State of Western Australia v Graham on behalf of the Ngadju People

Federal Court of Australia (Full Court)|2016-03-29|Before: Jagot JJ

CA 666 Daniel v State of Western Australia [2004] FCA 1388; (2004) 212 ALR 51 Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 700 Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 Kidd v State of Western Australia [2014] WASC 99 Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 206; (1997) 8 BPR 15,815 Nicholas v Western Australia [1972] WAR 168 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288; (2003) 27 WAR 574 Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461 Trust Company of Australia Ltd v Commissioner of State Revenue (2006) 15 VR 1; [2006] VSC 64 Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1

Date of hearing: 5 - 7 May 2015

Division: General Division

National Practice Area: Native Title

Category: Catchwords

Number of paragraphs: 174

Counsel for the State of Western Australia: Mr G Tannin SC and Ms C Taggart

Solicitor for the State of Western Australia: State Solicitor's Office

Counsel for the Ngadju People: Mr V B Hughston SC and Ms T L Jowett

Solicitor for the Ngadju People: Goldfields Land and Sea Council

Counsel for St Ives Gold Mining Company Pty Ltd and BHP Billiton Nickel West Pty Ltd: Mr N J Young QC and Mr D C Morgan

Solicitor for St Ives Gold Mining Company Pty Ltd and BHP Billiton Nickel West Pty Ltd: Ashurst Australia

Counsel for the Commonwealth of Australia: Ms S Brownhill

Solicitor for the Commonwealth of Australia: Australian Government Solicitor

AND: JOHN WALTER GRAHAM ON BEHALF OF THE NGADJU PEOPLE (and others named in the Schedule)

JUDGES: MANSFIELD, DOWSETT AND JAGOT JJ DATE OF ORDER: 29 March 2016

The appeal be allowed.
The determination of native title made on 21 November 2014 in WAD 6020 of 1998 be varied by deleting paragraph 12 of the determination.
The cross-appeal be dismissed.
If any party wishes to apply for costs they are to do so by notice to the other party and the Court within 14 days of the costs order sought, following which directions will be made for the issue of costs to be resolved on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

AND: JOHN WALTER GRAHAM AND OTHERS ON BEHALF OF THE NGADJU PEOPLE (and others named in the Schedule)

JUDGES: MANSFIELD, DOWSETT, JAGOT JJ DATE OF ORDER: 29 March 2016

The appeal be allowed.
The parties confer and file agreed or competing orders varying the determination of native title made on 21 November 2014 in WAD 6020 of 1998 so as to reflect the reasons for judgment within 14 days.
The cross-appeal be dismissed.
If any party wishes to apply for costs they are to do so by notice to the other party and the Court within 14 days of the costs order sought, following which directions will be made for the issue of costs to be resolved on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

AND: JOHN WALTER GRAHAM AND OTHERS ON BEHALF OF THE NGADJU PEOPLE (and others named in the Schedule)

JUDGES: MANSFIELD, DOWSETT, JAGOT JJ DATE OF ORDER: 29 March 2016

The appeal be allowed.
The parties confer and file agreed or competing orders varying the determination of native title made on 21 November 2014 in WAD 6020 of 1998 so as to reflect the reasons for judgment within 14 days.
The cross-appeal be dismissed.
If any party wishes to apply for costs they are to do so by notice to the other party and the Court within 14 days of the costs order sought, following which directions will be made for the issue of costs to be resolved on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 .

MANSFIELD J: 1 I have had the benefit of reading the judgment of Jagot J in this matter. I agree with her Honour's reasons and the orders she proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield,

DOWSETT J: 2 I have read the reasons prepared by Jagot J. I agree with her Honour's reasons and with the proposed orders. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

THE PROCEEDINGS 3 These proceedings involve various appeals, cross-appeals, notices of objection to competency, as well as a notice of contention, all arising from three decisions of the primary judge concerning the extinguishment of native title, Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 516 (the May reasons), Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 700 (the July reasons), and Graham on behalf of the Ngadju People v State of Western Australia [2014] FCA 1247 (the November reasons). Annexed to the November reasons is the determination of native title pursuant to s 225 of the Native Title Act 1993 (Cth) (the NTA). Amongst other things, the determination of native title sets out in Schedule 5A certain defined "Other Interests" which are subject to paragraph 8A of the determination. The Other Interests in Schedule 5A include specified mining and mineral leases. The difference between the two classes of lease is the name used in the legislation under which the leases were granted. For convenience, the leases will be referred to as the mining leases below. 4 As a consequence of the primary judge's conclusions that those mining leases were not valid future acts within the meaning of Div 3 of Pt 2 of the NTA, paragraph 8A of the determination appears as follows: (a) To the extent that the Other Interests described at Schedule 5A cover areas of land and waters where the Ngadju People's native title rights and interests exist, those native title rights and interests are as described in [3] above. (b) The Other Interests described at Schedule 5A do not cover areas of land and waters where the native title rights and interests described at [4] above exist. (c) The relationship between the native title rights described in [3] above and the Other Interests identified in Schedule 5A is that to the extent that one or more of those Other Interests is inconsistent with the continued existence, enjoyment or exercise of those native title rights and interests, the Other Interest is invalid as against those native title rights or interests so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests. 5 The native title rights and interests described in paragraph 3 of the determination are non-exclusive rights to carry out nominated activities on and in respect of the land the subject of the determination. 6 The native title rights and interests described in paragraph 4 of the determination are the right to possession, occupation, use and enjoyment to the exclusion of all others of land within the claim area defined as the Exclusive Area. No relevant mining leases are within the Exclusive Area. It is for this reason that paragraph 8A(c) refers to paragraph 3 and not paragraph 4 of the determination. 7 The reasoning of the primary judge leading to the inclusion of paragraph 8A(c) of the determination and the inclusion of the mining and mineral leases as Other Interests set out in Schedule 5A underpins the appeal by BHP Billiton Nickel West Pty Ltd and St Ives Gold Mining Company Pty Ltd (referred to collectively as the miners). The miners contended that the primary judge erred in finding that the mining leases were not valid future acts within the meaning of Div 3 of Pt 2 of the NTA. The same reasoning also underpins the notice of contention filed by the respondents to that appeal (referred to, for convenience, as the Ngadju People) that, if the primary judge did err in respect of one basis upon which the miners said the leases were valid future acts (s 24IC of the NTA), then in any event the leases had been granted other than in compliance with Subdivision P of Div 3 of Pt 2 of the NTA (the right to negotiate provisions), with the consequence that an essential pre-condition to the operation of s 24IC had not been satisfied. Because the miners' appeal refers to two mining leases which are not within Schedule 5A to the determination (ML 15/150 and ML 15/151), the Ngadju People also objected to the competency of the miners' appeal to that extent. While the miners agreed that ML 15/150 and ML 15/151 are not subject to the determination, they contended that there are practical reasons why the Court would make clear that its conclusions about the mining leases which are the subject of the determination apply also to ML 15/150 and ML 15/151. 8 All of these issues are dealt with in the section below concerning the miners' appeals. 9 The terms of paragraph 8A(c) of the determination form the basis of another dispute extending beyond the miners and the Ngadju People to include the State of Western Australia (the State) and the Attorney-General of the Commonwealth (the Commonwealth). This dispute is whether paragraph 8A(c) complies with the requirements of ss 94A and 225(d) of the NTA. Those provisions are as follows: 94A Order containing determination of native title An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title). 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 10 The Ngadju People contended that paragraph 8A(c) does not comply with the requirements of ss 94A and 225(d) of the NTA in two respects whereas the Commonwealth and the miners contended that the paragraph does not comply with those provisions in a number of other respects. The State contended that the paragraph complies with those provisions in all respects. 11 All of these issues are dealt with in the section below concerning the paragraph 8A(c) appeal. 12 Paragraph 12 of the determination has also given rise to a dispute between the Ngadju People and the State. Paragraph 12 states that: Some historical mining tenements were granted "subject to survey". Such condition precedent to the grant of those tenements is recorded in the Gazette. There is no evidence with respect to such tenements that the condition precedent was never fulfilled. There is no evidence of the undertakings of a survey with respect to such mining tenements. In all such respects, those tenements are not valid and do not extinguish native title rights and interests. 13 Both the Ngadju People and the State agreed that paragraph 12 should be deleted from the determination because it involved error by the primary judge. Because they disagreed about the nature of the error committed the State filed a notice of appeal, the Ngadju People filed a notice of objection to competency, and both parties filed extensive written submissions. It appears not to have occurred to them that a consent order could have been filed providing for the deletion of paragraph 12 on the basis that the parties agreed it was included in the determination by reason of error, the State consenting to the order on the ground that it alleges (that lack of a survey did not invalidate the mining leases) and the Ngadju People consenting to the order on the ground that they allege (that, although the issue had been raised, it was ultimately common ground that the issue was not before the primary judge for determination). 14 These issues are dealt with in the section below concerning the paragraph 12 appeal, albeit with the brevity they deserve given that it is agreed that, one way or another, the primary judge erred and paragraph 12 should not form part of the determination. 15 One further initial observation should be made. Although the hearing before the primary judge and the appeal concerned the validity of mining leases which had been granted, renewed, and then re-granted or renewed again, the leases themselves (whether in original, renewed or re-granted form) were not in evidence either before the primary judge or in the appeal. Secondary evidence of the mining leases (in the form of extracts from a register) was in evidence. As a result, the appeal (and perhaps the hearing before the primary judge) proceeded, to a certain extent, in a manner disconnected from the facts. This problem was compounded by the lack of any statement of agreed facts (or clear factual summary in the submissions) identifying details about the grant, renewal and subsequent re-grant or further renewal of the leases. Instead, the submissions proceeded by reference to some common assumptions about three groups of leases. The first group, called the 2004/2006 leases, were granted, renewed, and then re-granted in either 2004 or 2006. The second group, called the 73 leases, were granted, renewed, and then further renewed. The third group, ML 15/150 and ML 15/151, were dealt with by the primary judge unnecessarily and are outside the scope of the primary judge's determination of native title. Apart from this, it seems to be common ground that the history of these two leases is the same as the 73 leases. While not entirely satisfactory, the limits of the material placed before the Court must be accepted. It follows that the status of the leases is to be determined by reference to the competing contentions of the parties, the Court not being able to see for itself the leases as granted, as renewed, or as further renewed or re-granted. 16 In the reasons below, a reference to the mining leases means all of the mining leases in issue and references to the 2004/2006 leases and the 73 leases, where necessary, are used to indicate those classes of leases only.

