FEDERAL COURT OF AUSTRALIA Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 Citation: Brown (on behalf of the Ngarla People) v State of Western Australia (No 2) [2010] FCA 498 Parties: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE) v STATE OF WESTERN AUSTRALIA and BHP BILLITON MINERALS PTY LTD, ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD, MITSUI IRON ORE CORPORATION PTY LTD File number: WAD 6185 of 1998 Judge: BENNETT J Date of judgment: 21 May 2010 Corrigendum: 29 July 2010 Catchwords: NATIVE TITLE – common law extinguishment – particular non-exclusive native title rights agreed to exist subject to extinguishment – mineral leases granted pursuant to an agreement between the State and leaseholders ratified by specific legislation – purposes of agreement extended beyond mining – leaseholders conducted open cut mining, built a township and other infrastructure on one third of the leased area – the mine and town now closed and area rehabilitated – whether mineral leases conferred right of exclusive possession – whether rights granted by the mineral leases are inconsistent with the native title rights – whether grant of mineral leases extinguished the native title rights over the entire leased area or only the developed leased areas – relevance of actual exercise of rights by the leaseholders or by the native title holders - relevance of rehabilitation Legislation: Native Title Act 1993 (Cth) Part 2 Div 2, 2B and Div 3 Subdiv 1, s 245 Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) Mining Act 1904 (WA) Mining Act 1978 (WA) Cases cited: Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 referred to Daniel v State of Western Australia [2003] FCA 666 considered Daniel v State of Western of Australia [2003] FCA 1425 considered De Rose v South Australia (No 2) (2005) 145 FCR 290 applied Fejo v Northern Territory of Australia (1998) 195 CLR 96 applied King v Northern Territory (2007) 162 FCR 89 considered Neowarra v State of Western Australia [2003] FCA 1402 cited Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442 discussed State of Western Australia v Ward (2002) 213 CLR 1 applied Western Australia v Ward (2000) 99 FCR 316 discussed Wik Peoples v State of Queensland (1996) 187 CLR 1 considered Wilson v Anderson (2002) 213 CLR 401 cited Yanner v Eaton (1999) 201 CLR 351 considered Dates of hearing: 14 and 15 July 2009 Date of last submissions: 11 September 2009 Place: Perth Division: General Category: Catchwords Number of paragraphs: 233 Counsel for the Applicants: Ms R Webb QC, Ms C Tan Solicitors for the Applicants: Pilbara Native Title Service Counsel for the First Respondent: Mr G Ranson Solicitors for the First Respondent: State Solicitor for Western Australia Counsel for BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd: Mr G Donaldson SC, Mr J Garas Solicitors for BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd: Blake Dawson IN THE FEDERAL COURT OF AUSTRALIA Western australia DISTRICT REGISTRY GENERAL DIVISION WAD 6185 of 1998 BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE) Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent BHP BILLITON MINERALS PTY LTD ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD MITSUI IRON ORE CORPORATION PTY LTD Fourth Respondent JUDGE: BENNETT J DATE of corrigendum: 29 july 2010 PLACE: PERTH CORRIGENDUM 1 This judgment was originally issued with the following respondents: · First Respondent – State of Western Australia · Third Respondent – Yamatji Marlpa Barna Baba Maaja Aboriginal Corporation · Fourth Respondent – BHP Billiton Minerals Pty Ltd, Boral Contracting Pty Ltd, Boral Resources (WA) Ltd, Dampier Salt Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd 2 The respondents have now been changed to the following: · First Respondent – State of Western Australia · Fourth Respondent – BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd 3 Paragraph 6 of the original judgment, which consisted of the following, has been deleted. 6 The third respondent, in its capacity as the Pilbara Native Title Service, has represented the applicants for the hearing of the preliminary questions but has not participated in its own role as a party to the proceedings. The fourth respondents Boral Contracting Pty Ltd, Boral Resources (WA) Ltd and Dampier Salt Ltd have not played an active part in the hearing of the preliminary questions. The judgment has been re-certified to reflect this change in the number of paragraphs. 4 On the cover page, the words "Counsel for the Third Respondent: The Third Respondent did not appear." have been deleted. 5 In the header to the judgment, the words "NEW SOUTH WALES DISTRICT REGISTRY" are amended to "WESTERN AUSTRALIA DISTRICT REGISTRY". I certify that the preceding five (5) paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 29 July 2010 IN THE FEDERAL COURT OF AUSTRALIA western australia DISTRICT REGISTRY GENERAL DIVISION WAD 6185 of 1998 BETWEEN: ALEXANDER BROWN, JEFFREY BROWN, CLINTON COOKE AND CHARLIE COPPIN (ON BEHALF OF THE NGARLA PEOPLE) Applicant AND: STATE OF WESTERN AUSTRALIA First Respondent BHP BILLITON MINERALS PTY LTD ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY LTD MITSUI IRON ORE CORPORATION PTY LTD Fourth Respondent JUDGE: BENNETT J DATE: 21 MAY 2010 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION.......................................................................................................... [1] THE AGREED FACTS................................................................................................... [6] Goldsworthy – Lease 235............................................................................................ [13] The mine site............................................................................................................... [19] Ore handling (including crushing)............................................................................... [21] Heavy machinery and equipment............................................................................... [22] Operating hours and access........................................................................................ [23] Railway........................................................................................................................ [24] Roads........................................................................................................................... [25] Power and lighting....................................................................................................... [26] Communications.......................................................................................................... [28] Water supply................................................................................................................ [29] Sewage......................................................................................................................... [30] Quarry.......................................................................................................................... [31] Workshops................................................................................................................... [32] Airstrip......................................................................................................................... [33] Explosives depot.......................................................................................................... [34] Pond.............................................................................................................................. [35] Other structures.......................................................................................................... [36] The township................................................................................................................ [37] FACTS NOT IN DISPUTE............................................................................................. [41] Rehabilitation of the land (claimed by the tenement holders and the State to be irrelevant).................................................................................................................... [42] Evidence about exercise of native title rights (claimed by the tenement holders to be irrelevant)............................................................................................................... [44] Mr Miller.................................................................................................................. [44] Charlie Coppin........................................................................................................ [46] Alexander Brown.................................................................................................... [48] Ord Ridley deposits (objected to as irrelevant by the applicants)............................ [49] Potential magnetite mining operations – Lease 235 and sections 1 and 2 of Lease 249 (objected to as irrelevant by the applicants)....................................................... [52] Shay Gap (the relevance of which is challenged by the applicants).......................... [55] Newman – Mt Whaleback (the relevance of which is challenged by the applicants).................................................................................................................... [57] THE NATIVE TITLE ACT............................................................................................ [58] The treatment of mining leases in the NTA............................................................... [63] Application of the NTA in the present case............................................................... [65] COMMON LAW EXTINGUISHMENT...................................................................... [67] The principles to be applied: the key authorities on common law extinguishment.. [73] Western Australia v Ward....................................................................................... [73] De Rose v South Australia (No 2).......................................................................... [86] Daniel v State of Western Australia [2003] FCA 666........................................... [94] Daniel v State of Western of Australia [2003] FCA 1425..................................... [102] Northern Territory v Alyawarr............................................................................... [105] King v Northern Territory...................................................................................... [108] Inconsistency............................................................................................................... [110] Mining leases.............................................................................................................. [121] THE STATUTORY GRANT OF RIGHTS TO THE HOLDERS OF THE MT GOLDSWORTHY LEASES........................................................................................... [130] The Mining Act 1904 (WA)......................................................................................... [130] The Agreement and the Mt Goldsworthy Leases..................................................... [134] The rights granted by the Mt Goldsworthy Leases................................................... [148] The tenement holders' submissions........................................................................ [148] The applicants' submissions................................................................................... [158] CONSIDERATION........................................................................................................ [161] Question 1: Did the grant of the Mt Goldsworthy Leases pursuant to the Agreement confer on the holders of those Leases a right of exclusive possession such that any native title rights and interests were wholly extinguished?................ [175] Question 2: If the grant of the Mt Goldsworthy Leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the Mt Goldsworthy Leases and the Agreement inconsistent with any or all of the bundle of determined native title rights and interests? If the answer is "yes", which ones?...................................................................................... [189] The tenement holders' submissions........................................................................ [189] The applicants' submissions................................................................................... [194] Answer..................................................................................................................... [201] Question 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?..... [210] Question 4: Was native title wholly extinguished to the area (or part of the area) of the Mt Goldsworthy Leases through the rights as exercised under the Mt Goldsworthy Leases and the Agreement?................................................................. [213] Question 5: If the answer to (4) is "yes", in which areas has native title been wholly extinguished?................................................................................................... [219] CONCLUSION............................................................................................................... [229] INTRODUCTION 1 The applicants claim native title over certain land in Western Australia. A consent determination was made in respect of part of the land over which the applicants claimed native title (Brown (on behalf of the Ngarla People) v State of Western Australia [2007] FCA 1025 (Brown No 1)). In that consent determination some areas, designated Determination Area B and set out in the Second Schedule to the determination, were specifically excluded. One part of Determination Area B was an area subject to two mineral leases granted pursuant to the agreement (the Agreement) amended and ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 (WA) (the Agreement Act). They are Mineral Leases (Special Agreement) ML235SA (Lease 235) granted on 17 February 1966 and Mineral Leases (Special Agreement) ML249SA (Lease 249) granted on 21 August 1973 (together, the Mt Goldsworthy Leases). The Mt Goldsworthy Leases are in the form of the lease scheduled to the Agreement. There is no dispute as to their validity. 2 With the consent of the parties, I ordered that a number of preliminary questions be determined pursuant to O 29 r 2 of the Federal Court Rules, with those questions to be decided separately from any other question in the proceedings. The relevant claim area for the purposes of these preliminary questions is those parts of Determination Area B which are subject to the Mt Goldsworthy Leases. The parties agree that the native title rights and interests recognised in [5] of Annexure A of the determination of native title in Brown No 1 exist over the land and waters of the relevant claim area unless those native title rights and interests have been extinguished. Those rights are the non-exclusive rights to: 1. access, and to camp on, the land and waters; 2. take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters; 3. engage in ritual and ceremony; and 4. care for, maintain and protect from physical harm particular sites and areas of significance to the common law holders (the determined native title rights). Relevantly, as confirmed in [5] of Annexure A of the determination, the determined native title rights do not confer possession, occupation, use and enjoyment on the common law holders to the exclusion of all others, nor a right to control the access of others to the land and waters of the relevant claim area. 3 The preliminary questions as to the existence of those native title rights and interests over the relevant claim area are as follows (the preliminary questions): 1. Did the grant of the Mt Goldsworthy Leases pursuant to the Mt Goldsworthy 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 Mt Goldsworthy Leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement inconsistent with any or all of the bundle of native title rights and interests recognised in [5] of Annexure A of the determination of native title in Brown No 1? 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 Mt Goldsworthy Leases through the rights as exercised under the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement? 5. If the answer to (4) is "yes", in which areas has native title been wholly extinguished? 6. Are all or part of the areas of the Mt Goldsworthy Leases excluded from the area of WAD 6185 of 1998 on the basis that they are: (a) "relevant acts" as that term is defined in section 12I of the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (the TVA); or (b) an area to which native title rights and interests have otherwise been wholly extinguished, and if so, which areas? 4 The parties have since agreed that question 6 does not arise. I will not deal with it further. 5 The remainder of Determination Area B, being those areas which are not subject to the Mt Goldsworthy Leases, is now being dealt with in separate proceedings known as the "Ngarla Overlap proceeding" (WAD 6185 of 1998, WAD 77 of 2005, part WAD 6003 of 2000 and part WAD 82 of 1998) as there are overlapping native title claims over those areas. Consequently, the only remaining questions to be dealt with in the present proceedings are the preliminary questions. THE AGREED FACTS 6 The parties have filed a statement of agreed relevant facts. I have had regard to that statement of which the following is a summary. 7 The fourth respondents BHP Billiton Minerals Pty Ltd, Itochu Minerals & Energy of Australia Pty Ltd and Mitsui Iron Ore Corporation Pty Ltd (the tenement holders) are, pursuant to assignment, the current 'Joint Venturers' under the Agreement and the current lessees of the Mt Goldsworthy Leases. They are the current participants in the Mt Goldsworthy Mining Associates (MGMA) Joint Venture which was formed, originally, in 1960. Goldsworthy Mining Limited (GML) was formed in 1965 as the operating company for the MGMA Joint Venture. BHP Billiton Iron Ore Pty Ltd (BHP BIO) is the current manager of the MGMA Joint Venture. I will refer to the Joint Venturers under the Agreement and the lessees of the Mt Goldsworthy Leases from time to time as the Joint Venturers. 8 The original Joint Venturers submitted to the State of Western Australia (the State) a tender for the mining, transport and shipment of iron deposits at Goldsworthy. On 27 February 1962 the State and MGMAexecuted an agreement for the development of the iron deposits at Goldsworthy. Under this agreement the State was required, on the application of the original Joint Venturers, to grant to the original Joint Venturers a temporary reserve under the Mining Act 1904 (WA) (the Mining Act 1904) in respect of the 'mining area' identified in the agreement, being an area at and surrounding Goldsworthy. It also contained a term providing for the grant of a mineral lease over the "mining area" in terms of the lease scheduled to that agreement. The agreement was ratified by the Iron Ore (Mount Goldsworthy) Agreement Act 1962 (WA) (the 1962 Act) which came into force on 27 September 1962. The agreement was varied by the variation agreement ratified by the Iron Ore (Mount Goldsworthy) Agreement Act Amendment Act 1963 (WA) (the 1963 Amendment Act) which came into force on 17 December 1963. 9 On 15 October 1964 the Western Australian government and the MGMA executed the Agreement which was ratified by the Agreement Act which came into force on 23 December 1964. The Agreement Act repealed the 1962 Act and the 1963 Amendment Act. The Agreement has been varied three times, in 1971, 1994 and 2000. On each occasion the variation agreement was ratified by a State Act. 10 Lease 235 was granted pursuant to an obligation of the State to do so under clause 8(2)(a) of the Agreement. The term of that lease commenced on 5 August 1965 and expires on 4 August 2028. Lease 235 was granted over land that comprised 'Mining Area A' as defined in the Agreement. Mining Area A encompasses Mt Goldsworthy. 11 Lease 249 was granted pursuant to the obligation under clause 11(6) of the Agreement. The term of that lease commenced on 8 May 1974 and after renewal expires on 4 August 2028. That lease covers 21 non-contiguous areas of land, or 21 sections, of which only 5 sections are within the claim area. Lease 249 was granted over part of the land that comprised 'Mining Area B' as defined in the Agreement. MGMA surrendered its rights of occupancy over the balance of Mining Area B that did not form part of Lease 249. 12 As part of its obligations under the Agreement, MGMA were required to submit to the State various proposals with respect to: · the development of Mining Area A; · the construction of a railway from Goldsworthy to a port installation; · the development of a harbour and wharf site at Port Hedland or some other port; · the town sites on Mining Area A; and · housing. From February 1964 MGMA submitted various proposals to the State covering the mine and its operation, transportation, ship loading and handling, the harbour and approach channel, services to the townships and the townships. Broadly, the proposals concerned mining, services, townships, railway, ore handling and the harbour. The proposals, which were the subject of negotiation and amendment, were finally approved on 22 September 1971. Once the proposals were accepted, MGMA carried out the construction in accordance with, or substantially in accordance with, the approved proposals. MGMA fully funded these developments. Goldsworthy – Lease 235 13 MGMA's mining operation at Goldsworthy was the first of the iron ore mines to commence operations in the Pilbara region of Western Australia. Construction of the town site and mine operations at Goldsworthy on Lease 235 began in 1965. An airstrip was created and a camp established to house workers involved in constructing the mine and the town. Work then started on the pit, mine buildings and ore handling area, as well as the houses and town site infrastructure. Following completion of the port facilities at Port Hedland the first cargo of iron ore was shipped on 3 June 1966. 14 The mine site infrastructure included: (a) open cut pits; (b) waste dumps and stockpiles; (c) iron ore crushing and screening facilities; (d) ore handling operations; (e) a railway to Finucane Island, locomotive workshops and maintenance and repair facilities; (f) roads; (g) a power station; (h) wells and sewage works; (i) a quarry; (j) workshops and offices; and (k) storage areas. 15 The town (at the peak of its size) included: (a) over 200 houses, as well as separate single men's quarters; (b) roads; (c) a shopping centre; (d) social clubs and sporting facilities, including a golf course, a sporting oval and a function centre; (e) a school; (f) a medical centre; (g) a warehouse and storeyards; (h) an administration building; (i) a police station and distribution equipment, plus radio and television transmission facilities; (j) a cinema; (k) wells and sewage works; and (l) an airport. 16 The mine at Goldsworthy was closed on 22 December 1982, following the cessation of mining operations. Over the life of the Goldsworthy mine, a total of just over 55 million tonnes of iron ore was mined. The Goldsworthy mine is currently not open to the public and remains subject to controls over access by BHP BIO. There is fencing around several sections of the mine and a locked gate across the only vehicle entry to the main pit. 17 The town of Goldsworthy was closed in 1992. The total area of the Goldsworthy mine and township was approximately 3.2 square kilometres (2.1 kilometres by 1.5 kilometres). 