QUESTIONS ANSWERED
39 The effect of the grant of a mining lease under the Mining Act was to extinguish the native title right to control access to the land. That right is inconsistent with the right of access arising under the lease: Ward at [309]. The grant of a mining lease did not extinguish the rights of any non‑native title landholders to any extent. This flows from the nature of a mining lease under the Mining Act. It is not a true common law lease. Rather it is a liberty granted to a person, for a specific length of time, to enter upon land, search for things and take them away: Gowan v Christie (1873) LR 2 Sc&Div 273 at 284; Ward at [285]. This is reflected in s 113 of the Mining Act under which, on the expiration or earlier termination of the lease, the owner of the land may resume possession.
40 Unlike a non‑native title landholder affected by a mining lease, a native title holder of a right to possess, occupy, use and enjoy land to the exclusion of all others cannot enjoy the right conferred by s 113, because the right to control access is inconsistent with and extinguished by the grant and does not revive upon expiration of the lease. Section 237A of the Act defines "extinguish" in relation to native title as permanently to extinguish it, so that it "cannot revive, even if the act that caused the extinguishment ceases to have effect".
41 In order to determine the question raised by s 10(1) of the RDA, it is necessary to compare the security of possession and enjoyment of native title rights by the native title holders with the security of possession and enjoyment of other forms of title by the holders thereof: Native Title Act Case 183 CLR at 440‑441; Ward at [125]. On that comparison, the practical operation and effect of the Mining Act on the grant of a mining lease is that native title holders do not enjoy their right to own and inherit property (including the right to be immune from the arbitrary deprivation of property) equally with other title holders. We have described the "right" in question in that composite form because that is how it was described by Brennan, Toohey and Gaudron JJ in Mabo v Queensland [No 1] (1988) 166 CLR 186 at 217. However nothing turns on whether it is more accurately rendered as a right to own and inherit property or a right to be immune from the arbitrary deprivation of property.
42 The effect of s 10(1) of the RDA is to confer on native title holders the right to own and inherit property (including the right to be immune from the arbitrary deprivation of property) to the same extent as enjoyed by any other landholder. That right cannot exist so long as the Mining Act has its extinguishing effect. They are inconsistent. This is a category two Gerhardy situation. It is the third situation posited in Ward at [108], where a State law extinguishes only native title and leaves other titles intact. The discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.
43 When one asks the question posed by s 228(2) of the Act - whether "apart from this Act" the grant of the mining lease was invalid to any extent - the answer is that it was, by operation of s 10(1) of the RDA. Accordingly the mining lease is a "past act". Referred question (a) should be answered "Yes". It was common ground that on that answer to question (a), question (b) should be answered: "Category C as defined in s 231 of the Native Title Act".
44 We will now explain in more detail why we have not accepted the State's submissions recorded at [15]‑[22].
45 The State derives no assistance from its submission based on Ward's treatment of nature reserves recorded at [16]. In Ward at [250] the Court said:
On its face, the Land Act 1933 does not single out native title rights and interests for different treatment. And leaving aside the question of compensation, there is nothing to suggest that, so far as concerns the vesting of reserves, the practical operation of the Land Act 1933 resulted in the different treatment of native title rights and interests and non‑native title rights and interests.
The Court examined the compensation provisions, and concluded that at the time of vesting a reserve, the only interests in the land which could be affected by the vesting and the holder of which would not be entitled to compensation would be native title rights and interests. That was what led to the conclusion in Ward at [253]‑[254] quoted at [16], that the vesting of nature reserves was a Gerhardy category one situation. The vesting was valid, but s 10(1) of the RDA would provide native title holders with a right of compensation for that lost on vesting.
46 The essence of the State's submission on Ward's treatment of mining tenements, recorded at [17], is that having regard to the compensation provisions of the Mining Act, the native title holders were either entitled to compensation as owners or occupiers, in which case the RDA would not operate, or they were not, in which case s 10 of the RDA would confer the right to compensation to the same extent as the Mining Act conferred that right upon other landholders. In other words, the submission has the RDA operating on a category one Gerhardy situation.
47 It is necessary to look more closely at what was said in Ward. At [309] the Court said that if the native title right to control access existed immediately before the grants of the mining leases, then it was extinguished by the grants. This, it was said, would "raise the issue of invalidity of the grant by operation of the RDA and subsequent validation by the NTA and the State Validation Act". The Court did not pursue this hypothetical scenario because the pre‑RDA pastoral leases had already extinguished the native title right to control access.
48 In our view the Court then left the hypothetical scenario, and did not return to it. We do not accept the State's characterisation of what the Court thereafter did at [310]‑[321], namely that it "went on to consider whether the RDA would be engaged in any event, in respect of grants after 1975". Rather we understand the ensuing discussion to be directed back to the facts in Ward, where the mining leases had been preceded by pre‑RDA pastoral leases. That appears clear from [317], where the Court said that the native title holders could not be "owners" within par (c) of the definition in the Mining Act because the pastoral leases had extinguished their right to control access.