2.1 Some basic facts 17 At all material times until 1 January 1982 the Mining Act 1904 (WA) (the 1904 Act) was in force. 18 On 1 January 1982 the 1904 Act was repealed by the coming into force of the Mining Act 1978 (WA) (the 1978 Act). Care needs to be taken with the provisions of the 1978 Act because of amendments between the enactment and the commencement of that legislation. 19 Between the enactment and the commencement of the 1978 Act the Government Agreements Act 1979 (WA) (the Government Agreements Act) commenced. This Act applies to various government agreements into which the State has entered including the Nickel Refinery (Western Mining Corporation Limited) Agreement 1968 (the 1968 Agreement) which had been approved by the Nickel Refinery (Western Mining Corporation Limited) Agreement Act 1968 (WA) (the 1968 Agreement Act). 20 The 1968 Agreement Act was amended twice to include the approval of a supplemental agreement and a second supplemental agreement in 1970 and 1974 respectively. It was also amended to reflect amendments to the 1968 Agreement in 2001 and 2002. 21 Reflecting two further agreements in 2007 and 2008, the Nickel Refinery (BHP Billiton Nickel West Pty Ltd) (Termination of Agreements) Agreement Act 2008 (WA) (the Termination Act) commenced in 2008. 22 Between 1966 (before the commencement of the 1968 Agreement and 1968 Agreement Act) and 1974, numerous mining leases were granted to the predecessor in title to the miners. By the 1974 second supplemental agreement and its approval, all relevant mining leases were made subject to the 1968 Agreement and 1968 Agreement Act. 23 The parties are at issue concerning the legal effect and significance of virtually all subsequent steps. To understand the issues it is necessary to deal with the competing contentions of the parties at each step (as each subsequent contention depends on the analysis of the preceding step).

2.2 1904 Act or 1968 Agreement? 24 The first issue between the parties is whether the mining leases were granted pursuant to the 1904 Act or pursuant to the 1968 Agreement and 1968 Agreement Act. This issue is relevant because it influences the competing positions of the parties about the proper construction of the 1978 Act. 25 The miners contended that the only source of power for the grant of the mining leases was the 1904 Act. The primary judge, who characterised the leases as having been granted under the 1968 Agreement (at [6] of the July reasons), thus erred. The 1968 Agreement was a mere contract which created contractual rights and obligations but did not itself contain any source of power to grant a mining lease. The Ngadju People contended to the contrary. 26 The miners' submissions about the operation of the 1968 Agreement, the 1968 Agreement Act, and the 1904 Act should be accepted. 27 First, the miners' submissions are consistent with authority. 28 In Nicholas v Western Australia [1972] WAR 168 at 172 Jackson CJ said: However, it is clear that there is no unfettered right in the Crown, or the Ministers of the Crown, to enter into contractual arrangements relating to the disposal of minerals on Crown land. Before 1890, in accordance with regulations made under s. 7 of the Imperial Act 18 & 19 Vict. c. 56 (1855), "the management and control of Crown lands in Western Australia had been exercisable by the Colonial Office": see Midland Railway Co. of W.A. v State of Western Australia, [1956] 3 All E.R, 272, at p. 276. Upon the establishment of responsible government in this State in 1890, it was provided by s. 3 of the Imperial Act 53 & 54 Vict. c. 26 (the Western Australia Constitution Act 1890) that the "entire management and control of the waste lands of the Crown in the colony of Western Australia, and of the proceeds of the sale, letting, and disposal thereof, including all royalties, mines, and minerals, shall be vested in the legislature of that colony". From the time of this enactment dealings not only in Crown land but in mines and minerals thereon could only be authorized and supported by statutory authority. Hence rights of occupancy of Crown land for the purpose of prospecting for minerals could only be granted in accordance with an Act of Parliament, and since the Mining Act of 1904, in accordance with its provisions. 29 Justice Burt stated to the same effect at 174 as follows: In my opinion, the creation in the subject of an interest in such land or an interest in the minerals therein requires statutory authority: see s. 3 of the West Australian Constitution Act 1890; and a transaction which in terms would produce that result if entered into without such authority is simply beyond power and beyond the reach of equity and cannot by means of an estoppel or otherwise create or give rise to any equitable interest. 30 The same principle was applied in Minister for Mineral Resources v Brantag Pty Ltd [1997] NSWCA 206; (1997) 8 BPR 15,815 at 15,821 where Mason P stated: It is well established that an interest in Crown lands may not be disposed of except in pursuance of and in accordance with the Crown Lands legislation in force at the relevant time. 31 Further, in Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156 Buss JA at [179] made the point that: A State Agreement is sometimes described as a "ratified agreement" because the State executes a written agreement with a mining corporation which is then ratified by an Act of Parliament. The purpose of ratification is to ensure that the State Agreement overrides any inconsistent provisions of the Mining Act 1978 or any other statute or law. However, even where a State Agreement has been ratified and its implementation has been authorised by an Act of Parliament, and it operates and takes effect despite any other statute or law, the provisions of the State Agreement remain contractual terms with force and effect as a contract: see Re Michael; Ex parte WMC Resources Ltd [[2003] WASCA 288]; (2003) 27 WAR 574 at [26] per Parker J, Templeman and Miller JJ agreeing. 32 Re Michael; Ex parte WMC Resources Ltd [2003] WASCA 288; (2003) 27 WAR 574 concerns a government agreement ratified by statute in the following terms (at [20]): 4(1) The Agreement is ratified. (2) The implementation of the Agreement is authorized. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law. 33 At [26] Parker J (Templeman and Miller JJ agreeing) said: I am not able to see that s 4, in particular s 4(3), of the Agreement Act has the effect that the provisions of the State Agreement have the force of law or that they create statutory duties and obligations. Although the State Agreement is scheduled to the Agreement Act its terms are not thereby given statutory force. While the Agreement has been ratified, and its implementation is authorised, and it operates and takes effect despite any other Act or law, the terms of the State Agreement remain contractual terms with force and effect as a contract. As such it is binding on the parties to the contract and not on others. 34 In Kidd v State of Western Australia [2014] WASC 99 Beech J considered government agreements ratified by statute which provided that the agreements operate and take effect notwithstanding any Act or law (at [110]). At [111] his Honour noted that the agreements: are each a "Government Agreement" for the purposes of the Government Agreements Act 1979 (WA). By s 3(a) of that Act, each provision of the Casino Agreement, as varied, operates and takes effect according to its terms, notwithstanding any other Act or law. 35 Justice Beech continued, observing as follows: [112] These provisions operate to ensure the effective operation of the contractually agreed provisions. The agreement does not have the force of law and does not create statutory duties and obligations. The purpose of these provisions is to ensure that the general body of law in the State does not "stand in the way" of implementation of the agreements. [113] The terms of the Casino Agreement operate contractually, binding only the parties to it. [114] Consequently, the Casino Agreement is not to be interpreted like a statute. The principles governing the proper construction of an instrument apply. [115] The position is different if the Act ratifying the State Agreement provides that the agreement shall "operate and take effect as though [its] provisions were enacted in this Act", but there is no such provision in the Casino Act. 36 Brown (on behalf of the Ngarla People) v State of Western Australia [2012] FCAFC 154; (2012) 208 FCR 505 (Brown), on which the Ngadju People relied, is not authority to the contrary. It is true that Greenwood J at [153] said: It is important to remember that the Mount Goldsworthy Leases were not granted under the Mining Act 1904. They were granted, as appears later in these reasons, under clauses 8(2)(a) and 11(6) of the Agreement… 37 However, the ratifying statute in Brown, as explained at [127] and [128], included a provision that the agreement took effect "as though those clauses had been enacted by the ratifying 1964 Act". The significance of this difference is exposed at [349] where Greenwood J noted: It follows that the rights conferred on the joint venturers are not simply rights conferred under a mineral lease under and subject to an Act such as the Mining Act 1904 or the Mining Act 1978. The rights under the Mining Act are expressly supplemental to the primary grant under the Agreement. The joint venturers enjoy the rights under the Agreement "together with" all rights a lessee of a mineral lease would enjoy under the Mining Act. The leases issued under the Agreement described as "Special Agreement" mineral leases ML 235 and ML 249 are in the nature of the special leases described in Ward at [356] and [357]. The position of the joint venturers under the Agreement and the Mount Goldsworthy leases is different to that of the project proponents in the Argyle Diamond Mine joint venture where the mineral lease was to be granted under and subject to the Mining Act 1978, except as otherwise provided for in the State Agreement in that case. The Mount Goldsworthy Leases were granted under the Agreement itself with the authority of the 1964 adopting Act. 38 The reasoning in Brown is thus consistent with that in the other cases referred to above. In particular, there is a critical difference between a government agreement which, by statute, is approved and operates and takes effect according to its terms, notwithstanding any other Act or law and a government agreement which, by statute, is itself enacted. In the former case, the government agreement is of contractual force and effect only. The State cannot, by contract, give to itself a right to alienate Crown land. Accordingly, the government agreement in such a case cannot be the source of power to grant a mining lease. The source of power remains the 1904 Act. 39 The 1968 Agreement Act provided only that the 1968 Agreement (and subsequent amendments) is "approved, and subject to its provisions shall operate and take effect" (ss 3, 3A and 3B). It did not provide that the clauses of the 1968 Agreement are taken to be enacted. Accordingly, the argument of the Ngadju People that the 1968 Agreement was itself a source of power under which the relevant mining leases were granted is inconsistent with authority. 40 Second, the Government Agreements Act does not assist the Ngadju People's argument. Section 3 of that Act is as follows: For the removal of doubt, it is hereby expressly declared that - (a) each provision of a Government agreement shall operate and take effect, and shall be deemed to have operated and taken effect from its inception, according to its terms notwithstanding any other Act or law; and (b) any purported modification of any other Act or law contained, or provided for, in such a provision shall operate and take effect so as to modify that other Act or law for the purposes of the Government agreement, and shall be deemed to have so operated and taken effect from its inception, according to its terms notwithstanding any other Act or law. 41 Section 3, accordingly, does not provide that the provisions of a government agreement are enacted. It thus does not give any government agreement statutory force and effect. 42 Third, the provisions of the 1968 Agreement do not assist the Ngadju People. It was submitted that cl 2, read with cl 5, was the source of power for the grant of mining leases pursuant to the agreement. Clause 2, insofar as relevant, was in these terms before the agreement was amended in 1974: 2. (1) To enable the Corporation to commence construction of the refinery and associated works as soon as possible the parties hereto agree that this Agreement (save and except the provisions hereof as cannot operate or cannot operate fully unless and until this Agreement is ratified as hereinafter mentioned) shall operate as from the date of execution hereof. (2) The State undertakes to introduce and sponsor a Bill to ratify this Agreement and to endeavour to have the same passed as an Act before 31st December 1968. … (4) On the Bill referred to in subclause (2) of this clause commencing to operate as an Act - (a) all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of the Land Act, the Mining Act and the Public Works Act which shall for the purposes of this Agreement be deemed modified and amended to the extent necessary to enable full force and effect to be given hereto; and (b) the provisions of subsections (3) and (5) of section 277 of the Mining Act shall not apply to the granting of rights of occupancy pursuant to subclause (1) of clause 5 hereof; (c) the State and the Minister respectively shall have all the powers discretions and authorities necessary or requisite to perform or exercise the powers discretions authorities and obligations conferred or imposed on them respectively hereunder; ... 43 Clause 5 provided as follows before the agreement was amended in 1974: 5. (1) On the commencement date the State will cause to be granted to the Corporation and to the Corporation alone rights of occupancy for the purposes of this Agreement (including the sole right to search and prospect for nickel copper lead cobalt silver zinc and molybdenum) over the whole of the mining areas under section 276 of the Mining Act as a rental of eight dollars per square mile payable quarterly in advance for a term expiring on the 30th day of September, 1975 or such earlier date on which this Agreement is determined or (as to so much thereof as is the subject of such grant or each grant) on such earlier date as the Corporation applies for and is granted a mineral lease or mineral leases under and subject to the provisions of the Mining Act PROVIDED THAT on 30th September 1972 and on 30th September in each year thereafter the Corporation shall surrender to the State its rights of occupancy of at least one hundred and thirty two square miles of the mining areas or so much thereof as then remains the subject of such rights. … (3) At any time during the continuance of the rights of occupancy referred to in subclause (1) of this clause the Corporation shall have the right to apply for and be granted by the State a mineral lease or mineral leases for nickel copper lead cobalt silver zinc and molybdenum under and subject to the provisions of the Mining Act of any part or parts of the mining areas or so much thereof as then remains subject to such rights of occupancy each being subject to the payment of the royalties hereinafter mentioned and subject to the payment of the rents and to the performance and observance by the Corporation of its obligations under the mineral lease and the Mining Act and for a period of twenty-one (21) years commencing from the date of grant with one option of renewal for a further period of twenty-one (21) years under the same terms and conditions (except this option) PROVIDED HOWEVER that the Minister for Mines of the said State may in his discretion and shall have power not more than twelve months nor less than six months before the date of expiry of such renewed terms at the request of the Corporation subject to this Agreement continuing in force up to the date when such renewed term is due to expire to grant a second renewal of any mineral lease for a further term of twenty-one (21) years on and subject to the same terms and conditions as applied to the first renewal. … 44 Clause 11 should also be noted. By cl 11(b)(i), "on the cessation or determination of" the 1968 Agreement: any mineral lease or mineral leases or other mining tenements (other than the lease to be granted under clause 6 (1) (c) (i) hereof) then held by the Corporation shall cease to have the benefit of the rights and privileges conferred by this Agreement and shall continue in force only under and subject to the provisions of the Mining Act; 45 Clause 2(4)(c) of the 1968 Agreement cannot be read as a conferral of power because the agreement cannot itself confer such power. At its highest, construed as a contractual provision (as it must be), cl 2(4)(c) is a form of warranty that, as and when required, the State and the Minister will have power to do what needs to be done to comply with their obligations under the agreement. Clause 5(3) is also not a source of power. It is a contractual provision under which the Corporation (the predecessor in title to the miners) has a right to apply for and be granted mining leases "under and subject to the provisions of the Mining Act" (being the 1904 Act). The amendments in 1974, insofar as relevant, added the words "pursuant to this Agreement but otherwise" before the words "under and subject to the provisions of the Mining Act" and the words "from time to time prevailing by or under the Mining Act" after the word "rent" in cl 5(3). Those amendments did not change the effect of the provision. The mining leases were to be granted (after 1974) "pursuant to this Agreement but otherwise under and subject to the provisions of the Mining Act". In other words, the leases were to be granted, as a matter of contract, pursuant to the contractual provisions of the 1968 Agreement but otherwise, as a matter of power, under and subject to the 1904 Act. Clause 11 is consistent with this construction. 46 The contrary reading of these provisions by the Ngadju People, so that the provisions themselves somehow conferred statutory power on the Minister to grant mining leases, cannot be reconciled with the status of the 1968 Agreement as a mere contract, to be construed in accordance with the principles applying to contracts. 47 Fourth, the submissions for the Ngadju People do not explain how their case is consistent with the fact that some of the mining leases in issue were granted under the 1904 Act before the 1968 Agreement came into force. These leases were made subject to the 1968 Agreement by the Nickel Refinery (Western Mining Corporation Limited) Agreement Act Amendment Act 1974 (WA) which, insofar as relevant, introduced cl 5A which provided for certain leases (special mineral leases) to be "deemed to be held under this Agreement" (cl 5A(2)). These leases could not have been granted under the 1968 Agreement. The fact that, as a matter of contract, they were deemed to be held under the agreement did not alter their status as mining leases granted under the 1904 Act but, from 1974, were subject to such additional contractual provisions as the 1968 Agreement might impose. 48 The same reasoning applies to mining leases granted after the 1968 Agreement and 1968 Agreement Act came into force. Such leases were granted under the 1904 Act (the sole source of power for such a grant in the present case) and were subject to such additional contractual provisions as the 1968 Agreement might impose. 49 The 1978 Act must be construed against this background.

