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[2014] HCA 8
respondent. Appeal dismissed with costs; the determination of native title made by the Full Court of the Federal Court stands.
The High Court ruled that the Western Australian Government's 1960s iron ore mining leases at Mount Goldsworthy did not wipe out the Ngarla People's traditional rights to travel over hunt on perform ceremonies on and look after sacred sites on the land. Because the leases let the State and others keep crossing the land and only gave the miners rights to dig iron ore and build what they needed for that purpose (not a total lock-out power), the native title rights continued to exist at the same time. Even though the miners dug a massive pit built a whole town and changed the landscape the court said those physical changes do not legally erase native title; they only mean the native title holders cannot use the exact spot while the miners are actively using it. Once mining stops the native title rights are still fully there. The Court firmly shut the door on ideas that native title can be extinguished later just because someone builds something.
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4 cited instruments linked from this judgment.
In 1964 the State of Western Australia executed a detailed agreement with joint venturers for the large-scale development of iron ore deposits at Mount Goldsworthy. That agreement was ratified and given statutory force by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA). The State Agreement obliged the State to grant mineral leases in a prescribed form. Two such leases were granted: ML 235 in 1966 and ML 249 in 1974, each for an initial term of 21 years with rights of renewal. Both leases were granted well before the Racial Discrimination Act 1975 (Cth) or the Native Title Act 1993 (Cth).
The leases followed the form contemplated by the State Agreement and were expressed to be granted "for the purposes but upon and subject to the terms, covenants and conditions set out in the State Agreement". Critically, the State Agreement contained an express stipulation that throughout its continuance the joint venturers "allow the State and third parties to have access (with or without stock vehicles and rolling stock) over the mineral lease (by separate route road or railway) PROVIDED THAT such access ... shall not unduly prejudice or interfere with the Joint Venturers' operations".
In performance of the State Agreement the joint venturers constructed an open-pit mine, a townsite with over 200 houses, roads, a railway, a wharf and all associated infrastructure. At its peak the town had a population of 1,400. The mine and town covered approximately one third of the area of ML 235; the balance of the lease area saw no significant construction. Mining transformed Mount Goldsworthy from a 132-metre peak into a pit 135 metres below sea level. The mine closed in 1982 and the town was removed and the land rehabilitated in 1992; the pit remains water-filled.
Alexander Brown and others on behalf of the Ngarla People brought native title proceedings in the Federal Court. It was common ground that, subject to extinguishment, the Ngarla People held non-exclusive native title rights to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals), to engage in ritual and ceremony, and to care for, maintain and protect particular sites and areas of significance. Bennett J at first instance determined that native title existed but was extinguished in the "developed" areas where the mine, town and infrastructure had been built, treating the exercised rights as "analogous to rights of exclusive possession". The Full Court of the Federal Court (Mansfield, Greenwood and Barker JJ) divided on the consequences of later use but ultimately held there was no extinguishment and substituted a determination in favour of the native title holders. The State of Western Australia appealed to the High Court by special leave. The joint venturers supported the State; the Attorney-General for South Australia appeared as amicus curiae. The High Court unanimously dismissed the appeal.
The Court began from the now-settled principle stated in Western Australia v Ward that the question is whether the rights granted to the joint venturers are inconsistent with the alleged native title rights and interests. This is an objective inquiry that requires identification of, and comparison between, the two sets of rights. Both stages are fixed at the time of grant; the manner in which a right has been or will be exercised is relevant only to the extent it assists correct identification of the right's content.
The native title rights were non-exclusive. They did not include a right to control access to the land for any purpose or no purpose. By contrast, a right of exclusive possession in the sense explained in Fejo v Northern Territory—the unqualified right to exclude any and everyone from the land for any reason or no reason—would be inconsistent with any native title. The mineral leases, however, did not grant that right. The leases were granted "for the purposes" of the State Agreement and were expressly subject to the obligation to permit access by the State and third parties. That express reservation precluded any implication of exclusive possession. The leases gave the joint venturers liberty to enter, mine and take iron ore and to construct associated works, but not the right to exclude others for any or no reason. Therefore the first branch of the State's argument failed.
The alternative argument—that the rights to mine and build improvements anywhere on the land were wholly inconsistent with the native title rights either at grant or when exercised—was also rejected. The Court emphasised that there cannot be "degrees of inconsistency of rights". Two rights are inconsistent or they are not. Logical antinomy exists only where the assertion of one right necessarily denies the other. On the day after grant the native title holders could have exercised every one of the claimed rights anywhere on the land without contradicting any right granted to the joint venturers. The joint venturers' rights to prevent others from mining and to carry out their own operations could coexist with the native title rights.
The Court refused to countenance extinguishment by subsequent development. To tie extinguishment to the physical construction of a town or pit would make it depend on the manner of exercise rather than the rights themselves. That approach had been advanced but rejected in Wik Peoples v Queensland. Brennan CJ's statement in Wik that the law cannot recognise coexistence of rights that cannot both be exercised at the same time was read in context: it was directed to a situation where one party held a right to exclude any and everyone. The mineral leases conferred no such right. The practical observation that two persons cannot occupy the one place at the same time means only that, while the joint venturers are using a particular spot, native title rights cannot be exercised there; it does not mean the native title rights are extinguished. When the joint venturers cease to exercise their rights, or when the leases expire, the native title rights remain unaffected. The Court therefore held that the Full Court's determination of non-extinguishment was correct and dismissed the appeal.