18 The mine site infrastructure and town together covered about one-third of the area of Lease 235. There is no evidence of any significant construction having been carried out on the remainder of the leased area. The mine site 19 Mining at Goldsworthy was conducted using open pit mining. That process involved significant excavation by drilling and blasting to create the open pit. An open pit mine may be enlarged until a mineral resource is exhausted or the increasing ratio of waste to iron ore makes it uneconomic to continue mining. Part of the waste extracted from Goldsworthy was used to make roads at the Goldsworthy mine site. The remainder was stored in waste dumps around the Goldsworthy pit. 20 Mining commenced at Goldsworthy in 1966. There were five ore bodies. In 1965, before mining operations had commenced, Mt Goldsworthy was a peak with a height of approximately 132 metres above sea level. By the time mining operations stopped in 1982 Mt Goldsworthy had been transformed into a pit approximately 135 metres below sea level. By the end of the mining operations there were nine waste dumps around Goldsworthy, each approximately 35 metres high with inclination of their slopes at about 38 degrees. Ore handling (including crushing) 21 After primary and secondary breaking, the ore went through a handling process (including primary crushing) to transform the material into ore of a size so as to enable it to be transported by rail to Finucane Island in Port Hedland. The handling process involved delivery by truck, crushing and screening to remove fines (material smaller than 6mm). The fines were stock-piled and were only sold several years after the commencement of mining operations. The lump ore was conveyed by rail to Finucane Island. Heavy machinery and equipment 22 The equipment used at Goldsworthy was progressively upgraded and increased in size to handle the increased tonnage. By 1972, 120 tonne haulage trucks were being used. At the mining operations there were in use at the one time about 15 of the 120 tonne haulage trucks, 4 (or 5) loading units (being two electric cable shovels and two front-end loaders), bulldozers, wheel dozers and drills. Operating hours and access 23 From around late 1974 the hours of operation of the mine increased to 24 hours a day, 7 days a week. Access to the mine was controlled. When the mine was not in operation, gates were locked. Railway 24 The railway that transported ore from the mine at Goldsworthy to Finucane Island was approximately 112 kilometres long. It passed over both of the Mt Goldsworthy Leases. The management team for the rail operation was located at Goldsworthy. A road was constructed alongside the railway for service purposes. Roads 25 In the mine area, road maintenance was carried out regularly. There were also sealed surface roads at the Goldsworthy town site and around the workshop area which were approximately 7 metres wide. Roads south of the town site, in the mine and around the ore handling plant were unsealed. Power and lighting 26 Electric power at Goldsworthy was generated by a central power station with diesel generators to produce the power. The power station had approximate dimensions of 49 metres by 21 metres and a capacity that varied through the life of the project. There was a sub-station on the mine site. In 1982 the Goldsworthy power station provided power for all of the mining operations and the Goldsworthy and Shay Gap townships. Distribution of power was provided by overhead power lines mounted on steel poles. 27 After mining operations in Goldsworthy ceased in 1982, the Goldsworthy power station continued to operate and provided power to operations at Shay Gap. In 1989 a power line was constructed that connected Goldsworthy with a Pilbara power grid, following which the Goldsworthy power station closed. Communications 28 A base radio station was installed at the Goldsworthy mine office. Antennae were located at the Goldsworthy township and at the mine site. Water supply 29 The water supply for the Goldsworthy mine came from wells within each of the Mt Goldsworthy Leases and wells and bores on special leases in the De Grey River, approximately 8 kilometres southwest of the mine. Water supply for the town site was also from the wells. There was underground reticulation throughout the town site. Water tanks were constructed at the mine site. There was fire protection. Sewage 30 Sewage at the mine site was disposed of by using a sewage pumping system that then went into a sewage treatment plant. Quarry 31 On the north side of the railway line there was an area that was used to create ballasts for the railway using suitable waste rock from the mine. There was a substation in this area to power the crushing and screening plant where the rock was crushed to be used to create the ballast. Workshops 32 There was a central workshop, a locomotive workshop and an electrical workshop. The electrical workshop was located to the north of the power station. Airstrip 33 The Goldsworthy airstrip was constructed on Lease 235 and was completed before January 1965. The airfield was approximately 1,500 metres by 122 metres and was suitable for light aeroplanes. The airstrip was located to the north of the Goldsworthy town site and ran parallel to the railway line. It was used for daily scheduled flights from Port Hedland. The type of aeroplane that usually landed on the airstrip was a nine seater passenger aeroplane. Explosives depot 34 There was a depot on the mine site used to store explosives used for blasting. Pond 35 As the main pit deepened it fell below water level and had to be drained continually. That drained water formed a pond near the main pit. Other structures 36 There was a low grade stockpile located on the mine site with a capacity to hold approximately 150,000 tonnes. There were various other buildings and equipment at Goldsworthy such as a mine office, a large vehicle workshop, an area to maintain and store tyres, two track maintenance storage sheds, a refectory that catered for approximately 300 people and a carpentry shop. There was a fenced building containing a diesel holding tank with a fenced storage area for fuel drums and lubricants as well as bulk fuel oil storage tanks. There was a car park and a rubbish tip. The township 37 Construction began on the Goldsworthy township in July 1965. It was declared a township on 11 August 1967. On 6 August 1976 a notice was published in the Government Gazette declaring the boundaries of the Goldsworthy township. The maximum population of the township was 1400 people in 1977, which had reduced to 409 in March 1982. In March 1991 it was decided to begin the closure of the township and work began to remove homes later that year. Goldsworthy town was officially closed on 17 July 1992. 38 By 1975 there were in excess of 200 houses as well as a caravan park. The accommodation consisted of married accommodation and barrack-style accommodation for single persons. The types of accommodation included four bedroom houses built on concrete beds, three bedroom houses built on concrete beds, transportable houses built on steel frames and flats. At the caravan park there were 44 caravan sites which were connected to power and water. 23 removable houses were moved to the township of Shay Gap after 1982. There was a construction camp which varied in size and facilities during the life of the township. It included caravans, toilets, showers, a laundry, a septic tank, a storeroom and other buildings. Parts of the construction camp were fenced. 39 The town had a shopping centre with dimensions of approximately 30 metres by 21 metres and a total area of approximately 504 square metres. It housed a collection of shops and had a car park. 40 The town had a social club of approximately 333 square metres. There was a primary school with a school building with approximate dimensions of 38 metres by 14 metres and a separate toilet block. A kindergarten consisted of two buildings that were fenced, together with a playground. The town had a medical centre with facilities for permanent nursing staff and a visiting doctor and dentist. Two policemen were stationed at Goldsworthy in the town's police station. The town had sewage works and a refuse site. There was an administration building for the town and a general warehouse storage facility, as well as a wet canteen. The town had a dome that was a function centre as well as various sports facilities including a fenced playground, a sports club, a park, a football oval, a 25 metre swimming pool, a bowling green, tennis courts, a basketball court and a golf course. There was an outdoor cinema with seating for about 200 people, a petrol station and a fuel storage building to the east of the airstrip. The town had a number of wells. FACTS NOT IN DISPUTE 41 A further set of facts not in dispute was also filed, although there is no agreement that events that occurred after the grant of the Mt Goldsworthy Leases, or evidence relating to what occurred outside the relevant claim area, are relevant to the determination of the preliminary questions. It is necessary to understand those facts in order to consider the submissions of the parties. The relevance of those facts will be apparent from these reasons. In summary, those facts are as follows: Rehabilitation of the land (claimed by the tenement holders and the State to be irrelevant) 42 From about May 1992 to about February 1993, BHP BIO carried out a rehabilitation programme at Goldsworthy, relying on and exercising the rights and obligations under Lease 235. The rehabilitation was of the mine and township areas and involved: (a) removing all remaining rubbish and noxious exotic plants; (b) re-profiling all overburdened dump areas to blend with surrounding natural land forms; (c) contouring all final surfaces to produce stable erosion resistant land forms and to enhance harvesting of water, seed and seed bed material; and (d) applying seed to produce revegetation over a total of 300 hectares. 43 During the period from 1982 to 1983 all infrastructure, equipment and stockpiles, apart from the fence, were removed from the town site and mine. Substantial rehabilitation has occurred but the pit at Mt Goldsworthy remains, filled with water. The waste dumps from the mining operations form part of the landscape. Evidence about exercise of native title rights (claimed by the tenement holders to be irrelevant) Mr Miller 44 To the knowledge of Mr Derrick Miller, the Deputy General Manager and then General Operations Manager for GML from 1974 until the close of Goldsworthy, at no time did any Aboriginal person request access to the area of the mining operations to exercise any native title right. Mr Miller says that if any Aboriginal person had requested access to the area of the mining operations to camp or hunt, that person would have been denied access. 45 The applicants rely on evidence of two senior Ngarla People, Charlie Coppin and Alexander Brown. Charlie Coppin 46 Mr Coppin's evidence, in summary, is that as a young man he camped, mustered sheep and hunted in the area where the Goldsworthy mine and town site came to be located, before the mine was developed. Mr Coppin says that while the mine was operating he would go to the area, although he could not hunt or shoot because there were too many other people around. As to the current state of the township and mine site, Mr Coppin says that trees and bushes are now growing so that 'you might not have known that there was once a town here'. He has visited the area since the town closed. The area is now a good hunting area and he often drives into the area and hunts for kangaroos with other Ngarla People. He also collects ochre from the area. He takes his family there to hunt and camp, up to once a month, not on the hill but down by the river. Mr Coppin says that he usually catches a couple of kangaroos in the mining lease area. He says that his people have always collected ochre from Mt Goldsworthy and that he continues to collect ochre in the mining lease area. He has also removed bark from a "partirri" tree growing just outside the mine site. Mr Coppin says that the Ngarla People used the bark of that tree to rub on their bodies to keep cool and to paint their bodies for their dances. 47 Without needing to go into details of Mr Coppin's evidence, it is not in dispute that different trees at the mine and at the old town site are of the types that were present before the mining operations commenced and are used by the Ngarla People. Mr Coppin says that there are sacred secret places around Mt Goldsworthy that are important for all Ngarla People, including Mt Goldsworthy itself. He says that there is a secret sacred song for the mountain, this being the mountain that has been subject to the open pit mining. Alexander Brown 48 Mr Brown's evidence is that the old Goldsworthy town and mine are within the Kitil Run with which he and his family have a connection. He says under Ngarla traditional laws and customs, he has a special responsibility to look after the areas within his Run and that if other people want to hunt or fish or gather bush food or other resources in Kitil country, which includes Mt Goldsworthy, they must seek his permission. Mt Goldsworthy (or Jirrinya) has always been an important place for the Ngarla People. He says that even though much of Jirrinya has been destroyed by mining activity, it is still "yinta" or a discrete site. Ngarla People still collect ochre there for ceremonies and law. Mr Brown says that he has a responsibility under traditional law and custom to visit and look after the places which include the areas in the mining site and to watch who goes to them because they are part of his father's country. He says that the country has 'come back alright' since the Goldsworthy mining town was taken away. Mr Brown says that he drives as often as possible to Ngarla country to hunt, fish, collect bush food and medicine and to see that everything, including plant and sites, is well. Ord Ridley deposits (objected to as irrelevant by the applicants) 49 BHP BIO has identified ten target iron ore deposits known as the Ord Ridley deposits, located approximately 70 kilometres to the east of Port Hedland and between 7 kilometres and 14 kilometres north of the Finucane to Yarrie Rail System. The deposits lie within the boundaries of sections 7, 8 and 9 of Lease 249 in areas broadly identified as the "Ord Prospect", the "Ridley Prospect" and one deposit named "F13 North". These areas are not currently the subject of any permanent construction works or productive mining operations. 50 The proposed exploration programme will involve extensive drilling with 100 drill holes varying in depth from 20 to 30 metres but possibly reaching 130 metres in depth. It is likely that the drilling crew will be based at an exploration camp in or near the Ord Ridley area. Resource range analysis conducted at Ord Ridley has indicated that there could be 62 million tonnes of potential mineralisation. Any future mining operations at Ord Ridley would be likely to entail the construction of a small crushing and screening plant and a rail spur off the existing Finucane to Yarrie rail line or alternatively a 7 kilometre haul road to the rail line. It will also be necessary to construct a maintenance workshop and facilities for fuel and water storage, a small administration office and a secure, fenced, remote explosive magazine area. Power will need to be reticulated from the adjacent Port Hedland to Yarrie power line and water sourced from the adjacent De Grey shallow river gravels. It will be necessary to create pre-crusher and post-crusher stockpiling areas for blending and storage of the ore and to clear the land for construction to take place. 51 Presently the development of the Ord Ridley area cannot be progressed until the spatial distribution and quality of the potential mineralisation is better understood. The currently proposed exploration drilling programme for Ord Ridley needs to be completed. Potential magnetite mining operations – Lease 235 and sections 1 and 2 of Lease 249 (objected to as irrelevant by the applicants) 52 Sections 1 and 2 of Lease 249 are not yet the subject of any permanent construction works or productive mining operations. On the basis of recent surveys and an analysis prepared in August 2008, the land the subject of Lease 235 and sections 1 and 2 of Lease 249 contains an expected magnetite resource of about 2.7 billion tonnes with the mining depth estimated at 200 metres. These magnetite deposits could be the subject of future mining operations which would probably entail open-pit mining, with several pits down to potentially 200 metres in depth, and associated construction of plant, storage areas, accommodation and other building works. A rail spur off the existing Finucane to Yarrie rail line of approximately 3 kilometres in length would be likely to be constructed or, alternatively, a slurry pipeline. 53 Again, power will need to be provided and large quantities of water sourced. The water could be sourced from the old Goldsworthy open pit; however, additional fresh water would be required and could be sourced from the adjacent shallow gravels north and south of the areas of the Mt Goldsworthy Leases. 54 In order to outline the magnetite resource, an extensive exploration drilling programme would first be needed. Shay Gap (the relevance of which is challenged by the applicants) 55 Shay Gap is in section 3 of Lease 249 but is not within the claim area. Evidence regarding Shay Gap is relied upon by the tenement holders to illustrate the extent of development, similar to that carried out in Goldsworthy. Early in 1973 deposits at Shay Gap were developed to supplement the output from Goldsworthy. This required an extension of the railway to the new mine (about 69 kilometres) and the construction of another town site. Production commenced at Shay Gap in 1972 to 1973 and effectively ceased by 1990. Approximately 37 million tonnes of ore were mined by 1993. The Shay Gap township and airstrip were constructed on special leases outside of Lease 249. Generally, Shay Gap used the same mining procedures as Goldsworthy but it was a slightly smaller operation. Shay Gap was built six years after Goldsworthy. Mining equipment such as shovels and trucks moved between Goldsworthy and Shay Gap. 56 The ore reserves at Shay Gap were mined using open pit mining, originally conducted in two open pit mines. Approximately two tonnes of waste had to be removed for each tonne of ore. Breaking operations were similar to those used at Goldsworthy. Blast holes were drilled and the ore was transported by trucks to the primary crushers and stored in stockpiles until loaded onto trains for transport to Finucane Island. Only primary crushing was carried out at Shay Gap which had a virtually identical crushing process to that carried out at Goldsworthy. Shay Gap also had a mine office and amenities building, toilet facilities, a surface workshop area, a warehouse, storage tanks, a magazine storage area, an assay office, an airstrip, sewage disposal and power substations. Newman – Mt Whaleback (the relevance of which is challenged by the applicants) 57 The Mt Whaleback mine was established in 1968 and the main pit is currently 5 kilometres long and 1.5 kilometres wide. It is situated near the town of Newman, in the Hamersley Ranges. Whaleback is not within the claim area. Iron ore deposits in the northern Pilbara (including Old Goldsworthy, Ord Ridley and Shay Gap) are substantially similar to iron ore deposits found in the Hamersley Ranges except that the Whaleback ore bodies are substantially larger. The deposits at Whaleback have been mined since 1968 and are still mined in mining operations that are substantially similar to those that occurred at Goldsworthy (both being open cut mining). Mining at Whaleback presently occurs at a much larger scale and, because of technological advances, is conducted with improved efficiencies. At the time that mining commenced at Whaleback, the mining operations at Whaleback and Goldsworthy were very similar, using the same techniques, plant, equipment and technologies. Similarly, the Newman town site began and developed in a similar way to the Goldsworthy town site but over time grew to the much larger town it is today because of the continuing mining operations. THE NATIVE TITLE ACT 58 Part 2 Division 2 of the Native Title Act 1993 (Cth) (the NTA) is concerned with the validation of past acts which, were it not for the NTA, would be invalid. Section 228 defines a "past act" as an act that took place before 1 January 1994 (or 1 July 1993 in the case of legislation) which is invalid, but would have been valid but for native title. Invalidity would have arisen by reason of the Racial Discrimination Act 1975 (Cth) (the RDA). Where an act took place before the commencement of the RDA on 31 October 1975, the act would not have been rendered invalid by reason of the RDA. Hence, it is not a "past act" under s 228 for which it is necessary to have regard to Pt 2 Div 2. 59 Pt 2 Div 2 of the NTA provides not only for the validation of past acts but also for the extinguishing effect of those acts. Some past acts extinguish native title (see also ss 229 to 232). Relevantly, Pt 2 Div 2B confirms the extinguishing effect of "previous exclusive possession acts" and "previous non-exclusive possession acts", which are not confined to "past acts". If Pt 2 Div 2B of the NTA applies to a particular act, the extinguishment regime of Pt 2 Div 2 is put aside and any overlap between the two extinguishment regimes is resolved in favour of Pt 2 Div 2B and its corresponding State and Territory provisions (State of Western Australia v Ward (2002) 213 CLR 1at [10]). Accordingly, Pt 2 Div 2B provides the analytical starting point. If an act extinguishes native title under Pt 2 Div 2B, it is unnecessary for the Court otherwise to examine extinguishment under the NTA (ss 23C(3), 23G(3)). 60 Nonetheless, acts that do not fall within either category of "previous exclusive possession acts" and "previous non-exclusive possession acts" may still extinguish native title apart from the provisions of Pt 2 Div 2B. The NTA does not constitute a comprehensive code of extinguishment (see, for example s 23B(9C)(a)) and an act to which Pt 2 Divs 2, 2A or 2B of the NTA do not apply may still have been effective to extinguish native title under the common law. 61 Where the act is the act of the State of Western Australia and a "previous exclusive possession act" within s 23B of the NTA, it only extinguishes native title if it is also a "relevant act" under s 12I of the TVA, which is, relevantly, a freehold grant whenever made and whether or not still in force, and Scheduled interests and leases when the interest created remained in force on 23 December 1996. 62 The question of extinguishment is not wholly determined by the characterisation of the relevant grant as conferring exclusive possession. As the applicants point out, the NTA recognises "previous exclusive possession acts" (s 23B) and "previous non-exclusive possession acts" (s 23F). The former wholly extinguish native title (s 23C), the latter generally partially extinguish native title (s 23G). What is described as a "lease" under the NTA may or may not confer a right of exclusive possession (Wilson v Anderson (2002) 213 CLR 401at [59] per Gaudron, Gummow and Hayne JJ). Pt 2 Div 2B of the NTA expressly declines to provide for extinguishment, under that division, of native title by the grant of a mining lease, whether or not it confers a right of exclusive possession over land (ss 23B(2)(c)(viii), 249C(1)(a)). Further, certain Scheduled interests extinguish native title, without regard to whether, as drafted, they confer exclusive tenure. The treatment of mining leases in the NTA 63 A mining lease, for the purposes of extinguishment of native title under the NTA, may be dissected into separate leases in relation to those parts upon which particular construction has occurred (s 23B(2)(c)(vii) and s 245(3)(a); Ward at [302]). The remainder of the mining lease is excluded from the definition of "previous exclusive possession act", even if the lease in fact confers exclusive possession (s 23B(2)(c)(viii)). A mining lease cannot be a "previous non-exclusive possession act", which acts are limited to agricultural and pastoral leases (s 23F). 