2.3 The effect of the 1978 Act 50 The miners contended that the 1978 Act applied to all mining leases subject to the 1968 Agreement and had the effect of removing from those leases any limitation on the minerals able to be mined under those leases. The Ngadju People contended that the 1978 Act had no effect on the mining leases which continued to be subject to the 1968 Agreement. 51 To understand this dispute it is necessary to explain more about the 1904 Act, the 1968 Agreement, and the 1978 Act.

2.3.1 The 1904 Act 52 The 1904 Act distinguished between the grant of leases for the mining of gold and for all other minerals (ss 42 to 51). Insofar as minerals other than gold were concerned, s 51 of the 1904 Act provided that every lease was to be granted "for the working of some mineral or combination of minerals to be specified therein…". By s 53 of the 1904 Act the term of any mining lease was not to exceed 21 years, with the lessee having a right of renewal at the expiration of the lease for a further 21 years thereafter. By s 59 a lessee could apply to the Minister for permission to mine for any mineral other than that specified in the lease and the Minister could grant such permission subject to the payment of additional royalties as the Minister thought fit.

2.3.2 The 1968 Agreement 53 The 1968 Agreement contained a recital in these terms: WHEREAS: The Corporation having already spent in excess of seven million dollars ($7,000,000) on works at Kambalda in the State of Western Australia in relation to its nickel mining and treatment operations proposes to establish a nickel refinery at Kwinana in the said State of Western Australia estimated to cost with associated works not less than forty-five million dollars ($45,000,000) and is currently investigating the feasibility of establishing a nickel smelter at Kambalda (or Kalgoorlie) in the said State and has requested the State to enter into an agreement on the terms and conditions hereinafter contained in order to enable the Corporation to establish such refinery and to continue its investigations and if economically viable to establish such smelter. 54 Defined terms in cl 1 of the 1968 Agreement included: "associated works" means and includes mine development the installation of mining plant, mining equipment and plant for the treatment of nickel ore or any derivative of nickel ore, works for the provision of water and electricity, and the construction of roads housing and communal facilities made necessary in consequence of the construction of either or both of a refinery and smelter; … "mineral leases" means the mineral lease or mineral leases referred to in clause 5 (3) hereof and any renewals thereof and includes any mineral lease for (inter alia) nickel lying within the boundaries of Temporary Reserve No. 3666H (as originally constituted) and held by the Corporation on the commencement date and any renewals thereof; … "refinery" means a refining plant in which nickel concentrates or matte are or is treated to produce nickel metal; … "smelter" means a smelter plant or any other plant in which matte or nickel-containing products (other than nickel concentrates) are produced from nickel ore or nickel concentrates; 55 As set out above, cl 2(1) referred to the commencement of "construction of the refinery and associated works". 56 Clause 3(1) provided for the State to sell certain land to the Corporation for the refinery. Clause 4(1) obliged the Corporation to construct a refinery having a nominated capacity for nickel production. Clause 4(2) required the Corporation to investigate the feasibility of sites for a smelter and, if the smelter was economically viable, to construct the smelter. 57 As set out above, cll 5(1) and 5(3) referred (respectively) to the right to prospect for "nickel copper lead cobalt silver zinc and molybdenum" and to apply for and be granted mining leases "for nickel copper lead cobalt silver zinc and molybdenum". 58 By cl 10(a), the Corporation agreed, so far as reasonably and economically practicable, to use local (that is, West Australian) labour, manufacturers and contractors. 59 By cl 10(b) the Corporation agreed "to allow the State and third parties to have access (with or without stock vehicles and rolling stock) over the mineral leases" and access to certain other land. 60 Clause 12 contained an indemnity as follows: The Corporation will indemnify and keep indemnified the State and its servants agents and contractors in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any work carried out by the Corporation pursuant to this Agreement or relating to its operations hereunder or arising out of or in connection with the construction maintenance or use by the Corporation or its servants agents contractors or assignees of the Corporation's works or services the subject of this Agreement or the plant apparatus or equipment installed in connection therewith.

2.3.3 The 1978 Act 61 As noted the 1978 Act commenced on 1 January 1982 and was amended between enactment and commencement. The 1978 Act was also amended in 1985. The parties agreed that the relevant version of the 1978 Act is that Act as amended in 1985. 62 Section 4 of the 1978 Act provides that: The transitional provisions set forth in the Second Schedule, as from time to time modified to prevent anomalies or otherwise affected by the operation of clause 15 of that Schedule, shall have effect without prejudice, except in so far as those transitional provisions are not consistent with such an application, to the application of - (a) in so far as that Act applies, the Interpretation Act 1918 and in particular sections 15 and 16 thereof; and (b) in any other case, the Interpretation Act 1984 and in particular Part V thereof. 63 Section 5 is as follows: (1) Nothing in this Act shall affect the provisions of any Act in force on the commencing date that approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement. (2) Notwithstanding anything in the Second Schedule, a party to an agreement referred to in subsection (1) - (a) who is the holder of an existing mining tenement under that agreement may continue, subject to that agreement, to exercise the rights conferred by that mining tenement; or (b) to whom an existing right of occupancy has been granted under section 276 of the repealed Act or that agreement, or under both section 276 of the repealed Act and that agreement, as the case requires, may continue, subject to that agreement, to exercise that right of occupancy, as though the repealed Act had not been repealed. … 64 The "repealed Act" is the 1904 Act (s 8(1)). 65 Under the 1978 Act an application for a mining lease is made under s 74. 66 Subject to certain processes, the Minister may grant a mining lease under s 75(6). 67 Section 78 provides for a term of 21 years with a right to a further term of 21 years if application is made during the final year of the term. 68 By s 82 every mining lease is subject to certain conditions including (s 82(1)(b)) that the lessee shall use the land for mining purposes in accordance with the 1978 Act. 69 By s 85 the lessee has the right to mine the land for "any minerals". 70 The Second Schedule (Div 1) to the 1978 Act, referred to in ss 4 and 5, includes the following in cl 2(1): (1) Every gold mining lease, coal mining lease, or mineral lease granted under section 42, 48 or 61 or pursuant to section 153 of the repealed Act and in force immediately before the commencing date, shall be deemed to be a mining lease granted under this Act, and shall, subject to this Act and, insofar as those terms and conditions and encumbrances are not inconsistent with this Act, subject to - (a) the terms and conditions on which it was granted under the repealed Act (other than a term or condition restricting the scope of the gold mining lease, coal mining lease or mineral lease concerned to certain minerals) and which were in force immediately before the commencing date; and (b) any encumbrances to which it was subject under the repealed Act and which were in force immediately before the commencing date, remain in force for the unexpired period for which it was granted or renewed under the repealed Act, and shall then expire, and while any such lease is in force the holder thereof has the right in priority to any other person to mark out in accordance with this Act and/or apply for a mining tenement under and in accordance with this Act in respect of the land or any part thereof which is the subject of such lease.

