An odd couple: mining leases and native title can coexist - Western Australia v Brown [2014] HCA 8

The High Court of Australia has unanimously held that the grant of a mineral lease in the 1960s does not extinguish native title rights and interests, but rather suspends native title until the lease ends. The decision provides important clarification on the operation of common law extinguishment, and has potential implications for other state grants, such as pastoral leases.

BACKGROUND

The central issue in the Brown case was whether native title had been extinguished by the grant of mineral leases or subsequent development and construction on the land pursuant to the leases.

In 1964, the State of Western Australia made a State Agreement with a mining joint venture to develop and exploit iron ore deposits at Mount Goldsworthy, located in the resource-rich Pilbara region of Western Australia.

The State granted two mineral leases to the joint venture pursuant to the State Agreement. The joint venture in turn agreed to construct a mine, a town and associated infrastructure, and agreed to allow the State and third parties to have access over the mineral leases, provided that the access would not unduly interfere with its operations.

The Ngarla People were later granted a number of non-exclusive native title rights and interests over land in the Pilbara region, but the question of whether these rights extended to the land subject to the mineral leases was unresolved. The Ngarlga People's sought non-exclusive native title rights over the land including the right to access and camp on the land, to hunt and take traditional resources (excluding materials), and to maintain and protect particular sites and areas of significance.

It was not in dispute that the Ngarla People held native title over the land where the mineral leases were located. The issue before the High Court was whether the mineral leases had extinguished the native title in that area, either because:

the grant of the mineral leases conferred...