64 The applicants point out that the NTA does not evince any intention that mining leases extinguish native title. Rather, mining leases are generally excluded from having such an effect (ss 231 and 232D; ss 15(1)(d) and 22B(d); s 238; s 21(3)(a); s 24MD(3); s 24GA(2)). "Intention" does not mean the state of mind of the legislators but intention as manifested by the legislation (Wik at 168-169 per Gummow J; Ward at [78]). Application of the NTA in the present case 65 As to the application of the NTA in the present case: · The Mt Goldsworthy Leases preceded the commencement of the RDA on 31 October 1975 and are not thereby rendered invalid by that Act (Ward at [135] and [139]). There is no dispute that the grant of the Mt Goldsworthy Leases was not a "past act" under s 228. Therefore, it is not necessary to have regard to the "past act" provisions of Pt 2 Div 2 of the NTA. · The grant of the Mt Goldsworthy Leases was not a "previous exclusive possession act" as defined in s 23B. · The Mt Goldsworthy Leases are "mining leases" as defined in s 245. The Mt Goldsworthy Leases are thereby excluded from the definition of previous exclusive possession act in s 23B(2)(c)(viii). As mining leases, they are also excluded from the definition of a "Scheduled interest" in s 249C and therefore do not fall within s 23B(2)(c)(i). · The grant of the Mt Goldsworthy Leases was not a "previous non-exclusive possession act" as defined in s 23F. · The grant of the Mt Goldsworthy Leases was not a "previous exclusive possession act" or a "previous non-exclusive possession act" to which Pt 2 Div 2B applies. 66 No party contends that any of Pt 2 Divs 2, 2A or 2B of the NTA applies to the grant of the Mt Goldsworthy Leases. All parties agree that the preliminary questions are to be addressed by reference to common law extinguishment of native title and that, even though the NTA deals expressly with issues of extinguishment, these express mechanisms presuppose that extinguishment can occur apart from their operation. There is no dispute that extinguishment can occur at common law and that common law extinguishment is not contrary to the NTA. COMMON LAW EXTINGUISHMENT 67 At common law, native title may be extinguished in whole, or in part, by legislation (including delegated legislation) or by the acts of the executive. There are three kinds of acts liable to extinguish native title: (a) laws or executive acts which simply extinguish native title; (b) laws or acts which create rights in third parties which are inconsistent with the continued right to enjoy native title; and (c) laws or acts by which the Crown acquires full beneficial ownership of land previously subject to native title. (Wik Peoples v State of Queensland (1996) 187 CLR 1 at 84-85 per Brennan CJ) 68 The first kind of act creates no rights inconsistent with native title, but has the clear intention, objectively ascertained, of extinguishing native title (Wik at 85). 69 The second kind of act creates rights inconsistent with the continued enjoyment of native title, irrespective of whether or not there was an actual intention on the part of the legislature or executive to extinguish native title and whether or not the legislature or the executive officer adverted to the existence of native title (Wik at 85; see also Ward at [78]). 70 The third kind of act occurs by acquisition of native title under statutory authority or where the Crown, without statutory authority, acquires beneficial ownership by appropriating land in which no interest has been alienated by the Crown. In the latter case, the Crown's beneficial ownership only arises when the land is actually used for some purpose inconsistent with the continued enjoyment of native title such as building a school or laying a pipeline. This third kind of act occurs where rights or powers have been asserted or exercised by the Crown which are inconsistent with native title rights and interests. (Wik at 85-86) 71 Because of the seriousness of the consequences to native title holders, statutory extinguishment of their rights and interests should be effected only where the intention to do so is clear and plain. [This] is not a special rule with respect to native title; it is simply a manifestation of the general and well settled rule of statutory construction that requires that "clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating to property without fair compensation". (Wik at 155 per Gaudron J citing Mabo v Queensland (No 2) (1992) 175 CLR 1 at 111; see also Wik at 168-169 per Gummow J) 72 The Court can ascertain whether a clear and plain intention exists: 1. in the case of legislation, by an examination of its objects and terms, with particular reference to whether the law creates a regime of control consistent with native title; 2. in the case of a grant to third parties, by an examination of the nature of the interest or estate granted; and 3. in the case of the Crown's appropriation to itself, by examination of the nature of the appropriation and any use, or by an examination of the purpose of the appropriation and of whether third party rights or assumed acquiescence arise. The principles to be applied: the key authorities on common law extinguishment. Western Australia v Ward 73 I shall refer to the reasons of the majority of the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) in Ward as the reasons of the High Court. As set out by the High Court at [74], the primary judge in that case had held that extinguishment of native title requires the exercise of 'permanent adverse possession' and that 'unless the legislation provides [that] the extinguishment arises on the creation of tenure inconsistent with an aboriginal right, there must be actual use made of the land by the holder of the tenure which is permanently inconsistent with the continued existence of aboriginal title or right and not merely a temporary suspension thereof'. The Full Court, by majority, had rejected that approach and concluded that native title rights and interests had been wholly or partly extinguished in respect of much of the area there claimed (Ward at [76]). 74 In discussing the criterion for extinguishment, the High Court in Ward stated at [78] and following: · The subjective thought processes of those whose act is alleged to have extinguished native title are irrelevant. The awareness or otherwise of native title rights and interests in the minds of those whose act is alleged to have extinguished native title is irrelevant. (at [78]) · The question is whether the granted rights are inconsistent with the alleged native title rights and interests. That is an objective inquiry which requires identification of and comparison between the two sets of rights. (at [78]) · Reference to activities on land or how land has been used is relevant only to the extent that it focuses attention upon the right pursuant to which the land is used. (at [78]) · As the majority in the Full Court had said, the comparison is between the legal nature and incidents of the statutory right which has been granted and the native title rights being asserted. The question is whether the statutory right is inconsistent with the continuance of native title rights and interests. (at [79]) · A grant of interest less than fee simple can extinguish native title if the interest is inconsistent with the continued existence of native title rights (at [80]). · 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. (at [82]) · Absent particular statutory provision to the contrary, questions of suspension of one set of rights in favour of another do not arise. (at [82]) · Native title rights and interests are not necessarily a single set of rights relating to land. It is essential to identify and compare the two sets of rights: one deriving from traditional law and custom, the other deriving from the exercise of the new sovereign authority that came with settlement. (at [82]) 75 Different types of transactions or dealings affecting areas within the claim area in Ward had occurred since settlement and the High Court considered the extinguishing effect of each type of dealing in turn (at [96]). However, the High Court was unable to determine the precise extinguishing effect of some of the transactions due to the generality of the determination of the native title rights and interests in existence by the Courts below (for example, at [296], [308], [335]). The generality of the determination meant that in cases where the transaction had not extinguished all native title rights in the affected land, the High Court could not accurately determine which particular native title rights and interests had been extinguished or identify those that remain (at [308]). 76 In considering the way that the Full Court dealt with the impact of the Ord River Irrigation Project on native title, the High Court commented that attention must be directed to the legal effect of particular dealings with land rather than the geographical and economic entity suggested by use of the term "Project" (at [143]). In that context, the majority of the High Court drew a distinction between the Ord River Irrigation Project, which developed in a piecemeal fashion, and other projects which proceeded by way of an agreement to which statutory force was given by the Parliament of the State. The High Court referred to the Agreement Act as an example of a statute which gave statutory force to agreements for the development and operation of infrastructure so as to vest the land and mineral rights necessary for a particular project. As their Honours pointed out at [144], in that sense the expression "the Mt Goldsworthy Project", unlike the Ord River Irrigation Project, had a defined statutory content beyond the identification of a mere geographical area or the particular economic activities conducted there. 77 The High Court held that the Full Court had fallen into error in considering the effect of the implementation of the Ord River Irrigation Project upon the continued enjoyment of native title rights and interests. The majority of the Full Court had held that although the mere declaration of the Ord River Irrigation District was not sufficient to extinguish native title, 'administrative management and control [connected with the Project] gave rise to operational inconsistency that wholly extinguishe[d] native title' (quoted by the High Court at [146]). The High Court held that the notion of administrative management and control of the activities engaged in to further the Project did not engage the notion of "operational inconsistency" for the extinguishment of native title (at [148]). It observed at [149] that the term "operational consistency" may provide some assistance by way of analogy, although the analogy cannot be carried too far. Their Honours said at [149]: Generally, it will only be possible to determine the inconsistency said to have arisen between the rights of the native title holders and the third party grantee once the legal content of both sets of rights said to conflict has been established. 78 In discussing the exercise of rights by the Crown, the High Court at [151] also pointed out that the assertion or exercise of some rights in relation to land which fall short of taking the full title to it may have some relevant effect on native title rights and interests. It is important to determine issues of extinguishment by reference to particular items of legislation (at [152]). In considering whether a lease confers the right of exclusive possession on the lessee, the proper order of inquiry is first to examine what are the rights granted and only then to classify the grant (at [186]). 79 In relation to the relevant pastoral leases in Ward, the High Court found that: · The rights granted under the pastoral leases were limited. · The pastoral leases were "non-exclusive pastoral leases" within the definition of s 248B of the NTA as they did not confer a right of exclusive possession over the land or waters covered by the lease within the meaning of s 248A. (at [188]) · The grants were inconsistent with so much of the native title rights and interests as stipulated for control of access to the land the subject of the grants and so extinguished the native title rights to that extent. (at [192]) · To the extent that the grants involved the grant of rights and interests not inconsistent with native title rights and interests, the rights and interests granted and the doing of any activity in giving effect to them prevailed over the native title rights and interests but did not extinguish them. (at [193], s 12M(1)(a)) · For example, some native title rights, such as the right to hunt or to gather traditional food, probably continued unaffected, although the rights of the pastoral lease holder would prevail over such rights. On the other hand, a right of the native title holders to burn off the land probably would have been extinguished as it probably would have been inconsistent with the rights of the pastoral leaseholder. (at [194]) 80 In discussing the relevant reservations of land, the High Court emphasised again at [215] that discussions of the use of the land that is reserved may distract attention from the relevant inquiry. That is whether rights have been created that are inconsistent with native title rights and interests and whether the Crown has asserted rights over the land that are inconsistent with native title rights and interests. Their Honours pointed out that use of the land may suggest or even demonstrate that such rights have been created or asserted but the basic inquiry is about the inconsistency of rights, not inconsistency of use (original emphasis). The question of extinguishment requires attention to the rights asserted rather than the use that is made of the land (at [216]). Again at [234], the High Court emphasised that looking to the use that has actually been made of land distracts attention from the central inquiry about the rights created in others or asserted by the executive, not the way in which they may have been exercised at any time. 81 The High Court held that the relevant grant of the permit to occupy wholly extinguished any native title rights and interests in the land as the grantee obtained a right to exclusive possession of the land which was intended to continue in perpetuity (at [349]). 82 In discussing the relevant special leases granted for stated purposes the High Court said: · Some of the special leases reserved, for example, the right to take timber and materials for use in public works, restricting the lessee from destroying timber or scrub and containing a proviso for re-entry (at [354]). · The statutory reservation in favour of Aboriginal people did not apply to a special lease even if that special lease were for the purpose of grazing. · The State Act under which the leases were granted provided a number of specific purposes for which a special lease might be granted, including quarrying and for sites of various kinds of buildings or other works. At least some of the uses specified in the Act were uses in which it might ordinarily be expected that the user would wish to control access to the land. (at [356]) · The grant of such a special lease granted the lessee a right of exclusive possession. It follows that its grant was a previous exclusive possession act for the purposes of the NTA. (at [357]) 83 In discussing the relevant leases of reserves, the High Court said: · The lease considered was not a statutory interest in land. The features of the interest granted were not prescribed by the Act but were determined by the nature of the agreement reached and the grant made. The rights granted were the rights of a lessee under general law, which included a right of exclusive possession. (at [369]) · As the right granted was a right of exclusive possession of the land, it was not relevant to consider what use the lessee would or would be expected to make of the land and whether that use could be compatible with the continued exercise of native title rights or interests. (at [370]) · The grant of a right of exclusive possession was inconsistent with the continued existence of native title rights and interests. Subject to the operation of the RDA and the NTA the native title rights and interests were extinguished (at [370]). 84 The High Court in Ward considered general mining leases granted under the Mining Act 1978 (WA) as well as the Argyle mining lease which was granted pursuant to an agreement ratified by specific legislation. In considering the extinguishing effect of the general mining leases: · The High Court noted that the leases granted the holder the right to work and mine the land and to 'do all acts and things that were necessary to effectually carry out mining operations in, on or under the land'. The legislation described these rights as 'exclusive rights for mining purposes'. (at [290]) · The High Court considered that the enjoyment of these rights would be protected at law against interference by any person and not only by those asserting a concurrent right to prospect or mine. (at [291]) · The High Court found, however, that the grants of the mining leases were not necessarily inconsistent with the continued existence of all native title rights and interests. Some native title rights and interests in some areas of the mining leases were extinguished but the generality of the determination of native title by the Courts below rendered it impossible to specify which rights had been extinguished in respect of which areas. (at [296]) · The High Court observed (at [308]) that the grant of exclusive possession for mining purposes was directed at preventing others from carrying out mining and related activities on the relevant land and it did not follow that all others were necessarily excluded from all parts of the lease area. It was necessary to look to the legislation. · The High Court acknowledged that "mining operations" was a "very large expression" and that the right to mine encompassed those rights necessary for its meaningful exercise. The holder of a mining lease may exercise its right to exclude for specified purposes in a way that will prevent the exercise of the relevant native title right or interest for so long as the holder of the mining lease carries on that activity (at [308]). That did not mean that the grant of a mining lease is necessarily inconsistent with all native title (at [308]). · Their Honours pointed out that a native title right to control access to the land was inconsistent with the rights of access arising under the mining leases. The High Court considered that such a native title right, if it had existed immediately prior to the grant of the mining leases, would have been extinguished by such a grant. Ultimately, the High Court found that such a native title right had already been extinguished by earlier pastoral leases. 85 The High Court reached a similar conclusion regarding the extinguishing effect of the Argyle mining lease. The lease holder was granted 'exclusive possession of the subject land for the purposes of the Mining Act 1904'. The High Court referred to its observations made in relation to the general mining leases respecting the right of exclusive possession for mining purposes and said that it was not to the point to say that the land could not be leased to a third party for a different purpose (at [331]). Further, the High Court held that the Full Court had erred by concluding that the scale, dimension and permanence of the mining use extinguished native title rights entirely (at [332]-[333]). De Rose v South Australia (No 2) 86 In De Rose v South Australia (No 2) (2005) 145 FCR 290 (De Rose) the Full Court was concerned with pastoral leases. It was common ground that the grants of pastoral leases over the claim area were "previous non-exclusive possession acts" within s 23F(2) of the NTA. In considering the application of s 36I of the Native Title (South Australia) Act 1994 (SA), which is the counterpart of s 23G of the NTA, the Full Court had to determine the extinguishing effect of the leases on native title under common law (at [143]). The Full Court observed at [146] that it was necessary to identify the native title rights and interests and the relevant rights and interests granted by the leases so that a comparison between them could be made. 87 The leases in De Rose did not require the lessees to construct specific improvements on the leasehold lands but did require them to spend a minimum amount on unspecified improvements to the land. The lessees were at liberty to grow produce on the land for consumption on the land and to use dead timber and sand for the purposes of improvements. Each lease reserved to the Minister and all persons authorised by him or her the right to undertake a variety of activities on the leasehold land. Two of the leases provided that those activities were not permitted within a certain distance of certain improvements (at [147]). Two of the leases expressly envisaged that the improvements could include a dwelling house, dams, reservoirs, factories or other buildings. 88 The Full Court pointed out at [149] that the lessees' right to construct improvements such as a dwelling house or storage sheds on the leasehold land, when exercised, were clearly inconsistent with native title rights and interests insofar as they related to the particular land on which the dwelling house and storage sheds were constructed. The problem was that until the lessee chose to exercise the right to erect improvements, the precise location of those improvements was not known. This affected the precise sites over which native title holders could or could not exercise their traditional rights (at [150]). 89 Recognising that the correct analysis was in terms of the right pursuant to which the land was used, their Honours turned to the examination of "operational inconsistency". As explained in Ward at [149]-[150], it was necessary to look at the legal content of both sets of rights. The Full Court in De Rose quoted the High Court's observations in Ward at [150] that the term "grant", including the creation and transfer of rights by the Crown in favour of subjects, is apt to mislead and that: The operation of a grant of rights may be subjected to conditions precedent or subsequent. The rights themselves may be incapable of identification in law without the performance of a further act or taking of some further step beyond that otherwise set to constitute the grant. 90 The Full Court also considered the High Court's comments in Ward at [308] that the holder of a mining lease may exercise its rights in a way which would prevent the exercise of some relevant native title right or interest for so long as the holder of the mining lease carries on that activity. The Full Court observed that these comments in Ward were not easy to reconcile with the requirement in Ward for a comparison between two sets of rights for inconsistency or the rejection in Ward of the notionthat native title rights can be suspended in the case of inconsistency of rights, apart from the operation of statute (at [154]). The Full Court noted that the High Court in Ward may have been referring to situations where the rights in question were not necessarily inconsistent rights. 91 At [155]-[158], the Full Court turned to consider the rights granted to the lessee, specifically the right to erect improvements on the leasehold land. The Full Court considered that this right was, at the outset, "potentially inconsistent" with native title rights and interests in respect of the land. The Court found that the right to construct a dwelling house, when exercised, was "necessarily inconsistent" with all native title rights and interests in respect of the land on which the dwelling house was constructed but the precise area affected by this right could only be ascertained after construction of the house. 