2.3.4 Discussion 71 The first matter to note is that one significant difference between the 1904 Act and the 1978 Act is that under the 1904 Act mining leases were granted in respect of specific minerals. Under the 1978 Act mining leases are granted in respect of any minerals. Clause 2(1) of the Second Schedule to the 1978 Act needs to be construed against this background. 72 The second matter is that the 1978 Act has to be construed as a whole. Section 4 gives effect to the Second Schedule. Section 5, accordingly, cannot be construed so as to read the Second Schedule out of the 1978 Act. The submissions for the Ngadju People came close to having the effect of disregarding the Second Schedule altogether, despite their acknowledgment that the Second Schedule applied to all mining leases subject to the 1968 Agreement. 73 Read in context, the meaning of s 5 is clear. By s 5(1) nothing in the 1978 Act affects the provisions of any Act in force that "approves or ratifies any agreement to which the State is a party and under which a party to the agreement is authorised or required to carry out any mining operations pursuant to the agreement". Section 5 is of general application. It applies to any Act that satisfies the description of one that approves or ratifies a relevant agreement. Importantly, it is only the provisions of the Act of approval or ratification that are not affected by the 1978 Act. The 1968 Agreement Act contains provisions that the agreement is approved and subject to its provisions shall operate and take effect. By s 5(1) those provisions of the 1968 Agreement Act remain unaffected by the 1978 Act. 74 In Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156 at [174] the purpose of s 5(1) of the 1978 Act was explained in these terms: Section 5 of the Mining Act 1978 is a saving provision. The provision is concerned with Rights of Occupancy which derive their existence, wholly or partly, from a State Agreement that has been approved or ratified by an Act of Parliament in force on the "commencing date", as defined in s 8(1) of the Mining Act 1978. Its purpose or object was to ensure that the repeal of the Mining Act 1904 did not adversely affect the intended operation of a State Agreement. 75 By s 5(2) a miner who holds a mining lease under a relevant agreement may, subject to the agreement, continue to exercise the rights conferred by the lease as if the 1904 Act had not been repealed. 76 The Ngadju People submitted that s 5(2)(a) means that all restrictions on the rights to mine imposed by the 1968 Agreement continued unaffected by Schedule 2 to the 1978 Act. 77 The difficulty with this submission is twofold. 78 First, s 5(2)(a) is concerned only with the exercise of rights by the holder of a mining lease subject to a relevant agreement. It provides only that the lease holder may continue to exercise those rights as if the 1904 Act had not been repealed, subject to the agreement. It does not provide, for example, that the 1904 Act is deemed to continue to apply generally to those leases. Section 5(2)(a) only operates in respect of the capacity of a lease holder to continue to exercise rights. 79 Second, in qualifying the right to continue to exercise rights "subject to that agreement", s 5(2)(a) does not alter the status or effect of any agreement. Those words do not transform an agreement with contractual and not statutory effect into an agreement the provisions of which have been enacted. The provision merely ensures that insofar as a lease holder may continue to exercise rights because they are a party to an agreement as defined in s 5(1) the lease holder continues to be bound by the agreement. 80 The submissions for the Ngadju People, to some extent, recognised these matters by their acceptance that cl 2(1) of the Second Schedule applied to all of the mining leases subject to the 1968 Agreement but (they said) cl 2(1) operated only to the extent there was no inconsistency between it and the 1968 Agreement. They contended that there were two inconsistencies in that the 1968 Agreement limited the scope of the leases to certain minerals and did not give the miners a priority right to apply whereas cl 2(1) removed that restriction and gave a priority right to apply. 81 In case there is any doubt in this regard, and as concluded above, the mining leases the subject of the agreement were all mining leases granted under the relevant provisions of the 1904 Act as referred to in cl 2(1) of the Second Schedule. Accordingly, other than to the extent provided for in s 5(2)(a), cl 2(1) of the Second Schedule has effect in respect of those mining leases. They are deemed to be mining leases under the 1978 Act (albeit that in respect of the exercise of any rights under the leases the 1904 Act is taken not to be repealed). Importantly, however, the terms and conditions under which the leases were granted under the 1904 Act (other than a term or condition restricting the mining lease to certain minerals) remain in force. Accordingly, any term or condition of the mining leases restricting it to certain minerals does not remain in force. 82 The fact that an agreement to which a mining lease is subject may contain contractual provisions which continue to bind the lessee may be accepted. Any such continuing obligations or restrictions are a matter to be resolved on construction of the particular agreement. Yet the Ngadju People's argument of present concern is that because of the provisions of the 1968 Agreement the mining leases subject to that agreement were unaffected by cl 2(1) of the Second Schedule as a matter of statutory construction. It is this proposition which cannot be accepted. The mining leases themselves, being the rights granted under statute, by operation of cl 2(1) of the Second Schedule to the 1978 Act, were no longer subject to any term or condition restricting the leases to certain minerals. That said, nothing in the 1978 Act affects the contractual arrangements between the State and any holder of a mining lease. 83 The Ngadju People submitted that if this were so the miners would automatically have the right to mine for any mineral despite the provisions of the 1968 Agreement which were project specific (the project being a nickel mine, refinery and smelter). Insofar as the mining leases are concerned, being the rights under statute, this is so. But there is nothing surprising about placing existing mining leases on the same footing as all mining leases to be granted under the 1978 Act. This is particularly so given that the 1978 Act does not alter any contract. Whatever contractual rights and obligations might exist between the State and a miner would continue to exist irrespective of the 1978 Act, as a matter of contract only, not statute. 84 The same reasoning applies to the priority right to apply provided by cl 2(1) of the Second Schedule. Whatever contractual rights and obligations a miner had under an agreement would continue as a matter of contract but, in addition, cl 2(1) gave a statutory priority right to apply. 85 The submissions for the Ngadju People, as the miners argued, are infected by the notion that the mining leases were granted under the 1968 Agreement. This appears to lead the Ngadju People to the view that provisions of the 1968 Agreement have some statutory force or effect and that the mining leases themselves included the contractual provisions as statutory conditions. This confuses the statutory basis for the grant of the mining leases under the 1904 Act and the additional rights and obligations the State and the miners (or their predecessor in title) agreed between themselves as a matter of contract. 86 Contrary to the submissions of the Ngadju People, the construction I prefer does not have the effect of undermining the specific project the subject of the 1968 Agreement. There are a number of answers to this concern. One is that the 1978 Act is not to be construed by reference to any particular agreement. Another is that cl 2(1) of the Second Schedule to the 1978 Act does not affect the provisions of any agreement as a contract. To the extent that any agreement operated to require a project to be completed, that agreement continued as a matter of contract. Clause 2(1) affects only the terms and conditions of the mining leases themselves and gives all holders of a mining lease under the 1904 Act a priority right to apply for another lease while the lease is in force. 87 For these reasons the proposition of the Ngadju People that cl 2(1) of the Second Schedule to the 1978 Act does not apply to any mining lease subject to an agreement where any provision of the agreement is inconsistent with cl 2(1) should not be accepted. Insofar as there is a mining lease, cl 2(1) operates on that mining lease. Insofar as there is an agreement, it continues to operate as a contract. 88 In further answer to the contention of the Ngadju People that the provisions of the 1968 Agreement were inconsistent with cl 2(1), regard must be had to the provisions said to give rise to such inconsistency. 89 The Ngadju People referred to those provisions of the 1968 Agreement, particularly the recital and cll 2(1) and 5(1) and (3), the last of which specified "the Corporation shall have the right to apply for and be granted by the State a mineral lease or mineral leases for nickel copper lead cobalt silver zinc and molybdenum" to support the argument that the mining leases were restricted to the mining of those minerals, this restriction being inconsistent with cl 2(1) of the Second Schedule to the 1978 Act. 90 This argument should not be accepted. While there is no doubt that the 1968 Agreement reflected the common intention of the parties to facilitate the continuation and expansion of mining and treatment of nickel, nothing in the terms of the agreement provided that any mining leases granted were to be restricted to the mining of nickel (or nickel copper lead cobalt silver zinc and molybdenum). As noted, one of the peculiar features of this matter is that none of the leases were in evidence before the primary judge. Nor were they put in evidence as part of the appeal. There are records of the mining leases having been granted and renewed at various times. Nevertheless, it seems to have been common ground that the leases granted under the 1904 Act and subject to the 1968 Agreement, as initially granted at least, were restricted to the mining of minerals consistent with those specified in the 1968 Agreement. On that basis, when the 1978 Act came into force, cl 2(1) of the Second Schedule operated to remove that restriction. No inconsistency with the 1968 Agreement could arise, however, because all that the agreement provided for was a right to apply and be granted mining leases for nickel copper lead cobalt silver zinc and molybdenum. No provision of the 1968 Agreement prevented the miners from applying (either initially or subsequently) from seeking permission to mine for other minerals. Moreover, no provision prevented the grant of any such permission. Accordingly, there is no scope for any inconsistency to arise. The submissions for the Ngadju People based on cl 2(1) being rendered inapplicable by reason of inconsistency, thus, cannot be accepted. 91 To the extent it is necessary to deal with a submission based on evidence in the register of mining interests, it may be said only that nothing in a secondary record such as this can alter the effect of the 1978 Act. It may well be the case that all mining leases granted under the 1904 Act continued to contain conditions which identified the only minerals that could be mined (as this is what the 1904 Act required). But the terms of the mining leases also could not affect the operation of the 1978 Act. The 1978 Act operated on and altered those mining leases so that any restriction of the minerals that could be mined was not continued. It might also be noted, at the level of the facts of the case, that it is plain that some mining leases subject to the 1968 Agreement had been amended to permit mining for gold because the miners were paying royalties for gold mined under those leases. 92 The argument based on some alleged inconsistency between the rights of renewal in the 1968 Agreement and the priority right to apply in cl 2(1) of the Second Schedule to the 1978 Act fails for similar reasons. Clause 5(3) provided that the lessee had one right of renewal for a period of 21 years and one right to apply for renewal for a further 21 years which the Minister had a discretion to grant if the request for renewal was made within the time periods prescribed. There is no inconsistency between these rights and the priority right to apply in cl 2(1) of the Second Schedule to the 1978 Act. One set of rights was contractual, the other statutory. The rights are simply cumulative or additional. 93 The Ngadju People argued further that cl 2(1) of the Second Schedule to the 1978 Act could not have applied to the mining leases because that clause provided for such leases to remain in force for their unexpired period "and shall then expire". This argument is difficult to follow as a matter of law and fact. Once it is accepted that the statutory rights are additional to the contractual rights, the argument disappears. In any event, as a matter of fact, none of the leases expired because they were all renewed for further periods of 21 years at various times. Nothing in cl 2(1) prevented the miners from applying for a mining lease to be renewed under either the 1968 Agreement or cl 2(1), the relevant difference being that the former gave a right of renewal and the latter a priority right to apply. Whether renewed as a result of exercise of the contractual right or not, the result would be the same. The 1978 Act operated so that any restriction in a mining lease granted under the 1904 Act permitting mining for certain minerals only did not continue. On and from 1 January 1982 existing mining leases, renewed leases and re-granted leases, by operation of the 1978 Act, all permitted mining for any minerals. 94 The Ngadju People submitted that other decisions had recognised that mining leases after 1982 continued to be restricted to certain minerals. Western Australia v Ward [2002] HCA 28; (2002) 213 CLR 1 at [322] - [335] does not assist. It concerns extinguishment and says nothing about the present issues. Brown at [38] and [411] also does not deal with the present issues. The same may be said of Daniel v State of Western Australia [2003] FCA 666 at [845] - [847]. 95 Nor should any argument based on alleged lack of necessity of subsequent actions (specifically, the 2001 amendment to the supplemental agreement and the Termination Act) be accepted. The Ngadju People said that neither subsequent action would have been necessary if the 1978 Act had the effect of altering the mining leases subject to the 1968 Agreement so that any restriction or condition on the minerals able to be mined no longer continued in force after 1 January 1982. This involves an attempt to construe legislation by reference to events that occurred years after the legislation was made. Reasoning of this kind is impermissible. In any event, it is not possible to infer that the State and miners did not have other reasons for wishing to enter into the agreements in 2001 (leading to the 2001 amendments to the 1968 Agreement and 1968 Agreement Act) and 2007 (leading to the Termination Act). 96 The operation of the 1978 Act forms part of the background against which the legal significance of subsequent acts are to be assessed.