Before Western Australia v Brown the law on extinguishment of native title by mineral leases and by subsequent improvements was unsettled at the intermediate appellate level. Wik had established that pastoral leases granting rights to graze and to make improvements did not necessarily confer exclusive possession and did not necessarily extinguish native title. Ward had applied the same principles to mining leases, holding that a right to control access for any purpose would extinguish native title but lesser rights to mine did not. However, the Full Court of the Federal Court in De Rose v South Australia (No 2) had read Ward as permitting extinguishment to be determined after the grant once the grantee exercised rights to construct improvements. That decision treated the construction of a dwelling or shed on a pastoral lease as extinguishing native title not only on the footprint of the improvement but on adjacent land reasonably necessary for its enjoyment. It introduced the notion that native title could be contingently extinguished or "yield" in a way that depended on later physical acts.
Brown decisively rejects that reading. The High Court states that De Rose (No 2) misunderstood Ward and Wik by allowing consideration of the manner of exercise and by contemplating contingent extinguishment. After Brown it is clear that the inquiry is strictly limited to the legal rights conferred at the moment of grant. Subsequent use or development may affect the practical ability to exercise native title rights concurrently, but it does not affect their legal existence. The binary character of inconsistency is emphasised: rights either are or are not inconsistent at grant; there are no degrees and no deferred extinguishment.
The decision also clarifies that analogies to constitutional inconsistency under s 109 are unhelpful. A native title right, once extinguished, cannot revive, whereas an inconsistent State law is merely inoperative for so long as the federal law remains. The focus must remain on the legal content of the rights, not their enjoyment. After Brown, State agreements and mineral leases that reserve access rights or limit use to mining purposes will not be construed as conferring exclusive possession unless the instrument clearly grants the unqualified right to exclude any and everyone for any or no reason. Large-scale iron-ore projects of the Mount Goldsworthy type no longer attract a different legal analysis merely because of their scale or the extent of associated infrastructure.
The joint judgment contains several passages that repay close attention. At the opening the Court states: "This Court's decision in Western Australia v Ward requires that the question be answered 'No'. The rights granted under the mineral leases are not inconsistent with the claimed native title rights and interests." In plain English this means the mineral leases and the native title rights can lawfully exist side by side; one does not cancel the other out.
On the binary nature of inconsistency the Court says: "There cannot be 'degrees of inconsistency of rights'. 'Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment.'" This translates to a simple legal on/off switch. Courts do not weigh how much one right interferes with another; they ask whether the two rights can logically coexist. If they can, native title survives.
Dealing with the argument that later construction extinguished native title the Court observes: "The submission that there could be (and in this case was) extinguishment of native title by the exercise of rights granted by or under statute should be rejected. As has already been explained, the submission is directly contrary to the principles established and applied in both Wik and Ward and postulates a test for inconsistency which turns upon the manner of exercise of one of the allegedly competing rights rather than upon the right's nature and content." In everyday language this says you cannot wait and see what the miners actually build and then decide that native title has vanished; the law looks at the piece of paper signed in 1964, not the bricks and bulldozers of the 1970s.
The Court also notes that on the day after grant "the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests." The plain-English translation is that the law tests coexistence at the first possible moment. If native title holders could still hunt, camp and conduct ceremony the day after the lease was signed, the rights are not inconsistent and native title survives.
Finally, the Court cautions against treating construction of improvements as automatically extinguishing native title: "To postulate extinguishment of native title as dependent on the exercise of the private right of the lessee (rather than on the creation or existence of the private right) would produce situations of uncertainty, perhaps of conflict." This warns practitioners that a rule turning on later building activity would create chaos in title searches and future dealings; certainty demands that the question be answered once and for all at grant.
Brown is triggered whenever a court must decide whether a statutory or contractual grant of rights to use land for a limited statutory purpose (mining, pastoral, or similar) extinguishes native title. The critical triggers are: (1) the grant does not confer an unqualified right to exclude any and everyone from the land for any reason or no reason; (2) the instrument contains an express or implied reservation of access rights to the State or third parties; (3) the native title rights claimed are non-exclusive rights to access, camp, take traditional resources, conduct ceremony and care for sites; and (4) the question arises outside the "past acts", "intermediate period acts" or "previous exclusive possession acts" regimes of the Native Title Act 1993 (Cth).
The precedent applies with particular force to mineral leases granted under State agreements that mirror the Mount Goldsworthy model—leases that are expressed to be for mining purposes only, that oblige the lessee to allow access, and that do not contain language clearly granting a power to exclude the world at large. It also applies to any situation in which a party argues that later physical development (construction of a mine, town, railway or pit) itself extinguishes native title. Brown makes plain that such arguments fail because they look to the manner of exercise rather than the rights granted at the time of the instrument. The fact that the project is very large, or that the State has promised not to resume or rezone the land, is irrelevant. The precedent is not engaged where the native title claim includes an exclusive right to control access, because that right is necessarily inconsistent with any grant that permits the grantee to use the land for its statutory purpose without interference.
