Smith v The State of Western Australia

[2013] HCATrans 223

[2013] HCATrans 223

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P37 of 2012

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Applicant

and

ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOK AND CHARLIE COPPIN

First Respondents

BHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD AND MITSUI IRON ORE CORPORATION PTY LTD

Second Respondents

Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 12 SEPTEMBER 2013, AT 11.10 AM

Copyright in the High Court of Australia

MR K.M. PETTIT, SC:   If it please the Court, I appear with MR G.J. RANSON for the applicant.  (instructed by State Solicitor (WA))

MR R.W. BLOWES, SC:   For the first respondent, if your Honour pleases, with my learned friend, MS C.L. TAN.  (instructed by Yamatji Marlpa Aboriginal Corporation)

FRENCH CJ:   Yes, Mr Pettit.

MR PETTIT:   Thank you, your Honours.  This application is contested, your Honours, on both the basis that there is insufficient doubt about the matter and on the basis that it does not carry the requisite public interest.  Can I deal firstly with the matter of sufficient doubt?  We set out in our reply at application book 346 the reasons we say there is sufficient doubt about the decision below.  I will not re‑canvass all of those, your Honours, but can I deal with them in a slightly different way? 

Firstly, in this case in the Full Court there were three different, we say, irreconcilable sets of reasons which we say demonstrates itself there is doubt about the correct approach.  Justice Greenwood analysed the lease in a way which we say, with respect, approached the correct analysis and found that the lessee’s rights were wholly inconsistent with native title.  His Honour though then took, with great respect, a very unusual step in holding that because the leases in question were for a finite term, being 21 years, that there was not the requisite permanency for extinguishment.  The other justices, particularly Justice Mansfield, did not follow that of course.  He found that there was some extinguishment.

But we say, with respect to his Honour Justice Greenwood, although all the points up to that point are correct we say, with respect, from that point on his Honour was plainly incorrect because the decisions of this Court in Ward and others are clearly to the effect that a leasehold interest for a term of 21 years will extinguish native title. 

Justice Barker, on the other hand, your Honours, found that there was no exclusive possession conferred.  His Honour did so without addressing the indicia of the Mining Act 1904. His Honour found that there was no relevant inconsistency, but this is based on his Honour’s view that the only extinguishing inconsistency that can arise is where there arises an actual conflict. Can I take your Honours to application book 268 at his Honour’s paragraph 469?

FRENCH CJ:   It is application book 270, is it not?

MR PETTIT:   Quite right.  Thank you, your Honour.  This is Justice Barker.  His Honour sets out De Rose in the first sentence and then Ward in the second and then speaking for himself, his Honour says in the third sentence:

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.

Then if you go over the page to his Honour’s paragraph 470, his Honour says:

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 . . . for so long as the -

inconsistency maintains, but there is no extinguishment.  Now, your Honours, we say, again with respect to his Honour, that that is plainly not the view that has been articulated in the High Court, most recently in Akiba.  Your Honour the Chief Justice will recall the test was set out again in Akiba - I will not take your Honours to it because it can be very easily stated.  It appears in Leo Akiba v The Commonwealth [2013] HCA 33 at paragraph 31, and halfway through that paragraph your Honour the Chief Justice, along with Justice Crennan, said this:

The Court therefore focused on inconsistency as the criterion for extinguishment.  In the case of competing rights – native title rights and interests on the one hand and statutory rights on the other – the question was:

“whether the respective incidents thereof are such that the existing right cannot be –

Can I interpolate there, the existing right is the statutory right – sorry, is the native title right –

exercised without abrogating the statutory right.  If it cannot, then by necessary implication, the statute extinguishes the existing right.”

So, in other words, the correct test has little to do with what happens on the ground.  It arises from a postulated continuous exercise of native title and the question is if that occurs, is the statutory right abrogated?

FRENCH CJ:   Now, we are dealing here with statutory leases, are we not?

MR PETTIT:   Well, dealing with leases, yes, your Honour.

FRENCH CJ:   But they are created by statute?