2.4.1 Some more facts 97 The 2004/2006 leases are re-granted leases. Initially, all leases within this category were granted under the 1904 Act (see the conclusions above) in the period 1966 to 1976. They also were all subject to the 1968 Agreement, the 1968 Agreement having been amended in 1974 to capture the leases granted before the agreement commenced (cl 5A). Between 1987 and 1997 these mining leases were all renewed for a further period of 21 years. In 2001 and 2002, pursuant to amendments to the 1968 Agreement (reflected in amendments to the 1968 Agreement Act by which these amended provisions were approved and took effect), the miners (or their predecessor in title) and the State agreed to excise these leases from the 1968 Agreement. The 2001 amendments inserted provisions relating to "Excluded Mineral Leases" being those set out in the Schedule (a long list of mining leases). The 2002 amendments inserted provisions relating to "Secondly Excluded Mineral Leases" being three specified mineral leases having an original grant date of 1 January 1967 and a current renewed term expiry date of 31 December 2008. 98 Clauses 5B and 5C of the 1968 Agreement, inserted by these amendments, are in the following terms: Excluded Mineral Leases 5B. (1) Notwithstanding any contrary provision in this Agreement, on and after 1 November 2001 the Excluded Mineral Leases shall cease to be held or to be deemed to be held under this Agreement and shall cease to have the benefit of the rights and privileges conferred by this Agreement and shall continue in force only under and subject to the provisions of the Mining Act 1978. (2) On application to the mining registrar under the Mining Act 1978 made within 3 months of 1 November 2001 by the holder of the Excluded Mineral Leases the State shall cause an endorsement to be made in the register maintained under regulation 106 of the Mining Regulations 1981 for, and on or in respect of, each Excluded Mineral Lease that the provisions of Clause 5B of this Agreement apply to the lease, that the date of expiry of the current renewed term of the lease as set out in the Schedule hereto and that subsection (2) of section 78 of the Mining Act 1978 applies to the lease so that the holder may make an application under that subsection for a renewal of the lease on the expiry of the current renewed term. Secondly Excluded Mineral Leases 5C. (1) Notwithstanding any contrary provision in this Agreement, on and after 1 July 2002 the Secondly Excluded Mineral Leases shall cease to be held or to be deemed to be held under this Agreement and shall cease to have the benefit of the rights and privileges conferred by this Agreement and shall continue in force only under and subject to the provisions of the Mining Act 1978. (2) On application to the mining registrar under the Mining Act 1978 made within 3 months of 1 July 2002 by the holder of the Secondly Excluded Mineral Leases the State shall cause an endorsement to be made in the register maintained under regulation 106 of the Mining Regulations 1981 for, and on or in respect of, each Secondly Excluded Mineral Lease that the provisions of Clause 5C of this Agreement apply to the lease, that the date of expiry of the current renewed term of the lease is as set out in the definition of Secondly Excluded Mineral Leases in clause 1 hereof and that subsection (2) of section 78 of the Mining Act 1978 applies to the lease so that the holder may make an application under that subsection for a renewal of the lease on the expiry of the current renewed term. 99 By this means the 2004/2006 mining leases continued unaffected by the 1968 Agreement but in accordance with the provisions of the 1978 Act (as discussed above). 100 These leases, having been sold to two different corporations (the miners), were the subject of applications for re-grant in 2004 and 2006 respectively. The Minister approved each application by reason of which each lease was re-granted. 101 The 73 leases are different from the 2004/2006 leases only in that they were not excised from the 1968 Agreement in 2001 or 2002. They remained subject to the 1968 Agreement. However, they were subject to an agreement reached in 2007 (and varied in 2008) for the termination of the 1968 Agreement and the subsequently made Termination Act. Section 4 of the Termination Act provides that: (1) The termination agreement is ratified. (2) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the termination agreement operates and takes effect despite any other enactment or other law. 102 By cl 4 of the termination agreement the 1968 Act is terminated. Other provisions secure remedies for antecedent breaches and defaults. Clauses 5B and 5C of the 1968 Agreement are also deemed to subsist in relation to the mining leases excluded from the 1968 Agreement in 2001 and 2002. By cl 4(3)(a): The Agreement Mineral Leases shall continue in force only under and, except as provided in paragraph (b), subject to the provisions of the Mining Act and, for the avoidance of doubt, shall cease to have the benefit of the rights and privileges conferred by the State Agreements. 103 By cl 4(4): On and from the Operative Date, the operations of the Concentrator, the Refinery and the Smelter shall cease to have the benefit of rights and privileges conferred by the State Agreements and, except as provided herein in relation to the Agreement Mineral Leases upon which the Concentrator is located, be governed by the laws from time to time in force in Western Australia.

2.4.2 The primary judge's conclusions 104 The primary judge dealt with the issues about the 2004/2006 leases and the 73 leases in his July reasons. In respect of the 2004/2006 leases, he said: [9] The WMC State Agreement was terminated in 2008. From the late 1990s mining leases under the WMC State Agreement were progressively "normalised". This meant that they were "released" from the WMC State Agreement and permitted to be developed outside its terms. The development could now extend beyond the mining of nickel and allied mineral products and would not be affected by obligations such as the building of a smelter or the transporting of certain tonnage by rail. The termination of the WMC State Agreement was effected by the process referred to at [15] below. (ii) Leases granted on 24 December 2004 [10] There were 209 mining leases granted on 24 December 2004 as part of the normalisation process as referred to at [9] above. The question arises as to whether these leases were validly granted future acts or category C immediate period acts under the Native Title Act 1993 (Cth) ("NTA"). As the mining leases were not entered into between 1 January 1994 and 23 December 1996, they are not intermediate period acts; see s 232A of the NTA. There is no dispute that they are future acts; see s 233 of the NTA. [11] The court accepts the submission of counsel for the applicant that these leases are not pre-existing rights-based acts under s 24IB of the NTA. That is because they were not granted in accordance with the WMC State Agreement. They were not conditional on requirements which underpinned the grant of leases under the WMC State Agreement as referred to at [9] above. For the same reasoning the leases are not within the ambit of s 24IC of the NTA as "permissible lease etc renewals". [12] The court accepts the submission of counsel for the applicant that the leases are too dissimilar from the earlier leases granted under the WMC State Agreement to be valid category C past acts. It is not necessary to deal with the further submission that the timing of the grant of these leases or their renewal rendered them invalid. It is sufficient to say that the above analysis shows that the leases are invalid to the extent that they affect native title; see ss 24OA and 28 of the NTA. (iii) Leases granted on 6 October 2006 [13] There is no material distinction between these leases and the leases granted on 24 December 2004. These leases, being conversions of previous existing leases, are also invalid to the extent that they affect native title; see ss 24OA and 28 of the NTA. 105 In respect of the 73 leases (agreed by the parties, relevantly, to be 73 and not 75 in number as stated by the primary judge), it is best to refer only to the primary judge's conclusion at [23] because matters recorded as fact in this part of the primary judge's reasons are incorrect having regard to the documentary record. The primary judge concluded at [23] in these terms: The next question which arises is whether the leases are future acts under s 233 of the NTA. The difference in the scope of the permitted mining use after renewal prevents such a classification to be made; see s 24IC of the NTA. The Court accepts the submissions of counsel for the applicant at [262] of their written submissions on extinguishment in this regard. There the following was said: Given that the acts involve the creation of new rights to mine they fall within the scope of NTA s 26(1)(c), and the right to negotiate procedures under NTA Part 2 Division 3 subdivision P apply. The exemption at s 26D does not apply because rights to mine minerals other than nickel are created in the leases in their later form that were not available in their earlier form (see NTA s 26D(1)(e)). Given that these have not been complied with in this instance the acts are invalid to the extent that they affect native title (NTA s 24OA). 106 Insofar as it is necessary to say so, the primary judge appears to have been under the misapprehension that the two leases outside the determination area and thus unaffected by his orders, ML 15/150 and ML 15/151, expired on 31 December 2007. In fact, the Minister extended the time in which application for their renewal could be made and granted, and these leases were renewed as contemplated by the 1968 Agreement, it being recorded in the variation agreement that is a schedule to the Termination Act that the term of these renewed leases is 21 years commencing on 1 January 2008. Otherwise, his Honour appears to have been under another misapprehension that the Termination Act (or the agreements scheduled to it) involved the re-grant of the 73 leases. However, the 73 leases had been renewed throughout the 1990s and were simply subsisting mining leases subject to the 1968 Agreement at the time the Termination Act commenced. It may be that the primary judge had in mind the provisions of the variation agreement which altered the expiry date for seven leases (including ML 15/150 and ML 15/151), but it is clear from the recitals to the variation agreement that these were all leases which had been renewed by the Minister in accordance with the 1968 Agreement before the Termination Act came into force. In other words, the Termination Act did not renew any mining leases. It merely reflected the current status of the leases which were, by the provisions of the Termination Act and the agreements scheduled to it, no longer to be subject to the 1968 Agreement.