The judgment itself treats earlier authorities in a particular way. It follows Western Australia v Ward and Wik Peoples v Queensland for the propositions that inconsistency is determined at grant, that mineral and pastoral leases do not necessarily confer exclusive possession, and that rights to use land for particular purposes can coexist with non-exclusive native title rights. It cites Fejo for the content of exclusive possession. It expressly states that De Rose v South Australia (No 2) is wrong and should not be followed because it permitted contingent extinguishment based on later exercise of rights. In that sense Brown overrules the approach taken in De Rose (No 2) and restores the strict temporal focus established in Wik and Ward. The joint judgment repeatedly returns to the language and reasoning of those earlier High Court decisions, demonstrating that Brown is a straightforward application rather than an extension of principle. No new doctrine is invented; the Court insists that every step is already contained in the earlier authorities once those authorities are correctly understood. Because the decision is recent and the Court was unanimous, later courts can be expected to treat the ratio as binding and the criticisms of De Rose (No 2) as authoritative.
Several questions remain live after Brown. The Court notes that if a mineral lease had required the whole of the land to be used in a way that would not permit any use by native title holders, it might have been open to construe the lease as conferring a right to exclude any and everyone for any or no reason. Exactly what wording or statutory scheme would produce that outcome is not spelled out. The Court also leaves open whether a distinction might be drawn between the several native title rights and interests in a future case; in Brown the parties agreed that no such distinction should be drawn, but the possibility is not foreclosed.
The interaction between Brown and the "previous exclusive possession act" provisions of the Native Title Act 1993 (Cth) in cases where those provisions do apply remains to be worked through in detail. While the Court notes that none of those provisions governed the present litigation, the underlying common-law principles it articulates will inform the construction of "exclusive possession" in the statutory definition. Questions may also arise about the precise boundaries of "undue prejudice or interference" in access clauses; Brown does not explore the content of that qualification. Finally, the Court does not address how its reasoning applies to grants that are not leases but are licences or authorities that nevertheless confer extensive rights to exclude others for safety or operational reasons. Those issues await future litigation.
Western Australia v Brown [2014] HCA 8 12 March 2014 P49/2013
G R Donaldson SC, Solicitor-General for the State of Western Australia with G J Ranson for the appellant (instructed by State Solicitor (WA))
B W Walker QC with R W Blowes SC and C L Tan for the first respondents (instructed by Yamatji Marlpa Aboriginal Corporation)
P D Quinlan SC with J M Bursle for the second respondents (instructed by Ashurst)
M G Hinton QC, Solicitor-General for the State of South Australia with D F O'Leary for the Attorney-General for the State of South Australia, as amicus curiae (instructed by Crown Solicitor (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Native title - Native title rights in relation to land - Agreement made in 1964 between State of Western Australia and joint venturers to develop iron ore deposits at Mount Goldsworthy - Mineral leases for iron ore granted pursuant to agreement - Joint venturers required under agreement to give State and third parties access to land subject of mineral leases provided such access did not unduly prejudice or interfere with joint venturers' operations - Whether mineral leases granted joint venturers right of exclusive possession - Whether joint venturers' rights under mineral leases inconsistent with claimed native title rights and interests - Whether claimed native title rights and interests extinguished by actual or potential conflicting use or development of land by joint venturers subsequent to grant of mineral leases.
Words and phrases - "exclusive possession", "extinguishment", "inconsistency of rights".
Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA), Schedule.
FRENCH CJ, HAYNE, KIEFEL, GAGELER AND KEANE JJ. In 1964, the State of Western Australia made an agreement with some joint venturers about the development and exploitation of iron ore deposits at Mount Goldsworthy. The agreement was approved by s 4(1) of the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) and it is convenient to refer to it as "the State Agreement". The State Agreement obliged the State to grant, and the State did grant, to the joint venturers mineral leases for iron ore (in a form provided by the agreement). Two leases are relevant to this matter. Each was for a term which expired in 1986, with the right to renew from time to time for further periods each of 21 years. Each has been renewed and is still in force. The parties to this litigation agree that, subject to the question of extinguishment, the Ngarla People hold native title to the land which is subject to the two mineral leases. The parties agree that the relevant native title rights and interests are non‑exclusive rights (a) to access and camp on the land; (b) to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land; (c) to engage in ritual and ceremony on the land; and (d) to care for, maintain and protect from physical harm particular sites and areas of significance to the native title holders. Did the grant of the mineral leases extinguish those native title rights and interests in relation to the land subject to the mineral leases? This Court's decision in Western Australia v Ward requires that the question be answered "No". The rights granted under the mineral leases are not inconsistent with the claimed native title rights and interests. The State Agreement The Mount Goldsworthy iron ore project was a very large development. The State Agreement made detailed provisions about the rights and obligations of the State and of the joint venturers. It is enough, for present purposes, to notice only the following provisions. The State Agreement provided that, "[a]s soon as conveniently may be" after the commencement date specified in the agreement, and after application by the joint venturers, the State would grant the joint venturers "a mineral lease ... for iron ore" in the form provided in the schedule to the agreement and later grant similar mineral leases over other areas. The form of mineral lease provided by the State Agreement was generally similar to the form of mineral lease then provided by the Mining Act 1904 (WA). The State agreed that, subject to the joint venturers performing their obligations under the State Agreement, the State and its authorities would not resume any property used for the purposes of the agreement. The State further agreed not to rezone the land which was the subject