MR PETTIT:   Yes.  They are granted by statute, your Honour.  I mean, if we get to the point we will say that this is plainly a – has all the hallmarks of a common law lease ‑ ‑ ‑

FRENCH CJ:   You are saying a common law lease granted by statute, is that how you seek to characterise it?

MR PETTIT:   Yes, your Honour.

FRENCH CJ:   So was there a finding of that characterisation somewhere in relation to that question?

MR PETTIT:   No, your Honour.  His Honour Justice Greenwood approached the matter in the manner we say is essentially correct and found that there was a grant of exclusive possession subject to reservations.

FRENCH CJ:   It was by the statute itself?

MR PETTIT:   Yes, by looking at the lease - I will come to in a moment about the Act itself.  Justice Barker really essentially operated on an analogy with the mining lease that was the subject of a determination by the High Court in Ward, but a mining lease is under the 1978 Act, not under the 1904 Act.  Justice Mansfield essentially followed the same course as the trial judge and found that the extinguishment was not effected by the grant of exclusive possession at the moment of grant, but was extinguished by a later exercise pursuant to those rights which amounted to the same thing. 

Now, each of those reasons by their Honours in the Full Court as I say are irreconcilable one with the other.  In the case of Justice Mansfield who relied upon the De Rose decision and – do I need to explain the De Rose decision?

FRENCH CJ:   No.

MR PETTIT:   Thank you.  Two other justices, Justices Greenwood and Justice Barker, one expressly and one impliedly, held that De Rose was wrong and should not be followed.  In the case of Justice Barker who held that there could be no extinguishment unless there is actual on the ground conflict, the other two justices took a different view, and in the case of Justice Greenwood, who held that there would have been extinguishment over the whole lease, the other two justices disagreed, and to the extent his Honour then went on to say - Justice Greenwood then went on to say that there is not extinguishment because the leases are for a finite time, clearly Justice Mansfield did not agree with that and Justice Barker did not have to decide that point because his Honour never got to the stage.

So those disparate irreconcilable views at the Full Court level we say cast doubt on the decision‑making process.  The second item I wish to address on the same score, that is the process of reasoning, is the one I adverted to a moment ago, which is this that the statutory scheme for the grant of these particular mining leases was as follows.  The grants themselves were issued under a government agreements Act, in this case, the Iron Ore (Mount Goldsworthy) Agreement Act, but that Act in turn provided a form of lease, and that lease conveyed to BHP associates all the rights that accrued under the Mining Act 1904 in addition to all the rights that were conveyed by the Mount Goldsworthy Act.

So, it was, we say, incumbent upon their Honours to examine all the terms, all the sections, of the 1904 Mining Act.  We say of Justice Barker, with respect, that he examined none of relevance and the same of Justice Mansfield.  Justice Greenwood examined some but not all, and we have set out in our written submissions a list of many sections of the 1904 Act which we say clearly indicate that a grant of lease, including exclusive possession, was intended. 

I will not take your Honours through that whole list, but can I take just a couple of examples of them?  One provision in the 1904 Act is section 69.  Its effect is that upon the filing of an application for a mining lease, and before the mining lease is granted, section 69 operates to deem entries and occupation by persons other than the applicant to be a trespass.  That section, section 69, does not continue to operate after the grant of the mineral lease is made.  We say that the clear implication of that is that legislature intended that the grant of the mining lease conveyed an interest capable of supporting an action in trespass, which is why section 9 does not persist after the grant.

FRENCH CJ:   Now, looking at page 325 and paragraph 2 of your submissions, you identify the special leave point as:

whether the rights conferred under –

the particular State agreement –

and/or their exercise, extinguished non‑exclusive native title rights –

In response to that I think at 336 in paragraph 5 of the respondent’s submissions they are making the point that really you are focusing on the, if you like, construction and effect given to particular leases in particular legislation in a way that does not raise a matter of general public importance.  How would you encapsulate, if you like, the point of general public importance that would warrant the grant of special leave, assuming we are not just dealing with a visitation case here?

