On 12 March 2014, the High Court of Australia handed down its decision in Western Australia v Brown  HCA 8 (Brown). The decision is a critical development in relation to the survival of native title, as the High Court found that the construction of a town and a mining pit did not extinguish native title. The High Court in Brown overturned the decision of the Full Federal Court in De Rose (No. 2) (2005) 145 FCR 290 (De Rose), where it was held that the construction of improvements such as a homestead or sheds on a pastoral lease extinguished native title at the time those improvements were constructed.
The High Court confirmed that the question of extinguishment of native title is to be determined by asking whether the rights granted under the relevant tenure are inconsistent with the native title rights and interests, as per Wik Peoples v Queensland (1996) 187 CLR 1 (Wik) and Western Australia v Ward HCA 28 (Ward).
In 1964, the State of Western Australia (State) passed the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) (the Act), under which the State made an agreement with various parties to a joint venture (the joint venturers) about the development of an iron ore mining project at Mount Goldsworthy, in Western Australia. The agreement required, amongst other things, that the State would grant mining leases to the joint venturers.
The State subsequently granted two mining leases to the joint venturers in 1966 and 1974. The leases relevantly provided that the joint venturers could not prevent the State or other third parties from accessing the land subject of the leases, provided that the access did not “unduly prejudice or interfere with” the joint venturers’ operations.
Pursuant to the mining leases, the joint venturers constructed a town and undertook open pit mining. At its peak, the town of Mount Goldsworthy had a population of 1,400 people, with 200 houses, a shopping centre, a school, clubs, a police station and other facilities. Before mining, the peak of Mount Goldsworthy was approximately 132 metres above sea level – following mining, it was a pit about 135 metres below sea level.
Mining stopped in Mount Goldsworthy in December 1982, and the town was closed in 1992. The town was subsequently completely removed and the land restored. The open pit remained, but is now filled with water.
On 30 May 2007, the Federal Court made a consent determination of native title in favour of the Ngarla People, excluding the area of the mining leases. The question of the extinguishing effect of the two mining leases was deferred and in 2010 the Federal Court considered that question and found that the mineral leases did not extinguish native title. The State appealed that decision to the High Court.
Justices French CJ, Hayne, Kiefel, Gageler and Keane JJ in their unanimous judgment rejected the State’s appeal, thereby concluding that the mining leases did not extinguish native title.
Having found that the mineral leases did not amount to a grant of exclusive possession in favour of the joint venturers (which would certainly have extinguished native title, as per Ward), the Court went on to consider whether the rights under the mining leases were otherwise inconsistent with the native title rights so as to extinguish them.
The Court stated that:
- the question of extinguishment must be decided at the time of the grant of the allegedly inconsistent rights;
- inconsistency is that state of affairs where the existence of one right necessarily implies the non-existence of the other;
- there are no “degrees” of inconsistency – two rights are either inconsistent with each other or they are not; and
- the consideration of the way in which a right has been exercised is relevant only insofar as it assists the Court to identify the correct nature and content of the right.
The Court concluded that the rights of the joint venturers was not inconsistent with the Ngarla People’s native title rights so as to extinguish them, but only impaired those rights “for so long as the joint venturers enjoy(ed) and exercise(ed) those rights”. The practical consequence of this decision is best stated in the judgment:
“..on the day following the grant of the first of the mineral leases… the native title holders could have exercised all of the (native title) rights… anywhere on the land without any breach of any right which had been granted to the joint venturers… 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… 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.”
The Court specifically rejected the State’s submission that the activities of the joint venturers in constructing improvements on the mineral leases (such as the open pit and the town) extinguished native title. In doing so, the Court stated that De Rose was incorrect insofar as that decision held that the right to construct improvements on a pastoral lease (such as a homestead, shed or a dam) extinguished native title at the time that the right was exercised.
The decision in Brown has definitively changed the legal landscape of native title extinguishment relating to the construction of improvements. However, the practical consequences for mining companies and land rights holders are minimal – namely, a proponent with a legal right to construct improvements can still exercise that right to the exclusion of native title rights.
It is important to remember that not all mining leases will be dealt with in the same way as Brown - different principles apply to the extinguishing effect of mining leases which fall under the Native Title Act (i.e. “past acts” etc.). The Native Title Act also provides different principles for determining extinguishment in relation to gazetted towns and cities.