of a mineral lease granted in accordance with the State Agreement. The joint venturers agreed that, within three years of the commencement date fixed by the State Agreement, they would do all that was necessary to enable them to mine iron ore from the land the subject of the initial mineral lease, to transport ore by rail to the joint venturers' wharf and to commence shipment of ore from the wharf at an annual rate of not less than one million tons of ore. In particular, the joint venturers agreed to construct a railway, to make roads, to construct a wharf, to lay out and develop townsites and to provide suitable housing, recreational and other facilities and services. Some of this was to be done on the land the subject of a mineral lease but some of it had to occur elsewhere. The joint venturers agreed that, "[t]hroughout the continuance" of the State Agreement, they would: "allow the State and third parties to have access (with or without stock vehicles and rolling stock) over the mineral lease (by separate route road or railway) PROVIDED THAT such access over shall not unduly prejudice or interfere with the Joint Venturers' operations [under the State Agreement]". The State Agreement has been varied three times since it was first made. Nothing turns on those variations. There have been assignments of interests in the joint venture and in the mineral leases. Again, nothing turns on the detail of those changes and it is convenient to refer to the "joint venturers" without distinguishing between the differing compositions of the joint venture over the years. The mineral leases The State has granted two mineral leases that are relevant to this litigation. The first (variously referred to as "ML 235", "ML 235SA" or "AML 7000235") was granted by instrument dated 17 February 1966. The second (referred to as "ML 249", "ML 249SA" or "AML 7000249") was granted by instrument dated 8 May 1974. Both mineral leases were granted before the enactment of the Racial Discrimination Act 1975 (Cth) and long before the enactment of the Native Title Act 1993 (Cth). Argument in this Court proceeded on the basis that there is no relevant difference between the two mineral leases and that each was in the form provided for by the State Agreement. It is therefore convenient to refer only to the first of them (ML 235). The recitals to the instrument recorded that, by the State Agreement, the State had agreed to grant the joint venturers "a mineral lease", that the State Agreement had been ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 and that the Act had authorised the grant of a mineral lease or leases to the joint venturers. The instrument provided that, "in consideration of the rents and royalties reserved by and of the provisions of the [State] Agreement", the Crown "do[es] by these presents grant and demise" to the joint venturers as tenants in common in equal shares: "ALL THAT piece or parcel of land [identified in the instrument] and all those mines, veins, seams, lodes and deposits of iron ore in on or under the said land (hereinafter called 'the said mine') together with all rights, liberties, easements, advantages and [appurtenances] thereto belonging or appertaining to a lessee of a mineral lease under the MINING ACT, 1904 ... or to which the JOINT VENTURERS are entitled under the [State] Agreement TO HOLD the said land and mine and all and singular the premises hereby demised for the full term of twenty one years ... for the purposes but upon and subject to the terms, covenants and conditions set out in the [State] Agreement and to the Mining Act (as modified by the [State] Agreement) YIELDING and paying therefor the rent and royalties as set out in the [State] Agreement". The instrument further provided that "this lease is subject to the observance and performance" by the joint venturers of certain covenants and conditions, including that the joint venturers "use the land bona fide exclusively for the purposes of the [State] Agreement". Subsequent activities In accordance with their obligations under the State Agreement, the joint venturers developed the Mount Goldsworthy iron ore project. Construction of the townsite and mine operations on the land the subject of ML 235 began in 1965. A town of over 200 houses (and separate single men's quarters) was built, together with roads, a shopping centre, a school, clubs and sporting facilities, a medical centre, a police station and other associated works. In 1977, the town reached a maximum population of 1,400 people. Together, the minesite infrastructure and the town covered about one third of the area of ML 235. (The parties agreed that there was no evidence that any significant construction was carried out on the remainder of the area of ML 235.) Mining was conducted using open pit mining. Before mining began, the peak of Mount Goldsworthy was about 132 metres above sea level. When mining stopped, Mount Goldsworthy had been transformed into a pit about 135 metres below sea level. The mine was closed in December 1982. The town was closed in 1992. The town has since been completely removed and the land on which it stood restored. The pit remains, but is now filled with water. Procedural history Alexander Brown and others (on behalf of the Ngarla People) applied to the Federal Court of Australia for native title determinations in respect of land and waters in the Pilbara region of Western Australia. The claimed areas included the areas subject to the two mineral leases referred to at the start of these reasons. On 30 May 2007, the primary judge (Bennett J) made a consent determination of native title with respect to part of the claimed areas other than the areas the subject of the mineral leases. On 5 October 2007, the primary judge ordered the trial of some questions relating to the effect of the grant of the mineral leases. The order recorded that it was agreed that, subject to the answers given to the questions, "native title exists in the land [the subject of the mineral leases] in the manner recognised" in the consent determination which had been made on 30 May 2007. The questions included the following: "(1) Did the grant of the [mineral] leases pursuant to the ... State Agreement confer on the holders of those leases a right of exclusive possession such that any native title rights and interests were wholly extinguished? (2) If the grant of the [mineral] leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the [mineral] leases and the ... State Agreement inconsistent with any or all of the bundle of native title rights and interests recognised in [the consent determination of 30 May 2007]? If the answer is 'yes', which ones? (3) If the answer to (2) is 'yes', in relation to any and each of such native title rights which are inconsistent, are these rights wholly extinguished? (4) Was native title wholly extinguished to the area (or part of the area) of the [mineral] leases through the rights as exercised under the [mineral] leases and the ... State Agreement? (5) If the answer to (4) is 'yes', in which areas has native title been wholly extinguished?" For the