Brown v Western Australia (No 2)

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.