State of Western Australia v Banjima People & Ors

The High Court of Australia considered the dispute between the State of Western Australia and the Banjima People concerning native title rights and interests. The core of the disagreement revolved around the determination of native title in relation to certain areas of land and waters in Western Australia, and the nature and extent of the rights and interests held by the Banjima People.

The High Court was required to determine whether the primary judge had erred in their assessment of the evidence regarding the extinguishment of native title by certain legislative acts and the granting of mining leases. Specifically, the court examined the application of the *Native Title Act 1993* (Cth) and the principles of extinguishment, particularly in relation to the effect of the *Mining Act 1978* (WA) and the *Land Act 1933* (WA) on native title rights. The court also considered the interpretation of the term "exclusive possession" in the context of pastoral leases and its impact on native title.

The High Court's reasoning focused on the statutory interpretation of the *Native Title Act* and the relevant Western Australian legislation. The court applied established principles regarding the extinguishment of native title, emphasizing that extinguishment must be a clear and unambiguous consequence of the legislative or executive act. The judges analysed the nature of the rights conferred by the mining and pastoral leases, comparing them to the rights asserted by the Banjima People. They concluded that certain legislative acts and the granting of leases had, in fact, extinguished native title rights to the extent that they were inconsistent with the rights granted under those leases. The court affirmed that the test for extinguishment is one of inconsistency, and that where a grant confers exclusive possession, native title is extinguished.

The High Court allowed the appeal in part, setting aside some of the orders made by the primary judge and remitting certain matters for redetermination.