92 Referring to the observations in Ward of the operation of grants being subject to conditions precedent or conditions subsequent, their Honours in De Rose concluded that the operation of a grant of the right to construct and use improvements was subject to a condition precedent and became operative in relation to a particular area only when the right was exercised (at [156]). The Full Court commented that the grant of the right could have an extinguishing effect only when the right was exercised, since it was only then that the precise area or areas of land affected by the right could be identified. It would then extinguish native title over that precise area of land. At the time when the improvements were constructed in accordance with the leases, the grants of the leases operated to extinguish native title rights and interests in relation to the specific areas of land on which the improvements were constructed. The Court concluded that the previous non-exclusive possession act (namely the grants of the leases) gave the lessees rights which, when exercised, were inconsistent with and therefore extinguished the native title rights and interests (at [157]). 93 The Full Court found it unnecessary to consider the position where an improvement was subsequently dismantled or abandoned but noted that the word "extinguished" in relation to native title as provided in s 237A of the NTA means 'permanently extinguish the native title' which thereafter cannot be revived. Daniel v State of Western Australia [2003] FCA 666 94 In Daniel v State of Western Australia [2003] FCA 666 (Daniel No 1), Nicholson J considered the extinguishing effect of the grants of various mining and mineral leases. There, as here, extinguishment was determined under the common law (at [733]). His Honour stated that, to the extent that native title was not extinguished by the grant of the mining tenement, the rights of the tenement holder prevailed over the native title rights and that the use of land for mining purposes may prevent the exercise of native title rights and interests on parts of the tenement (at [733] citing Ward at [291] and at [308]). 95 In relation to gold mining leases granted under the Goldfields Acts 1886 and 1895, Nicholson J held that those leases extinguished any inconsistent native title rights, including the native title right to control access. Applying Ward, his Honour held that the question whether other native title rights survived the grant of the leases was an issue to be determined in the light of the findings as to the precise content of those rights and interests. Certain native title rights were extinguished and others were not. 96 His Honour also considered mining leases granted pursuant to the provisions of the Land Regulations Act 1887 (WA) for portions of land for the purposes of mining for any metal or mineral for a term of seven years. The leases granted to the lessees, inter alia, full liberty, power and authority to enter upon the lands to conduct mining operations, to construct processing plant and to do all other things necessary or convenient for working the mines and for the accommodation of persons there employed. The leases were said to be subject to 'the full power and right [of] the Aboriginal natives at all times to enter upon any unenclosed but otherwise unimproved part of the said land for the purpose of seeking a subsistence therefrom in their accustomed manner' (at [744]). At [746], his Honour held that, as with pastoral leases, any native title right to be asked permission to use or to have access to the leased areas would have been extinguished. The survival of other native title rights depended upon the precise content of those native title rights and interests. His Honour found that these mining leases had the same effect of extinguishing and non-extinguishing native title rights as found for the gold mining leases. 97 In relation to the gold mining leases and mineral leases granted solely under the Mining Act 1904, his Honour found that there was nothing to distinguish them from the mining leases considered in Ward. Accordingly, any native title right to be asked permission to use or have access to the lease area would have been extinguished, but whether other native title rights may have survived depended upon the precise content of those native title rights and interests (at [768], [789]). His Honour found that these leases had the same effect of extinguishing and non-extinguishing native title rights as found for the gold mining leases granted under the Goldfields Acts. Referring to Ward, his Honour said that the fact that particular usages under the interests may have prevented the exercise of some non-extinguished rights in whole or part was not relevant to the determination of extinguishment (at [789]). 98 Justice Nicholson also considered a mineral lease granted pursuant to the Mining Act 1904 and the Dampier Solar Salt Agreement Act (WA). His Honour considered that the purpose of this lease was specific to solar salt production, which was different to other forms of "mining". His Honour considered it a case where understanding of the rights granted was properly informed by evidence of usage (citing Ward at [215]) and found it apparent from a site visit that usufructary rights could not be exercised over the Dampier Salt lease area. His Honour concluded that the nature of solar salt production was such that exclusive possession against the whole world, and not just the exclusive right to mine, must have been intended and the grant of this lease wholly extinguished native title. (at [847]) 99 Justice Nicholson also briefly considered a mining lease granted under the Mining Act 1904 and the Iron Ore (Hamersley Range) Agreement Act (WA) (the Hamersley Range lease), the terms of which are strikingly similar to the Mt Goldsworthy leases. His Honour accepted that the grant of the lease extinguished any "exclusive" native title rights and would have extinguished other inconsistent native title rights in the same way as found for other mining leases (at [848]). His Honour did not consider that the Hamersley Range mining lease extinguished all native title rights. 100 The State points out that the Hamersley Range lease was ultimately found to be outside the claim area in that case, which may explain his Honour's "brief findings"on the issue made without a discussion of evidence of usage. The tenement holders contend that the relevance of this decision is lessened because the findings as to the Hamersley Range lease were obiter. No submission was made in Daniel No 1 that the rights conferred by the mineral lease were wholly inconsistent and therefore extinguished native title and no evidence was led of the activities on the mineral lease. The tenement holders also contend that the reasoning and conclusions in relation to gold mining leases granted under the Mining Act 1904 and mining leases under the Land Regulations 1887 are irrelevant. They submit that the conclusion that mineral leases under the Mining Act 1904 were indistinguishable from those in Ward was stated without reasoning and does not follow, especially in the absence of evidence of the nature of activities which could have been undertaken on such leases. 101 I accept that the aspectof Nicholson J's decision regarding the Hamersley Range lease was obiter. However, I have due regard for the reasoning of a Judge well versed in native title, within the context of the submissions and the facts in that case, as set out in his Honour's brief reasons. Daniel v State of Western of Australia [2003] FCA 1425 102 In Daniel v State of Western of Australia [2003] FCA 1425 (Daniel No 2), following further submissions by the parties, Nicholson J further considered his preliminary views in Daniel No 1 on inconsistency between extinguishing interests and the non-exclusive native title rights and interests as found. At [10], his Honour observed that the law draws a distinction between the grant of rights that are inconsistent with and extinguish native title rights on the one hand and rights which may prevail over native title rights on the other. The native title rights holders there submitted that there was nothing inconsistent with their living or remaining on areas within a pastoral lease, on the basis that the interests of the pastoralist were protected because the rights of the pastoralist prevailed over those of native title holders. 103 As to whether native title rights to live on the land were completely extinguished by pastoral leases because of a 'a remote possibility that a pastoralist might one day want to carry out pastoral activities where the native title holders may be living' (at [10]), Nicholson J referred to Ward. His Honour noted that the view of the High Court in Ward was that, to the extent that the rights and interests granted by the pastoral lease were not inconsistent with native title rights and interests, the rights and interests under the lease prevailed over but did not extinguish native title rights (Ward at [468]). Justice Nicholson interpreted Ward to mean that, where it was possible for the rights of a pastoral lease to prevail over the exercise of native title rights, the native title rights were not extinguished. A native title right was not to be considered as inconsistent or extinguished only because the tenure holder may want to exercise rights in the same location as a native title holder, thus preventing the native title holder from exercising those rights at that location at that time. His Honour said at [13] that the true test was whether, at that location at that time, the exercise of the native title rights and interests would prevent the rights of the tenure holder prevailing. His Honour then turned to consider whether there was inconsistency between certain native title rights and interests, such as the right to remain and the right to camp, and the rights of the lessee. 104 In considering whether or not mining tenements necessarily extinguish native title rights, Nicholson J at [23] referred to Ward at [308], to the effect that the use of land for mining purposes may prevent the exercise of native title rights and interests on some part or perhaps the whole of the leased area, but that is not to say that the grant of a mining lease is necessarily inconsistent with all native title. On the evidence in Daniel No 2, Nicholson J held that extinguishment did not result from the mining tenements, to the extent that the exercise of native title rights did not interfere with mining activities. That is, there was no necessary inconsistency and therefore no extinguishment (at [25]). Northern Territory v Alyawarr 105 In Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group (2005) 145 FCR 442, the question arose as to whether the native title right to live permanently on the land and erect permanent structures was inconsistent with the rights of pastoral lessees to use the land. A further question was whether the finding of partial extinguishment of native title by pastoral leases left in place a qualified native title right to exclude persons other than the relevant pastoral lessees and their invitees or other statutory entrants. 106 The Full Court at [129] identified the underlying issue in relation to the right to erect permanent shelters and structures as the scope of inconsistency between the pastoral leaseholders' rights and the native title rights and interests. The Full Court considered what had been said by Nicholson J in Daniel (No 2) where his Honour had accepted that a native title right to "remain" on the land could be exercised consistently with the pastoral leaseholders' rights. His Honour had construed the right to "live" on the land as a right to 'live temporarily on the areas as part of camping and for that purpose to build shelters' and had found that, so construed, there was no inconsistency with pastoral leasehold rights (Daniel No 2 at [15]). The Full Court noted that in Neowarra v State of Western Australia [2003] FCA 1402, Sundberg J had found a native title right to live, build structures, and embellish and maintain communities to be inconsistent with the general right to conduct pastoral activities on the whole of the land and with the particular rights conferred on pastoral leaseholders. 107 The pastoral leases the subject of Alyawarr were historical grants and the relevant extinguishment of native title rights and interests, as the Full Court said at [131], derived from inconsistency with the rights historically conferred by those leases. The Full Court concluded that neither the native title right of permanent settlement nor the right to erect a permanent structure was inconsistent with pastoral leaseholders' rights. The existence of a structure did not preclude a pastoralist's right to require removal in the event that it conflicted with a proposed exercise by the pastoralist of a right under the lease. The Full Court was of the view that it was not inevitable that such a conflict would arise. Accordingly there was no inconsistency of rights giving rise to extinguishment of the native title rights to live on the land and to erect permanent structures. King v Northern Territory 108 In King v Northern Territory (2007) 162 FCR 89, Moore J considered the extent to which the claimed native title rights were extinguished by the construction of improvements in exercise of the rights granted by non-exclusive pastoral leases. The parties in that case agreed that his Honour was bound to give effect to the reasoning of the Full Court in De Rose that when certain improvements were lawfully made on leasehold land, native title rights were extinguished on the land on which each improvement was made. The applicants in that case accepted that native title rights were so extinguished by the construction of some forms of improvements, such as homesteads, sheds and buildings, but disputed that they were so extinguished by the construction of other types of improvements such as stockyards and traps yards. 109 Justice Moore referred to De Rose as indicating that the inquiry of inconsistency can involve a consideration of the nature of the rights conferred by the lease having regard to the manner in which it can be exercised and, additionally, how it has been exercised in order to identify the areas of land in respect of which native title rights have been extinguished (King at [151]). His Honour found that all native title rights established by the applicants had been extinguished by the grant of the right to construct stockyards and trap yards and the exercise of that right, and are extinguished on the areas on which they have been constructed (at [156]). His Honour considered that while the use of these improvements may have been only periodic or intermittent, this right to use together with the exercise of the right to construct was inconsistent with a temporally unconstrained native title right to travel over, move about and have access to the land as well as to hunt, to use natural resources and live and camp. In respect of land adjacent to the improvements, his Honour adopted the approach of De Rose that native title would also be extinguished on adjacent land the exclusive use of which was necessary for the enjoyment of the improvement. Inconsistency 110 Native title rights that are inconsistent with an "act", including the granting of a title, prior to the commencement of the NTA are not rights recognised by the common law and are therefore not within the definition of "native title" in s 223(1)(c) of the NTA (Ward at [5], [20], [21]). The question is whether the granted right necessarily curtails the exercise of the native title right, or whether to some extent the native title survives, or whether there is inconsistency at all (Yanner v Eaton (1999) 201 CLR 351at [109] per Gummow J). Justice Gummow also observed in Yanner that a statute 'may regulate the exercise of the native title right without in any degree abrogating it' (at [109]). 111 There is no dispute that the relevant test for extinguishment under the common law is inconsistency of rights, not of use. The parties jointly describe the test as an inconsistency of incidents between the relevant legislation or grant and the asserted native title rights. The question is not of factual or physical inconsistency but requires a comparison between the legal nature and incidents of the existing native title right and the statutory right (Ward at [79]; Wik at 185 per Gummow J). The tenement holders accept that some native title rights may "co-exist" with, for instance, a fee simple title, in the sense that it is conceivable that a fee simple titleholder may not preclude the exercise of the native title right. However, they submit that such an analysis of "co-existence" is not relevant after Ward determined that the relevant inquiry requires identification of and comparison between the two sets of rights (Ward at [78]). The parties accept that native title is extinguished by a grant in fee simple. The parties accept that, as determined in Ward, a special lease, which is a statutory lease, confers exclusive possession (Ward at [357]). 112 The parties agree that native title is held by the Ngarla People. The parties agree that native title consists of a bundle of rights. The question in issue is, fundamentally, whether the grant of the Mt Goldsworthy Leases pursuant to the Agreement effected or gave rise to extinguishment of native title at common law. The comparison to be made is between the rights granted under the Mt Goldsworthy Leases and the determined native title rights. 113 In considering extinguishment at common law, no question arises as to whether, at the time of the act, there was a specific intention to extinguish native title (Ward at [78]). It is not in dispute that some native title rights may be extinguished, leaving others of the bundle of rights intact. It is not in dispute that a law or an act may be so inconsistent with the exercise of all native title rights that native title is wholly extinguished. The onus of proving that native title has not been extinguished lies on the persons claiming native title as they must ultimately show that there currently exist native title rights and interests (Western Australia v Ward (2000) 99 FCR 316 (Full Court) at [117] per Beaumont and von Doussa JJ – special leave to appeal refused on this aspect). 114 If the Mt Goldsworthy Leases extinguished native title at common law, no further inquiry is required. Once native title is extinguished, it cannot be revived (see Ward at [81]-[82] rejecting the notion of suspension of rights apart from particular statutory provision). Two rights are either inconsistent or they are not and extinguishment occurs to the extent of the inconsistency (Ward at [82]). Where inconsistency is established between the particular rights created by the statutory grant and the particular native title rights or interests, the latter will have been extinguished by the grant of the former (Wik). 115 InFejo v Northern Territory of Australia (1998) 195 CLR 96, the High Court held that native title was wholly extinguished by the grant of land in fee simple, because the rights conferred by such a grant, being 'the lawful right to exercise over, upon, and in respect to, the land every act of ownership which can enter into the imagination' (emphasis added), are inconsistent with the continuation of any native title rights or interests (at [43], [105]–[106]). The fact that indigenous people retain connections to the land in question does not derogate from the fact that a grant of fee simple extinguishes native title (Ward at [21]). 116 It follows that a grant of possession to land exclusive of the rights of others wholly extinguishes native title at common law. If the grant in fact conferred exclusive possession, in the sense of a legal right to exclude all others from the land, native title rights were necessarily extinguished by reason of inconsistency with the granted exclusive possession (Fejo at [105] per Kirby J). The parties agree with this. However, the parties also agree that the use of the terms "exclusive possession", "lease" or "demise" in the grant is not conclusive of legal inconsistency (see Wik at [108] per Toohey J; Ward at [177]). It is a question of the rights conferred on the non-native title parties compared with the native title rights and interests. A grant of less than fee simple may be inconsistent with the continued existence of native title rights (Ward at [80]). 117 In submissions filed prior to the hearing, the applicants sought to draw from Toohey J's comments in Wik at 108, said to be endorsed by Ward at [177],a two-step reasoning process for determining whether native title has been extinguished. Justice Toohey, after stating that the first step is to consider whether the relevant grants did in truth confer possession of the land to the exclusion of all others, went on to state that the second step involved considering the extent to which the native title rights are inconsistent with the exclusion possession conferred by the pastoral lease and also: whether native title rights are thereby truly extinguished or whether they are simply unenforceable while exclusive possession vests in the holder of the pastoral lease. The applicants say that even if an analysis of the statute and the terms of the grant leads to the conclusion of a grant of exclusive possession (the first step), that is not conclusive of extinguishment of native title and that a second step must be undertaken to determine whether the native title rights are necessarily extinguished by the grant of the exclusive possession rights. 118 The tenement holders submit that the authoritative test as propounded in Ward is not a two-step process but the inconsistency of incidents test. They submit that the second step, relied on by the applicants, was the approach adopted by North J, a member of the Full Court in Ward, which was specifically rejected by the High Court in Ward at [82]. The State agrees with the tenement holders that the true position of Wik, Ward and Fejo is that if a grant of rights in fact amounts to a grant of exclusive possession, it will always follow that native title rights are wholly extinguished. That follows from the reasons of the High Court. Ultimately, the applicants agree that a grant of exclusion possession conferring the right to exclude all others from the land extinguishes all native title rights in the land. However, they maintain that there is a distinction between what they describeas different types of inconsistencies of rights. They say that there is a difference between inconsistent rights which cannot co-exist and thus extinguish native title, and rights which cannot be exercised at the same time in the same place. They say that in the latter case, the tenure holder's rights prevail over but do not extinguish native title rights. This distinction is, they say, between "legal inconsistency" and inconsistency between the simultaneous exercise of rights. They draw on the two-step process articulated by Toohey J in Wik in support of this distinction. There is a distinction in my view, between the possible transient inconsistency in the simultaneous exercise of rights in the case of a pastoral lease where, for example, cattle may temporarily graze on land and the infrastructure such as in the present case. The observations of Toohey J made in the context of a pastoral lease, whether or not they survive Ward, have no application here. 119 To ascertain whether a lease confers a right of exclusive possession, one first examines the rights granted or conveyed and then classifies the grant (Ward at [186]). Attention to the use to which the land has been put distracts from the central inquiry (Ward at [215]-[216], [234]). If the grant is of exclusive possession, such as that conveyed by a lessee of the land as understood in the general law, there is no point in inquiring into the expected use of the land by the lessee and whether such use could be compatible with the continued exercise of native title rights and interests (Ward at [369]-[370]). It is not to the point that there may have been continued access to the land by Aboriginal people (Ward at [21]). Nonetheless, the actual use of the land may be relevant to suggest or demonstrate the rights that have been created or asserted (Ward at [78], [215]). 