purposes of the trial of those separate questions, the parties submitted a statement and chronology of agreed relevant facts and a statement and chronology of further undisputed facts, the relevance of which was contested. On the trial of the separate questions, the primary judge held that the mineral leases (ML 235 and ML 249) did not confer on the joint venturers a right of exclusive possession such that any native title rights and interests were wholly extinguished. The primary judge further held, however, that the rights granted pursuant to ML 235 and ML 249 and the State Agreement were inconsistent with the continued existence of any of the determined native title rights and interests "in the area where the mines, the town sites and associated infrastructure were constructed". The rights which the joint venturers exercised with respect to this "developed" area were said to be "analogous to rights of exclusive possession". But the analogy was neither explored nor explained further. Her Honour subsequently made a determination of native title reflecting the conclusions which have been described. The holding of inconsistency, and consequent extinguishment of native title, on account of activities undertaken by the joint venturers on the land the subject of the mineral leases subsequent to the grant of those interests, followed from the decision of the Full Court of the Federal Court in De Rose v South Australia (No 2). It will be necessary to say more about that decision but, in order to understand the subsequent procedural history of this matter, two points should be made about it now. The Full Court held in De Rose (No 2) that the grant in a pastoral lease of the right to construct improvements on the land (such as a dwelling house or shed), when exercised, was inconsistent with native title rights to access and move about the land, hunt and gather on the land, camp on the land, engage in ceremonies and cultural activities on the land and maintain and protect places of significance. The Full Court further held that construction of improvements by the holders of the pastoral lease on the land extinguished native title rights and interests in the land on which the improvements were constructed and in any adjacent land reasonably necessary for or incidental to the operation or enjoyment of the improvements. In the present matter, the native title holders appealed to the Full Court of the Federal Court against the orders and determination made by the primary judge. They alleged, in effect, that her Honour should have held that their native title rights and interests were not extinguished to any extent by the grant of the mineral leases or by any subsequent activities on the leased land. The State of Western Australia and the joint venturers each cross‑appealed against the determination. Each alleged that the claimed native title rights and interests were wholly extinguished over the whole of the area of the mineral leases, either because those leases conferred on the holders a right of exclusive possession or because the rights granted by the leases and the State Agreement were inconsistent with all of the native title rights and interests. On 5 November 2012, the Full Court (Mansfield, Greenwood and Barker JJ) published reasons for judgment and made orders that the appeal by the native title holders "be upheld" and the cross‑appeals by the State and the joint venturers be dismissed. The Full Court divided in opinion, principally about what consequences followed from the joint venturers having exercised their rights under the mineral leases to build the mine, the town and associated facilities. Mansfield J concluded that the orders and reasons of the primary judge were correct. Greenwood J held that the native title rights and interests of the Ngarla People were not extinguished by the grant of the mineral leases but that the exercise of the rights granted by the leases would prevent the exercise of native title rights over any part of the leased land for so long as the joint venturers hold rights under the leases. Barker J also held that the native title rights and interests were not extinguished but held that, to the extent that native title rights and interests could not be exercised or enjoyed by reason of the incompatibility of activities conducted by the joint venturers, the exercise of the native title rights and interests "yielded" to the joint venturers' exercised rights. Subsequently, on 22 February 2013, the Full Court set aside the determination of native title made by the primary judge and made a new determination in a form proposed by the native title holders. Because these reasons will show that subsequent use of the land the subject of the mineral leases is irrelevant to the issue of extinguishment, it is not necessary to explore the differences between the members of the Full Court or the particular resolution of those differences which was reflected in the substituted determination of native title. It is sufficient to complete the description of the procedural history of the matter by noting that, by special leave, the State appeals to this Court against the orders of the Full Court. The State again advances the argument (advanced in the Full Court) that native title rights and interests were wholly extinguished over the whole of the area of the mineral leases, either because those leases conferred on the holders a right of exclusive possession or because the rights granted by the leases and the State Agreement were inconsistent with all of the native title rights and interests. In the alternative, the State submits that the native title rights and interests were extinguished "in respect of those lands ... on which the [joint venturers] exercised their rights to develop and construct mines, a town and associated works". The joint venturers did not appeal against the orders made by the Full Court. They made submissions supporting the State in its appeal. The Attorney‑General for the State of South Australia was granted leave to appear and make submissions as amicus curiae. Extinguishment This is an appeal against a determination of native title made under the Native Title Act 1993. The Native Title Act 1993 therefore "lies at the core of this litigation". As noted earlier in these reasons, both of the mineral leases (ML 235 and ML 249) were granted before the enactment of the Racial Discrimination Act 1975. No party submitted that the provisions of that Act are engaged in any relevant way. In both the Full Court of the Federal Court and this Court, it was common ground that none of the provisions of the Native Title Act 1993 dealing with "past acts", "intermediate period acts" or "previous exclusive possession acts" applied. That is, it was common ground, in both the Full Court and this Court, that the question of extinguishment which lies behind the determination sought under the Native Title Act 1993 was not governed by statute. Did the grant of the mineral leases extinguish some or all of the claimed native title rights and interests? To answer this question, it is necessary, as the plurality held