2.4.3 Discussion 107 The miners contended that the primary judge should have found that the 2004/2006 leases were future acts within the meaning of s 233 of the NTA and were valid by reason of ss 24IB or 24IC of that Act. They contended also that the primary judge should have found that the Termination Act which applied to the 73 leases did not affect native title. Alternatively, if the Termination Act operated to renew or re-grant the 73 leases, then those acts are also valid future acts by reason of ss 24IB or 24IC of the NTA. 108 The Ngadju People contended that neither s 24IB nor s 24IC apply to the acts of re-granting the 2004/2006 leases. They submitted that the re-granted leases are different from the earlier leases having been granted under different Acts, with the re-granted leases no longer being subject to the obligations in the 1968 Agreement such as the construction and operation of a nickel smelter, the restrictions of mining to certain minerals (nickel etc), the preference to be given to West Australian labour, contractors and manufacturers, the provision of rights of access to the State and third parties, the indemnity, and the renewal regime. 109 Insofar as the submissions of the Ngadju People depended on characterising the mining leases the subject of the 1968 Agreement as themselves incorporating the various obligations in that agreement, the submission should not be accepted. As discussed, the mining leases were creatures of statute. The 1968 Agreement created a contractual regime around those leases. The mining leases, at all times, were granted under and continued as rights under and in accordance with the 1904 Act and then the 1978 Act, subject only to such variations as made necessary by the 1968 Agreement. The various contractual obligations in the 1968 Agreement to which the Ngadju People pointed had nothing to do with the mining leases. They were obligations to which the Corporation (or its successors in title) was subject by reason of contract but they did not transform the mining leases into a contract or import into those leases the contractual obligations to which the Corporation was subject. Accordingly, to characterise the mining leases as transformed or different merely by reason of them being removed from the 1968 Agreement, either in 2001 or 2002 or in 2008 by the Termination Act, is misconceived. The mining leases continued. Contractual rights and obligations surrounding the mining leases fell away but, by reason of that, there was no transformation of the mining leases. Characterising the contractual rights and obligations as inter-related does not assist. Those contractual rights and obligations are inter-related. But the mining leases, as rights under statute, merely existed and continued to exist. 110 A substantial part of the argument for the Ngadju People appeared to depend on the proposition that it was only on the re-grant of the 2004/2006 leases and the commencement of the Termination Act for the 73 leases that the miners were relieved of the restriction confining the leases to the mining of certain minerals (nickel etc). As discussed, this restriction was lifted by the 1978 Act. On and from 1 January 1982, no leases were subject to any such restriction, and no such restriction in any event is apparent from the terms of the 1968 Agreement. 111 Accordingly, the application of ss 24IB and 24IC of the NTA to the re-grants in 2004 and 2006 and the operation of the Termination Act in 2008 on the 73 leases are to be assessed on the basis that in 1982 all relevant leases ceased to be subject to any restriction confining mining to certain minerals. In 2001 and 2002 a large number of leases were excised from the 1968 Agreement. The removal of these leases from the 1968 Agreement did not transform these leases in any way. These leases continued in the same terms albeit outside the scope of any contractual obligations. They were then re-granted in reliance on the priority right to apply in cl 2(1) of the Second Schedule to the 1978 Act in 2004 and 2006. The remaining 73 leases continued to be subject to the 1968 Agreement until the commencement of the Termination Act in 2008. Those leases were not re-granted or renewed by the Termination Act. The Termination Act merely terminated the 1968 Agreement. 112 For these reasons the Termination Act did not affect native title within the meaning of s 227 of the NTA which provides that: An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise. 113 No other case was put by the Ngadju People about the 73 leases so it is inappropriate to consider them further, a position which is not entirely satisfactory given that those leases were renewed in the 1990s presumably pursuant to the provisions of the 1968 Act. 114 The issue remaining on the case as put by the Ngadju People is thus the re-grant of the 2004/2006 leases. 115 Section 24AA of the NTA provides an overview of Div 3 of Pt 2 dealing with future acts. Relevantly: (1) This Division deals mainly with future acts, which are defined in section 233. Acts that do not affect native title are not future acts; therefore this Division does not deal with them (see section 227 for the meaning of acts that affect native title). (2) Basically, this Division provides that, to the extent that a future act affects native title, it will be valid if covered by certain provisions of the Division, and invalid if not. … (4) A future act will also be valid to the extent covered by any of the following: … (f) section 24IA (acts involving renewals and extensions etc. of acts); (5) In the case of certain acts covered by section 24IC (permissible lease etc. renewals) or section 24MD (acts that pass the freehold test), for the acts to be valid it is also necessary to satisfy the requirements of Subdivision P (which provides a "right to negotiate"). 116 Future acts are defined in s 233, it being common ground that the re-grant of the 2004/2006 leases constituted future acts. Section 233(1) states that: (1) Subject to this section, an act is a future act in relation to land or waters if: (a) either: (i) it consists of the making, amendment or repeal of legislation and takes place on or after 1 July 1993; or (ii) it is any other act that takes place on or after 1 January 1994; and (b) it is not a past act; and (c) apart from this Act, either: (i) it validly affects native title in relation to the land or waters to any extent; or (ii) the following apply: (A) it is to any extent invalid; and (B) it would be valid to that extent if any native title in relation to the land or waters did not exist; and (C) if it were valid to that extent, it would affect the native title. 117 Section 24IA provides that: This Subdivision applies to a future act if the act is: (a) a pre-existing right-based act (see section 24IB); or (b) a permissible lease etc. renewal (see section 24IC). 118 By s 24IB: 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. 119 By s 24IC: (1) A future act is a permissible lease etc. renewal if: (a) it is: (i) the renewal; or (ii) the re-grant or re-making; or (iii) the extension of the term; of a lease, licence, permit or authority (the original lease etc.) that is valid (including because of Division 2 or 2A); and (b) any of the following subparagraphs applies: (i) the original lease etc. was granted on or before 23 December 1996; (ii) the grant of the original lease etc. was a permissible lease etc. renewal or a pre-existing right-based act; (ii) the original lease etc. was created by an act covered by section 24GB, 24GD, 24GE or 24HA (which deal with certain acts in relation to primary production activities or involving management or regulation of water and airspace); and (c) the future act does not: (i) confer a right of exclusive possession over any of the land or waters covered by the original lease etc.; or (ii) otherwise create a larger proprietary interest in the land or waters than was created by the original lease etc.; or (iii) create a proprietary interest over any of the land or waters covered by the original lease etc., where the original lease etc. created only a non-proprietary interest; or (iv) if the original lease etc. was a non-exclusive pastoral lease covering an area greater than 5,000 hectares and the majority of the area covered was not required or permitted to be used for purposes other than pastoral purposes - have the effect that the majority of the area covered by the renewed, re-granted, re-made or extended lease is required or permitted to be used for purposes other than pastoral purposes; and (d) if the original lease etc. contains, or is subject to, a reservation or condition for the benefit of Aboriginal peoples or Torres Strait Islanders - the renewed, re-granted, re-made or extended lease, licence, permit or authority contains, or is subject to, the same reservation or condition; and (e) if the original lease etc. did not permit mining - the renewed, re-granted, re-made or extended lease, licence, permit or authority does not permit mining. 120 By s 24ID: (1) If this Subdivision applies to a future act: (a) subject to Subdivision P (which deals with the right to negotiate), the act is valid; and (b) if the act consists of the grant of a freehold estate, or 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; and (c) in any other case - the non-extinguishment principle applies to the act; and (d) in any case - the native title holders are entitled to compensation for the act in accordance with Division 5. 121 Subdivision P of Div 3 of Pt 2 of the NTA deals with the right to negotiate. 122 Section 25, the overview, provides that: (1) In summary, this Subdivision applies to certain future acts done by the Commonwealth, a State or a Territory that are of any of the following kinds: (aa) certain acts covered by section 24IC (which deals with permissible lease etc. renewals); … (2) Before the future act is done, the parties must negotiate with a view to reaching an agreement about the act. … (4) If the procedures in this Subdivision are not complied with, the act will be invalid to the extent that it affects native title. 123 Section 26(1A) states that: (1A) This Subdivision applies to a future act if: (a) section 24IC (which deals with permissible lease etc. renewals) applies to the act; and (b) the act is done by the Commonwealth, a State or a Territory (the Government party); and (c) the renewal, re-grant, re-making or extension of the term of the lease, licence, permit or authority concerned creates a right to mine. 124 By s 26(2)(e) the Subdivision does not apply to the extent that an act is "an act excluded by section 26D (which deals with renewals of valid mining leases etc.) from the coverage of this Subdivision". 125 Section 26D(1) is in these terms: (1) This Subdivision does not apply to an act consisting of the creation of a right to mine if: (a) the creation of the right is done by: (i) the renewal; or (ii) the re-grant or re-making; or (iii) the extension of the term; of an earlier right to mine; and (b) the earlier right: (i) was created on or before 23 December 1996 by an act that is valid (including because of Division 2 or 2A); or (ii) was created by an act to which this Subdivision applied that was not invalid to any extent under section 28; and (c) the area to which the earlier right relates is not extended; and (d) the term of the right is not longer than the term of the earlier right; and (e) no rights are created in connection with the right that were not created in connection with the earlier right. 126 In respect of s 24IB the issue is whether the re-grant of the 2004/2006 leases took place either "in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid" or "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". 127 The miners contended that the fact that they applied for the re-grant of the 2004/2006 mining leases pursuant to the priority right to apply provided to them by cl 2(1) of the Second Schedule to the 1978 Act and were granted the leases in 2004 and 2006 in response to those applications satisfies ss 24IB(a) and (b). 128 I am not persuaded that s 24IB(a) is satisfied. The relevant future act is the re-grant of each mining lease. I accept that the act of making the application for the re-grant took place "in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid". This is because cl 2(1) of the Second Schedule to the 1978 Act vested in the holder of a mining lease a right in priority to any other person to apply for a mining lease in respect of the land. The applications for the re-grant were thus made in the exercise of a legally enforceable right which was validly created before 23 December 1996 (such right having been created by the 1978 Act). 129 The miners argued that by s 111A of the 1978 Act the Minister could refuse the applications only on reasonable grounds in the public interest so that the priority right in cl 2(1) is a legally enforceable one, there being no circumstances entitling the Minister to refuse the application. I do not accept this submission. Section 111A specifies circumstances in which the Minister may terminate an application before a recommendation has been made. These powers are additional to the Minister's other powers (s 111A(4)), including the power under s 75(6) to grant or refuse the application as the Minister thinks fit. 130 The relevant future acts, the re-grant of each mining lease, did not take place in the exercise of a legally enforceable right. They took place in the exercise of a statutory discretion exercised by the Minister under the 1978 Act. The fact that this statutory discretion was enlivened by an application made in exercise of a legally enforceable right, in my view, is insufficient to bring the facts within the description in s 24IB(a). 131 Section 24IB(b) raises more finely balanced considerations. The miners made two points. 132 First, the miners submitted that "because of" is a concept of wide import. In Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 321 - 322 Lockhart J considered the expression "by reason of" which, his Honour said, meant the same as "because of", as "the phrase implies a relationship of cause and effect". In Trust Company of Australia Ltd v Commissioner of State Revenue (2006) 15 VR 1; [2006] VSC 64 at [44] Hansen J, in the context of a trust deed, held that "because of" was satisfied by a causal relationship even if the act in question was not the sole cause of the consequence. In Republic of Croatia v Snedden [2010] HCA 14; (2010) 241 CLR 461 at [22] French CJ considered the words " by reason of" and noted they had generally been equated to "because of", connoting a cause and effect relationship. 133 Second, said the miners, an offer, commitment, arrangement or undertaking may be contained in a statute and the statute itself may constitute the written evidence created at or about the time the offer, commitment, arrangement or undertaking was made. In Daniel v State of Western Australia [2004] FCA 1388; (2004) 212 ALR 51 at [58] Nicholson J, in dealing with the equivalent provisions to ss 24IB(a) and (b) in ss 228(3)(b)(i) and (ii) of the NTA, said: I accept that the words 'offer, commitment, arrangement or undertaking' are words of wide import. However, I do not consider they can be interpreted in their context to extend to the Agreement Act. That is because subpara (i) of s 228(3)(b) addresses rights resulting from legislation and other acts. Subparagraph (ii) is therefore left to address the remainder, namely offers, commitment, arrangements and undertakings. These must necessarily be something different to what is dealt with in the former paragraph. In my view it does not assist the respondents here. Accordingly I do not express an opinion on the submission of the first respondents that the words used in s 228(3)(b)(ii) encompass a justified expectation. 134 Consistent with the miners' submission, I do not understand this observation to be saying that an offer, commitment, arrangement or undertaking cannot be contained in a statute. As I read it, his Honour was saying that an offer, commitment, arrangement or undertaking involves something less than a right, albeit that a justified expectation might not be sufficient. 135 In the present case it may be accepted that the mining leases were re-granted in 2004 and 2006 in good faith. But did those re-grants take place in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking of the requisite kind? The miners submitted that the offer, commitment, arrangement or undertaking is contained in cl 2(1) of the Second Schedule to the 1978 Act. I accept that cl 2(1) was made in good faith before 23 December 1996 and that the provision itself constitutes written evidence of its making. The real question is whether the re-grant of the mining leases took place in giving effect to or otherwise because of, an offer, commitment, arrangement or undertaking in cl 2(1). 136 In common with the reasoning above about s 24IB(a), it seems to me that it readily may be concluded that the making of the applications for the re-grants took place in giving effect to or because of an offer, commitment, arrangement or undertaking in cl 2(1). This is because, by cl 2(1), the holder of the mining lease which was continued by that clause was given a priority right to apply for a further lease. The applications for the re-grants gave effect to or were made because of the priority right. Whether the re-grant of the mining leases took place in giving effect to or because of an offer, commitment, arrangement or undertaking in cl 2(1) is another question, however. At one level they did. But for the offer, commitment, arrangement or undertaking in cl 2(1) the holders of the mining leases would not have had the priority right to apply available to them. That right to apply could not have been exercised and the mining leases could not have been re-granted as a result of that exercise. In other words, there is undoubtedly a causal connection between the presence of cl 2(1) and the future acts. The difficulty I have is that cl 2(1) contains an offer, commitment, arrangement or undertaking which extends only to the making of an application. It does not contain any offer, commitment, arrangement or undertaking in cl 2(1) as to whether or not a mining lease will be granted in response to an application. While s 24IB(b) does not preclude other causal factors so that the offer, commitment, arrangement or undertaking need not be the sole cause of the future act, the provision nevertheless leaves open the nature of the causal relationship required. In circumstances where the offer, commitment, arrangement or undertaking in cl 2(1) concerns only the making of an application, and the Minister had a discretion to deal with the application as the Minister thinks fit, I am not satisfied that the re-granting of the 2004/2006 leases took place in giving effect to or because of an offer, commitment, arrangement or undertaking in cl 2(1). 137 For these reasons, I am not persuaded that s 24IB of the NTA applies to the re-grant of the 2004/2006 leases. 138 Insofar as s 24IC is concerned, there is no doubt that the re-grant of the 2004/2006 leases falls within s 24IC(1)(a). The fact that the provision is dealing with renewals, re-grants and extensions of the term of interests is relevant to its construction. This is because s 24IC(1)(c) requires a comparison between the rights created by the original interest and those created by the renewed, re-granted or extended interest. Section 24IC(1)(b)(i) is also satisfied. There was no dispute that the original mining leases (be they the initial mining leases or the mining leases as renewed before the excision of the mining leases from the 1968 Agreement in 2001 or 2002) were validly granted on or before 23 December 1996. The excluding provisions of s 24IC(1)(c) must also be considered. According to the Ngadju People, the re-granted leases created a larger proprietary interest in the land than the original leases because the mining rights were more extensive and not subject to the various obligations of the 1968 Agreement. 139 I do not accept the submissions of the Ngadju People in this regard. 140 As the miners submitted, the distinction drawn between proprietary and non-proprietary interests in s 24IC(1)(c)(ii) and (iii) must be given effect. In context, it cannot mean simply a right to use land as the Ngadju People contended. This is particularly so given that s 24IC applies to every type of lease, licence, permit or authority. Some of these interests might be proprietary while others might not. It is only larger or new proprietary interests which are excluded by s 24IC(1)(c)(ii) or (iii). Further, the creation of a larger proprietary right in s 24IC(1)(c)(ii) is "otherwise" than the conferral of a right of exclusive possession in s 24IC(1). It was common ground between the parties that the mining leases, as re-granted, did not confer any right of exclusive possession. 141 In Commissioner of State Revenue v Oz Minerals Ltd [2013] WASCA 239; (2013) 46 WAR 156 at [109] Buss JA said: Mining tenements under the Mining Act 1904 and the Mining Act 1978 have been characterised as being in the nature of personalty, not realty. See TEC Desert Pty Ltd v Commissioner of State Revenue WA [2010] HCA 49; (2010) 241 CLR 576 at [27]-[47] per French CJ, Gummow, Heydon, Crennan and Kiefel JJ. 142 On this basis the miners' contention that mining leases under the WA statutes do not create a proprietary interest in land should be accepted. 143 If, to the contrary, mining leases under the WA statutes create a proprietary interest in land, the Ngadju People nevertheless confront a problem in their arguments. The text of s 24IC, in particular s 24IC(1)(c) which requires comparison between the original lease and the future act, indicates that the "original lease" means the interest being renewed, re-granted or extended. That is to say, it is the interest as in force immediately before the renewal, re-grant or extension which is to be compared to the future act. In the present case, by operation of cl 2(1) to the 1978 Act and the 2001 and 2002 amendments to the 1968 Agreement, the mining leases, immediately before re-grant, were not limited to the mining of nickel (etc) and were not subject to any obligations in the 1968 Agreement. Yet the arguments of the Ngadju People that the re-grants involved the creation of a larger proprietary interest over the land the subject of each lease depend on the propositions that it was the re-grant (not the 1978 Act) which removed the restriction on mining to certain minerals (nickel etc) and that it was the re-grant (not the 2001 and 2002 amendments to the 1968 Agreement) which excluded the mining leases from the scope of the 1968 Agreement. For the reasons given above, I do not accept these propositions. The consequence is that the mining leases re-granted in 2004 and 2006 were (but for the re-granted term) the same as the original mining leases (that is, the mining leases as in force immediately before the future acts occurred). They did not create a larger or new proprietary interest. 144 It should also be noted, at this point, that I do not accept the argument of the Ngadju People that the removal of the contractual obligations of the 1968 Agreement necessarily involved the enlargement of the statutory right to mine conferred by the leases. Leaving aside the fact that the removal was a result of the 2001 and 2002 amendments to the 1968 Agreement, the removal of an obligation, so that the right may be exercised without the obligation being satisfied, does not seem to me to alter the right. It simply removes the obligation. In Brown at [176], to which the Ngadju People referred, Greenwood J said: Although "obligations" cast upon a party under an agreement are not the same thing as "rights" granted to a party under that agreement, the nature of the obligations cast upon or assumed by a party are likely to reflect, in part at least, upon the rights a party might be required to correspondingly exercise so as to be able to discharge those obligations. An examination of the obligations is not simply an assessment of the scope of the "operations" a party might undertake but an examination of the extent to which the obligations might give expression to the scope of the rights granted to the joint venturers. 145 This may be accepted. The difference in the present case is that the relevant rights said to be transformed are not contractual. They are the statutory rights created by the mining leases. It was not suggested, and the extracts from the Register which are available did not disclose, any condition or requirement of the mining leases that the holder, for example, comply with the 1968 Agreement. In other words, the removal of the mining leases from the 1968 Agreement occurred as a matter of contract, such contract being approved and taking effect through amendments to the 1968 Agreement Act. The mining leases continued, their holder no longer being subject to the contractual obligations imposed by the 1968 Agreement. 146 To the extent that the Ngadju People argued that the re-grant of the 2004/2006 leases involved a larger proprietary right because the rights of renewal in the 1968 Agreement no longer applied, there are a number of answers. First, and as discussed, the rights of renewal in the 1968 Act ceased to apply by reason of the 2001 and 2002 amendments to the 1968 Agreement. Second, the rights of renewal in the 1968 Agreement, cl 5(3), did not purport to exclude other statutory rights. The clause merely vested in the Corporation (and its successors) a right to one renewal and a right to apply for another renewal. Nothing in the clause excluded other rights to apply for further grants, renewals or re-grants provided by the 1904 Act (or any subsequent statute) to the holder of a mining lease. Accordingly, the approach of the Ngadju People, that the 1968 Agreement confined the right of renewal which was then enlarged or created by the re-grant of the 2004/2006 leases, should not be accepted. The 1968 Agreement provided contractual rights of application for renewal additional to whatever statutory rights the holder of a mining lease might enjoy. Insofar as those statutory rights were altered by the 1978 Act, it is the coming into force of that Act, not the re-grant of the 2004/2006 leases, which altered those rights. Insofar as the 2001 and 2002 amendments to the 1968 Agreement removed the contractual rights, it did not alter the continuing statutory rights. 147 No other argument having been put about s 24IC, it follows that the re-grant of the 2004/2006 mining leases constituted a future act being a permissible lease etc renewal within the meaning of that section of the NTA. 148 One further issue remains. As set out above, future acts which are permissible lease etc. renewals under s 24IC of the NTA are also subject to the right to negotiate in Subdivision P. It is common ground that the right to negotiate requirements were not satisfied in respect of the re-grant of the 2004/2006 leases. The miners relied on s 26D of the NTA which provides that Subdivision P does not apply to an act consisting of the right to mine in certain circumstances. The Ngadju People relied only on s 26D(1)(e) of the NTA, and accepted that the other requirements of s 26D(1) are satisfied. Section 26D(1)(e) provides that: This Subdivision does not apply to an act consisting of the creation of a right to mine if…no rights are created in connection with the right that were not created in connection with the earlier right. 149 The argument of the Ngadju People is that rights were created in connection with the right to mine by the re-grant of the 2004/2006 leases because those leases were not confined to the mining of nickel (etc) and were free from the obligations imposed by the 1968 Agreement including what the Ngadju People characterised as the restrictions on the right to apply for a renewal of the leases. For the same reasons as set out above, I do not accept these arguments. No rights were created by the re-grant of the 2004/2006 leases that were not created in connection with the earlier leases, being the leases as in force immediately before the future acts constituting the re-grants. 150 For these reasons, s 26D(1) of the NTA is satisfied with the consequence that Subdivision P did not apply to the act of re-granting the 2004/2006 leases. 151 It should be said that, on the competing contentions of the parties, the same reasoning would necessarily apply to the 73 leases (and, for that matter, ML 15/150 and ML 15/151). This is because if the Termination Act did involve some renewal of these leases (contrary to the conclusions above) then those renewals were of leases which, by the 1978 Act, were not restricted to the mining of nickel (etc) and the removal of those leases from the scope of the 1968 Agreement could not be said to otherwise have created larger or new rights (proprietary or otherwise). The 1968 Agreement created contractual obligations the removal of which insofar as the 73 leases are concerned was incapable of creating any, let alone, larger rights than the previous leases. 152 Accordingly, the primary judge erred in concluding that the re-grant of the 2004/2006 leases were invalid future acts. His Honour also erred in concluding that, by reason of the Termination Act, the 73 leases (and, for that matter, ML 15/150 and ML 15/151), constituted invalid future acts. The miners' appeals should therefore be allowed (other than to the extent that they seek orders relating to ML 15/150 and ML 15/151 which are not the subject of the native title determination) and orders should be made amending the determination of native title to reflect the conclusions of this Court. The notices of contention of the Ngadju People in respect of Subdivision P should be dismissed. The notices of objection to competency need not be the subject of any specific order, as orders made consequential on these reasons will not affect ML 15/150 and ML 15/151 in any event. It is unnecessary to deal with the miners' appeals insofar as they contended that the primary judge's reasons were inadequate.