49 Having examined the compensation provisions of the Mining Act, the Court said at [319] that if the native title holders were "occupiers" of the land, they were entitled to compensation under s 123 of the Mining Act. The RDA would not be engaged. Therefore there would be no invalidity in respect of the mining leases, "and to the extent that the grant of those mining leases extinguished native title, that native title would remain extinguished". If, on the other hand, the native title holders were not "occupiers", s 10 of the RDA was engaged, and would confer on them the right to compensation to the same extent as the Mining Act conferred that right upon "occupiers". We repeat that the Court was concerned only with "occupiers", because on the fact situation with which it was at this stage dealing, the native title holders were not "owners" because their right to control access had been extinguished by the pastoral leases.
50 The Court pointed out at [320] that it was dealing with a category one Gerhardy situation. Thus when it concluded with the passage at [321] so heavily relied on by the State (set out at [18]), the phrase "when the RDA operates in this way" is a reference to its application in the category one Gerhardy situation.
51 Something must be said about the Court's description at [319] of the consequences of the native title holders' hypothetical entitlement to compensation as occupiers - "to the extent that" the grant of the mining lease "extinguished native title", that native title would remain extinguished. Similarly at [321], in describing the consequences of the RDA's operation, the Court said that "to the extent that the grants of the respective mining leases extinguished native title, that native title is extinguished". The extinguishment referred to does not include the right to control access to the land, because that was extinguished by the pastoral leases. The Court had earlier at [308] referred to the generality of the determination of the native title found at first instance making it impossible, subject to the exception of the right to control access, to determine the native title rights and interests that had been extinguished or to identify those that remained. In that context, we agree with the applicants' submission that the reference in [319] and [321] to "extinguished native title" should be understood as referring to the extinguishing effects, if any, which were themselves non‑discriminatory; to circumstances in which there was no inequality in the enjoyment of the right to own property other than the absence of compensation.
52 As is apparent from the foregoing, insofar as it dealt with mining leases, Ward was a Gerhardy category one case. That appears to have been the way the case was argued. The no‑compensation discrimination was remedied by s 10 of the RDA. The State seeks to attract the assistance of Ward by pigeonholing the applicants' case in the same way. This appears most clearly from the State's summary at [22(d)]:
If the native title holders were not entitled to compensation under the Mining Act as "owners" or "occupiers" then there is unequal enjoyment of the (human) right to be compensated for deprivation of property and s 10 will operate to confer a right of compensation on native title holders for the effect on their native title.
But that is not how the applicants' case is put. Their claim is that the effect of the Mining Act is that the native title holders do not enjoy their rights to own and inherit property equally with other landholders. The Mining Act and the leases granted pursuant to its provisions extinguish the Martu peoples' right to control access to their land and do not extinguish to any extent the title of other landholders. That is a Gerhardy category two situation. It is not remedied by the provision of compensation. Even if compensation provided by the Mining Act extended to cover the extinguishing effect of the grant of a mining lease, the availability of that compensation would not avoid the consequence that the extinguishing effect itself is a discriminatory burden falling only on native title holders. (We explain at [69]‑[76] why the compensation provided by the Mining Act does not so extend.)
53 The crucial discussion in Ward at [310] to [321] concerns only Gerhardy category one. Save for the general introductory material [106]‑[109] where the two categories are identified, the only place where a category two situation is posed is at [309]. The applicants treat the sentence "This would raise the issue of invalidity of the grant by operation of the RDA and subsequent validation by the NTA and the State Validation Act" as a conclusion rather than the identification of an issue or issues. It seems to us more like the latter. However, the authorities to which the Court referred elsewhere in its reasons, and other passages in Ward itself, show that the "issue" at [309] would be resolved in favour of invalidity, and validation by the Act and the State Validation Act. Thus in Ward at [108] it was said:
a State law, for example, extinguishes only native title and leaves other titles intact; the situation falls in the second category identified by Mason J and the discriminatory burden of extinguishment is removed because the operation of the State law is rendered invalid by s 109 of the Constitution.
See also the Native Title Act Case 183 CLR at 437 and 451.
54 We do not understand the submission in the State's written outline recorded at [20]. If the native title holders were "owners" within par (c) of the definition, they would have been entitled to compensation as such. Because they were so entitled, there would be no need for the RDA "to confer an equivalent right of compensation on native title owners". Ward at [319], the passage relied on by the State in this connection, makes this clear: if the native title holders were occupiers, they would have been entitled to compensation as such, "and the RDA would not be engaged". This submission appears to have been abandoned in the course of oral submissions. Counsel accepted that if the native title owners were "owners", they would be entitled to compensation as such, and the RDA would not be engaged.
55 We do not accept the premise on which the State's alternative case recorded at [21] is based. This is that neither native title holders nor any other title holders have a right to be asked permission to use or have access to land for mining purposes. First, it does not recognise that extinguishment of native title is not brought about by the mere existence of a power to achieve that. There must be an exercise of the power, in the present case by the grant of mining leases. Second, the premise ignores the fact that the right to control access is wholly extinguished in the hands of native title holders, but merely regulated or qualified by a grant of a mining lease over the land of other title holders. Section 113 of the Mining Act makes this clear. See [39]. Third, the premise does not accommodate the comparison mandated by Ward at [125] and the Native Title Act Case 183 CLR at 440‑441 between the security of possession and enjoyment of native title rights by native title holders and the security of possession and enjoyment of other forms of title by the holders thereof. This comparison discloses that although there is equality in that no title holder can enforce a right to control access against the holder of a mining lease, that right is only suspended for a non‑native title holder, but is extinguished in the hands of a native title holder.