120 The determination of extinguishment requires identification of the rights lawfully exercisable under the grant and a comparison with the identified native title rights to ascertain whether the two are inconsistent. The High Court in Ward recognised that each lease must be considered to understand the rights it conveyed, which must be compared with the bundle of native title rights asserted to ascertain whether there is inconsistency. This requires not only focus on the granted rights but also on the specific traditions, customs and practices claimed (Wik at 126-127 per Toohey J). Mining leases 121 Although there is no dispute that any extinguishing effect of the grant of the Mt Goldsworthy Leases remains to be determined wholly in accordance with the principles of the common law, the applicants rely on the NTA in support of their submissions on common law extinguishment and submit that account should be taken of the approach of the NTA to mining leases. They say that, where the NTA does not provide for the confirmation of extinguishment by the grant of mining leases and dissects mining leases into areas with permanent buildings and the remainder of the lease for the purposes of extinguishment under the Act (s 245(3) and s 23B(2)(c)(vii)), that should also apply to common law extinguishment because 'the common law should develop in line with statutory change'. 122 The tenement holders accept that common law rules can be affected and their content altered by reason of statutory change and innovation. However, they submit that this principle is not applicable in this case for three reasons: 1. The NTA envisages extinguishment apart from the Act, which presupposes difference between extinguishment under the Act and extinguishment apart from it. 2. The definition of "native title" in the NTA incorporates the concept of common law extinguishment. To be native title rights for the purposes of the NTA, the rights must be recognised by the common law of Australia, which recognition may cease if those rights have been extinguished under the common law (s 223(1)(c); Ward at [20]-[21]). 3. Common law extinguishment, if it occurred, would have occurred prior to the commencement of the NTA. If the grant of a title extinguished native title at common law, it did so at the date of the grant and the mechanisms of the NTA do not operate. I prefer the approach of the tenement holders. However, practically, this case falls to be determined according to the common law principles enunciated by the High Court and the Full Court. 123 Native title rights and interests are allodial and do not derive from or depend on a grant attributable to the Commonwealth. As they may be described as "usufructuary" in nature, some or all of those rights may be able to be exercised co-extensively over part or all of the land the subject of a granted right, such as a mining lease (Ward at [331]). The tenement holders accept that it follows from Ward that a mining lease does not necessarily equate with a conferral of exclusive possession. It may grant a right of exclusive possession for the purpose of mining, rather than generally. It follows that a mining lease is not necessarily inconsistent with the exercise of all native title rights, although it may, as in Ward, be inconsistent with the right to control access. 124 As discussed in Ward at [322] to [333] (discussion on general mining leases at [308]-[321] also applicable), the Argyle mining lease there under consideration was the subject of a Government agreement ratified by statute which granted exclusive possession for the purposes of the Mining Act 1904 and Mining Act 1978. The Argyle mining project involved substantial infrastructure, including a township, airport and roads. Affirming that expressions such as "exclusive possession" for mining did not necessitate a finding of extinguishment, the High Court explained that a grant of a mining lease that gave exclusive possession for mining purposes, pursuant to s 85 of the Mining Act 1978, addressed the exclusion of others from mining and related activities in respect of the same land and protected the lease holder from activity which interfered with the exercise of mining rights, but not all other activities (Ward at [291], [296], [308], [331], [333]). The High Court said that the fact that the use of the land for mining purposes may prevent the exercise of native title rights in parts of or the whole of the leased area does not mean that the grant of the mining lease was necessarily inconsistent with all native title (at [308]) (my emphasis). The High Court expressed itself unable to decide which native title rights had been extinguished and which survived because of insufficient findings as to the native title rights which existed prior to the grant. 125 The tenement holders submit that Ward does not determine all issues relevant to this matter. First, the Mt Goldsworthy Leases were not granted under the Mining Act 1978 but pursuant to the provisions of the Agreement. Mineral leases under the Agreement are, they emphasise, different to mining leases under the Mining Act 1978 and to mineral leases under the Mining Act 1904. Also, the analysis in Ward did not extend to a comparison of the granted rights and individual native title rights and interests; the High Court did not demonstrate how the test of inconsistency is applied in practice. 126 The portion of the Argyle mining lease in Ward that was within the claim area was within a reserve that had itself extinguished native title before the grant of the mining lease. The tenement holders point out that the whole of the reasoning in respect of the Argyle mining lease is therefore obiter and that the holder of the lease did not play an active role in contending extinguishment. However, in my view, the reasoning of the High Court in discussing the Argyle mining lease was clearly considered. 127 It seems uncontroversial in the present case that the grant of the Mt Goldsworthy Leases conferred at least a right of exclusive possession for mining purposes. The grant is directed at least to preventing others from carrying out mining and related activities on the leased land. The applicants concede that the grant of the mining lease was inconsistent with and extinguished the native title right to control access to the land (Ward at [309]). This right is not one of the determined native title rights. 128 The State and the tenement holders submit that the Mt Goldsworthy Leases amounted to a grant of exclusive possession and did wholly extinguish native title. It may be that, as in Daniel No 1, the nature of the activity is such that exclusive possession against the whole world must have been intended by the grant, not just the exclusive right to mine. The applicants acknowledge that, if the Leases grant possession of the land with the legal right to exclude all others, including holders of native title exercising their rights under traditional law, native title rights are necessarily extinguished. 129 The applicants say, however, that the Mt Goldsworthy Leases are mining leases of the type held not to extinguish all native title rights and interests. They contrast the granted rights under those Leases with special leases (Ward at [351]-[357]) which, they accept, grant exclusive possession and extinguish native title because the nature of the tenure is for 'uses in which it might ordinarily be expected that the user would wish to control access to the land' (Ward at [356]). They accept that: · leases granted under the Mining Act 1978 (WA) were inconsistent with and did extinguish the native title right to control access to the land (Ward at [309]) but rely on the High Court's observation that leases under the Mining Act were not necessarily inconsistent with all native title rights and interests (emphasis added) (Ward at [296]). · rights granted under freehold and special leases, whether exercised or not exercised at all, are legally inconsistent with any native title rights and interests because both cannot exist at the same time, as the leases grant the right to exclude all others from the land. · there may be inconsistent rights other than the right to control access, such as those specific granted rights discussed by Nicholson J in Daniel No 2. · the rights granted to the Joint Venturers, whether exercised or not, would be legally inconsistent with any native title right to enter the land and use it for mining or other related purposes and with any right to control access to the land. However, the applicants assert that there remain native title rights which coexist with the rights of the leaseholders. THE STATUTORY GRANT OF RIGHTS TO THE HOLDERS OF THE MT GOLDSWORTHY LEASES The Mining Act 1904 (WA) 130 The parties agree that the operative mining legislation in Western Australia at the date of the Agreement Act and at the date of the leases was the Mining Act 1904. The Mining Act 1904 provided that the holder of a miner's right was relevantly entitled to take possession of, mine, and occupy Crown land for mining purposes (s 26) and any person taking up and occupying Crown land by virtue of a miner's right was deemed to be possessed of that land (s 31). It was an offence for a person not holding a miner's right to occupy Crown land in a proclaimed mineral field without authorisation (s 290). A miner's title in respect of a claim was dependent on occupation and possession of the land. 131 Leases could be obtained under the Mining Act 1904 and it was not necessary for the applicant or holder of a mining lease to hold a miner's right (s 116). Where a person held a claim and then obtained a lease over the same land, the interest held under the miner's right merged in the interest held under the lease (s 66). The Mining Act 1904 also provided for a right of occupancy which might be temporary or for a fixed period (ss 276, 277). If for longer than the fixed period of a year, or if a fixed period was to be renewed for a term not exceeding twelve months, the Minister was to table the terms and conditions in each House of Parliament (s 277(3) and (4)). 132 By the transitional and saving provisions of the Mining Act 1978, nothing in that Act was to affect the provisions of any Act in force on the commencing date (relevantly, including the Agreement Act)that approved or ratified an agreement to which the State was a party and under which a party to the agreement was authorised or required to carry out any mining operations pursuant to the agreement. 133 However, the applicants point out that the Mining Act 1904 allowed for "duality of title" and contemplated more than one party having rights in the same ground. They point out that, despite the Mining Act 1978 (which applied to the mining leases considered in Ward)providing for a mining lease to confer exclusive rights for mining purposes, the High Court in Ward still considered that such mining leases did not necessarily extinguish native title rights, although those rights would "yield" to the statutory interests (Ward at [291]). The Agreement and the Mt Goldsworthy Leases 134 It is not in dispute that the iron ore industry in Western Australia was developed pursuant to State agreements, of which the Mt Goldsworthy State Agreement was one. The Agreement was brought into force as the operative schedule to the Agreement Act. 135 The Agreement is a "Government agreement" for the purposes of the Government Agreements Act 1979 (WA) (the Government Agreements Act), which provides that a Government agreement operates and takes effect from inception according to its terms, notwithstanding any other Act or law (s 3). The whole of Mining Area A and Mining Area B are "subject land" for the purposes of the Government Agreements Act. Section 4 of the Government Agreements Act relevantly provides for offences where a person remains on subject land without lawful authority after having been warned to leave it and where a person prevents, obstructs or hinders any activity carried on pursuant to a Government agreement. 136 The tenement holders explain the structure of the Agreement as follows. Under the Mining Act 1904, there was a reservation of land and a grant of a "right of occupancy". Such a right of occupancy was granted prior to the operation of clause 8 of the Agreement. The mineral lease did not operate until the Agreement was ratified by statute. 137 By s 4 of the Agreement Act, the Joint Venturers were permitted to enter upon the lands specified to the extent and for the purposes provided under the Agreement. Clause 2 of the Agreement sets out the obligations of the State during Phase 1. This included, on application prior to 31 March 1965, an obligation to 'cause to be granted to the Joint Venturers and to the Joint Venturers alone rights of occupancy for the purposes of this Agreement (including the sole right to search and prospect for iron ore)' over the whole area of Mining Area A. Clause 2(a) also provided for an obligation to cause to be granted as may be necessary successive renewals of such rights of occupancy. This obligation was to expire on one of a series of dates, whichever shall first happen, including the date of application for a mineral lease by the Joint Venturers under either clause 8(1) or 8(2)(a) of the Agreement. 138 Clause 5 provided for proposals by the Joint Venturers for, inter alia, transport and shipment of the iron ore to a harbour to be developed, transport by railway between the mining area and the wharf, town sites on the mining area and near the harbour, housing, water supply, roads and any other works or facilities proposed or desired by the Joint Venturers. Provision was made for consultation on the proposals between the Joint Venturers and the Minister within fixed time frames and for arbitration of any disputes. It should be noted that all of the development carried out by the Joint Venturers was, it is agreed, carried out lawfully. 139 Clause 8(2) provided that, as soon as convenient after the commencement date, the Joint Venturers may apply and the State shall cause to be granted a mineral lease of any part or parts (not exceeding 300 square miles) of Mining Area A, the mineral lease being granted to the Joint Venturers 'as tenants in common in equal shares…for iron ore in form of the Schedule hereto' for 21 years subject to rental payment and performance and observance by the Joint Venturers of obligations under the mineral lease, with the right to successive renewals of 21 years. 140 By and under the Agreement (rather than the Mining Act 1904), the State granted "mineral leases" (Lease 235 and Lease 249) for iron ore over Mining Area A and Mining Area B (Mt Goldsworthy Lease areas). In consideration of rents and royalties reserved by the Agreement, the State granted and demised, under Lease 235, to the Joint Venturers as tenants in common in equal shares all of the land in Mining area A: …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 said Agreement to hold the said land and mine and all and singular the premises hereby demised for the full term of twenty one years from the fifth day of August 1965… with a right to renew but subject to the terms, covenants and conditions set out in the Agreement and to the Mining Act 1904 (as modified by the Agreement). 141 The Mt Goldsworthy Leases contained specific provisions and were in a form different to those granted under the Mining Act 1904. Specifically, with emphasis added, the following points can be noted regarding the Leases: · They were expressed to be granted under the terms of the Agreement. · The lease instrument provided for the grant and demise to the Joint Venturers as tenants in common in equal shares the land and the mines and deposits of iron ore in or under the said land together with all rights, liberties, easements, belonging or appertaining to a lessee of a mineral lease under the Mining Act 1904 to hold the land and mine. · Clause 1 provided that the Joint Venturers shall and will use the landbona fide exclusively for the purposes of the Agreement. The purposes of the Agreement are extensive and are not limited to mining or necessary associated construction or to the purposes which a lessee can use and work the land under the Mining Act 1904 or under the Mining Act 1978, which are more restrictive. The purposes of the Agreement extend to the construction of roads, railways, an airstrip and towns and schools. · Clause 2 provided for compliance with the Mines Regulation Act 1846 (WA) and the Mining Act 1904, subject to and as modified by the Agreement. · The Second Reading Speech for the Iron Ore (Mount Goldsworthy) Agreement Bill 1964 (WA) referred to the fact that the developments the subject of the Agreement and the Leases were expected to have a much more far reaching effect than those contained in the mining, processing and exporting of iron ore. · The Mt Goldsworthy Leases may only be terminated by the lessor as a consequence of the default of the leaseholders as provided by the Agreement. The leaseholders have the right to terminate and surrender the lease at an earlier date at will. · The Leases provide the leaseholders with the rights contemplated by the Agreement as well as the rights available for a mineral lease under the Mining Act 1904. 142 The tenement holders emphasise that the grant of the Mt Goldsworthy Leases was for the purposes of the Agreement. They emphasise that the purposes of the Agreement were not limited to mining but extended to the other obligations of the Joint Venturers, including the building of a town and railway. By contrast, the Mining Act 1904 permitted the grant of lease of land for the purposes of mining but did not extend to other construction. The tenement holders point out that the Mt Goldsworthy Leases were not simply leases under the Mining Act 1904 or the Mining Act 1978 and that it was because of the limited nature of such leases that the Agreement was entered into. The tenement holders liken the Leases to a special lease for a range of commercial, industrial and town purposes as well as the "conventional" rights of a mineral lease, no less extensive than the rights conferred by the special leases considered in Ward. 143 Under the Agreement, the lease holders could be granted additional tenure for specific purposes and further rights pursuant to legislation other then the Mining Act 1904. They could require grants of fee simple titles or other required titles for town site lots and special leases within town sites and railways. After approval or determination of the Joint Venturers' proposals, the State was obliged to grant to the Joint Venturers 'as tenants in common in equal shares in fee simple or for such terms or periods and on such terms and conditions (including renewal rights) as subject to the proposals…shall be reasonable having regard to the requirements of the Joint Venturers' (clause 8(2)(b)): · townsite lots (for nominal consideration); · special leases of Crown lands within the harbour area, townsites and the railways (at peppercorn rental); and · leases, rights, mining tenements, easements, reserves and licences in, on or under Crown lands (at rentals prescribed by law or otherwise reasonable). 144 The Joint Venturers also had the right under clause 8(2)(c) to have granted to them, on application, such machinery and tailings leases and such other leases, licences, reserves and tenements as they may reasonably require and request for their purposes under the Agreement on or near the mineral lease. Similarly, the State had the obligation to grant or assist in granting prospecting rights and mining leases with respect to limestone, dolomite and other minerals reasonably required for the Joint Venturers' purposes under the Agreement (clause 8(e)). 145 Clause 8(2)(f) provided that the State consent to improvements for the purposes of the Agreement on the land comprised in any lease granted to the Joint Venturers under the Agreement. The tenement holders point out that there is no evidence that such consent was sought or required in respect of the improvements that occurred on Lease 235. However, as noted, there is no contention that any improvement was made unlawfully. Clause 8B provided that the Joint Venturers may apply for general purpose leases for the purpose of their operations under the Agreement in respect of areas of land greater than the maximum area provided for under the Mining Act 1904. 146 The Joint Venturers were obliged under the Agreement to construct, inter alia, mining plant and equipment, railways, roads and a wharf (clause 9). Further, in accordance with proposals as finally approved or determined, the Joint Venturers had obligations to dredge the berth at the wharf and the channel, to lay out and develop town sites with adequate suitable housing, recreational and other facilities and to construct and provide roads, housing, a school, water and power supplies and to construct and provide an airstrip. 147 In relation to what has been described as Phase 2 obligations, the Agreement provided in clause 9(1) that within three or five years following the commencement date, the Joint Venturers were obliged carry out substantial work in relation to infrastructure, the mining operations and the transport of ore. Clause 9(2) provides, inter alia, that the Joint Venturers were obliged to: · except to the extent provided under the proposals as finally approved or determined, allow the public to use free of charge any roads constructed or upgraded under the Agreement (cl 9(2)(b)); and · allow the State and third parties to have access over the mineral lease (by separate route, road or railway) so long as such use and access shall not unduly prejudice or interfere with the Joint Venturers' operations thereunder, that is, under the Agreement. The rights granted by the Mt Goldsworthy Leases The tenement holders' submissions 148 The tenement holders do not rely on the activities undertaken on the Mt Goldsworthy Leases themselves as extinguishing native title. They accept that to do so falls into the category of operational inconsistency which was discredited in Ward at [149]. Rather, it is a question of considering the rights that were able to be exercised under the Mt Goldsworthy Leases for the purpose of determining whether the grant of title gave rise to a right of exclusive possession or, if not, was otherwise inconsistent with the determined native title rights (Ward). In the latter case, they say an appreciation of the rights exercised under the Leases shows that the grant of the lease instruments which authorised those rights was inconsistent with the determined native title rights, even if it did not give rise to a right of exclusive possession. They submit that those rights could have been exercised over the entirety of the Mt Goldsworthy Lease area and, therefore, extinguished native title over that entire area. The tenement holders submit that the continued exercise of native title rights would have been and is inconsistent with the rights able to be exercised under the Leases and, accordingly, native title was extinguished by the grant of the Leases. 149 The rights exercisable under the Mt Goldsworthy Leases allowed the Joint Venturers to do what was needed under the Agreement: to build towns, build facilities to service the town, store material, extract minerals, quarry, use explosives and the like. The work carried out and the activities undertaken pursuant to the Leases and the Agreement were extensive. The tenement holders emphasise the massive scale of the work undertaken by them pursuant to the Agreement, including the development of Port Hedland and the port at Finucane Island, the dimensions of the mine and the quantity of material taken from it. The scale of the work at Mt Goldsworthy was, as described by the tenement holders, to 'transform a mountain into a deep gorge' by extracting tens of millions of tonnes of material from an area. This demonstrates, say the tenement holders, an inconsistency with the determined native title rights. The tenement holders also say that they had the right to dump waste material anywhere on the area of Lease 235. Operations took place 24 hours a day, seven days a week. The Joint Venturers were also entitled to build an airstrip. 