MR PETTIT:   Your Honour, we have dealt with this in our reply at application book page 345.  The public importance, the special importance of it arises firstly because these leases in particular are not expired and the evidence below was that there are further substantial mineralisation prospects and that the owners of that lease might resurrect their mining operations.  The second point is that there are a large number of State agreements which still are on foot and which incorporate the Mining Act 1904, and we have listed them in our paragraph 4 on page 346.

You will see they include several other iron ore State agreements - the Iron Ore (Goldsworthy‑Nimingarra) Agreement Act, the Iron Ore (Hamersley Range) Agreement Act, the Iron Ore (Mount Bruce) Agreement Act - that is Rio Tinto, the Iron Ore (Mount Newman) Agreement Act and so on, Iron Ore (Robe River) Agreement Act.  So, potentially, your Honour, all of those might raise the same point in a native title application. 

Thirdly, decided much more recently, and more recently than the filing of our submissions, his Honour Justice Barker has decided another case which is nearby in the Pilbara.  That is the case of Banjima People v State of Western Australia.  The judgment was given on 28 August 2013.  It is Banjima People v State of Western Australia (No 2) [2013] FCA 868. In that case there were four mineral leases in contest, two on foot and two historic. So, that too, your Honour, demonstrates that the point at issue, whether a mineral lease under the 1904 Act has the effects for which we contend is of public concern in the Pilbara and elsewhere.

FRENCH CJ:   Do your submissions involve the proposition - does it go as broad as this - that a statutory instrument, whether you call it a lease or not, conferring a right of exclusive possession for a finite period extinguishes native title in relation to the land to which it applies?

MR PETTIT:   Yes, your Honour, in this case.

FRENCH CJ:   Well, I am not asking just in this case.  Is that some sort of underlying proposition?

MR PETTIT:   Yes, your Honour.

FRENCH CJ:   Because you are focusing upon the grant of exclusive possession under these Mount Goldsworthy leases, are you not?

MR PETTIT:   Well, it is one of three foci, your Honour.  They either - the two leases - extinguish native title because of exclusive possession granted or if not, as Justice Greenwood went on to find, the rights that are conveyed, even if short of exclusive possession are in their totality 100 per cent inconsistent with native title and extinguish.  Then there is the third element to it that if both of those are wrong then still there is the De Rose resolution of the same dilemma, that is, the dilemma of, if the grant itself has not extinguished native title how does one explain something such as this which is, as your Honours will have read, the conversion of a mountain into a ditch over a large area.  How could that be consistent in any way with a native title right to protect the places of significance in that area?  Those places are now dug up and somewhere in China.

FRENCH CJ:   We might hear from Mr Blowes now.

MR BLOWES:   If the Court please.  Your Honours, this application is about extinguishment of native title and it is about a matter which has recently been before the Court.  We say the significance of the Akiba matter which was before the Court is that it reiterated and reconfirmed the principles in Ward, which were clearly expressed, but with additional emphasis on the notion of activities and the exercise of rights as opposed to the rights themselves.  We say that extinguishment is about analysis of the rights themselves, not about rights versus activities and so on.  So that goes to the second ground.

It is important to distinguish, your Honours, between the two special leave grounds here.  The first special leave ground is about the inconsistency of rights and it is put that the leases here granted a right of exclusive possession, or if they did not then they granted rights everywhere which were inconsistent with the native title rights. 

As to that ground the first part of it we say there is clear authority in Ward.  Ward dealt not only with a mining lease, admittedly under the 1978 legislation, but it also dealt with a special – a mining lease granted for the purposes of a State agreement, and it was held in relation to both of those that they were not sufficient – doing the inconsistency of rights comparison did not result in a finding that there was complete extinguishment of native title on that basis because the grants were conditioned by the purpose, namely the purpose of mining.

KEANE J:   Mr Blowes, is not the very variety of reasoning in the courts below in this case a pretty clear demonstration that there is difficulty in applying the tests as to extinguishment that needs to be resolved, not the least of which involves whether De Rose is right or not?