in Ward, to ask "whether the rights [granted] are inconsistent with the alleged native title rights and interests". This question is "an objective inquiry which requires identification of and comparison between the two sets of rights". Each stage of this inquiry - identification of rights and comparison between rights - will be considered in turn. Identifying the rights The identification of the relevant rights is an objective inquiry. This means that the legal nature and content of the rights must be ascertained. The nature and content of a right is not ascertained by reference to the way it has been, or will be, exercised. That is why the plurality in Ward said that consideration of the way in which a right has been exercised is relevant only in so far as it assists the correct identification of the nature and content of the right. The claimed native title rights and interests As was said in Ward, "[q]uestions of extinguishment first require identification of the native title rights and interests that are alleged to exist". As already noted, the nature and extent of those rights was agreed in this case. It was agreed that those rights were non‑exclusive rights to access and camp on the land, to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land, to engage in ritual and ceremony on the land and to care for, maintain and protect from physical harm particular sites and areas of significance. It is important to recognise that particular considerations apply to the identification of native title rights and interests. In examining the "intersection of traditional laws and customs with the common law" (or, in this case, the intersection with rights derived from statute), it is important to pay careful attention to the content of the traditional laws and customs. It is especially important not to confine the understanding of rights and interests which have their origin in traditional laws and customs "to the common lawyer's one‑dimensional view of property as control over access". Yet it is no less important to recognise that, as Fejo v Northern Territory made clear, a right of exclusive possession affords the holder the right to "use the land as he or she sees fit and [to] exclude any and everyone from access to the land" (emphasis added). The grant of a right to exclude any and everyone from access to the land for any reason or no reason is inconsistent with the continued existence not only of any right in any person other than the grantee to gain access to the land but also of any right which depends upon access to the land. Determining inconsistency The determination of whether two or more rights are inconsistent is also an objective inquiry. The question of inconsistency of rights can always be decided at the time of the grant of the allegedly inconsistent rights. And it must be decided by reference to the nature and content of the rights as they stood at the time of the grant. At that time, were the rights as granted inconsistent with the relevant native title rights and interests? As these reasons will later demonstrate, to the extent to which the decision in De Rose (No 2) countenances a notion of contingent extinguishment (contingent on the later performance of some act in exercise of the "potentially inconsistent" rights granted), it is wrong and should not be followed. In the present case, then, the question of inconsistency is to be determined at the time of the grant of the relevant mineral leases. What the joint venturers did or did not do in exercise of the rights granted under the mineral leases is important only to the extent to which it directs attention to the nature and content of the rights which were granted. There cannot be "degrees of inconsistency of rights". "Two rights are inconsistent or they are not. If they are inconsistent, there will be extinguishment to the extent of the inconsistency; if they are not, there will not be extinguishment." As counsel for the native title holders put the point in argument in this Court, inconsistency is that state of affairs where "the existence of one right necessarily implies the non‑existence of the other". And one right necessarily implies the non‑existence of the other when there is logical antinomy between them: that is, when a statement asserting the existence of one right cannot, without logical contradiction, stand at the same time as a statement asserting the existence of the other right. The joint venturers and South Australia sought to formulate a test for determining whether rights granted are inconsistent by analogy with s 109 of the Constitution. Reference was made to notions of "direct" and "indirect" inconsistency and to whether the existence or enjoyment of native title rights would alter, impair or detract from the enjoyment of a right conferred by statute. Yet, as was acknowledged in argument, the analogy is necessarily imperfect. An inconsistent State law is inoperative only for so long as there is inconsistent federal law. A native title right, once extinguished, cannot be revived. More fundamentally, however, the analogy is apt to mislead, at least to the extent to which it directs attention to the enjoyment of rights rather than the necessary comparison between the legal nature and content of the right granted and the native title right asserted. The analogy should not be pursued. It is convenient to turn to the task of identifying the rights which the State granted to the joint venturers pursuant to the Iron Ore (Mount Goldsworthy) Agreement Act 1964 and comparing those rights with the claimed native title rights and interests. Exclusive possession? As noted earlier, the State (supported by the joint venturers) submitted that the mineral leases granted the joint venturers exclusive possession of the land the subject of the instruments. Three points may be made about ML 235 which apply equally to ML 249. First, like any mineral lease granted under the Mining Act 1904, ML 235 was described as a kind of lease: a "mineral lease". The instrument used the term "demise". It granted and demised identified land as well as mines, veins, seams, lodes and deposits of a mineral in, on or under that land. As with the mining leases considered in Ward, the rights and obligations of the joint venturers are not to be determined by fastening upon the use of the words "lease" or "demise", or by noticing that there was a demise of land as well as mines. As Toohey J said in Wik Peoples v Queensland, "[a] closer examination is required". It is necessary to identify the rights which are actually conferred upon the joint venturers. And that leads to the second point to be noticed. The grant was expressed to be "for the purposes but upon and subject to the terms, covenants and conditions set out in the [State] Agreement". The joint venturers were required to use the land "bona fide exclusively for the purposes of the [State] Agreement". Read as a whole, in the context provided by the State Agreement, the instrument provided for a "mineral lease" of the kind understood by the common law and described in Newcrest Mining (WA) Ltd v The Commonwealth. That