In a recent decision concerning the relationship between mineral leases in Western Australia and native title rights and interests, the High Court overturned an earlier decision of the Full Federal Court.  The High Court held that “inconsistency” between native title and non-native title rights and interests is determined by the interests granted not the interests exercised, and extinguishment occurs at the time of the grant of the non-native title interest.  This decision provides greater certainty for parties involved in native title proceedings.

State of Western Australia v Brown [2014] HCA 8

The holders of two mineral leases originally granted in 1966 and 1974 claimed that the successive exercise of rights under the leases, including the construction of a mine and township, resulted in the extinguishment of all native title rights and interests within the area of the leases.

The High Court found that this claim depended on a notion of “contingent extinguishment”, meaning extinguishment of native title by some action after the original right is granted (such as the construction of a township some time after the original mineral lease is granted).  The High Court rejected the idea of “contingent extinguishment” and instead held that extinguishment is a question of fact and not of law, is determined by the actual rights granted and not how those rights are exercised, and occurs at the time of the grant.  This decision overturns the earlier decision of the Full Court of the Federal Court in De Rose v South Australia (No. 2) [2005] 145 FCR 290.

What does this mean for you?

This decision of the High Court provides more certainty for parties involved in native title proceedings.  It is now clear that the relationship between native title interests and non-native title interests (including mineral leases, such as those considered in the Brown case, or pastoral leases such as those considered in the De Rose case) is determined by an assessment of the actual rights granted and not how those rights might or might not have been exercised in intervening years.

This article is for general information purposes only and does not constitute legal or professional advice.  It should not be used as a substitute for legal advice relating to your particular circumstances.  Please also note that the law may have changed since the date of this article.