Australia: Courts says leases do not end native title



Date of publication: 
13 March 2014

MINING leases do not extinguish native title rights and can result in rights to camp, visit sacred sites, hunt and fish being suspended only for the life of a mine, the High Court ruled in a major decision yesterday.

The ruling was a win for the Ngarla people of Western Australia’s Pilbara region, but lawyers warned it could result in less compensation being paid by miners to indigenous people because native title rights were only suspended and not ended permanently.

The unanimous ruling is also likely to mean mining companies and pastoral lease holders will need to negotiate the location of fences and access to sites so they take account of native title rights.

Simon Hawkins, chief executive of the Yamatji Marlpa Aboriginal Corporation, which represented the Ngarla people, said the ramifications of the case were “enormous”.

He said the case overruled previous case law that suggested improvements relating to pastoral leases, including houses, windmills, fences and other infrastructure, extinguished native title.

Mr Hawkins said this would result in numerous native title claims over pastoral land around Australia being reopened.

He said miners, pastoralists and traditional owners would also need to negotiate access to areas close to mines or pastoral activities to enable the exercise of traditional rights without affecting operations or safety.

“For example, if they’re going to muster cattle, to what extent should people be near or around that, and what’s fair in terms of keeping a distance to those operations so it doesn’t impact on them?” Mr Hawkins said. “Those discussions are very practical – it shouldn’t be seen as any sort of threatening thing.”

The High Court decision yesterday related to the Mount Goldsworthy iron ore mine in the Pilbara region, construction of which began in 1965. The mine, which has since closed, included a large open pit mine, a town of 200 houses, a shopping centre, school and other infrastructure.

Western Australia argued the mining leases had extinguished native title.

However, the High Court said it did not do so because the leases did not give the miners a right of exclusive possession. Rather, it gave them more limited rights to carry out mining and associated works. “Those more limited rights were not, and are not, inconsistent with the coexistence of the claimed native title rights and interests over the land,” the court said.

The judges said whenever the rights of miners and native title holders conflicted, miners’ rights took priority.

For example, native title holders could not hunt and gather on land on which a miner’s house had been built.

“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,” the court said.

Allens mining and native title partner Marshall McKenna said previously the High Court had said mining leases did not necessarily extinguish native title. Now it was clear they did not do so.

He said the case could mean less compensation being paid.

BHP Billiton welcomed the certainty the decision provided on the impact of native title rights on state agreement tenure.