Question 1: Did the grant of the Mt Goldsworthy Leases pursuant to the Agreement confer on the holders of those Leases a right of exclusive possession such that any native title rights and interests were wholly extinguished?
175 The applicants agree that a title conferring exclusive possession, for example, a legal right to exclude all others from the land, such as a grant of freehold, extinguishes all native title rights in the land. They accept that this is because the right to exclude others is legally and conceptually inconsistent with any continued existence of native title rights in the land and contradicts any rights of native title holders in respect of the land. They contrast a grant of freehold and a special lease on one hand with the grant of exclusive possession for mining purposes on the other. This is on the asserted basis of Ward at [308] where the High Court said, in respect of the mining lease there under consideration, that it was only directed at preventing others from carrying out mining and other related activities on the relevant land. However, the High Court was not purporting to address all leases that relate to mining, whether by way of the Mining Act 1904, the Mining Act 1978 or specific agreement, such as a State Agreement. It is clear that each granted right must be assessed objectively before seeking to classify it (Ward at [186]). The High Court recognised in Ward at [308] that the holder of a mining lease may not have exclusive possession and that the grant of a mining lease is not necessarily inconsistent with all native title but also observed that "the use of the land for mining purposes may prevent the exercise of native title rights and interests on some parts, even in some cases perhaps the whole of the land". It is necessary to consider the Mt Goldsworthy Leases.
176 The applicants accept that the rights granted under freehold and special leases, whether or not exercised at all, are legally inconsistent with native title rights because both cannot exist at the same time. This is because such rights extend not only to the right of access to and use of the land for all purposes (in the case of freehold) or for specified purposes (in the case of special leases), but also to exclude all others from the land, irrespective of the purpose for which others want to use the land. The applicants accept that mining leases and the general purpose lease granted under the Mining Act 1978 are legally inconsistent with any native title right to enter the land and use it for mining or other related purposes and with any right to control access to the land. They submit, however, that there still remain native title rights which "legally, and in theory, coexist with the rights of the leaseholders". They say that these activities, exercised as of right, must yield to but are not extinguished by the leaseholders' enjoyment of their rights under the terms of the lease if both attempt to exercise their rights in the same place at the same time. Then, the leaseholders' rights prevail for as long as they are carrying out that activity.
177 The applicants submit that the Mt Goldsworthy Leases are not relevantly distinguishable from other mining leases which have been found not to be inconsistent with all native title rights. For example, the Hamersley Range lease, of comparable size and importance and granted pursuant to a Western Australian Agreement Act was considered in Daniel No 1. That Agreement Act contained clauses strikingly similar to the Mt Goldsworthy Agreement Act, including the statement in both leases that the leaseholders are to hold the said land and mine, and the provision for extensive mining-associated infrastructure and other infrastructure that included towns, schools, a harbour and wharf development. Despite this, Nicholson J considered that the rights granted by the Hamersley Range lease did not amount to exclusive possession so as to extinguish all native title rights. As mentioned above, the tenement holders and the State submit that his Honour's conclusions as to mineral leases do not assist as his Honour did not fully consider the application of the "inconsistency of incidents" test in relation to the Hamersley Range Lease. Those parties submit that cases where the test was not applied (eg Rubibi Community v Western Australia (No 7) [2006] FCA 459) are, similarly, not of assistance. I have considered Nicholson J's reasons and have taken them into account in coming to an understanding of the principles derived from Ward and applied in Daniel No 1 and No 2.
178 The applicants submit that the Agreement confers no express or implied right to control access to the land. A grant of exclusive possession for mining purposes allows the control of access of others seeking to use the land for mining purposes. The presence of towns, roads and railways negates, they say, any expectation of control of access by all persons throughout the whole leased area. The fact that the Agreement Act provides for application for additional tenure such as fee simple and special leases suggests that the Mt Goldsworthy Leases themselves were not intended to provide exclusive possession which allowed for all others to be excluded.
179 As discussed above, the tenement holders rely on the terms of the Mt Goldsworthy Leases as well as the breadth of the purposes of the Agreement to submit that the Leases are very different to the mining leases granted only under the Mining Act 1904 or the Mining Act 1978. They say that the Mt Goldsworthy Leases are in the nature of "true" leases and submit that the rights conferred by the Leases are no less extensive than the rights conferred by the special leases considered in Ward, which were found to have granted a right of exclusive possession
180 The tenement holders submit that all of the determined native title rights are inconsistent with the rights granted to the Joint Venturers. They rely upon the consideration by Nicholson J in Daniel No 1 at [847] of the Dampier salt lease, which was a mineral lease granted under a Western Australian State Agreement in relation to a large-scale, intensive salt mining project requiring the grant of rights in addition to rights granted under a typical Mining Act 1904 mining lease. His Honour held that the nature of the activity required and permitted on the land the subject of the lease (solar salt mining) was such that exclusive possession against the whole world must have been intended to be granted by the lease. The nature of the mining operation for salt production could not co-exist with any actual exercise of native title rights. The result was the extinguishment of native title rights. Contrary to the submissions of the applicants, it was permissible for Nicholson J to consider actual use of the land to read back into the rights that must have been intended by the grant (see Ward at [78]). There is, however, no evidence that compares the nature of solar salt mining with mining for iron.