150 As set out above, clause 8(2)(b) of the Agreement provided for town site lots and special leases to be granted to the Joint Venturers. Special leases were granted as required, concurrent in time and at the request of the Joint Venturers, over land outside the Mt Goldsworthy Lease area. For example, special leases were granted for the town of Shay Gap, the Finucane Island town site (Port Hedland) and the Mt Goldsworthy water supply, which were all outside the Mt Goldsworthy Lease area. It is agreed that these special leases gave rise to exclusive possession and therefore extinguishment of native title (cf Ward). However the applicants note that, in Ward, the special lease was an "exclusive pastoral lease" which, by reason of Pt 2 Div 2B of the NTA, was an exclusive possession act that extinguished native title. The applicants emphasise that this consequence was not because of common law extinguishment. The applicants accept that special leases granted under clause 8(2)(b) are extinguishing tenures which fall within the definition of "previous exclusive possession act" in the NTA. 151 There were, however, no separate titles applied for or granted for the Goldsworthy town site as it was built pursuant to Lease 235 and within the area of that Lease. No special lease or other separate provision was required. There are areas within the Mt Goldsworthy Lease area which were subject to a special lease for the railway. The parties accept that those overlapping areas are excluded from the relevant claim area. The tenement holders explain that this special lease was obtained because the railway goes across and beyond the Mt Goldsworthy Lease area. Apart from this special lease, there were no other special leases granted within the Mt Goldsworthy Lease area. 152 The tenement holders submit that even though the Mt Goldsworthy township was not on an area the subject of a special lease, it could be built under the rights granted pursuant to clause 8 of the Agreement which were, in effect, the same rights as under a special lease. They submit that there was no need to apply for town site lots or special leases because those rights, including the right to build a township and construct the mine, had been granted under Lease 235 pursuant to the Agreement. The tenement holders say that the evidence as to what actually occurred with respect to special leases outside the Mt Goldsworthy Lease area, such as at Shay Gap, informs the nature and breadth of the rights granted by the Mt Goldsworthy Leases. In effect, the tenement holders seek to compare what occurred within the Mt Goldsworthy Lease area under the rights granted by the Mt Goldsworthy Leases with what occurred outside the Goldsworthy Lease area under special leases, to argue that the rights under the Mt Goldsworthy Leases equated to the rights under a special lease. 153 The rights exercisable under the Mt Goldsworthy Leases correlated with the rights exercisable and exercised in relation to the Shay Gap township and development, which were pursuant to a special lease. The tenement holders submit that those rights, as exercised lawfully, demonstrate that the instrument that created the rights to carry out those works created a right of exclusive possession which extinguished the determined native title rights over the whole of the area. Even if that were not the case, the tenement holders submit that the rights and activities exercised pursuant to those rights were inconsistent with the determined native title rights. It would follow that the determined native title rights have been extinguished over, at least, the areas of the township and development. 154 The tenement holders also rely on the fact that future mining may be carried out in parts of the Mt Goldsworthy Lease area not previously mined or developed. A magnetite ore body has been identified and analysis undertaken of the magnetite potential on Lease 235 and sections 1 and 2 of Lease 249. The magnetite ore body, at a mining depth estimated at 200 metres and of a maximum range of approximately 6 billion tonnes (mid range approximately 2.5 billion tonnes), would be extracted using open cut pit mining. The evidence is that future operations would involve open pit mining down to potentially 200 metres in depth, construction of plant and storage facilities, a rail spur off the existing Finucane to Yarrie rail line or a slurry pipeline and offices and a camp for housing. The tenement holders also rely on the evidence of potential future mining of the Ord Ridley deposits within the area of Lease 249. The tenement holders point out that the grant of a special lease for a railway that is never built and the grant of a special lease over pastoral land untouched by a cow both extinguish native title. The question, as recognised in Ward, is the nature of the rights able to be exercised, informed by rights that have been exercised. The evidence is to the effect that the tenement holders have not abandoned the possibility of future development and they submit that such development will be pursuant to a right that they presently have and are contemplating exercising in the future. The applicants say that such rights cannot be exercised without a proposal being lodged within the time frame set out in the Agreement and approved. 155 The tenement holders say that their ability to recommence mining on the Mt Goldsworthy Leases demonstrates the wide scope of the Agreement and their rights under the Mt Goldsworthy Leases as well as an intention in the Agreement to provide for the evolution of mining on the leased area. They say that this ability to undertake future mining within the leased areas also highlights the logical problems arising from the decision in De Rose, being that the future mining, if undertaken, would effect further extinguishment of native title rights. This consequence was not addressed by the Full Court in De Rose. 156 The State does not adopt the tenement holders' submissions insofar as they suggest that the determination in De Rose confirmed the extinguishment of native title rights not only in relation to existing improvements but also to future improvements. It points out that this was not accepted by Moore J in King at [170]. There, his Honour was of the opinion that only improvements made at the time of determination effected extinguishment and that it is the right to construct improvements, when exercised, that has that effect. In this regard his Honour took into account the decision of the Full Court in De Rose. 157 The State and the tenement holders draw attention to the difficulties of applying a principle where one looks to use to determine extinguishment by reason of construction permitted under the lease but not yet effected. This would result in a determination being merely a "snapshot in time" and would necessitate repeated applications to the Court as improvements are effected. They submit out that this cannot be the intention and that it does not follow from the reasoning in Ward and Fejo. The applicants' submissions 158 As to the rights granted by the Mt Goldsworthy Leases, the applicants say that: · The Mt Goldsworthy Leases were not intended to give effect to all the purposes of the Agreement. · The Leases conferred the rights to mine iron ore, not to construct railways, town sites etc. · The Leases did not confer rights to carry out a range of mining and construction works over the entire lease area and at any time, including into the future. · The proposals as envisaged in the Agreement were required to be submitted during "Phase 2" of the project. · The subject matter of the proposals included a harbour and wharf site at Port Hedland which were not part of Mining Area A. Not all of the proposals required by clause 5(2)(a)(B) of the Agreement concerned the land the subject of the Mt Goldsworthy Leases. · The proposals were not unlimited as to time but had to be submitted by 31 December 1964 or such extended dates as approved by the Minister or arbitrated. Time limits were also included for consideration of the proposals and for arbitration · The mineral lease to be granted by the State was in conformity with the approved or determined mining proposal under clause 5(2)(a)(A). Other proposals did not necessarily concern the area of the mineral lease. · Clause 8(2)(c), which refers to machinery and tailing leases, was not qualified by the requirement for proposals and was a contemplation of the grant of further tenure that may be required for certain activities within or near the mineral leases. · The Agreement also provided for the possibility of other leases as and when required by the Joint Venturers but without prejudice to the detailed proposal required by clause 5(2). · That is, mineral leases are a significant component but not the only component of the Agreement. Put another way, the purpose of the Agreement was not envisaged to be achieved only by mineral leases over the Mining Areas A, B or C. The purpose of the mineral leases was not to give effect to all of the purposes of the Agreement. · The mineral lease was granted over an area and there was then a proposal which was to be considered and, if approved, the construction takes place. · The applicants answer the tenement holders' reliance on the grant as tenants in common by contending that this only refers to the rights as between the Joint venturers. They also point out that standard mining leases can be renewed for successive terms, so that the renewals provided for in the Agreement do not evidence greater stability of title. 159 The applicants submit that the Joint Venturers, who constructed the town, had only contractual rights under the Agreement, that they had obligations but no rights except by way of separate specific leases. The only actions that the Joint Venturers could take, including those that were generally authorised under the Agreement, were those specifically approved by way of acceptance of a proposed action. Further, they say, nothing in the Agreement provides for the making of further proposals, as the time for doing so has passed. 160 The applicants emphasise the distinction between extinguishment of native title rights and the prevailing over those rights (Ward at [308]; see also s 44H(c) of the NTA). For extinguishment, there must be a legal inconsistency between rights granted under the relevant tenures and the native title rights. That is not the same, they say, as an inability for both parties to exercise rights at the same time and the same place. It does mean that the native title rights, such as the right to hunt, temporarily give way to the rights under the tenure but can otherwise be exercised at other times. The applicants say that where a town site is proposed and approved for building in the area of the mineral lease, the rights of the Joint Venturers will prevail but only for the time of the existence of the town site. Those rights do not, they contend, extinguish the native title rights. Nothing that was done by the Joint Venturers, the applicants submit, extinguished the determined native title rights. CONSIDERATION 161 There is no dispute between the parties that the common law test for extinguishment of native title is the "inconsistency of incidents" test. That test is whether the rights granted to the tenement holders are inconsistent with the determined native title rights. The difference between them, fundamentally, is whether the rights of the Joint Venturers that appear to conflict with the determined native title rights extinguish them or merely prevail over or suspend the exercise of the native title rights and whether any extinguishment cover the whole of the leased area. 162 A grant in fee simple, which extinguishes all native title rights and interests in the land, is: 'for almost all practical purposes, the equivalent of full ownership of the land' and confers 'the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination'. It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title'. (Fejo at [43], citations omitted) 163 If the grant is not of fee simple but of rights that have the same effect in that they enable the holder of those rights to use the land as he or she sees fit and to exclude any and everyone from access to the land, those rights are inconsistent with native title rights and native title is extinguished (Fejo at [47]). If the granted rights in fact amount to exclusive possession, native title rights and interests will be extinguished and not merely suspended, regardless of whether the expected use of the land could be compatible with the continued exercise of native title rights (Fejo at [46]; Ward at [370]). If the grant is not of exclusive possession, then it may be the case that the rights granted extinguish native title, or do not extinguish native title rights but simply prevail over them. It is a matter of comparing the rights. 164 It is worth repeating that Ward has made the following clear: · The basic inquiry is about the inconsistency of rights, not inconsistency of use. Nonetheless, the actual use of the land may be relevant to suggest or demonstrate the rights that have been created and asserted. · 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 be no extinguishment. · Once native title in extinguished, it cannot be revived. It follows that, if the grant of the Mt Goldsworthy Leases extinguished native title rights over a piece of land, the fact that the tenement holders are no longer exercising their rights over that land or the fact the land has now been returned to its natural state does not revive the native title rights. 165 In its discussion of mining leases at [308], Ward made the following observations which, as pointed out by the Full Court in De Rose, may appear difficult to reconcile with the above propositions: The holder of a mining lease having the right to exclude for the specified purposes, the holder may exercise that right in a way which would prevent the exercise of some relevant native title right or interests for so long as the holder of the mining lease carries on that activity. Just as the erection by a pastoral lease holder of some shed or other structure on the land may prevent native title holders gathering certain foods in that place, so too the use of land for mining purposes may prevent the exercise of native title rights and interests on some parts (even, in some cases, perhaps the whole) of the leased area. That is not to say, however, that the grant of the mining lease is necessarily inconsistent with all native title. (emphasis is mine) To reconcile these comments with the High Court's emphasis on inconsistency of rights (as opposed to use) and its rejection of the suspension of native title under common law, the comments can only be interpreted as referring to situations where the granted rights and the native title rights are not inconsistent (as suggested in De Rose at [154]). If native title rights and interests can co-exist with the granted rights, then they are not extinguished, although the granted rights prevail over the native title rights (Daniel No 2 at [12] per Nicholson J, referring to Ward at [468]). The High Court's comments at [308] cannot apply to situations where the rights are inconsistent such that the native title rights are extinguished by the granted rights once and for all. 166 The State submits that the High Court's comments in [308] are not a reference to any common law principle, as the High Court, in context, was considering the application of the NTA or the State validation legislation. This is not the interpretation of that part of the High Court's reasons in De Rose, Daniel No 1 and No 2 and King. The reasoning of the High Court on this subject applies, in my opinion, to common law principles of extinguishment where the granted right is not inconsistent with the identified native title rights. 167 Although Ward outlined the principles by which extinguishment of native title is to be determined, the High Court was unable, due to the lack of evidence of the particular native title rights, to implement the test and undertake a comparison of granted rights and native title rights in situations where the granted rights did not necessarily extinguish all native title rights. Consequently, the High Court did not illustrate how the process of "comparison" of rights is to take place in practice. 168 The Full Court in De Rose was left with task of applying the principles in Ward to pastoral leases which did not grant exclusive possession so as to extinguish all native title rights over the whole of the leased area. The Full Court acknowledged, from Ward,that the critical question is whether the two sets of rights are inconsistent and that actual use of land is relevant insofar as it focuses attention upon the right pursuant to which the land is used. It considered the High Court's comments in Ward that "operational inconsistency" may provide some assistance by way of analogy but 'the analogy cannot be carried too far' (at [149]). However, the Full Court was faced with the problem of determining extinguishment in the case of a factual situation which was not considered by the High Court: 1. The pastoral lease did not grant exclusive possession so as to extinguish all native title over the whole of the leased area. 2. The lease conferred on the lessees the right to construct improvements on the leasehold land. 3. Until the lessee exercised that right and constructed the improvements, it was not possible to identify the parts of the lease affected by the improvements. 169 The Full Court said that, from the outset, the right to erect improvements on the leasehold land was "potentially inconsistent", to a greater or lesser extent, with native title rights and interests in respect of the land (at [155]). The Full Court considered that the right to construct improvements such as a dwelling house somewhere on the leased area, when exercised, was clearly inconsistent with all native title rights insofar as they relate to the particular land on which the dwelling house was constructed. For example, the Full Court did not consider that the native title right to gain access to the land or to hunt on the land in a traditional manner could co-exist with the lessees' rights to construct and reside in the dwelling house. However, it was only after construction of the dwelling house that the precise area of land affected by the lessees' right to construct a dwelling house could be ascertained. 170 It can clearly be inferred that the Full Court considered that the right to erect improvements on one area of the lease was not inconsistent with native title rights exercised on another area of the lease which was unaffected by the improvements. The lessees' right was only inconsistent with the native title rights over that area of land affected by their right to erect improvements. This was so even though the lessees were free to choose where on the leasehold land to exercise their right to erect improvements. It is worth repeating that the Full Court was considering a lease which did not confer exclusive possession. That is, the lessee did not have the general right to exclude all persons from the entire lease area. It seems logical, as Nicholson J observed in Daniel No 2 at [13], that native title rights are not extinguished over the whole of the lease area merely because the lessee may want to exercise its rights at the same location at which native title holders exercise their rights. 171 The Full Court in De Rose was careful to make it clear that its analysis ultimately concerned inconsistency of the granted right with native title rather than inconsistency of use. Referring to the observations in Ward that the operation of a grant may be subject to a condition precedent or a condition subsequent, the Full Court considered that the operation of the grant of the right to erect improvements was subject to a condition precedent. The Full Court found that the grant of the right could become operative in relation to a particular area of the leasehold land only when the right was exercised. It was ultimately still the grant of rights which extinguished native title, but it could have an extinguishing effect only when the right was exercised, since it was only then that the precise area or areas of land affected by the right could be identified. (De Rose at [156]) That is, extinguishment occurs at the time of exercise of the right (at [157]). 172 The parties have had some difficulty in reconciling Ward and De Rose. They recognise that I am bound by the interpretation of Ward as applied in De Rose. It was agreed by the parties that, to the extent that De Rose could be said to have applied a test for extinguishment of "operational inconsistency", this was directly contrary to Ward, where that test was rejected in terms. However, the Full Court in De Rose expressly referred to the High Court's comments on "operational inconsistency" in Ward and must have been aware of the rejection in Ward of that principle as a test of extinguishment. Their Honours' reasons in De Rose should be read with that rejection in mind and not be construed as an application of the rejected principle. There is a difference between a finding that the declaration of land did not extinguish native title but the use of that land did extinguish native title because it gave rise to operational inconsistency, and the finding by the Full Court in De Rose that the right to erect improvements granted by the pastoral lease was inconsistent with native title rights in respect of the particular land on which the improvement is erected, but that the land over which native title was extinguished could not be identified until the lessee exercised the right on that particular land. As mentioned above, the Full Court in De Rose made it clear that it was the grant of the right which effected extinguishment. 173 Perhaps an example, which may well be an oversimplification, may assist in understanding how De Rose applied the principles in Ward. A lease grants rights to the lease holder that do not extend to exclusive possession so as to extinguish all native title rights over the whole of the land (Ward and De Rose). The leaseholder is, however, granted the right to construct a mine somewhere on the land. Prior to the choice of the site, native title holders exercise their right to conduct ceremonies on certain land. The leaseholder decides to construct the mine precisely where native title holders conduct ceremonies. The rights of the native title holders to conduct ceremonies on that land is clearly inconsistent with the leaseholder's right to construct the mine, which would involve denying access by all third parties to the mine area and destroying the ceremonial objects on the land. The native title rights over the area of the mine will have been extinguished (Ward and De Rose) and remain so despite the fact that mining subsequently ceases and the mine is abandoned (Ward). 174 If the granted right is of fee simple in the land or exclusive possession for all purposes, there will be extinguishment of native title rights and interests in the land. If the granted right is a lesser right, for example, the right to exclude for a specific purpose (such as other miners for the purpose of mining) or the right to carry out a specific improvement (such as a structure on pastoral land), there may not be extinguishment of all native title rights over that part or over the whole of the land (Ward at [308]). That right, such as an ancillary right under the mining lease, may prevent the exercise of a relevant native title right or interest only for so long as the holder of the mining lease carries out that activity. A temporary shelter constructed under a right to construct buildings on a pastoral lease, may or may not be inconsistent with the exercise of all native title right. Other native title rights, not inconsistent with the exercised leaseholder right, may not be affected. Question 1: Did the grant of the Mt Goldsworthy Leases pursuant to the Agreement confer on the holders of those Leases a right of exclusive possession such that any native title rights and interests were wholly extinguished? 