Pre-1975 mining leases unlikely to extinguish native title in the absence of exclusive possession

A mining or other specific purpose lease granted pre-1975 will only have extinguished native title rights and interests where the lease itself, as at the date it was granted, clearly conferred on the lessee rights that were inconsistent with the continued existence of native title. So said the High Court in its decision this m

orning in Western Australia v Brown [2014] HCA 8.

The mineral leases and the native title claim

The State of Western Australia made an agreement with a joint venture in 1964 with respect to the mining of Mt Goldsworthy in the Pilbara region. Under the agreement:

the State had to grant the joint venturers mineral leases for iron ore; the joint venturers agreed to construct mining and other infrastructure; and the joint venturers agreed to permit the State and third parties access to the land that did not unduly prejudice or interfere with its operations. The mineral leases were granted, the mining infrastructure constructed over about one-third of the land, and operations commenced.

The Ngarla People successfully claimed native title rights and interests over particular land and waters in the Pilbara region. While their claim included the areas subject to the mineral leases, a determination in relation to these areas was suspended pending resolution of the issue of whether the grant of the mineral leases had extinguished their native title rights and interests.

The (common law) test for extinguishment of native title

The mineral leases were granted before the Racial Discrimination Act 1975 (Cth) became law. As a result, the leases could not have been "past acts" or "intermediate period acts" for the purposes of the Native Title Act 1993 (Cth). As the grant of a mining lease can also not be a "previous exclusive possession act", the question of extinguishment had to be resolved at common law.

The Court therefore turned to its previous decision in Western Australia v Ward (2002) 213 CLR 1; [2002] HCA 28 to identify the proper test for extinguishment at common law, and held that the question that needed to be answered was whether the rights granted to the joint venturers under the mineral leases were inconsistent with the native title rights and interests claimed by the Ngarla People.

This was said to be an objective inquiry requiring identification of, and comparison between, the two sets of rights.

The High Court stressed that:

in order for there to be inconsistency, the existence of one set of rights would necessarily...