On 12 March 2014, the High Court made a significant decision on extinguishment of native title at common law. The Court:
- found that non-exclusive native title rights and interests had not been extinguished by the grant of certain mining leases - even in areas which had been developed into a mine, town and associated works, and
- indicated that non-exclusive native title would not be extinguished by improvements to pastoral leases (eg. homesteads, constructed airstrips and constructed dams).
The case (Western Australia v Brown)1 is important for anyone who:
- has assumed that native title has been wholly extinguished by reason of previous mining or pastoral developments, or
- may in the future seek the grant of an interest in such areas.
Where will it be relevant
Western Australia v Brown (Brown) deals with the extinguishment of non-exclusive native title rights and interests at common law so is likely to be relevant in relation to:
- mining leases granted before 1975, and
- pastoral leases granted before 23 December 1996,
Brown is less relevant where native title legislation dictates the extent to which native title is extinguished – eg. the grant of more recent mining leases, which under the Native Title Act will usually not extinguish native title.
What was the case about?
Brown arose from the native title claim of the Ngarla People in the Pilbara region in Western Australia. The parties to the claim agreed on a consent determination of native title apart from the extent to which native title existed in the areas of two mineral leases granted under the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA). Significant works had been conducted under the mineral leases, including:
- open pit mining, which transformed Mount Goldsworthy from a hill to a pit,
- construction and operation of mining infrastructure, and
- establishment of a town of over 200 houses and associated works.
As the mineral leases were granted before 1975, the Court did not consider extinguishment of native title under the native title legislation.
The Court first looked at the terms of the mineral leases and found they did not give the miners rights of exclusive possession. The Court found the miners’ rights to carry out mining and associated works on the land would have been inconsistent with a native title right to control access to the land, but could coexist with the claimed non-exclusive native title rights. The grant of the leases did not therefore extinguish those non-exclusive native title rights.
More significantly, the Court then considered whether native title was extinguished subsequent to the grant of the mineral leases in developed areas such as the areas of the mine, townsite and associated works. The Court found that such use of the land (as opposed to the grant of rights over the land) was irrelevant to the issue of extinguishment. The Court explicitly noted that the decision of the Full Federal Court in De Rose v South Australia 2, (which found native title had been wholly extinguished by the construction of improvements on pastoral leases) was wrong on this point.
The outcome was that non-exclusive native title rights and interests of the Ngarla People were recognised to continue to exist in the areas of the mineral leases, including in the developed areas. Those native title rights may have been suspended during the operation of the mine, townsite and associated works, but were not extinguished.
- Don’t assume native title has been wholly extinguished in areas of previous mining or pastoral developments.
- Grants of further interests in the areas of previous mining or pastoral developments may be therefore be subject to the ‘future act procedures’ under the Native Title Act.
What Brown does not change
- The holder of a validly granted interest in land (including a validly granted mining or pastoral lease) can continue to exercise their rights under that interest.
- Brown does not change the interpretation of legislation which dictates the extent to which native title is extinguished. However, it may affect the application of aspects of native title legislation which determine extinguishment by reference to the common law (eg. 'non-exclusive possession acts').