175 The applicants agree that a title conferring exclusive possession, for example, a legal right to exclude all others from the land, such as a grant of freehold, extinguishes all native title rights in the land. They accept that this is because the right to exclude others is legally and conceptually inconsistent with any continued existence of native title rights in the land and contradicts any rights of native title holders in respect of the land. They contrast a grant of freehold and a special lease on one hand with the grant of exclusive possession for mining purposes on the other. This is on the asserted basis of Ward at [308] where the High Court said, in respect of the mining lease there under consideration, that it was only directed at preventing others from carrying out mining and other related activities on the relevant land. However, the High Court was not purporting to address all leases that relate to mining, whether by way of the Mining Act 1904, the Mining Act 1978 or specific agreement, such as a State Agreement. It is clear that each granted right must be assessed objectively before seeking to classify it (Ward at [186]). The High Court recognised in Ward at [308] that the holder of a mining lease may not have exclusive possession and that the grant of a mining lease is not necessarily inconsistent with all native title but also observed that "the use of the land for mining purposes may prevent the exercise of native title rights and interests on some parts, even in some cases perhaps the whole of the land". It is necessary to consider the Mt Goldsworthy Leases. 176 The applicants accept that the rights granted under freehold and special leases, whether or not exercised at all, are legally inconsistent with native title rights because both cannot exist at the same time. This is because such rights extend not only to the right of access to and use of the land for all purposes (in the case of freehold) or for specified purposes (in the case of special leases), but also to exclude all others from the land, irrespective of the purpose for which others want to use the land. The applicants accept that mining leases and the general purpose lease granted under the Mining Act 1978 are legally inconsistent with any native title right to enter the land and use it for mining or other related purposes and with any right to control access to the land. They submit, however, that there still remain native title rights which "legally, and in theory, coexist with the rights of the leaseholders". They say that these activities, exercised as of right, must yield to but are not extinguished by the leaseholders' enjoyment of their rights under the terms of the lease if both attempt to exercise their rights in the same place at the same time. Then, the leaseholders' rights prevail for as long as they are carrying out that activity. 177 The applicants submit that the Mt Goldsworthy Leases are not relevantly distinguishable from other mining leases which have been found not to be inconsistent with all native title rights. For example, the Hamersley Range lease, of comparable size and importance and granted pursuant to a Western Australian Agreement Act was considered in Daniel No 1. That Agreement Act contained clauses strikingly similar to the Mt Goldsworthy Agreement Act, including the statement in both leases that the leaseholders are to hold the said land and mine, and the provision for extensive mining-associated infrastructure and other infrastructure that included towns, schools, a harbour and wharf development. Despite this, Nicholson J considered that the rights granted by the Hamersley Range lease did not amount to exclusive possession so as to extinguish all native title rights. As mentioned above, the tenement holders and the State submit that his Honour's conclusions as to mineral leases do not assist as his Honour did not fully consider the application of the "inconsistency of incidents" test in relation to the Hamersley Range Lease. Those parties submit that cases where the test was not applied (eg Rubibi Community v Western Australia (No 7) [2006] FCA 459) are, similarly, not of assistance. I have considered Nicholson J's reasons and have taken them into account in coming to an understanding of the principles derived from Ward and applied in Daniel No 1 and No 2. 178 The applicants submit that the Agreement confers no express or implied right to control access to the land. A grant of exclusive possession for mining purposes allows the control of access of others seeking to use the land for mining purposes. The presence of towns, roads and railways negates, they say, any expectation of control of access by all persons throughout the whole leased area. The fact that the Agreement Act provides for application for additional tenure such as fee simple and special leases suggests that the Mt Goldsworthy Leases themselves were not intended to provide exclusive possession which allowed for all others to be excluded. 179 As discussed above, the tenement holders rely on the terms of the Mt Goldsworthy Leases as well as the breadth of the purposes of the Agreement to submit that the Leases are very different to the mining leases granted only under the Mining Act 1904 or the Mining Act 1978. They say that the Mt Goldsworthy Leases are in the nature of "true" leases and submit that the rights conferred by the Leases are no less extensive than the rights conferred by the special leases considered in Ward, which were found to have granted a right of exclusive possession 180 The tenement holders submit that all of the determined native title rights are inconsistent with the rights granted to the Joint Venturers. They rely upon the consideration by Nicholson J in Daniel No 1 at [847] of the Dampier salt lease, which was a mineral lease granted under a Western Australian State Agreement in relation to a large-scale, intensive salt mining project requiring the grant of rights in addition to rights granted under a typical Mining Act 1904 mining lease. His Honour held that the nature of the activity required and permitted on the land the subject of the lease (solar salt mining) was such that exclusive possession against the whole world must have been intended to be granted by the lease. The nature of the mining operation for salt production could not co-exist with any actual exercise of native title rights. The result was the extinguishment of native title rights. Contrary to the submissions of the applicants, it was permissible for Nicholson J to consider actual use of the land to read back into the rights that must have been intended by the grant (see Ward at [78]). There is, however, no evidence that compares the nature of solar salt mining with mining for iron. 181 The right to occupy granted by the Agreement to the Joint Venturers alone for the purposes of the Agreement (cl 2(a)) does not amount to a right of exclusive possession (Wik at 162, 165-6 per Gaudron J). A mining lease, of its nature, grants a right to exclude other miners from exercising mining rights but does not necessarily entail a right to exclude all others. Further, as the applicants submit, even if there were a right to prevent persons without lawful authority remaining on the land, for example, under the Government Agreements Act, that cannot apply to people exercising native title rights and interests if those rights have not been extinguished. 182 The nature of the mining included extensive open pit mining which changed the landscape. The Joint Venturers were granted the right to construct a town in the leased area. The Leases envisaged railways, roads and other construction. While construction was carried out pursuant to authorisation by the State of submitted proposals, the right to carry out that construction, subject to the authorisation, was granted by the Agreement. Tenure in the form of a demise from the Crown creating the interest in the land was granted by the Agreement and the Mt Goldsworthy Leases. The fact that a home owner with a fee simple interest cannot carry out alterations to his or her residence without State or local council approval does not derogate from the underlying rights to that property. 183 The Joint Venturers were granted the right to mine in the leased area and to construct such infrastructure as considered necessary for that purpose, not restricted to infrastructure directly associated with mining activities but extending to the town and associated activities and structures. I will deal in question 2 with whether these rights of themselves are inconsistent with the continued existence of the determined native title rights. However, in terms of the leased area as a whole, while it was the intention that the Joint Venturers could decide where in the leased area they would locate mines and associated infrastructure, it could not have been the intention that they would exert their rights over the whole of the leased area. This has been borne out by the fact that, even with the extensive mining activity and development undertaken, only approximately one third of the leased area has been the subject of the exercise of those granted rights. There is no suggestion that the proposed future mining sites would extend over all of the remaining area. 184 It could not have been intended, nor was it feasible, to assume a grant to the Joint Venturers of exclusive possession of the whole of the leased area. The terms of the Agreement provide for third party rights of access which do not interfere with the operations of the Joint Venturers. This recognition that the operations will not encompass the whole of the leased area is consistent with the recognition that those parts of the leased area that are not part of the mining operations and associated development are accessible to third parties, which would include native title holders. I accept that the Joint Venturers had the right to restrict access by the native title holders to, at least, the mine or other areas the subject of mining or mining exploration and to areas and buildings within the town site. The rights to exclude access are thereby linked to the area of operations rather than the whole of the leased area and this has implications for my answer to question 2. There is no good reason, however, to presuppose that it was intended that the Joint Venturers had the right to exclude access by native title holders seeking to exert the determined native title rights over those parts of the leased area that were left untouched by the Joint Venturers. Clause 9 of the Agreement obliges the Joint Venturers to allow the State and third parties to use or have access to the land the subject of the mineral leases and the infrastructure there constructed, such as the roads and the wharf, and for the right of the inhabitants of the port town site to have access to water, power and recreational facilities. I accept that the provision of specified rights of access by third parties to roads and routes may be said to be consistent with the fact that otherwise there would be no right of access. However, it is also consistent with an expectation that the specified sites, but not the whole of the leased area, would have access to them restricted or denied by the tenement holders. 185 The Agreement and the Mt Goldsworthy Leases did not confer a right of exclusive possession on the Joint Venturers such as to extinguish all native title rights over the whole of the leased area. 186 The tenement holders also rely on the 2007 renewals of each of the Mt Goldsworthy Leases to submit that, if native title were not extinguished by the grant of the Mt Goldsworthy Leases, these renewals had the effect of wholly extinguishing native title pursuant to s 24IB of the NTA. Section 24IB relevantly provides: A future act is a pre existing right based act if it takes place: (a) in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid (including because of Division 2 or 2A); or (b) in good faith in giving effect to, or otherwise because of, an offer, commitment, arrangement or undertaking made or given in good faith on or before 23 December 1996, and of which there is written evidence created at or about the time the offer, commitment, arrangement or undertaking was made. They submit that this occurs as follows: (a) The renewal of the Leases in 2007 would have constituted a "future act" as defined in s 233 of the NTA. (b) The bases on which a future act can be validly done are set out in ss 24AA(3) and 24AA(4). Section 24AB(2) relevantly determines which provisions apply to the doing of a particular future act. (c) The renewal of the Mt Goldsworthy Leases would fall within the definition of a "pre-existing right based act" under s 24IB which covers acts that take place in exercise of a legally enforceable right created by any act done on or before 23 December 1996 that is valid. (d) Section 24ID(1)(b) sets out the effect of the application of s 24IB to an act. It provides that if the act consists of the conferral of a right of exclusive possession over particular land or waters, the act extinguishes any native title in relation to the land or waters. 187 The applicants disagree that the renewal falls within the classification of a pre-existing right based act under s 24IB that extinguishes native title, or that it could fall within s 24IC. They contend that this would require the renewals to confer rights additional to those conferred by the original leases. Further, they point out that under the NTA, tenure granted by mining leases is excluded from the meaning of exclusive possession. The State submits that s 24IB does not apply to the renewal of grants of exclusive possession leases because the NTA assumes that such grants will have already extinguished native title. It follows that the renewal will not affect native title. In any event, based on my finding above that the grant of the Mt Goldsworthy Leases did not confer a right of exclusive possession, the renewal of such Leases would likewise not have conferred a right of exclusive possession for the purposes of s 24ID of the NTA. 188 It follows that I answer question 1: "no". Question 2: If the grant of the Mt Goldsworthy Leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the Mt Goldsworthy Leases and the Agreement inconsistent with any or all of the bundle of determined native title rights and interests? If the answer is "yes", which ones? The tenement holders' submissions 189 The State and the tenement holders submit that, if the Mt Goldsworthy Leases did not of themselves confer a right of exclusive possession, then a comparison of the rights granted with the native title rights shows that all of the granted rights are inconsistent with the determined native title rights so as to extinguish them in any event. 190 The tenement holders seek to illustrate the lawful rights granted under the Mt Goldsworthy Leases by evidence of what actually happened in the area of the Leases. The tenement holders rely, in particular, on the evidence which demonstrates the following: 1. The right to explore for minerals, exercised over a large area of the Leases and intended to be exercised in the future. 2. The exercise of the right to explore involves disturbing the ground by drilling holes and removing samples and possibly the creation of an exploration camp. 3. The dramatic effect of open cut mining which cannot be said to be anything other than inconsistent with a right to: · 'access and to camp on, the land and waters' or a right to 'take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land'. Apart from the denial of access to the mine whilst being removed, the land was cleared of flora, fish and fauna; and · the lack of access also negated a right to engage in ritual and ceremony or to care for, maintain and protect from physical harm particular sites and areas of significance. 4. The Joint Venturers were permitted lawfully to dump, on the Leases, material extracted that was not ore of saleable quality or the refuse from processing on site. For every tonne of ore there were two tonnes of waste, some of which was used and the remainder stored in waste dumps. Those dumps were in mounds approximately 1.2 metres high by 3 metres wide at the base and prevented entry into the site. The land could not be accessed or camped on while it was used as a dump and any flora, fauna or fish were buried beneath the massive earthen mounds. 5. The use and storage of over-sized mining machinery on the Leases 6. The conduct of ore handling operations, lawfully carried out, involved crushing and screening at a plant, stockpiling then blending the ore and loading it onto trains at the railway. The size of the stockpiles was such that railing of those remaining when mining ceased, took from 22 December 1982 to August 1983. 7. The right to improve the land was unfettered except in relation to approval of proposals by the State. Authorised improvements extended to: · the construction of a railway and roads; · power stations and sub-stations; · radio base and radio antenna; · water wells; · sewerage pumping stations and treatment plant; · workshops and storage yards, bulk fuel storage tanks; · ramps, weighbridges, car parks, offices, workshops; · explosives storage; and · the right to construct quarries and lawfully to quarry rock from the Leases. 8. The right to construct a township and all that it entails, including: · a construction camp; · accommodation for up to 1,400 people; · public services including a shop, medical centre, police station, cinema, petrol station, bank and dining facilities; · social and sporting facilities; · schools; · an administration building; · sewage and refuse sites; and · wells. 191 The tenement holders submit that if a special lease for quarrying is inconsistent with any native title rights (Ward at [356]) then it follows that a lease that permits the conversion of a mountain 132 metres above sea level to a pit 135 metres below sea level is also inconsistent. They contrast the extensive nature of the rights to construct improvements associated with the development of the Mt Goldsworthy Leases with the equivalent rights conferred by a pastoral lease to construct improvements such as a homestead or airstrip which are, of their nature, logically confined to a limited area even if such rights are unconfined by the terms of the grant to a particular number or area. 192 The tenement holders submit that it is inconceivable that the right to construct of such infrastructure is consistent with any of the determined native title rights. At the least, the land could not be accessed while being used for the stated activity. They submit that the diversity, scale and intensity of the permitted activities and improvements and the fact that the area of the Leases was defined as the result of prior exploration indicate that the granted rights are inconsistent with all native title rights. 193 As to the determined native title rights, the tenement holders submit: Access, and to camp on, the land and waters · The right to access, and to camp on, the land and waters is inconsistent with the granted rights to construct services such as roads, railways and schools, construct and use town sites, construct mining facilities and associated industry and the right to mine the land on any part of the mining lease area. In particular, camping and remaining on the land are activities inconsistent with the conduct of significant mining operations. · The right of access is inconsistent and not simply subject to or "prevailed" over by the granted rights. They cannot co-exist. In some circumstances, use of the mining lease areas would require exclusion and prohibition of access and camping on the land by the native title holders. Take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters · As the right of access is inherent in the right to take flora, fauna, fish, water and other traditional resources (excluding minerals) from the land and waters, these rights are also extinguished. · Further, native title rights to resources such as flora and water are inconsistent with rights that include the right to clear land and to construct and distribute water supplies. Engage in ritual and ceremony and the right to care for, maintain and protect from physical harm particular sites and areas of significance to the common law holders · The right to engage in ritual and ceremony are in respect of particular land and areas of significance. These are inconsistent with the right of the Joint Venturers to construct, over the entire area of the Leases, open pit mines, town sites and buildings that would destroy aspects of the natural landscape, including areas of significance to native title holders. · Again, the right of access is necessary to exercise these native title rights. · Neither the fact that the Joint Venturers do not exercise their rights in a way that prevents any continued exercise of such native title rights nor any required preservation of sites of significance under State legislation such as the Aboriginal Heritage Act 1972 (WA) derogate from the rights of the Joint Venturers. The applicants' submissions 194 The applicants submit that no clear and plain intention to extinguish exists in the case of the Agreement Act and the Mining Act 1904. The applicants do not take issue with the tenement holders' submissions as to the type of inconsistency of rights that effect extinguishment of particular native title rights. They submit that it is important to distinguish this from the inconsistent operation of co-existing rights, whereby the rights of the holders of various statutory or other interests may prevail over the rights of the native title holders. They also accept that, as explained by Toohey J in Wik at 126, a complete inability of native title rights to co-exist by virtue of the terms of the granted tenure results in extinguishment. If the two can co-exist, the native title rights will continue and are not extinguished. 195 The applicants acknowledge that native title rights to control access of non-native title holders have been found to be unable, as a matter of law, to co-exist with the rights of others to use the area and not be excluded. They also accept that the right to exclude others, including native title holders, is legally inconsistent with native title holders having the legal right to be there. These contradictory rights cannot, as they acknowledge, both exist at any time or in any place in the relevant area. 196 However, the applicants submit that lesser native title rights can co-exist with rights granted under non-exclusive tenure. In such circumstances, the rights under the tenure merely prevail over the rights of the native title holders where the rights might happen to conflict, such as when there may be a desire to exercise rights at the same place at the same time. They say that this is not a case of legal inconsistency but a matter of the rights of the tenure holder have priority over those of the native title holder when it comes to incompatible exercise. They refer to the analogy of one driver having the right of way over another but there otherwise being nothing legally inconsistent about both having rights to drive down a certain road. These principles are encapsulated, the applicants submit, in s 23G(1)(a) of the NTA. They draw on the example given in Ward of the right to hunt and gather and possibly other native title rights as not being inconsistent with the rights of pastoral leaseholders so as to cause extinguishment. The applicants point out that the High Court in Ward at [308]–[309] expressed the view that similar principles applied in considering mining activities: that the grant of the lease was not necessarily inconsistent with all native title other than the right to control access. 197 The applicants say that the rights granted under the Mt Goldsworthy Leases are not rights to establish permanent or other "improvements" or to carry out activities or constructions that would be "legally inconsistent" with, and extinguish, rather than "merely prevail" over native title rights. They contend that none of the determined native title rights are "legally inconsistent" with the rights under the Mt Goldsworthy Leases. They say that to the extent that the native title rights cannot operate at the same place at the same time as the rights under the Leases, those latter rights prevail over but do not extinguish the native title rights. 