THE PARAGRAPH 8A(C) APPEAL 153 Although it might have been hoped that this part of the dispute would be rendered irrelevant by the conclusions about the miners' appeals, apparently, there are some lots subject to paragraph 8A(c) of the native title determination which will remain. 154 For convenience, set out below are the three competing versions of paragraph 8A(c) of the native title determination. 155 The primary judge's orders contain paragraph 8A(c) of the determination in this form: The relationship between the native title rights described in [3] above and the Other Interests identified in Schedule 5A is that to the extent that one or more of those Other Interests is inconsistent with the continued existence, enjoyment or exercise of those native title rights and interests, the Other Interest is invalid as against those native title rights or interests so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests. 156 The Ngadju People contended that the primary judge's version contravenes the NTA to the extent that it does not contain the words "wholly or partly" and otherwise contains some words they consider surplus. They contended that paragraph 8A(c) should be amended so that it appears as follows in the determination: (c) The relationship between the native title rights described in [3] above and the Other Interests identified in Schedule 5A is that to the extent that one or more of those Other Interests is wholly or partly inconsistent with the continued existence, enjoyment or exercise of those native title rights and interests, the Other Interest is invalid as against those native title rights or interests so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests. 157 The miners and the Commonwealth contended that the primary judge's version of paragraph 8A(c) does not comply with the NTA on grounds different from those of the Ngadju People. The miners and the Commonwealth contended that paragraph 8A(c) should be amended so that it appears as follows in the determination: (c) Except as otherwise provided for by law, the relationship between the native title rights described in [3] above and the Other Interests identified in Schedule 5A is that: (i) to the extent that the exercise of rights and permissions pursuant to an one or more of those Other Interests is inconsistent with the continued existence, enjoyment or exercise of those native title rights and interest described in [3] above, the Other Interest is invalid as against those native title rights or and interests prevail over the Other Interest so that it does not affect the continued existence, enjoyment or exercise of those native title rights and interests; and (ii) the rights and permissions pursuant to an Other Interest are exercisable to the extent that they do not affect the exercise or enjoyment of native title rights and interests. 158 As noted, the statutory requirements are contained in ss 94A and 225 of the NTA as follows: 94A Order containing determination of native title An order in which the Federal Court makes a determination of native title must set out details of the matters mentioned in section 225 (which defines determination of native title). 225 Determination of native title A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease - whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. 159 The Ngadju People contended that because an act affecting native title is defined in s 227 as one which "extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise" the words "wholly or partly" must appear before the word "inconsistent" in the third line of paragraph 8A(c). They also contended that the word "existence" should remain in the phrase "the continued existence, enjoyment or exercise of those native title rights and interests" because these words also reflect s 227, despite the relevant rights being non-exclusive (hence, their existence cannot be affected by the other rights and interests). The Ngadju People objected to the words shown deleted in their version because they say they are contrary to s 227 and what s 225 requires. 160 The miners and the Commonwealth supported their version on the grounds that: (i) the reference to "existence" is erroneous because the native title rights are not exclusive so their existence is unaffected by the other interests, (ii) the orders need to provide details of the matters in s 225, not merely repeat the language of s 225, and (iii) the relevant details include both the invalidity of the other interests to the extent which native title is affected and the validity of those interests to the extent to which native title is not affected, whereas paragraph 8A(c) deals only with the former aspect. 161 The first observation to make is that all of the parties, other than the State which contended that the primary judge had made no error in respect of paragraph 8A(c), attempted to obtain far more assistance for their competing cases than the language of ss 94A, 225 and 227 of the NTA yields. It is difficult to understand how any of the arguments about paragraph 8A(c) rise above mere drafting preference to the level of error warranting appellate review. The presence of the word "existence" comes close but even it, at worst, is simply unnecessary as opposed to erroneous. 162 The second observation to make is the Ngadju People's call for fidelity to the terms of ss 227 and 225 of the NTA is not helpful. The relationship between the relevant rights and interests is a matter to be expressed in the determination. The simple repetition of the terms of s 227 of the NTA is not a particularly helpful expression of that relationship. The omission of "wholly or partly" from the primary judge's version, again, seems to reflect a drafting preference rather than a desire to correct error. 163 The third observation to make is that if the jurisdiction of this Court were able to be invoked to fulfil its own drafting preferences then, with the benefit of the three competing drafts, I would not hesitate to conclude that the miners' version, as supported by the Commonwealth, best fulfils the purpose of s 225. However, the jurisdiction of the appellate court is not able to be invoked without error having been established and no such error has been established by any of the parties. Moreover, disputes of this kind are not to be encouraged. No doubt every appellate court, when presented with competing refinements of complex orders, might have a preference for one version over another. But the temptation to give effect to that preference should be resisted. Parties should not be encouraged to appeal against the terms of an order merely because they prefer another version. 164 For these reasons, the cross-appeal of the Ngadju People should be dismissed.