181 The right to occupy granted by the Agreement to the Joint Venturers alone for the purposes of the Agreement (cl 2(a)) does not amount to a right of exclusive possession (Wik at 162, 165-6 per Gaudron J). A mining lease, of its nature, grants a right to exclude other miners from exercising mining rights but does not necessarily entail a right to exclude all others. Further, as the applicants submit, even if there were a right to prevent persons without lawful authority remaining on the land, for example, under the Government Agreements Act, that cannot apply to people exercising native title rights and interests if those rights have not been extinguished.
182 The nature of the mining included extensive open pit mining which changed the landscape. The Joint Venturers were granted the right to construct a town in the leased area. The Leases envisaged railways, roads and other construction. While construction was carried out pursuant to authorisation by the State of submitted proposals, the right to carry out that construction, subject to the authorisation, was granted by the Agreement. Tenure in the form of a demise from the Crown creating the interest in the land was granted by the Agreement and the Mt Goldsworthy Leases. The fact that a home owner with a fee simple interest cannot carry out alterations to his or her residence without State or local council approval does not derogate from the underlying rights to that property.
183 The Joint Venturers were granted the right to mine in the leased area and to construct such infrastructure as considered necessary for that purpose, not restricted to infrastructure directly associated with mining activities but extending to the town and associated activities and structures. I will deal in question 2 with whether these rights of themselves are inconsistent with the continued existence of the determined native title rights. However, in terms of the leased area as a whole, while it was the intention that the Joint Venturers could decide where in the leased area they would locate mines and associated infrastructure, it could not have been the intention that they would exert their rights over the whole of the leased area. This has been borne out by the fact that, even with the extensive mining activity and development undertaken, only approximately one third of the leased area has been the subject of the exercise of those granted rights. There is no suggestion that the proposed future mining sites would extend over all of the remaining area.
184 It could not have been intended, nor was it feasible, to assume a grant to the Joint Venturers of exclusive possession of the whole of the leased area. The terms of the Agreement provide for third party rights of access which do not interfere with the operations of the Joint Venturers. This recognition that the operations will not encompass the whole of the leased area is consistent with the recognition that those parts of the leased area that are not part of the mining operations and associated development are accessible to third parties, which would include native title holders. I accept that the Joint Venturers had the right to restrict access by the native title holders to, at least, the mine or other areas the subject of mining or mining exploration and to areas and buildings within the town site. The rights to exclude access are thereby linked to the area of operations rather than the whole of the leased area and this has implications for my answer to question 2. There is no good reason, however, to presuppose that it was intended that the Joint Venturers had the right to exclude access by native title holders seeking to exert the determined native title rights over those parts of the leased area that were left untouched by the Joint Venturers. Clause 9 of the Agreement obliges the Joint Venturers to allow the State and third parties to use or have access to the land the subject of the mineral leases and the infrastructure there constructed, such as the roads and the wharf, and for the right of the inhabitants of the port town site to have access to water, power and recreational facilities. I accept that the provision of specified rights of access by third parties to roads and routes may be said to be consistent with the fact that otherwise there would be no right of access. However, it is also consistent with an expectation that the specified sites, but not the whole of the leased area, would have access to them restricted or denied by the tenement holders.
185 The Agreement and the Mt Goldsworthy Leases did not confer a right of exclusive possession on the Joint Venturers such as to extinguish all native title rights over the whole of the leased area.
186 The tenement holders also rely on the 2007 renewals of each of the Mt Goldsworthy Leases to submit that, if native title were not extinguished by the grant of the Mt Goldsworthy Leases, these renewals had the effect of wholly extinguishing native title pursuant to s 24IB of the NTA. Section 24IB relevantly provides:
A future act is a pre existing right based act if it takes place:
(a) in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or
(b) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made.
They submit that this occurs as follows:
(a) The renewal of the Leases in 2007 would have constituted a "future act" as defined in s 233 of the NTA.
(b) The bases on which a future act can be validly done are set out in ss 24AA(3) and 24AA(4). Section 24AB(2) relevantly determines which provisions apply to the doing of a particular future act.
(c) The renewal of the Mt Goldsworthy Leases would fall within the definition of a "pre-existing right based act" under s 24IB which covers acts that take place in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid.
(d) Section 24ID(1)(b) sets out the effect of the application of s 24IB to an act. It provides that if the act consists of the conferral of a right of exclusive possession over particular land or waters, the act extinguishes any native title in relation to the land or waters.
187 The applicants disagree that the renewal falls within the classification of a pre-existing right based act under s 24IB that extinguishes native title, or that it could fall within s 24IC. They contend that this would require the renewals to confer rights additional to those conferred by the original leases. Further, they point out that under the NTA, tenure granted by mining leases is excluded from the meaning of exclusive possession. The State submits that s 24IB does not apply to the renewal of grants of exclusive possession leases because the NTA assumes that such grants will have already extinguished native title. It follows that the renewal will not affect native title. In any event, based on my finding above that the grant of the Mt Goldsworthy Leases did not confer a right of exclusive possession, the renewal of such Leases would likewise not have conferred a right of exclusive possession for the purposes of s 24ID of the NTA.
188 It follows that I answer question 1: "no".