MR BLOWES:   In relation to that, that is the second point, your Honour, the De Rose point.  I would oppose that on no higher basis than simply relying on the additional statements in Akiba as making quite clear, as making abundantly clear that the relevant test for resolving extinguishment questions, namely inconsistency of rights, and without reference to activities that might be undertaken pursuant to those rights.  That is as high as I would put my position to a grant of special leave in relation to the second ground.

KEANE J:   How does the right to dig up the mountain - how is it consistent with the right to care for the place and to protect it?

MR BLOWES:   Your Honour, that is, I suppose, an extreme form of activity and it is a right which is granted under the Act, but nevertheless, the grant is for mining purposes.  It is limited and insofar as the native title right, certainly there is an exclusive right to use that area for mining purposes, but assuming the native title right does not include a right to use the land for mining purposes, then looked at purposively, there is no necessary inconsistency and, indeed, the evidence in this case in terms of looking at the activities in retrospect, if that is permissible, it is only approximately a third of the area that was used for mining purposes. 

Clearly it could all be used for mining purposes, but whilst it is not, and when it is not, then there is no inconsistency.  A native title holder can exercise a right to be there, perhaps to hunt there without abrogating the right or without interfering with the exercise of the right of the miner, and that is the way that the consistency, or the lack of relevant inconsistency is put, your Honour.

There is inconsistency under the rulings of this Court in Ward and Akiba and Wik and so on.  To extinguish native title needs to be necessarily and consistently – needs to be a clash of the rights, not just a potential clash of the activities and insofar as the rights are conditioned by reference to a particular purpose, the native title rights are merely non‑exclusive rights to access and use the land for various non‑mining purposes then there is no relevant inconsistency.  There is a prevailing over - the exercise of the rights under the mining lease will of course prevail over and therefore not be interfered with by any exercise of the native title rights.  That, in our submission, is how the jurisprudence deals with activities and with clash in the exercise of rights, as opposed to clash in the existence of the rights themselves.

Your Honours have heard the submissions in relation to the public interest matters – our submission in that is that – sorry, public interest in relation to the first grounds.  We do not say that the second ground, in other words, the De Rose ground does not raise a matter of public interest.  We do not say that there is no disagreement in the Federal Court and so on.  We simply say that the principles are clear and we would accept that if a grant of special leave is necessary to cure that as opposed to refusal of a grant of special leave then so be it. 

Our opposition is more highly attuned to the first grounds and we say on the question of a matter of public importance that it does relate to limited circumstances.  It relates to a concluded operation.  It relates to a bespoke agreement, as Justice Greenwood constantly referred to it as, and it relates to circumstances where the alternative result will be that the continuing rights granted under the statute will continue to prevail over the exercise of native title rights.

We say, your Honours, that there is insufficient doubt about the outcome because it is quite clear from the judgments of the court below that the statutory rights that are granted are qualified.  Justice Greenwood noted - your Honours, the form of the lease is set out in Justice Greenwood’s decision at page 189 of the application book.  That is the form of clause 2, which is the provision of the State agreement under which the lease was granted, and it provides for a mineral lease in the form of the schedule.

Then if your Honours go to page 195 of the application book at paragraph 188 of the judgment your Honours will see the terms of the lease there set out, and the terms are - certainly they used the terms “grant” and “demise” for a parcel of land and refer to all those mines, veins, seams and so on, together with rights of the lessee of a mineral lease.  The important words, your Honour, which we refer to, and which all members of the court below refer to in characterising this lease are in the second‑last paragraph commencing “To Hold”, and the lease is to be held :

for the purposes but upon and subject to the terms, covenants and conditions set out in the said Agreement and to the Mining Act –

What Justice Barker said about that at paragraph 477 of his decision - he says:

The legislative and executive acts in question were in substance for the purpose of the agreed mining operations, and nothing else.

