High Court confirms that major iron ore mining project did not extinguish native title

extinguishment of native title

In Western Australia v Brown [2014] HCA 8 the High Court has unanimously held that a major iron ore mining development did not extinguish native title.

Background

The decision concerns the former Goldsworthy iron ore mining project in Western Australia, which was constructed pursuant to mineral leases granted under a State agreement (the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA)).

During mining operations (which commenced in 1966) Mount Goldsworthy (which previously had a peak of 132 metres above sea level) was transformed into an open pit approximately 135 metres below sea level. By the end of mining operations there were 9 waste dumps around Mount Goldsworthy each approximately 35 metres high.  The Goldsworthy town was constructed and comprised over 200 houses, together with roads, a shopping centre, a school, clubs and sporting facilities, a medical centre, a police station and associated works. In 1977 the town reached a maximum population of 1,400 people.

The mine was closed in 1982 and the town of Goldsworthy was closed in 1992. The total area of the Goldsworthy mine and township was approximately 3.2 square kilometres and occupied approximately one third of the area of the relevant mining lease.

Extensive rehabilitation activities were carried out, and during the period 1982 to 1983 all infrastructure, equipment and stockpiles were removed from the town site and mine.  The pit at Mount Goldsworthy remains filled with water.  The waste dumps from mining operations remain part of the landscape.

The question

The question was, did the grant of the mineral leases extinguish some or all of the claimed native title rights and interests?

The answer

The answer depended on the application of the common law of extinguishment of native title, rather than the provisions of the Native Title Act 1993 (Cth), because the leases were granted prior to the enactment of the Racial Discrimination Act 1975 (Cth).

The State contended that native title had been extinguished over the entirety of the areas covered by the mineral leases (the Mt Goldsworthy Project Area), either because:

  • the leases conferred on the holders a right of exclusive possession;
  • native title rights could not be exercised anywhere on the lease areas simultaneously with the rights to mine and to build “many and very large improvements” anywhere on those areas (at 48]); or
  • native title was extinguished when the rights to develop and construct mines, a town and associated works were, in fact, exercised (at [58]).

The High Court rejected each of these arguments and re-affirmed the following principles established in Wik [fn1] and Ward [fn2]:

  • the test for extinguishment of native title at common law requires a determination as to whether the granted rights are inconsistent with the alleged native title rights and interests (at [33]);
  • the question of inconsistency of rights is an objective inquiry that can always be determined at the time of grant of the allegedly inconsistent rights (at [37]);
  • that question must be decided by reference to the nature and content of the respective rights as they stood at the time of grant. It is wrong to determine extinguishment by reference to acts later done, for example the construction of an open pit mine pursuant to a mineral lease (at[37]);
  • two rights are inconsistent or they are not; if they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment (at [38]).

The High Court observed that Wik and Ward established that:

the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if not accompanied by the grant of a right to exclude any and everyone from the land for any reason or no reason, is not necessarily inconsistent with, and does not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land.” (at [55])

In this case the High Court held that the native title claimed [fn3] had not been extinguished by the mineral leases:

[T]he mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason.  The joint venturers were given more limited rights:  to carry out mining and associated works anywhere on the land without interference by others.  Those more limited rights were not, and are not, inconsistent with the co-existence of the claimed native title rights and interests over the land.” (at [57])

In practical terms the native title holders could not exercise their native title (for example a right to hunt and gather) over any area where the holders of the mineral leases had exercised their rights (for example where the open pit mine was constructed, or where a house was built in the mining township). But when the miners cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected (at [64]).

Comment

The decision is significant because it resolves a long-standing controversy [fn4] about whether native title can be extinguished after the date of grant of an interest (such as a mineral lease or a pastoral lease) whenever and wherever improvements of a permanent nature are constructed on a lease area. The High Court has emphatically said “no”.

Many determinations of native title have terms which provide that native title has been extinguished in areas where permanent improvements have been constructed (in addition to any adjacent areas the exclusive use of which is necessary for the enjoyment of such improvements).  Those determinations may now require variation pursuant to s 13(5) of the Native Title Act.

Finally, the future act regime will now apply in areas covered by permanent improvements where it was previously thought that that regime did not apply because native title was extinguished.

Footnotes

  1. Wik Peoples v Queensland (1996) 187 CLR 1.
  2. Western Australia v Ward (2002) 213 CLR 1.
  3. Being non-exclusive native title rights and interests (a) to access and camp on the land; (b) to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land; (c) to engage in ritual and ceremony on the land; and (d) to care for, maintain and protect from physical harm particular sites and areas of significance to the native title holders (at [2]).
  4. Arising from the decision of the Full Federal Court in De Rose v South Australia (No 2) (2005) 145 FCR 290.