Western Australia v Brown

Case [2014] HCA 8


HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, KIEFEL, GAGELER AND KEANE JJ

STATE OF WESTERN AUSTRALIA  APPELLANT

AND

ALEXANDER BROWN & ORS  RESPONDENTS

Western Australia v Brown

[2014] HCA 8

12 March 2014

P49/2013

ORDER

1.Appeal dismissed.

2.Appellant to pay the costs of the first respondents.

On appeal from the Federal Court of Australia

Representation

G R Donaldson SC, Solicitor-General for the State of Western Australia with G J Ranson for the appellant (instructed by State Solicitor (WA))

B W Walker QC with R W Blowes SC and C L Tan for the first respondents (instructed by Yamatji Marlpa Aboriginal Corporation)

P D Quinlan SC with J M Bursle for the second respondents (instructed by Ashurst)

Intervener

M G Hinton QC, Solicitor-General for the State of South Australia with D F O'Leary for the Attorney-General for the State of South Australia, as amicus curiae (instructed by Crown Solicitor (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Western Australia v Brown

Native title – Native title rights in relation to land – Agreement made in 1964 between State of Western Australia and joint venturers to develop iron ore deposits at Mount Goldsworthy – Mineral leases for iron ore granted pursuant to agreement – Joint venturers required under agreement to give State and third parties access to land subject of mineral leases provided such access did not unduly prejudice or interfere with joint venturers' operations – Whether mineral leases granted joint venturers right of exclusive possession – Whether joint venturers' rights under mineral leases inconsistent with claimed native title rights and interests – Whether claimed native title rights and interests extinguished by actual or potential conflicting use or development of land by joint venturers subsequent to grant of mineral leases.

Words and phrases – "exclusive possession", "extinguishment", "inconsistency of rights".

Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA), Schedule.

  1. FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ. In 1964, the State of Western Australia made an agreement with some joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. The agreement was approved by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) and it is convenient to refer to it as "the State Agreement". The State Agreement obliged the State to grant, and the State did grant, to the joint venturers mineral leases for iron ore (in a form provided by the agreement). Two leases are relevant to this matter. Each was for a term which expired in 1986, with the right to renew from time to time for further periods each of 21 years. Each has been renewed and is still in force.

  2. The parties to this litigation agree that, subject to the question of extinguishment, the Ngarla People hold native title to the land which is subject to the two mineral leases.  The parties agree that the relevant native title rights and interests are…

Continue reading Western Australia v Brown

Sign in free to access the full text

Details
AGLC
Western Australia v Brown [2014] HCA 8
Case
[2014] HCA 8
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the State of Western Australia concerning native title rights in relation to land at Mount Goldsworthy. The dispute arose from an agreement made in 1964 between the State and joint venturers for the development of iron ore deposits, which led to the granting of mineral leases. The core of the disagreement involved whether these mineral leases granted the joint venturers a right of exclusive possession, and if so, whether this right was inconsistent with, and therefore extinguished, the claimed native title rights and interests of the native title holders.

The legal issues before the High Court were whether the mineral leases granted to the joint venturers conferred a right of exclusive possession over the land, and consequently, whether the native title rights and interests were extinguished by the actual or potential conflicting use and development of the land by the joint venturers subsequent to the grant of those leases. The Court was required to determine the nature of the rights conferred by the mineral leases and their impact on the native title rights.

The High Court reasoned that while the joint venturers' rights under the mineral leases took priority over native title rights when exercised, this did not amount to a complete extinguishment of native title. The Court observed that the exercise of rights by the joint venturers, such as building a house, meant that native title holders could not simultaneously occupy that specific area for their traditional purposes. However, the Court held that when the joint venturers ceased to exercise their rights, or their rights came to an end, the native title rights and interests would remain unaffected. The appeal was dismissed, with the State ordered to pay the costs of the first respondents.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant to pay the costs of the first respondents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ
In the end, then, the State's narrower alternative argument reduces to the practical observation that two persons cannot occupy the one place. When the joint venturers built a house in the town, native title holders could not (for example) hunt and gather on the land which that house occupied. And the rights which the joint venturers had, and exercised, took and continue to take priority over the rights and interests of the native title holders for so long as the joint venturers enjoy and exercise those rights. Any competition between the exercise of the two rights must be resolved in favour of the rights granted by statute. But when the joint venturers cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected.Conclusion and orders For these reasons, the State's appeal must be dismissed with costs. The joint venturers should bear their own costs. There being no cross‑appeal against the determination made by the Full Court, that determination stands.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ

Full text does not contain this section.