is, the instrument gave the joint venturers liberty to go into and under the land, during the currency of the mineral lease, and to get and take away the iron ore that they found there. This being the nature of the right granted to the joint venturers, the third point to be made is that neither the instrument itself nor the State Agreement provided expressly that the joint venturers were not only to have possession of the land which was the subject of the mineral lease for the purposes which have been described but also to have the right to exclude any and everyone from that land for any reason or no reason at all. On the contrary, as already noted, the State Agreement provided expressly that the joint venturers must allow not only the State but also third parties to have access over the land the subject of the mineral lease, provided that the access did not "unduly prejudice or interfere with" the joint venturers' operations. This express provision precludes construing the leases as impliedly providing a right of exclusive possession. It follows that neither ML 235 nor ML 249 gave the joint venturers a right of the kind identified in Fejo: the unqualified right to exclude any and everyone from access to the land, for any reason or no reason. The joint venturers could prevent anyone else from using the land for mining purposes and could use any part of the land for the extraction of iron ore or for any of the associated purposes described in the State Agreement (such as building a town, roads and railway). It may be accepted that the grant of these rights would be inconsistent with a native title right of the kind which was at issue in Ward: a native title right to control access to land (for any purpose or no purpose). But no right of that kind was in issue in this case. Neither instrument gave the joint venturers the right to exclusive possession of the land. The first branch of the State's argument must be rejected. Extinguishment by actual or potential conflicting use? The alternative arguments advanced by the State depended, directly or indirectly, on the proposition that extinguishment could be demonstrated by showing that native title rights could clash with rights under the mineral leases in the sense that the rights could not be exercised simultaneously in the one place. That is, the State's alternative arguments were founded in the observation that a native title holder could not hunt over land being excavated to recover iron ore or over land on which there stood one of the houses in the town. And because the mineral leases gave the joint venturers the right to mine anywhere on the land and the right to build many and very large improvements anywhere on the land, the State submitted that the rights granted by the leases were wholly inconsistent with the claimed native title rights and interests at the time of the grant of the mineral leases, or at least became so when the joint venturers exercised their rights. It follows from what has already been said in these reasons that these arguments must be rejected. It is as well, however, to examine further the flawed premises upon which the arguments depend. The State sought to support its broader proposition (that a right to mine or build anywhere on the land was wholly inconsistent with the claimed native title rights and interests) by reference to the reasons of Brennan CJ in Wik. Particular emphasis was given to his Honour's statement that "[t]he law ... cannot recognise the co‑existence in different hands of two rights that cannot both be exercised at the same time". This statement must be understood in the context in which it appears. In particular, it is important to notice that, in the very paragraph from which the statement relied on by the State was taken, Brennan CJ emphasised that extinguishment of native title does not depend upon the exercise of the allegedly inconsistent right: the inconsistency is, as his Honour said, "between the rights" and not "between the manner of their exercise" (emphasis added). That is, questions of extinguishment must be resolved as a matter of law, not as a matter of fact. Hence, inconsistency arises "at the moment when those [inconsistent] rights are conferred". These propositions, though stated in a dissenting judgment, state principles which must now be taken to be firmly established. In Wik, the Court divided on whether the pastoral leases in issue in that case gave the holders a right of exclusive possession (in the sense of a right to exclude any and everyone from the land for any reason or no reason). The majority concluded that the relevant pastoral leases did not give such a right to their holders and that it followed that there was no necessary extinguishment of native title rights and interests. Brennan CJ, and other Justices who dissented, concluded that the pastoral leases did give the holders exclusive possession. The statement by Brennan CJ, on which the State placed such emphasis, responded to the argument advanced on behalf of the Wik and Thayorre Peoples that only practical inconsistency between the exercise of competing rights can extinguish native title rights and interests. The observation which Brennan CJ made about simultaneous exercise of rights was made in answer to the argument that the manner of exercise of the competing rights was relevant to the question of extinguishment. As has already been seen, that argument was rejected. But the observation answered that argument because, even if the argument were correct, the rights that could not both be exercised at the same time were, on the one hand, rights such as a right to hunt and gather on the land and, on the other, the leaseholder's right to exclude any and everyone from the land for any reason or no reason. Two other submissions made by the State may be noted at this point, but put aside from consideration. It is not to the point to observe, as the State did, that other forms of land tenure might have been granted to the joint venturers. Nor is it to the point to observe, as the State did, that the State Agreement obliged the State not to resume or rezone the land which was the subject of the mineral leases and that the holder of an interest in fee simple in land will seldom have the benefit of such obligations. Even if it is right to say, as the State did, that in these respects the joint venturers had rights that were greater than those of the holder of a fee simple, the observation is irrelevant to the question of extinguishment. The joint venturers' rights to insist upon performance of these obligations did not intersect in any way with the claimed native title rights and interests. The decisions in both Wik and Ward established that the grant of rights to use land for particular purposes (whether pastoral, mining or other purposes), if not accompanied by the grant of a right to exclude any and everyone from the land for any reason or no reason, is not necessarily inconsistent with, and does not necessarily extinguish, native title rights such as rights to camp, hunt and gather, conduct ceremonies on land and care for land. As the State