THE PARAGRAPH 12 APPEAL 165 The dispute between the Ngadju People and the State about paragraph 12 of the native title determination should be the cause for disquiet. 166 Paragraph 12, it might be recalled, states that: Some historical mining tenements were granted "subject to survey". Such condition precedent to the grant of those tenements is recorded in the Gazette. There is no evidence with respect to such tenements that the condition precedent was never fulfilled. There is no evidence of the undertakings of a survey with respect to such mining tenements. In all such respects, those tenements are not valid and do not extinguish native title rights and interests. 167 The State and the Ngadju People agreed that paragraph 12 should be deleted (and the miners do not care one way or another) but disagreed about the proper basis for deletion, and thus the appropriate procedural method to achieve that result. The fact that the Ngadju People failed to agree an appropriate consent order in response to the State's appeal, even one reflecting competing bases for the same outcome, is regrettable. Whatever else might be said, this issue should not have led the Ngadju People to file a notice of objection to the competency of the appeal and an interlocutory application to achieve the same result as the State sought in the appeal, still less the filing and service of written submissions in support of the notice of objection to competency and interlocutory application containing allegations of abuse of process by the State. 168 The parties having regrettably expended time and money on this point, something should be said about the substance of the matter. 169 In the May reasons at [93] the primary judge concluded that: Some historical mining tenements were granted "subject to survey". Such condition precedent to the grant of those tenements is recorded in the Gazette. There is no evidence with respect to such tenements that the condition precedent was ever fulfilled. There is no evidence of the undertakings of a survey with respect to such mining tenements. In all such respects, those tenements are not valid and do not extinguish native title rights and interests. 170 An act done in breach of a statutory condition, however, is not necessarily invalid. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [93] McHugh, Gummow, Kirby and Hayne JJ said: The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. 171 It is not apparent that the primary judge considered the purpose of the 1904 Act (under which the leases had been granted) when reaching his conclusion. Further, nothing in the submissions of the Ngadju People supporting this part of the primary judge's reasoning identify any statutory provision which makes the carrying out of a survey a condition precedent to the grant of a mining lease. There are references to surveys throughout the 1904 Act but none amount to a condition precedent to grant. Moreover, there are numerous indications in the 1904 Act that a survey was not a condition precedent to the grant and that a mining lease was not necessarily invalid merely because a survey had not been conducted. Leaving aside the fact that all that was required for the making of an application was, relevantly, the payment of a survey fee not the provision of a survey (s 67(1)(b)), and without going into unnecessary detail, so much is obvious from the terms of the sections set out below: s 76(1) The granting of a lease shall be in the absolute discretion of the Governor notwithstanding that the applicant may or may not have in all respects complied with the provisions of this Act and the regulations. s 98 In case any lease shall be liable to voidance, cancellation, or forfeiture for breach of covenant or otherwise, the Governor may, subject to the provisions of this Act, declare such lease void, and upon publication in the Government Gazette of notice of such declaration all the estate and interest in the lease of the lessee and any person claiming under him shall cease and determine… s 253(1) The warden's court shall have jurisdiction to hear and determine all such actions, suits, and other proceedings, cognisable by any court of civil jurisdiction as arise within the district concerning the following matters, that is to say: - (1) Area, dimensions, and boundaries of mining tenements; s 291 (1) Every application for a mining tenement shall be made at the office of the warden of the goldfield or mineral field or district in which the land applied for is situated. (2) Where a doubt exists as to the exact position of any land the subject of an application for a mining tenement, the applicant, having in all other respects complied with the regulations, may make his application at the warden's office nearest to such land. (3) If after survey it is ascertained that any land, the subject of an application, is situated partly within the boundaries of any two or more goldfields or mineral fields or districts, the Minister shall determine to which goldfield, mineral field, or district the land shall be assigned. 172 Nothing in the Regulations under the 1904 Act in fact assists the Ngadju People on this issue but, in any event, the Regulations cannot affect the proper construction of the 1904 Act. The submissions for the Ngadju People on this issue fail to grapple with the provisions of the 1904 Act insofar as they do not make a survey a condition precedent to a grant, contain numerous indications that a survey was not a pre-condition to a grant, and yield no indication that failure to carry out a survey before grant necessarily invalidates the grant. 173 Nor do the arguments of the Ngadju People about the lack of competence of the appeal carry any weight. The inescapable fact is that paragraph 12 is in the native title determination. Whether or not it should be, it is there as a result of a case that was put (and belatedly and by no means obviously withdrawn) by the Ngadju People. The fact that there are no such historical mining tenements in the determination area does not remove paragraph 12 from the determination. The appeal is competent in that the determination is part of the orders the primary judge made. Whether paragraph 12 was there as a result of error by the primary judge in not realising the Ngadju People had changed their case and did not press that issue because there were no such tenements or error by the primary judge in concluding that a mining lease was necessarily invalid if it was granted before survey, the error is able to be, and should be, corrected on appeal. 174 For these reasons, the State's appeal should be allowed. I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

SCHEDULE OF PARTIES WAD 379 of 2014 Respondent City of Kalgoorlie-Boulder Respondent Shire of Coolgardie Respondent Commonwealth of Australia Respondent Goldfields Land & Sea Council Aboriginal Corporation Respondent AngloGold Ashanti Australia Limited Respondent BHP Billiton Nickel West Pty Ltd Respondent St Ives Gold Mining Company Pty Limited Respondent Lake Johnston Pty Ltd Respondent Arubiddy Pastoral Co Pty Ltd Respondent Childara Pty Ltd Respondent Commonwealth Hill Pty Ltd Respondent Jarac Pty Ltd Respondent Jemarkim Nominees Pty Ltd Respondent Mileura Cattle Co Pty Ltd Respondent Norgate Nominees Pty Ltd Respondent Sydney Ernest Pond Respondent Red Sun Nominees Pty Ltd Respondent Gaynor Maree Shields Respondent Victor Edward Shields Respondent Christopher Ryan South Respondent Monica Margaret South Respondent Vanesk Pty Ltd Respondent Leslie Hamilton Pinniger Respondent Cedric Anderson

SCHEDULE OF PARTIES WAD 381 of 2014 Respondent State of Western Australia Respondent BHP Billiton Nickel West Pty Ltd

SCHEDULE OF PARTIES WAD 382 of 2014 Respondent State of Western Australia Respondent St Ives Gold Mining Company Pty Ltd

Mining Act 1904(WA)ss 42, 51, 53, 59, 67, 76(1), 98, 253(1), 291

Nickel Refinery (Western Mining Corporation Limited) Agreement Act 1968(WA)ss 3, 3A, 3B

Amendment Act 1974(WA)

Native Title Act 1993(Cth)ss 24AA, 24IA, 24IB, 24IC, 24ID, 25, 26, 26D, 94A, 225, 227, 228, 233

Mining Act 1978(WA)ss 4, 5, 8(1), 74, 75(6), 78, 82, 85, 111A

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (25)

Cited By (2)