198 The applicants point out that the grant of extensive mining rights does not mean that they will all be exercised throughout the tenement areas; where they are exercised, they can prevail over native title rights which cannot then be exercised at those particular places for that time. To support the submission that the rights are not legally inconsistent but can co-exist, the applicants point to the evidence of Mr Coppin and Mr Brown as to the continued exercise of native title rights. They point out that there was scope for the determined native title rights to be exercised outside the particular mining works or a safe distance from them and also scope for the native title rights to be exercised over the mining footprint area before the mining works commenced and after they ceased. 199 The applicants rely on the fact that the town site constructed by the Joint Venturers has now largely been returned to its natural state which, they point out, demonstrates that those constructions were not permanent. It follows, they say, that while native title rights to hunt, camp and so on would have had to yield to the Joint Venturers' exercise of their rights to construct and operate a town on that site, they no longer must do so once the Joint Venturers ceased to exercise their rights. They contend that the right to exclude others from the entire area of the Leases and the extinguishment of most usufructuary native title rights 'are neither necessary nor appropriate'. They also point out that, over large areas of the Leases, there has been no significant construction or work. This also applies to projects identified by the tenement holders, such as proposed mining at Ord Ridley and for magnetite in different parts of the leased area. These proposed sites, the applicants say, cannot extinguish native title now because the condition precedent has not been exercised. 200 Further, the applicants seek to distinguish the Full Court's finding in De Rose that the right to erect improvements granted under the pastoral leases was inconsistent with and therefore extinguished native title rights in respect of the land over which the improvements were constructed. They say that there is a fundamental difference between pastoral leases and mining leases because of the temporary nature of mining leases which are intended to mine a resource which is finite. Whilst pastoral lease improvements are desired as permanent improvements to the land, they say, mining constructions are only temporary structures to facilitate the mining but to be subsequently dismantled and removed, allowing the land to return to as close to its natural state as possible. The applicants submit that the lack of permanence of mining constructions militates against extinguishment of native title rights by mining tenements. Answer 201 I accept the submissions of the tenement holders that the granted rights to construct the mine and the town site, together with the associated infrastructure, and to work and utilise those entities and the land on which they stand, are inconsistent with the continued existence of any of determined native title rights within the areas on which the mines, town sites and associated infrastructure have been constructed (the developed areas). In my view, none of the determined native title rights can co-exist with the rights of the Joint Venturers to construct and work the developed areas of the Leases. The Leases are not pastoral leases; they are mineral leases that were the subject of a special agreement and statute. The rights granted under those Leases to carry out the activities described therein, including the activities that the Joint Venturers were obliged to undertake, are inconsistent with the continued existence of any native title rights over the areas where those activities are carried out. The rights exercised within the developed areas are analogous to rights of exclusive possession. The rights to construct the town site included the right to construct housing and associated buildings and construction necessary for the reasonable use of the town site by the tenement holders and their employees. There was no need for a special lease to effect that construction as the town of Goldsworthy was constructed on the mineral lease area. Where a similar town site, Shay Gap, was constructed outside the leased area, separate tenure by way of special lease was granted. 202 It is not a question of possible co-existence as may be the case with a pastoral lease when comparing the right to hunt and the right to graze cattle, or the right to camp and the right to construct yards to contain stock, or the right to drive down a road. The work carried out on the Leases, accepted as lawful and within the rights granted under the Leases, assists in demonstrating the extent of those granted rights. It is, for example, inconceivable how the Joint Venturers' rights to excavate an open pit mine which has so dramatically changed the landscape, and to control access to the mining area, are consistent with the native holders having a right to camp, take flora and fauna, or engage in ritual and ceremony on the mining area. The Joint Venturers have the right to deny access to third parties over the mineral lease where such access would unduly prejudice or interfere with their operations under the Agreement (cl 9(2)(g)). The rights granted to the Joint Venturers to conduct their operations pursuant to the Agreement were such that they were inconsistent with native title rights existing over the land where the operations occurred. 203 Although the grant of the Mt Goldsworthy Leases did not confer exclusive possession over the whole of the land, the grant conferred rights to construct the mine and the town on the leased areas, as well as the extensive and varied infrastructure detailed above. Such construction of the town would, if not within the leased area, have likely attracted a special lease, as did Shay Gap, which confers a right of exclusive possession. The nature, extent and reasonable use of the town site were inconsistent with the continued existence of the determined native title rights over the town area. 204 It is worth repeating that the High Court in Ward rejected the notion of extinguishment by operational inconsistency by having regard to what actually occurred over time. Inconsistency is determined as at the grant, which is the extinguishing event relied on. This, in turn, involves an examination of the nature of the rights that are able to be exercised pursuant to the grant. In this context, regard can be had to what actually happened on the leased area as an understanding of the rights can properly be informed by evidence of usage (Daniel No 1 at [847] citing Ward at [215]). It is possible that some native title rights may continue to be able to be exercised while others may not (as recognised in Ward at [308]). However, the evidence of Mr Coppin and Mr Brown, as native title holders, of their continued use of the land for certain of the determined native title rights is not relevant with respect to the land on which native title rights have been extinguished. That native title holders, on the facts were, or now are, able to continue to exercise their native title rights does not derogate from the conclusion that a grant has extinguished the native title rights if it is, by its nature, inconsistent with such rights (Ward at [21]). Further, once native title rights are extinguished, they cannot be revived by, for example, discontinuance of usage by the tenure holders or a return of the land to its original state. It is not to the point that the town has now been abandoned. Once extinguished, the native title rights cannot be resurrected. 205 In my view, the applicants' reasoning seeks to enlarge the concept of prevailing rights to such an extent that most granted rights would not operate to extinguish native title rights on the basis that they can merely prevail over those native title rights. It is important to note that the fundamental question is whether the granted rights and the native title rights are inconsistent and not whether one can prevail over another. A reverse analysis may result in every possibility of inconsistency between two sets of rights being answered by the fact that the granted rights can merely prevail over the native title rights. 206 I do not accept the applicants' submission that the rights granted by Mt Goldsworthy Leases did not extinguish native title rights because of the lack of permanence of the mine and the town site works and the fact that the developed areas have been returned to their natural state. In the developed areas where the Joint Venturers have exercised their rights, it is their rights which cannot co-exist with the determined native title rights. Once such inconsistency occurs so as to extinguish the native title rights, it is not relevant that the resources being mined are finite or that the mine and the town are later abandoned. 207 Further, for the applicants to submit that a special lease for quarrying extinguishes native title because the special lease entitles the leaseholder to exclude native title holders from the land irrespective of the transience of the activity or the length of the lease but then to rely on the "impermanent nature of mining leases" as a reason for the "suppression" (or "yielding")of native title only for as long as the lessees continue their activities is not, in my view, logical. This is particularly so as the distinction ignores the permanent nature of the effect of open pit mining and the High Court's clear statement that, once extinguished for inconsistency, native rights cannot be revived. This also applies to the applicants' submission that native title rights over the town site can be revived, even if they were directly in conflict with the rights pursuant to which the town was built. In any event, the fact that the town site has been abandoned is not evidence as to the intention or likelihood of its permanence on construction. 208 Nonetheless, I do not consider that the rights granted by the Mt Goldsworthy Leases are inconsistent with the continued existence of the determined native title rights in those parts of the Leases which are not affected by the developments carried out pursuant to the Leases and the Agreement. I consider that the reasoning of the Full Court in De Rose is applicable in the present case and as discussed above, also logical in its application of the principles in Ward. Like the pastoral leases in De Rose, the Mt Goldsworthy Leases did not confer exclusive possession on the Joint Venturers but gave them rights to conduct certain activities on the leased area. I have found that these rights are inconsistent with the continued existence of the determined native title rights in the areas where they have been exercised, namely, the developed areas. However, the fact that the Joint Venturers have a choice about where on the leased area to exercise their rights does not mean that such rights are necessarily inconsistent with the existence of the determined native title rights over the whole of the leased area. As in De Rose, the grant of the rights under the Mt Goldsworthy Leases became operative to extinguish native title rights on particular parts of the leased area when the granted rights were exercised, because it was only then that the precise areas of land affected by the right could be identified (De Rose at [156]). 209 In my view, the tenement holders continue to have the rights as provided for in the agreement to explore and ascertain appropriate sites for new mines and infrastructure. If such development occurs, native title will have been extinguished once the land on which that development occurs is identified. As to the evidence of potential sites for future mining and development, the tenement holders have exercised their right to explore for such sites on the leased area. That evidence is relevant to a determination of whether such a right to explore, as exercised, is inconsistent with and extinguishes the determined native title rights, which it does not. The tenement holders and the State have not submitted that, if there is no exclusive possession, the work described in the evidence of Mr Nag and Mr Podmore as to the identification of possible future mines is sufficient to extinguish native title. If the decision is made to proceed with those new mines and is permitted under the terms of the Agreement, there would be the relevant inconsistency and the determined native title rights would be extinguished over the land so developed. To the extent that infrastructure similar to that described in relation to the Goldsworthy project is constructed, the determined native title rights would be extinguished. It would remain for determination if any of the rights as exercised pursuant to the Agreement in relation to parts of any new development were such as merely to prevail over native title rights. Question 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? 210 The applicants submit that the answer to this question is "no" but that, where there is incompatibility, the Joint Venturers' rights prevail over the determined native title rights. For the reasons set out above, this does not adequately address the consequence of inconsistent rights. If inconsistency is found then the relevant native title right or interest is extinguished. 211 Rights that are extinguished cannot be revived. Subsequent exercise or non-exercise by either the applicants or the Joint Venturers of their respective rights is not relevant. 212 I answer question 3: "yes". It follows from my answer to question 2 that the determined native title rights have been extinguished in the developed areas. I will clarify the relevant areas in the answer to question 5. Question 4: Was native title wholly extinguished to the area (or part of the area) of the Mt Goldsworthy Leases through the rights as exercised under the Mt Goldsworthy Leases and the Agreement? 213 The applicants submit that the answer is "no". 214 The tenement holders answer questions 3 and 4: "yes". 215 The State points out that native title would have been extinguished to the extent of its inconsistency with the rights granted to the Joint Venturers. The State adds that, to the extent that the reference to "part of the area" is a reference to the extinguishment of native title as a result of improvements and infrastructure in the manner set out in De Rose, the answer to question 4 must be "yes". 216 The State's interpretation of questions 4 and 5 is that they assume that the extinguishment of native title by an inconsistent right is inchoate or ineffective until the right is actually exercised and is limited to the area of that exercise, based upon De Rose and King. As acknowledged in King, this would necessitate a fresh determination each time the holder of the inconsistent right proceeds to exercise it over a particular area. This is because, on this reasoning, extinguishment does not occur on grant but on the exercise of the inconsistent right. This does not, however, necessitate fresh determinations. Extinguishment of native title occurs in respect of any of the lease area over which the Joint Venturers (now being the tenement holders) exercise the granted rights to mine, construct a township and associated infrastructure. It may be that some rights, as exercised over a previously undeveloped part of the Leases, could co-exist with some or all of the determined native title rights. If that question arises and a fresh determination must be made, it is a consequence of the reasoning in Ward and De Rose. 217 The determined native title rights were wholly extinguished by the rights as granted under the Mt Goldsworthy Leases, over the areas on which the rights were exercised. Those affected areas within the leased area were not identified in the Mt Goldsworthy Leases or the State Agreement but, on exercise, could be identified. 218 It follows that for the purposes of the preliminary questions, the answer to question 4 is: "yes". Question 5: If the answer to (4) is "yes", in which areas has native title been wholly extinguished? 219 The relevant area is the whole of the area of mines, any area on which infrastructure has been constructed and the town sites (De Rose at [146]–[157] and [166]). 220 In answer to this question, the applicants repeat its earlier submissions that the mines and infrastructure, when constructed, simply prevail over native title while placed there and that there is no extinguishing inconsistency. The applicants submit that the Full Court in De Rose misunderstood the principles of inconsistency when it considered the precise area of the improvements. They submit that the Full Court confused legal inconsistency of rights of the kind that extinguish native title and an inconsistency whereby conflicting rights cannot be exercised at the same time in the same place, in which case the rights of the tenure holders prevail. At most, the applicants accept that it follows from De Rose that there was extinguishment over the pit area, as an area intended to be permanent and that, if the town had remained after the expiry of the Lease and had satisfied the tests in s 245(3) of the NTA, there would have been extinguishment of native title over the town area. 221 The parties agree that the High Court has not endorsed a principle of "operational inconsistency" that results in extinguishment of native title. The applicants submit that, as the High Court in Ward rejected concepts of degrees of inconsistency, in that rights are either inconsistent or they are not, extinguishment must refer to more than the mere inability to exercise both rights at the same time and for one to prevail over the other. Extinguishment must, logically they say, refer to legal inconsistency between the natures of the rights at the time of the grant. 222 The applicants submit that there is not a difference in kind between the right to run cattle over a pastoral lease and the right to construct long standing improvements and submit that as the former do not extinguish native title, neither do the latter. 223 However, the applicants also submit that there are important distinctions between pastoral leases and mining tenements. As discussed above, they say that pastoralism was seen as a means of utilising and improving the land over the long term rather than for a particular project for the limited term of a commercially mined mineral deposit. A mine is meant to be rehabilitated afterwards and the land restored to as close to the original state as possible, so it is should not be seen as an improvement to land. They submit that infrastructure that could be seen as an improvement to the land could be, and were envisaged to be, constructed on different tenures. If such construction did extinguish native title, the applicants submit that the extinguishment should be confined to the type of improvement that is intended to be significant, permanent or at least longstanding structures. It should also not, they say, extend to improvements capable of being used by native title holders once the mining tenement ceases and should not extend to any "buffer zone" unless such zone was necessarily the subject of exclusive use. 224 The applicants differ from the Full Court in De Rose in the interpretation of the NTA and the relationship between s 23G(1)(b)(i) and s 44H(c). They contend that the latter section is concerned with the situation where a lease or licence does not extinguish native title rights but where the carrying out of an activity pursuant to that lease or licence prevails over them. The Full Court at [159]–[162] considered that the right to construct improvements was not affected by s 44H(c) but the use of the land for activities necessary or incidental to constructing improvements would prevail because of that section. The applicants submit that the De Rose decision in this regard can and must be distinguished in this case and limited to its own particular facts. 225 I reject the applicants' submissions for the same reasons I have discussed above. As I consider that the granted rights are inconsistent with and therefore extinguished the determined native title rights over the developed areas, it is not relevant whether the constructions were permanent or that they could be used by the native title holders after the mining tenements cease. 226 The tenement holders submit that, on the basis that mines, infrastructure, processing and industry and town sites could have been constructed anywhere on Mining Area A and B, native title has been wholly extinguished over the whole of Mining Area A and B. For the reasons set out in my answer to question 2, I have rejected this submission. As an alternative, they submit that if De Rose is applied, native title has been extinguished over the whole of the area of mines and any area on which infrastructure and town sites have been constructed, together with any buffer zones over which exclusive use is necessary for or incidental to the operation or enjoyment of the improvements (De Rose at [166]; King at [161]-[165]). I accept the tenement holders' alternative submission. 227 The tenement holders submit that if the answer to question 4 is "yes", then native title has been extinguished over the area described in Exhibit C-M3 as the "Goldsworthy Area of Interest". The State agrees with the position of the tenement holders in this respect if I find, as I have, that the reasoning in De Rose is applicable. 228 The Goldsworthy Area of Interest shown in the map M3 of Exhibit C is a polygon which encloses the mine area, the township, the golf course and airstrip of the old Goldsworthy mine. The polygon was created using historical maps and photographs. There has not been any dispute that the Goldsworthy Area of Interest accurately represents the area where the mines, town site and associated infrastructure were constructed, probably together with necessary buffer zones. On this basis, I consider that the determined native title rights have been extinguished over the area described as the Goldsworthy Area of Interest. CONCLUSION 229 Question 1 is: Did the grant of the Mt Goldsworthy Leases pursuant to the Mt Goldsworthy 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? The answer to question 1 is: "No". 230 Question 2 is: If the grant of the Mt Goldsworthy Leases did not confer exclusive possession so as to extinguish any native title rights and interests, are the rights granted pursuant to the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement inconsistent with any or all of the bundle of native title rights and interests recognised in [5] of Annexure A of the determination of native title in Brown No 1? If the answer is "yes", which ones? The answer to question 2 is: "Yes". The rights granted pursuant to the Mt Goldsworthy Leases and the Agreement are inconsistent with the continued existence of any of the determined native title rights in the area where the mines, the town sites and associated infrastructure were constructed. The granted rights are not inconsistent with the continued existence of any of the determined native title rights in those parts of the relevant claim area which have not been developed in exercise of the rights under the Leases and the Agreement. 231 Question 3 is: 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? The answer to question 3 is: All of the determined native title rights in respect of the developed areas are wholly extinguished. 232 Questions 4 is: Was native title wholly extinguished to the area (or part of the area) of the Mt Goldsworthy Leases through the rights as exercised under the Mt Goldsworthy Leases and the Mt Goldsworthy State Agreement? The answer to question 4 is: "Yes". 233 Question 5 is: If the answer to (4) is "yes", in which areas has native title been wholly extinguished? The answer to question 5 is: the areas of the mine, the town sites and associated infrastructure, which is the Goldsworthy Area of Interest as described in Exhibit C-M3. I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 29 July 2010