rightly pointed out, both Wik and Ward were decided before the native title rights claimed had been determined. But neither case could have been determined as it was if, as the State submitted, the grant of rights to perform acts or erect structures on land was necessarily inconsistent with the native title rights and interests claimed in this case. And contrary to the submissions made by the State, observing that the Mount Goldsworthy iron ore project was very large, requiring a large mine and extensive associated facilities, founds no tenable legal distinction between this case and the earlier decisions of this Court. Rather, it is necessary to ask whether the existence of the rights granted to the joint venturers necessarily implied that the claimed native title rights and interests could no longer exist. For the reasons which have been given, the mineral leases in issue in this case did not give the joint venturers a right of exclusive possession. In this respect, the mineral leases were no different from the pastoral leases considered in Wik, the mining leases considered in Ward or the Argyle mining lease also considered in Ward. The mineral leases did not give the joint venturers the right to exclude any and everyone from any and all parts of the land for any reason or no reason. The joint venturers were given more limited rights: to carry out mining and associated works anywhere on the land without interference by others. Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land. (No party submitted that any distinction should be drawn between the several native title rights and interests that were claimed.) That the rights were not inconsistent can readily be demonstrated by considering the position which would have obtained on the day following the grant of the first of the mineral leases. On that day, the native title holders could have exercised all of the rights that now are claimed anywhere on the land without any breach of any right which had been granted to the joint venturers. That being so, there was not then, and is not now, any inconsistency between the rights granted to the joint venturers and the claimed native title rights and interests. The State's larger alternative submission (that the grant of rights to mine and build improvements anywhere on the land was wholly inconsistent with the claimed native title rights and interests) should be rejected. There remains for consideration the State's narrower alternative submission that the claimed native title rights and interests were extinguished when the joint venturers exercised their rights to develop and construct mines, a town and associated works. It is convenient to refer to this submission as asserting extinguishment by development. Extinguishment by development? The submission that there could be (and in this case was) extinguishment of native title by the exercise of rights granted by or under statute should be rejected. As has already been explained, the submission is directly contrary to the principles established and applied in both Wik and Ward and postulates a test for inconsistency which turns upon the manner of exercise of one of the allegedly competing rights rather than upon the right's nature and content. As Brennan CJ said in Wik, that would deny the law's capacity to determine the priority of rights over or in respect of the same piece of land. No less importantly, as Brennan CJ also pointed out, "[t]o postulate extinguishment of native title as dependent on the exercise of the private right of the lessee (rather than on the creation or existence of the private right) would produce situations of uncertainty, perhaps of conflict" (emphasis added). The decision of the Full Court of the Federal Court in De Rose (No 2) has already been mentioned. The decision proceeded from a misunderstanding of what was decided in Ward. It assumed, wrongly, that the principles applied in Ward permit the deferral of consideration of extinguishment until the manner of exercise of the allegedly inconsistent and extinguishing rights is known. So to proceed would be to return to and adopt the argument about practical inconsistency advanced but rejected in Wik. De Rose (No 2) was not, and this is not, a case in which the "operation of a grant of rights [was] subjected to conditions precedent or subsequent". That is, De Rose (No 2) was not, and this is not, a case in which the rights were "incapable of identification in law without the performance of a further act or the taking of some further step beyond that otherwise said to constitute the grant". To understand the grant of a right as being subject to a "condition precedent" that consists in the granted right being exercised is to fall into confusion. The decision in De Rose (No 2) assumed, again wrongly, that the permitted construction of an improvement on land held under a "lease" which did not give a right of exclusive possession necessarily affected the existence of native title rights and interests rather than the manner of their exercise. That is, the decision treated extinguishment as determined by the manner of exercise of the allegedly inconsistent right rather than, as it must be, by the nature and content of the two rights which are said to be inconsistent. As the State rightly pointed out, the mineral leases gave the joint venturers the right to mine anywhere on the land and the right to build improvements anywhere on the land. But the mineral leases did not provide that the joint venturers must use the whole of the land for mining or associated works. Had the mineral leases provided that the whole of the land must be used in a way which would not permit any use of the land by native title holders, it may have been open to construe the mineral leases as providing for the joint venturers to exclude any and everyone from the whole of the land for any reason or no reason. But, as has been explained, that is not what these mineral leases provided. In the end, then, the State's narrower alternative argument reduces to the practical observation that two persons cannot occupy the one place. When the joint venturers built a house in the town, native title holders could not (for example) hunt and gather on the land which that house occupied. And the rights which the joint venturers had, and exercised, took and continue to take priority over the rights and interests of the native title holders for so long as the joint venturers enjoy and exercise those rights. Any competition between the exercise of the two rights must be resolved in favour of the rights granted by statute. But when the joint venturers cease to exercise their rights (or their rights come to an end) the native title rights and interests remain, unaffected. Conclusion and orders For these reasons, the State's appeal must be dismissed with costs. The joint venturers should bear their own costs. There being no cross‑appeal against the determination made by the Full Court, that determination stands.
Western Australia
Brown
Appeal dismissed with costs; the determination of native title made by the Full Court of the Federal Court stands.