That is at appeal book 273, point 1.  So the critical feature that we rely on of these arrangements is that they were limited by purpose and in that regard the - and that is a critical feature in determining the application of the necessary inconsistency tests. 

Your Honours, we are told that the 1904 Mining Act and the 1978 Mining Act were different and it is true that Ward did not consider the 1904 Mining Act.  Your Honours, the relevant sections of the 1904 Act are provided in the book of authorities.  Section 48, for example, is in relation to mineral leases, which this is one of, and it provides:

The Governor may, subject to this Act and the regulations, grant to any person –

I think these next words have been removed subsequently –

not being an Asiatic or African alien, a lease of any Crown land, not exempted by the next following section, for any or all of the undermentioned purposes, that is to say:‑‑

(1)     for mining . . . 

(2)     for cutting . . . 

(3)     for erecting . . . 

(4)     for boring or sinking for, pumping, or raising water;

(5)     for residence –

and so on.  So all of those things are limited by purpose in a way which puts them ‑ ‑ ‑

FRENCH CJ:   This is just going to the merits of the argument.

MR BLOWES:   Yes, your Honour.  Certainly there was difference in the way that the members of the court below came to the conclusions which they did about extinguishment, but the result, we would say, is clear and consistent with Ward and Akiba in that it was ultimately determined that there was no extinguishment by the lease, by two justices, because there was no exclusive possession, and by Justice Greenwood because, although he found there was exclusive possession, he found that it was for a limited purpose. 

I will not take your Honours to the activities ground because I think I have all but said that the only point we wish to make there is that the principles are clear, even if it is not yet appreciated.  Your Honour, can I your Honours just briefly and finally to two passages in Ward in the book of authorities?   In my friend’s submissions in reply there is reliance on paragraph 183, which is at page 128 of the judgment of the plurality.  This paragraph reads – well, commencing in the sentence before it:

Did it make use or occupation of the land by those persons for those purposes “unlawful or unauthorised”?

Well, in this case ‑ ‑ ‑

FRENCH CJ:   That is in relation to a pastoral lease, the question being posed.

MR BLOWES:   That does relate to pastoral leases, your Honour.  But I will take your Honour then to the corresponding position in relation to mining leases.  Clearly there was nothing unlawful about a native title holder going onto a pastoral lease.  In relation to this case, where there is mining activity actually going on, certainly the tenant had the capacity and power under the rights of the lease to exclude people and therefore that for those limited areas there may well be some unlawfulness about the presence of a native title holder during the time that that exclusion was required.  In response in relation to that, your Honours, it is important to then go to paragraph 308 of the judgment of plurality, which is dealing with mining leases, and on page 166 at about point 3 it is said:

The holder of a mining lease having a right to exclude for the specified purposes –

which is similar to the case here –

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 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 interest on some parts (even, in some cases perhaps the whole) of the leased area.

So it is clear, your Honours, that the existence of the right to exclude, even though potentially it may have application to all of the area…..but because of the purpose of limitation it is clear that is not necessarily inconsistent with every presence of any native title holder exercising a non‑exclusive native title right. 

In summary, your Honours, the main opposition that the first respondent has is to the first grounds, to the grounds which rely on an extinguishment by rights.  We say there is no necessary inconsistency between the granted rights and the native title rights, but in relation to the

second ground our opposition to it is limited.  Those are our submissions, if the Court pleases.

FRENCH CJ:   Thank you, Mr Blowes.  There will be a grant of special leave in this matter on both grounds.  No more than a day I imagine, Mr Pettit.

MR PETTIT:   Yes, we think a day if the parties are limited to the two that are here today, but if there are interventions of course it might blow out to a day and a half, your Honour.

FRENCH CJ:   Sorry, if there is intervention . . . we will see about that.  Yes, all right.  Mr Blowes, you ‑ ‑ ‑

MR BLOWES:   I would think a day, your Honour.

FRENCH CJ:   Yes, all right.  Thank you. 

Court will now adjourn to reconstitute for the next matter.

AT 11.46 AM THE MATTER WAS CONCLUDED