstrip of the old Goldsworthy mine. The polygon was created using historical maps and photographs. There has not been any dispute that the Goldsworthy Area of Interest accurately represents the area where the mines, town site and associated infrastructure were constructed, probably together with necessary buffer zones. On this basis, I consider that the determined native title rights have been extinguished over the area described as the Goldsworthy Area of Interest. CONCLUSION 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?The answer to question 3 is: All of the determined native title rights in respect of the developed areas are wholly extinguished. Questions 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.

Ratio Decidendi

Legal Principle Established

Presently the development of the Ord Ridley area cannot be progressed until the spatial distribution and quality of the potential mineralisation is better understood. The currently proposed exploration drilling programme for Ord Ridley needs to be completed.Potential magnetite mining operations – Lease 235 and sections 1 and 2 of Lease 249 (objected to as irrelevant by the applicants) Sections 1 and 2 of Lease 249 are not yet the subject of any permanent construction works or productive mining operations. On the basis of recent surveys and an analysis prepared in August 2008, the land the subject of Lease 235 and sections 1 and 2 of Lease 249 contains an expected magnetite resource of about 2.7 billion tonnes with the mining depth estimated at 200 metres. These magnetite deposits could be the subject of future mining operations which would probably entail open-pit mining, with several pits down to potentially 200 metres in depth, and associated construction of plant, storage areas, accommodation and other building works. A rail spur off the existing Finucane to Yarrie rail line of approximately 3 kilometres in length would be likely to be constructed or, alternatively, a slurry pipeline. Again, power will need to be provided and large quantities of water sourced. The water could be sourced from the old Goldsworthy open pit; however, additional fresh water would be required and could be sourced from the adjacent shallow gravels north and south of the areas of the Mt Goldsworthy Leases. In order to outline the magnetite resource, an extensive exploration drilling programme would first be needed.Shay Gap (the relevance of which is challenged by the applicants) Shay Gap is in section 3 of Lease 249 but is not within the claim area. Evidence regarding Shay Gap is relied upon by the tenement holders to illustrate the extent of development, similar to that carried out in Goldsworthy. Early in 1973 deposits at Shay Gap were developed to supplement the output from Goldsworthy. This required an extension of the railway to the new mine (about 69 kilometres) and the construction of another town site. Production commenced at Shay Gap in 1972 to 1973 and effectively ceased by 1990. Approximately 37 million tonnes of ore were mined by 1993. The Shay Gap township and airstrip were constructed on special leases outside of Lease 249. Generally, Shay Gap used the same mining procedures as Goldsworthy but it was a slightly smaller operation. Shay Gap was built six years after Goldsworthy. Mining equipment such as shovels and trucks moved between Goldsworthy and Shay Gap. The ore reserves at Shay Gap were mined using open pit mining, originally conducted in two open pit mines. Approximately two tonnes of waste had to be removed for each tonne of ore. Breaking operations were similar to those used at Goldsworthy. Blast holes were drilled and the ore was transported by trucks to the primary crushers and stored in stockpiles until loaded onto trains for transport to Finucane Island. Only primary crushing was carried out at Shay Gap which had a virtually identical crushing process to that carried out at Goldsworthy. Shay Gap also had a mine office and amenities building, toilet facilities, a surface workshop area, a warehouse, storage tanks, a magazine storage area, an assay office, an airstrip, sewage disposal and power substations.Newman – Mt Whaleback (the relevance of which is challenged by the applicants)