The decision of the Full Federal Court in State of Western Australia v Graham on behalf of the Ngadju People clearly mandates the process of renewals undertaken by the State of Western Australia in relation to mining tenements for the purposes of the Native Title Act 1993 (Cth) (NTA). There is, however, an application for special leave to appeal to the High Court outstanding in that matter and an undecided case on the renewal of pastoral leases which together means the question of validity of renewed mining tenements has yet to be comprehensively decided.

It is likely that renewal of an interest granted under a statute is a valid renewal for the purposes of the NTA, notwithstanding that there may have been a change in legislation that, by extension, changes the rights available under the statutory license. That is, the right to negotiate process is not applicable to renewals of such tenements. The position may be different if one statutory license is replaced with a different form of statutory license that allows significantly different activities to be undertaken (for example, substitution of a Range Lands Lease under the forthcoming legislation instead of a Pastoral Lease).

The Ngadju Case

The Full Court's decision in the Ngadju case arose in the context of a prior decision of Justice Marshall1 to the effect that mining leases and other tenements granted under a particular state agreement had not been validly renewed for the purposes of the Native Title Act. The key reasoning of Justice Marshall was that tenements granted under a particular state agreement carried with them significantly greater burdens and obligations than tenements granted under the Mining Act.

The Full Court decided that his Honour had proceeded from an incorrect basis and that the correct analysis was that no tenements had been granted under any state agreement at all. Rather, in the Full Court’s view, all of the relevant tenements were authorised or facilitated by the State Agreement but the power to grant them arose under and was exercised in accordance with the Mining Act 1978 or the Mining Act 1904.2

This conclusion arises because of the particular wording of the relevant State Agreement. The decision is likely to apply to most State Agreements, but not all State Agreements are in the same form and is possible that some tenements have in fact been granted under a State Agreement rather than under the Mining Act.

Equally important, the Full Court held that the nature of a mining tenement is not a proprietary interest in land. This follows a line of authority which is certainly applicable in relation to duties cases,3 but which seems somewhat counterintuitive in describing the nature of the rights and interests granted to the holder of such a tenement. That is, while it is difficult to see how a right to occupy land for long periods for the purpose of, and with the entitlement to, mine is other than a possessory interest, the Courts appear to regard it as a mere licence.

The consequences of the Ngadju case, subject to the application for special leave to appeal, are that renewals of mining tenements granted under State Agreements are likely to be treated as renewals of mining tenements generally for the purpose of the Native Title Act. That is, there is no need to engage in the ‘right to negotiate’ process under the Native Title Act in relation to the renewal or re-grant of mining tenements.

An application for special leave has been lodged. It is likely to be heard in the next few months and will almost certainly be heard before the end of the year. If special leave is not granted then the position in Ngadju is likely to be considered to be the prevailing law, subject to the following comments.

The Tjiwarl case

A lesser known but interesting case that is that of Tjiwarl v Western Australia. The trial is complete and Justice Mortimer has reserved her decision, which is likely to be delivered in the next few months.

A key issue in that case is the question of whether the renewal of pastoral leases in 2015 was a permissible renewal for the purposes of the NTA. The basis of the argument is that the applicants in that case say that many pastoral leases that fell due for renewal were granted under the Land Act 1933, and the pastoral leases that were reissued were granted under the Land Administration Act 1995. It is asserted that a pastoral lease under the 1995 Act creates a greater proprietary interest than the original lease. This is because (it is alleged) additional activities may be undertaken under a pastoral lease granted under the 1995 legislation. The State has, consistently with its position in Ngadju, submitted that a pastoral lease does not create any proprietary interest in land but is a mere licence to undertake activities (i.e. like a mining tenement), and in any event, if there is a proprietary interest and if it has ‘expanded’, it expanded on the enactment of the 1995 Act.4

On one view, the decision in the Ngadju case requires her Honour to reject the applicants' submissions and to hold that the pastoral lease renews were compliant with the provisions of the Native Title Act. If she holds otherwise, there will be significant doubt as to the scope and effectiveness of the Ngadju ruling.

What does this mean for your tenements?

The key issue here is that certain sections of the Native Title Act are only now being the subject of close judicial consideration. Part of that consideration overlaps with the question of definition of the nature of a mining tenement, which was still a matter of controversy as recently as 2010.

There is likely to be some uncertainty in this area while the more obscure points of the interpretation of the Native Title Act are considered in the next few years. In the meantime, some consideration needs to be given to the applicable process for the renewal of mining leases, particularly where the renewal is of a tenement initially granted under the Mining Act 1904, if granted in accordance with a State Agreement (regardless of whether the grant is under the State Agreement or under the Mining Act) or where the entitlements under the tenement have changed over time (i.e. where conditions or entitlements are changed after the date of grant). However, for the time being, the State of Western Australia will not be requiring parties renewing mining tenements to participate in the right to negotiate.