The much awaited High Court native title decision in the State of WA v Alexander Brown & Ors (Brown Decision) was handed down on 12 March 2014.1 The High Court unanimously held that 2 mineral leases granted in 1966 and 1974 under the Mount Goldsworthy State Agreement did not extinguish the native title rights and interests held by the Ngarla People in the land the subject of those mineral leases, even where there had been a town and open pit on the land. The Court said that when the exercise of native title rights and interests prevent a leaseholder from exercising a specific right the exercise of that right will prevail, but only until the leaseholder ceases to exercise that right (including by rehabilitating a pit or vacating a town).
The majority of leaseholders under similar State Agreements will be affected by this decision, as well as any tenement holders with similar leases granted before the Racial Discrimination Act 1975 (Cth) and theNative Title Act 1993 (Cth). The decision is broad enough to also impact the holders of any interest which does not grant the right to exclude ‘any and everyone from access to the land, for any reason or no reason’2 .
The High Court found that the mineral leases are not inconsistent with the coexistence of native title rights and interests over the land due to the fact that:
- the mineral leases were granted subject to the joint venturers allowing the State and third parties access over the land provided that the access did not unduly prejudice or interfere with joint venture operations;
- the Ngarla People held non-exclusive native title rights and interests to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land, and to care for, maintain and protect from physical harm particular sites and areas of significance to the native title holders;
- the grant of rights to use land for particular purposes, if not accompanied by the grant of a right to exclude any and everyone from the land, is not necessarily inconsistent with, and does not necessarily extinguish native title rights (as determined in Wik 3 and Ward 4 ); and
- the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works in such a way which would prevent any use of the land by native title holders. Therefore the High Court found that the native title rights and interests were not extinguished or suspended and remained unaffected.
The Brown Decision results in practical uncertainty in the mining industry (particularly for those with State Agreement tenure granted prior to the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993(Cth)) as miners and native title holders will now be required to determine how they will regulate their co-existing rights over the same land.
History of the claim
Click here if you would like to understand the history of the claim.