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14/03/14

Native Title client alert

Native title still exists over mining leases under State Agreement - High Court Brown Decision

The much awaited High Court native title decision in the State of WA v Alexander Brown & Ors (Brown Decision) was handed down on 12 March 2014.The High Court unanimously held that 2 mineral leases granted in 1966 and 1974 under the Mount Goldsworthy State Agreement did not extinguish the native title rights and interests held by the Ngarla People in the land the subject of those mineral leases, even where there had been a town and open pit on the land. The Court said that when the exercise of native title rights and interests prevent a leaseholder from exercising a specific right  the exercise of that  right will prevail, but only until the leaseholder ceases to exercise that right (including by rehabilitating a pit or vacating a town). 

The majority of leaseholders under similar State Agreements will be affected by this decision, as well as any tenement holders with similar leases granted before the Racial Discrimination Act 1975 (Cth) and theNative Title Act 1993 (Cth).  The decision is broad enough to also impact the holders of any interest which does not grant the right to exclude ‘any and everyone from access to the land, for any reason or no reason’2 .  

Decision 

The High Court found that the mineral leases are not inconsistent with the coexistence of native title rights and interests over the land due to the fact that: 

  • the mineral leases were granted subject to the joint venturers allowing the State and third parties access over the land provided that the access did not unduly prejudice or interfere with joint venture operations; 
  • the Ngarla People held non-exclusive native title rights and interests to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land, and to care for, maintain and protect from physical harm particular sites and areas of significance to the native title holders; 
  • the grant of rights to use land for particular purposes, if not accompanied by the grant of a right to exclude any and everyone from the land, is not necessarily inconsistent with, and does not necessarily extinguish native title rights (as determined in Wik and Ward ); and 
  • the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works in such a way which would prevent any use of the land by native title holders. Therefore the High Court found that the native title rights and interests were not extinguished or suspended and remained unaffected.

Impact 

The Brown Decision results in practical uncertainty in the mining industry (particularly for those with State Agreement tenure granted prior to the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993(Cth)) as miners and native title holders will now be required to determine how they will regulate their co-existing rights over the same land. 

History of the claim

The initial application by Alexander Brown and others (on behalf of the Ngarla People) for native title determinations in respect of this land was first head by the Federal Court in 2007. At first instance, the Federal Court found that the claimed native title rights and interests had been extinguished in the area where the mine, town and the associated works had been constructed on the mineral leases (Developed Areas). The leases were similar to the form of mineral leases then provided by the Mining Act 1904 (WA) and were granted prior to the enactment of both the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth).

On appeal to the Full Court of the Federal Court, Greenwood and Barker JJ found by a 2 to one majority that the effect of the exercise of the rights under the mineral leases in respect of the Developed Areas was merely to suspend native title rights, rather than to extinguish them and therefore upheld the appeal by the native title holders.

By special leave, the State appealed to the High Court against the orders of the Full Court submitting that:

  •  the native title rights and interests were wholly extinguished over the whole of the area of the mineral leases either because those leases conferred on the holders a right of exclusive possession or because the rights granted by the leases and the State Agreement were inconsistent with all of the native title rights and interests; and
  •  in the alternative, the native title rights and interest were extinguished in respect of the Developed Areas.

Footnotes

1.  [2014] HCA 8 
2.  [2014] HCA 8 at 13 [46]
3.  Wik Peoples v Queensland (1996) 187 CLR 1 
4.  Western Australia v Ward (2002) 213 CLR 1 

Native Title Amendment (Reform) Bill 2014 (Cth) – Watch this space!

By Christine Lovitt, Fionn Bowd and Emma McLeod

The amendments to the Native Title Act 1993 (Cth) which were proposed by our previous Government have been reawakened, including offshore recognition, and are now being put forward once again in the form of the Native Title Amendment (Reform) Bill 2014(2014 Bill). 

In summary, these changes are favourable to native title parties and would place greater obligations on project proponents, such as the obligation to negotiate in good faith. The changes would also expand the right to negotiate to offshore areas, which was not previously the case.

If implemented the 2014 Bill will see the following changes to the Native Title Act 1993 (Cth):

Right to negotiate process

  • the right to negotiate process will apply to offshore areas;
  • a definition of ‘negotiating in good faith’ will be included as well as criteria to determine whether parties have negotiated in good faith and parties will be required to negotiate in good faith for a period of at least 6 months;
  • the party who has referred the matter to the National Native Title Tribunal will be required to prove it has negotiated in good faith;

Historical extinguishment

  • where land is part of a National, State or Territory park, prior extinguishment will be disregarded;

Applications for a determination

  • connection by the native title claimants to land will be presumed and respondents will have the obligation to prove otherwise (which is a reverse of the current onus of proof of connection);
  • a substantial interruption or significant change in traditional laws or customs will be disregarded if the primary reason for the change or interruption is the action of a State or Territory or a person who is not an Aboriginal person; and

Commercial rights and interests

  • native title rights and interests can be of a commercial nature.

Leave was granted for Senator Siewart who has re-introduced the 2014 Bill to continue her remarks on the next sitting day, being Monday 17 March 2014. We will track the progress of this Bill and will provide regular updates.

History of the Bill

As you may be aware, the Native Title Amendment (Reform) Bill (No. 1) 2012 (2012 Bill) was introduced into the Senate in February 2012. This Bill then lapsed on 12 November 2013 following the election of the Coalition. 

The 2014 Bill is on identical terms to the 2012 Bill. It was introduced into the Senate and received its second reading speech on 4 March 2014.

 

 

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